Freedom of No Speech

You’ve probably heard about Ilya Shapiro’s fateful visit to my home institution last year, when my students shouted him off the stage because of his ill-conceived public posts about diversity in the judiciary. The incident, as I expected, played right into Shapiro’s hands, resulting in posts, public speaking engagements, and even a book. Anyway, we did some thinking about what our educational mission is and how exposure to diverse viewpoints improves our students’ lawyering skills, and invited Shapiro to come back to campus. This time, he was interviewed and listened to, and my terrific colleague Emily Murphy, the rightful recipient of our teaching award this year, with quiet logic and incisive questions, showed him for the unserious person that he is. It was a triumph of what free speech can accomplish that shouting cannot.

Shapiro might or might not have come to regret his silly tweets, but in today’s Free Press, Kat Rosenfield writes about how the pendulum has swung from shrill mob hit jobs on people because of things they posted in high school to venerating them for the vile things they spewed. She observes:

[O]ne of the worst things about the peak woke years was progressives’ insistence that not only should speech come with consequences, but that those consequences should be maximally punitive, with no possibility of redemption.

This led to an equal and opposite consensus among the MAGA folks that offensive internet posts should merit no consequences whatsoever, and perhaps should even be celebrated for triggering all the right people, which is to say, people on the left.

Which is fine, if you want to live in a world where the discourse is permanently dominated by shrieking authoritarians on one side and smirking edgelords on the other. In this world, the only difference between being an internet folk hero and being canceled to death is whether the current White House occupant is a Democrat or a Republican. It’s a world where we are all being driven slowly insane by perpetual exposure to the inner brainworkings of people who cannot tell the difference between a thought you should broadcast on the public internet versus one you should leave unexpressed—or at least keep confined to the relative privacy of a group chat.

I used to say in public talks that the right to say no to unwanted sexual conduct should also encompass the right to say yes. And I’ve come to believe that this two-way-street is true for speech, too: in the same way that the right to religion encompasses the freedom *from* religion, the right to speak also folds in the right to freedom *from* speech.

After years of punditry, etc., done in my area of expertise as an academic (including, as regular readers recall, almost daily TV spots during Trump’s first term), and thankfully without any major scandal or public degradation, I got pretty tired of hearing my own voice and of the deleterious effects on my life, and left social media (I left Twitter years ago, and left Facebook recently, and explained why here). The effect was prodigious – my quality of life improved manifold. It’s incredible to realize how little value the platforms offered me, how enriched my life is by freeing time for family, sports, music, academic obligations, and talmud study, how–slowly but surely–my cognitive capacity and concentration are returning, and how I can engage and be present for my students when I don’t have strangers’ bloviation clouding my mind. It’s amazing how clear I can be during meditation or prayer (hey, work of a lifetime, but noticeable progress). It’s amazing how absorbing arguments in a naturally paced manner allows me to control my temper, be more thoughtful, and respond in measure, sensible tones. True freedom.

I don’t know how I can convey to my students, who are in their early twenties, the wonderful gift of thinking your thoughts quietly to yourself and discussing them in person with your family and friends to the extent that you’re interested in doing so. Not just because of the public square ugliness, the fear of excoriation, etc., but because there is such beauty in the silence of having that thought rattle in your head, examined against evidence, and subjected to patient debate with people who care about you and about what you think.

I still make public appearances, but I’m pretty selective about who I talk to, how, and about what. I think my op-eds during the pandemic were important for changing a pretty destructive public tide. I gave them a lot of thought and put work into crafting them so that the message would make sense and find receptive minds. That’s the sort of thing I hope to cultivate in the second half of my professional life.

Blasphemy and Courtroom Decorum: b.Sanhedrin 56

There’s a terrific moment in the To Kill a Mockingbird trial in which Judge Taylor says:

There has been a request that this courtroom be cleared of spectators, or at least of women and children, a request that will be denied for the time being. People generally see what they look for, and hear what they listen for, and they have the right to subject their children to it, but I can assure you of one thing: You will receive what you see and hear in silence, or you will leave this courtroom, but you won’t leave it until the whole boiling lot of you come before me on contempt charges. Mr. Ewell, you will keep your testimony within the confines of Christian English usage, if that is possible.

