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Having practiced as a prosecutor and defense attorney for decades, I thought that Hanna Liebman Dershowitz’s column, “Our Country Grapples With Deepest Challenges Around Sentencing,” raises important questions about incarceration as a sentence. However, her reference to Biblical law is puzzling at best. Ms. Dershowitz claims that “in Biblical law, there is no such punishment as incarceration because of the inhumane collateral damage it wreaks.” While I claim no expertise in Biblical law, even a cursory review of punishment in the Old and New Testaments reveals that many Biblical figures, including Jesus, Samson and Joseph of the coat of many colors, were incarcerated either as a prelude to or a substitute for a harsher punishment. Further, capital punishment was prescribed for such conduct as cursing at one’s parents, picking up sticks on the Sabbath, and worshiping Baal, and rotting in hell was thrown in for good measure in some cases. Corporal punishment, such as loss of a body part, was also part of the punishment matrix. At least based on the numerous examples in the Bible, it looks like incarceration was not avoided because of the fear of inhumane collateral damage, but because of the belief in harsher punishment. So while there are numerous sentencing alternatives to incarceration, reference to the Bible is probably not the most promising approach.

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