The protective idea that some things are not fit for women and children to hear, that some things are unutterable in court, is not new. It’s interesting to wonder what it is that the court would have been concerned about. For one thing, there’s the potential that inflammatory stuff can skew and bias public opinions in ways that can undermine a fair trial, but that usually applies to pretrial stuff, when a jury hasn’t been impaneled yet; recently, following the Kohberger trial, I listened to a litany of complaints from media personalities who resent the fact that big chunks of the pretrial transcript and motions have been sealed. In that case, it was done to prevent fanning the flames of public opinion and polluting the jury pool. But what about content from the trial itself?

This is the topic of Sanhedrin 56, which blissfully interrupts the crass talk of yesterday’s daf to discuss procedure. We receive a lot of instruction about the use of euphemisms in open court. The mishna says:

בְּכׇל יוֹם דָּנִין אֶת הָעֵדִים בְּכִינּוּי, ״יַכֶּה יוֹסִי אֶת יוֹסִי״. נִגְמַר הַדִּין, לֹא [הָיוּ] הוֹרְגִין בְּכִינּוּי, אֶלָּא מוֹצִיאִין כׇּל אָדָם לַחוּץ. שׁוֹאֲלִין אֶת הַגָּדוֹל שֶׁבֵּינֵיהֶן וְאוֹמֵר לוֹ: ״אֱמוֹר מַה שֶׁשָּׁמַעְתָּ בְּפֵירוּשׁ״. וְהוּא אוֹמֵר, וְהַדַּיָּינִין עוֹמְדִין עַל רַגְלֵיהֶן וְקוֹרְעִין, וְלֹא מְאַחִין. וְהַשֵּׁנִי אוֹמֵר: ״אַף אֲנִי כָּמוֹהוּ״, וְהַשְּׁלִישִׁי אוֹמֵר: ״אַף אֲנִי כָּמוֹהוּ״.

In other words, at a blasphemy trial, when describing what they heard, the witnesses are supposed to use the euphemism Yosei for God, because YOSE and YHVH both have four letters. The court is then emptied, only one witness repeats the explicit stuff, and the others say, “me too,” as not to compound the offense. The judges tear their garments in mourning, to make it performatively clear that the court (and the witness) are not complicit with the blasphemy.

They now turn to discuss the elements of blasphemy: is it merely uttering the name or cursing it. A long intertextual journey proceeds, which riffs off the root נקב, which can mean to punch a hole or to spell out something explicitly. The reliance on the double meaning of the root is pretty ingenious, because the argument then goes like this: you can only punch a hole once–just like you can only utter one version of the explicit divine name–whereas you can curse many times (meaning, the use of נקב is the equivalent of uttering the name). But then, another sage says, but you could use two different sacred names – it’s like repeated punching. Another principle of interpretive logic is that the biblical text says, “oust the curser” (הוֹצֵא אֶת הַמְקַלֵּל), rather than “oust the utterer and the curser” (הוֹצֵא אֶת הַנֹּקֵב וְהַמְקַלֵּל), implying that in this context נקב and קלל mean the same thing.

Then, they address something I would have never thought would be an issue: whether non-Jews can also be criminally prosecuted for blasphemy. My two cents: this makes no sense! It’s not their god! But the sages are preoccupied with the fact that many biblical sources use the term אִישׁ (man) in a universal sense, to apply to any person of any religion or ethnicity. Rabbi Miyasha deduces this principle from the use of the term כַּגֵּר כָּאֶזְרָח (the rule for the foreigner is the same as the rule for the citizen). Rabbi Meir, however, says that this equation only applies to converts, not to foreigners. Interestingly, even those who think that the blasphemy prohibition applies to foreigners, distinguish in terms of the sentence.

Which is a good segue for the rabbis to move on to discuss other obligations that bind people universally, not all Jews – mainly issues stemming from the Seven Mitzvot of the Sons of Noah. The rabbis expound upon, and expand, the reach of these requirements, drawing some boundaries between Jewish specific issues (e.g., the right to wear objects from two types of textile) and universal issues (such as kicking one’s wife out of the house). The distinctions ring a lot like the modern distinctions between mala in se and mala prohibita, except for a universal prohibition on witchcraft, particularly seances and child sacrifice. The argument goes back to Adam, who was under the sole prohibition of refraining from idol worship.

To end on a jovial note, the recently late Yehonatan Geffen has a fantastic novel called Milk Teeth, in which he describes his childhood in the Nahalal village. The opening scene sees the protagonist, a school boy, use the word “Jehovah” in school and being called into the principal’s office, or the teacher’s lounge, where the teachers excitedly discuss his transgression to his face, incessantly repeating, “he said Jehovah! He said Jehovah!” The only secular equivalent I can think of is the person who “replies all” to an email, saying, “please do not reply all.”

A Rare Moment of Good Taste: b.Sanhedrin 55

Yesterday’s daf, and the one that preceded it, saw the sages hard at work getting into the nitty gritty details of various behaviors they saw as sexual perversions meriting stoning. Today’s page continues in this vein, and honestly, I’m going to spare you all the details of the first few insights on the topic, which I read so that you don’t have to. Suffice to say, there’s some conversation comparing the sentences for attempted sexual assault to completed sexual assault, and the distinctions they make are everything you would expect from a group of old men debating this in a particularly crass locker room circa 400 CE. But then there’s a rare moment of redemptive good taste:

בְּעָא מִינֵּיהּ רַב אַחָדְבוּי בַּר אַמֵּי מֵרַב שֵׁשֶׁת: הַמְעָרֶה בְּעַצְמוֹ, מַהוּ? אֲמַר לֵיהּ: קְבַסְתַּן!

In other words, Rav Aḥadevoi bar Ami asked Rav Sheshet about the appropriate sentence for someone who attempts to engage in sexual activity with himself, and Rav Sheshet exclaims: Ewwwww! You’re gross! You make me barf! Not to worry, this refined sentiment fades fast, and they get straight to it (namely, whether it is possible, and how, etc.) Amazingly, the scenario that grossed Rav Sheshet out is pretty tame compared to all the other scenarios floated about and expounded upon in this daf, but I was encouraged to see a brief respite from the locker room talk.

One thing that did catch my eye about this daf, without too much elaboration, is that abusing animals here is not seen through the lens of צער בעלי חיים – the care for the animal’s pain and suffering – but through the lens of defilement, where the poor animal is being portrayed as complicit. The question arises whether, when a person is stoned to death for abusing an animal, the animal itself must also be killed–and not as euthanasia to prevent further suffering, but:

שֶׁלֹּא תְּהֵא בְּהֵמָה עוֹבֶרֶת בַּשּׁוּק וְיֹאמְרוּ: ״זוֹ הִיא שֶׁנִּסְקַל פְּלוֹנִי עַל יָדָהּ״.

You see, they don’t want the poor animal to pass through the market and to have people say, “this is the animal due to which so-and-so was stoned.”

You’ll forgive me, but I think I’m pretty done with Sanhedrin 55. We’ll continue with this tomorrow.

And Here Are Those to be Stoned: b.Sanhedrin 53-54

I’m a couple of weeks into this project (estimated completion date: late 2031), and it’s only now dawned on me that there is a daf yomi on Shabbat as well. It turns out that Orthodox folks do study their daf on Shabbat, in the afternoon, at the yeshiva, before coming home for the havdala meal that ends the Sabbath and starts the meal. Since my Saturdays are packed with the holy study of children’s soccer and age-group swimming, I think I’ll try and pack two pages on Fri or on Sun (as we’re going to do today) to stay with the universal schedule.

Also, I realize that a daf yomi for folks who are into criminal justice, cynical asides, and presentist commentary, is a really niche endeavor (if you are among the three people who might want this to be a podcast, please pipe up! but I’m not holding my breath). So, for readers who are not into Talmud at all and want to read more about the criminal process, prisons, etc., I’m going to continue blogging on all those topics of course–you can just select the categories and tags you want, or simply click on posts that are relevant to you. 🙂

Anyway, having to bunch up pages 53 and 54 is not necessarily a bad thing, as the content itself is so crass and distasteful that I am going to opt out of most of the offensive, nitty-gritty details. Generally speaking, we’ve now turned to the fourth method of execution–stoning–and the sages are examining the long list of crimes that merit this horrific punishment and discussing the minutiae. The enthusiasm for intimate details of incest is quite the turn-off, as is the oft-maligned, and with good reason, discussion on prohibited same-sex sexual activity and the offensive analogies to bestiality. The Leviticus verses about this stuff are such a hurdle for many people who would otherwise find a lot of beauty and wisdom in scripture that there is much gnashing of teeth and creative interpretive efforts, etc., not to mention folks who turn their backs on their Judaism entirely. Here in the Bay Area there is abundant creative energy devoted to make sure that queer folks feel comfortable and at home in their religious community–at my home congregation, Sha’ar Zahav, our rabbi has articulated a vision according to which “there are other places to be LGBTQI and Jewish, but only one place where those identities are normative, celebrated, and guide the community.  Near the new tapestries at the front entrance featuring stories of community members is a bright display of t-shirts, rainbow Judaica including mezuzot, tallitot and kippot, queer ketubot and books written by members LGBTQI and straight, and others featuring LGBTQI Jewish themes, demonstrating that this is the Jewish, queer normative space in the Bay Area where a diverse rainbow of people join together to create one, vibrant community.” Svara, a queer beit midrash, invites queer and trans people to “fall in love with your tradition” and invite their creativity to make a home for themselves in the text. It’s hard to ignore, though, the struggles and suffering brought about by these archaic verses and tractates in mainstream Orthodox communities; gay friends who left Orthodox homes have truly scarring experiences to share.

My approach to this talmudic content is not very creative or sophisticated or ornately conciliatory, but I think it does the job: the folks who said, wrote, and redacted this stuff were men of their time, with opinions of their time, which they considered pious but which I, as a person living in the 20th and 21st centuries, find loathsome, and therefore we should feel no need to excuse, creatively explain, or discuss. One of my liturgical heroes, Marcia Falk, introduced a wealth of human-centered, gender-transcending metaphors for divinity, and innovated blessings that put the focus on people doing the right thing in the real world, and had this to say about Orthodox critics:

And when, as inevitably will also happen, critics question our authenticity, deny our right to call our creativity and our creations Jewish, we-the members of the feminist-Jewish communities that help comprise klal yisrael, “the community of Israel”-need to remind them that Jewish prayer, like all of Jewish practice and belief, all of Jewish life, has never been finally “fixed”; rather, it has evolved, adapted, and changed throughout Jewish history. It is only recently, in fact, that the Hebrew liturgical tradition has ossified; it is not too late, we hope, to revive it. As we compose new prayers today to affirm diversity within unity, to express our visions of a true monotheism and our dedication to tikkun olam, repair of a fragmented world-as we compose and say such prayers, we place ourselves firmly in the tradition-a tradition that is still, always, in the process of becoming. We need to remind our critics, and ourselves, that tradition is not just what we inherit from the past; it is also what we create and pass on to the future.

One of our first assignments in rabbinical school involved creating a spiritual biography of sorts for ourselves, and what stood out for me, among other things, is how at every junction in which I wanted to take ownership of Jewish law, talmud, or other Jewish scholarly endeavors that I enjoy and have an aptitude for, all I encountered was orthodox, kippah-wearing men as the keepers of knowledge. This is not to say anyone necessarily stood in my way, but there’s a literacy that comes with growing up an Orthodox boy in a yeshiva that is very, very hard to acquire later in life, especially if one is trying to balance rigorous education with values that are not shitty. I’m working hard to acquire this literacy, and am very grateful that the program is rigorous, but that doesn’t mean that I have to apply this rigor to bits of scripture that are best left on the dung heap of irrelevant material in the Year of Our Lord 5875.

I will say this, though: the talmud didn’t corner the market on unpleasant discussions of sexual behavior. Modern, secular legal systems do this every day when defining sex crimes and when outlining the consequences of deviant sexual behavior. Heaps upon heaps of legal scholarship are devoted to the question of elements of rape and their applications to particular scenarios. Every legal system has to make complicated decisions about what it recognizes as sexual taboos; as late as the 19th century, incestuous marriage norms among royals in Hawaii, for example, clashed against missionary ideas of proper behavior, and the tragic story of princess Nahi’ena’ena is a case in point. There still is considerable regional and national variation regarding the laws of cousin marriage, a prohibition that does not, as it turn out, stem from genetic concerns. Jane Austen’s Mansfield Park ends in a marriage between first cousins. We are still constantly tracing and blurring the lines of what conduct should and should not lead to sex offender registration, and we’re still living down the disgrace of coming up with laws and enforcement strategies that target strangers while ignoring the much more common–and tragically underreported–occurrence of sexual abuse within the family or a circle of friends.

Anyway, here goes. The mishna lists the people who face stoning:

הַבָּא עַל הָאֵם, וְעַל אֵשֶׁת הָאָב, וְעַל הַכַּלָּה, וְעַל הַזְּכוּר, וְעַל הַבְּהֵמָה, וְהָאִשָּׁה הַמְּבִיאָה אֶת הַבְּהֵמָה. וְהַמְגַדֵּף, וְהָעוֹבֵד עֲבוֹדָה זָרָה, וְהַנּוֹתֵן מִזַּרְעוֹ לַמּוֹלֶךְ, וּבַעַל אוֹב וְיִדְּעוֹנִי, וְהַמְחַלֵּל אֶת הַשַּׁבָּת, וְהַמְקַלֵּל אָבִיו וְאִמּוֹ, וְהַבָּא עַל נַעֲרָה הַמְאוֹרָסָה, וְהַמֵּסִית, וְהַמֵּדִיחַ, וְהַמְכַשֵּׁף, וּבֵן סוֹרֵר וּמוֹרֶה.

The gemara’s mission on pages 53-54 is to fully examine the particular circumstances of each of these scenarios, trying on for size different arguments for what, precisely, is severe or taboo about the particular behavior. For example, does the recoil from a person who sleeps with his mother come from the fact that she’s his mother, or from the fact that she’s his father’s wife? Abaye says the former:

אָמַר אַבָּיֵי: דְּאָמַר קְרָא ״אִמְּךָ הִיא״. מִשּׁוּם אִמּוֹ אַתָּה מְחַיְּיבוֹ, וְאִי אַתָּה מְחַיְּיבוֹ מִשּׁוּם אֵשֶׁת אָב. אֶלָּא מֵעַתָּה, ״עֶרְוַת אֵשֶׁת אָבִיךָ לֹא תְגַלֵּה עֶרְוַת אָבִיךָ הִיא״, מִשּׁוּם אֵשֶׁת אָב אַתָּה מְחַיְּיבוֹ, וְאִי אַתָּה מְחַיְּיבוֹ מִשּׁוּם אִמּוֹ? אֶלָּא אִמּוֹ שֶׁהִיא אֵשֶׁת אָבִיו, קָאֵי הָכָא וּמְמַעֵט לַהּ, קָאֵי הָכָא וּמְמַעֵט לַהּ. הַשְׁתָּא, אִמּוֹ שֶׁאֵינָהּ אֵשֶׁת אָבִיו – מִיחַיַּיב, אֵשֶׁת אָבִיו שֶׁאֵינָהּ אִמּוֹ – מִיחַיַּיב, אִמּוֹ שֶׁהִיא אֵשֶׁת אָבִיו – לָא מִיחַיַּיב כְּלָל?

but this requires addressing Rav Ika’s question whether sleeping with one’s daughter-in-law is taboo because she’s a daughter analog or because she is the wife of one’s son:

אֶלָּא אָמַר רַב אַחָא בְּרֵיהּ דְּרַב אִיקָא: אָמַר קְרָא ״עֶרְוָתָהּ״, מִשּׁוּם עֶרְוָה אַחַת אַתָּה מְחַיְּיבוֹ, וְאִי אַתָּה מְחַיְּיבוֹ מִשּׁוּם שְׁתֵּי עֲרָיוֹת. אֶלָּא מֵעַתָּה: ״עֶרְוַת כַּלָּתְךָ לֹא תְגַלֵּה אֵשֶׁת בִּנְךָ הִיא לֹא תְגַלֶּה עֶרְוָתָהּ״ – הָכִי נָמֵי מִשּׁוּם עֶרְוָה אַחַת אַתָּה מְחַיְּיבוֹ וְאִי אַתָּה מְחַיְּיבוֹ מִשּׁוּם שְׁתֵּי עֲרָיוֹת?

Because the current explanation for these taboos–genetic defect potential–was not, obviously, available two thousand years ago, one possible avenue to understand this logic is through the Freudian explanation of incest taboos, which ascribes the honoring of ancestors as an extension of honoring the clan’s totem. Freud thinks that limitations on marriage within the clan stem from concerns that people will be tempted to personify the totem, kill their ancestors, and take their wives for themselves. Some of the terminology in this tractate, which uses the term עֶרְוַת אֵשֶׁת אָבִיךָ as an extension of עֶרְוַת אָבִיךָ, seems to suggest this sort of Freudian consideration. Eventually, though, the logical argument wins: the prohibition on sleeping with your mother comes from the fact that she’s your mother, whereas the prohibition on sleeping with your father’s wife is in place for scenarios involving a father’s wife who is not your mother:

מָה בְּאַזְהָרָה עָשָׂה הַכָּתוּב אִמּוֹ שֶׁאֵינָהּ אֵשֶׁת אָבִיו כְּאִמּוֹ שֶׁהִיא אֵשֶׁת אָבִיו, אַף בְּעוֹנֶשׁ עָשָׂה הַכָּתוּב אִמּוֹ שֶׁאֵינָהּ אֵשֶׁת אָבִיו כְּאִמּוֹ שֶׁהִיא אֵשֶׁת אָבִיו. ״אִמְּךָ הִיא״ – מִשּׁוּם אִמּוֹ אַתָּה מְחַיְּיבוֹ, וְאִי אַתָּה מְחַיְּיבוֹ מִשּׁוּם אֵשֶׁת אָב.

One of the interesting things about this stuff is the sages’ variance of opinions about the need to find a rationale for a sexual transgression. Some seem to believe that each incest prohibition has to have one, or at least one dominant, reason; others consider the fact that people can ransom themselves from death with a money offering, and therefore *can* be liable for the same transgression twice. Here’s an example:


וְרַבָּנַן, ״עֶרְוַת אָבִיךָ״ – מַמָּשׁ. הַאי מִ״וְּאֶת זָכָר״ נָפְקָא? לְחַיֵּיב עָלָיו שְׁתַּיִם. וְכִדְרַב יְהוּדָה, דְּאָמַר רַב יְהוּדָה: נׇכְרִי הַבָּא עַל אָבִיו – חַיָּיב שְׁתַּיִם, הַבָּא עַל אֲחִי אָבִיו – חַיָּיב שְׁתַּיִם.

These folks, as mentioned above, considered same-sex intercourse a sexual offense. A man who sleeps with his father is thus liable twice: for the incest and for the same-sex intercourse.

This line of thinking reminds me of an oldie-but-goodie case from the double jeopardy canon: Blockburger v. United States (1932). At the time, drug prohibition was in its infancy, and done through the Harrison Act, which placed taxes and controls over the distribution of drugs. Purchasing or using drugs was not a crime per se; rather, purchasing or using them not through the delineated process was (not unlike our Prop 64, come to think of it. There is nothing new under the sun).

Anyway, Blockburger bought some drugs on the street, which meant he violated two different provisions of the Harrison act: the prohibition on sale except in or from the original stamped package, and the prohibition of sale not in pursuance of a written order of the person to whom the drug is sold. Note that both offenses sprung from the same criminal incident. Blockburger therefore argued that prosecuting him for both was double jeopardy. The court, however, disagreed, explaining that while the incident was one and the same, the offenses were not:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

To commit the first offense, Blockburger should’ve bought drugs outside of a stamped package, but not without a written order; to commit the second, Blockburger should’ve bought drugs without a written order, but not outside the stamped package.

The principle in our daf is very similar: the idea that there should be some limitation on the piling up of wrongdoing for the same incident. But this only matters if there are consequences stemming from each conviction separately that can be aggregated. Fines can be aggregated and prison times can be served consecutively. But you can only be stoned once.

Tune in for more taboos tomorrow.

Plotting the Tube of Blood: b.Sanhedrin 52

There’s a 60-year-old apocryphal story about Haim Hanani, then-President of the Technion (one of Israel’s most prominent STEM educational institutions and home to Nobel prize winners), according to which he once asked candidates for the entering engineering class, how to plan a 200-mile-long tube to transport blood. The students all asked questions about the technical specs, and not a single student asked, “why would you want to transport blood, and where would the blood come from?” According to the story, Hanani used this experiment to advocate for the introduction of humanities’ studies at the Technion. 

This story is a good introduction to several upcoming talmud pages, in which the sages discuss the nitty-gritty details of executions they never ordered or performed–for the sake of the intellectual exercise. To see what such information looks like when it’s actually drafted to be put to use, I looked up current execution protocols in all U.S. states. One interesting detail about this table is the prevalence of secrecy provisions. Nebraska law, for example, states: “(2) The iden­ti­ty of all mem­bers of the exe­cu­tion team, and any infor­ma­tion rea­son­ably cal­cu­lat­ed to lead to the iden­ti­ty of such mem­bers, shall be con­fi­den­tial and exempt from dis­clo­sure pur­suant to sec­tions 84 – 712 to 84 – 712.09 and shall not be sub­ject to dis­cov­ery or intro­duc­tion as evi­dence in any civ­il pro­ceed­ing unless extra­or­di­nary good cause is shown and a pro­tec­tive order is issued by a dis­trict court lim­it­ing dis­sem­i­na­tion of such information.” Ohio law states: “(B) If, at any time pri­or to the day that is twen­ty-four months after the effec­tive date of this sec­tion, a per­son man­u­fac­tures, com­pounds, imports, trans­ports, dis­trib­utes, sup­plies, pre­scribes, pre­pares, admin­is­ters, uses, or tests any of the com­pound­ing equip­ment or com­po­nents, the active phar­ma­ceu­ti­cal ingre­di­ents, the drugs or com­bi­na­tion of drugs, the med­ical sup­plies, or the med­ical equip­ment used in the appli­ca­tion of a lethal injec­tion of a drug or com­bi­na­tion of drugs in the admin­is­tra­tion of a death sen­tence by lethal injec­tion as pro­vid­ed for in divi­sion (A) of sec­tion 2949.22 of the Revised Code, notwith­stand­ing any pro­vi­sion of law to the con­trary, all of the fol­low­ing apply regard­ing any infor­ma­tion or record in the pos­ses­sion of any pub­lic office that iden­ti­fies or rea­son­ably leads to the iden­ti­fi­ca­tion of the per­son and the per­son­’s par­tic­i­pa­tion in any activ­i­ty described in this divi­sion: (1) The infor­ma­tion or record shall be clas­si­fied as con­fi­den­tial, is priv­i­leged under law, and is not sub­ject to dis­clo­sure by any per­son, state agency, gov­ern­men­tal enti­ty, board, or com­mis­sion or any polit­i­cal sub­di­vi­sion as a pub­lic record under sec­tion 149.43 of the Revised Code or otherwise.” Which raises the question: if what is happening here is not cruel or unusual–maybe even kind and usual–then why the secrecy?

I think the talmudic lack of shame about this, and many other crass subjects, stems from the fact that they are not in the business of prescribing or proscribing rules, but rather elucidating and interpreting biblical verses according to logical structures. Still, it’s jarring to see them dig for verses to support the minutiae of different forms of execution. Today we’re looking at three execution protocols: burning, decapitation, and strangulation.

Burning

The mishna provides a truly absurd mix of pain and pain alleviation. The condemned must be sunk in dung to his knees and his neck must be wrapped in a hard scarf wrapped in a soft scarf (after all, we want to burn you to death, not scratch your neck). Two people grab the ends of the scarf and pull until the condemned opens his mouth; then, they light up the wick and throw it into his mouth, where it descends into his intestines and burns them. An episode in which a priest’s daughter was placed amidst piles of sticks to which the executioners set fire is explained away as inexperience (one sage even says, “I remember being little on my father’s shoulder and seeing that,” and others replying, “you were little and you’re probably misremembering,” קָטָן הָיִיתָ, וְאֵין מְבִיאִין רְאָיָה מִן הַקָּטָן).

That’s a pretty specific description of a sentence the sages had never seen, so to support the description they rely on two biblical stories: the burning of Korah and his clan and the death of the sons of Aaron. From the language in the biblical description, the sages deduce that those were internal, rather than external burnings (“burning the soul but the body exists”, שְׂרֵיפַת נְשָׁמָה וְגוּף קַיָּים). The wildest of proofs comes from Aba Yosi ben Dostai, who describes the sons’ deaths as if two strings of fire coming out of the temple, splitting into four, with each string entering the nostril of one of the brothers (שְׁנֵי חוּטִין שֶׁל אֵשׁ יָצְאוּ מִבֵּית קוֹדֶשׁ הַקֳּדָשִׁים וְנֶחְלְקוּ לְאַרְבַּע, וְנִכְנְסוּ שְׁנַיִם בְּחוֹטְמוֹ שֶׁל זֶה וּשְׁנַיִם בְּחוֹטְמוֹ שֶׁל זֶה וּשְׂרָפוּם). The amazing thing is that there’s an effort to sanitize the execution through the idea that loving the other as yourself means choosing “a beautiful death” for them – אָמַר קְרָא ״וְאָהַבְתָּ לְרֵעֲךָ כָּמוֹךָ״, בְּרוֹר לוֹ מִיתָה יָפָה – which is so much like the constant efforts to sanitize, medicalize, and silo killing, from executions to euthanasia.

Decapitation

I’m sure you’re all eager to find out about decapitation now. What’s notable is that the talmudic description struggles with the fact that foreign nations use the same sentence. The mishna says that the Israelite sentence was performed with a sword “as the king does” (כְּדֶרֶךְ שֶׁהַמַּלְכוּת עוֹשָׂה). Rabbi Yehuda points out the degradation involved and says that the condemned head must be placed on a block and chopped with a cleaver. In the gemara, there’s an expansion of this debate. Rabbi Yehuda says, “I know it’s a rough death, but what can I do (אֲבָל מָה אֶעֱשֶׂה)? We’ve been ordered not to follow the gentiles, so we have do do it a different way.” The other rabbis reply that execution by sword is actually prescribed in the Torah, which uses the term “by the sword” (לְפִי חָרֶב) and the saying, “I shall bring the sword of revenge of the covenant upon you” (הֵבֵאתִי עֲלֵיכֶם חֶרֶב נֹקֶמֶת נְקַם בְּרִית). The precise nature of the use of the sword is also deduced from the terminology: the rabbis deduce that the term לְפִי חָרֶב implies the edge of the sword, rather than the point, and thus we have decapitation rather than stabbing. And as to the issue that someone actually brings up–what if the executioner just decides to cut the person by half–the rabbis say, remember to love the other as your own and pick a beautiful death for him.

Strangulation

The mishnaic description of strangulation is very much like the beginning of burning: the condemned is sunk in dung to his knees, wrapped in a hard scarf padded by a soft scarf (for comfort) and two people pull the edges away to cut air support. The gemara sees this sentence as the most humane, least painful, of the lot (see here) and use the rule of lenity to argue that any unspecified death must be the most lenient one (כָּל מָקוֹם שֶׁנֶּאֱמַר מִיתָה בְּתוֹרָה סְתָם, אֵין אַתָּה רַשַּׁאי לְמוֹשְׁכָהּ לְהַחְמִיר עָלֶיהָ, אֶלָּא לְהָקֵל עָלֶיהָ). This discussion, however, is still marred by the original debate over which execution method truly is the least severe (with some still arguing that decapitation should be the most lenient default option).

Tune in tomorrow for the fourth execution method: stoning.

The Scarlet Letter: b. Sanhedrin 51

Today’s entire page is devoted to the rules regarding the punishment of an adulteress, which the rabbis seem to discuss with great gusto. Even though, as I explained in previous pages, this crass conversation is academic for them and pursued for the exercise of logic, rather than for the actual fashioning of rules, it is still deeply jarring to be engaging in this. The rules this daf is concerned with can be found in Deuteronomy 22, which is everything you can expect from biblical punishment of women. To briefly summarize the biblical law:

  • A man who falsely accuses his new wife of not being a virgin is to be flogged, fined, and forced to remain married to the woman;
  • If the wife is truthfully accused of not being a virgin, she is to be stoned;
  • If a man is found having sex with a married woman, both are to be executed (the method is unspecified);
  • Same, but the woman is betrothed, not married, and the sexual encounter took place in the city: both are to be stoned (the logic: she did not cry out for help);
  • Same, but in the field: only the man is to be put to death (the assumption is that the woman cried for help but was not heard);
  • if two single people are found sleeping with each other, the man is to pay the woman’s father fifty pieces of silver and marry the woman.

I should clarify right at the onset, this entire conversation, from Deuteronomy through the Baraita through the Bavli, revolting as it is, did not corner the market on the double standard of treating adultery as a crime. When Malcolm Feeley and I were looking at women and crime in Early Modern Europe, we did find plenty of evidence that adulterous couples were not treated the same; adultery tended to be one of the “typically feminine offenses”, like infanticide, abortion, witchcraft, nightwalking, and others, which were heavily enforced against women. Importantly, these offenses did not significantly skew the pattern of criminalizing women in the period and places we studied: the disappearance of women from criminal courts throughout the long 19th century reflects wider changes in criminal opportunities and in the public appetite for criminalizing women beyond these offenses. But that doesn’t change the fact that, as Nathaniel Hawthorne showed in his wonderful classic The Scarlet Letter, moralizing women and keeping them in line can explain a lot of what we see in adultery prosecution.

Incidentally, in case not everyone knows this, there still are U.S. states in which cheating on your spouse is a criminal offense. This map from Newsweek shows the places in which adultery is a misdemeanor in turquoise, and the places in which it is, astonishingly, a felony, in yellow.

All of which is to say: there is plenty to dislike in this daf, but the problem does not begin and end with the talmud.

Anyway, let’s get to it. There are two key distinctions that this page starts with: between a married woman and a betrothed woman, and between the daughter of a priest (בַּת כֹּהֵן) and a woman of ordinary birth (בַת יִשְׂרָאֵל). There are also some distinctions about the facts (who the other man was). The debate is whether a betrothed priest’s daughter should be stoned or burned, and whether a woman of any birth who slept with her father should be stoned or burned (hence the importance of the earlier debate on which death is the more severe punishment).

The gemara explains these differences of opinion thus: the rabbis, who believe stoning is the more severe punishment ascribe it to the more serious cases; Rabbi Shimon, who believes burning is the more severe one, does the opposite. This matters because you can’t kill someone twice: if two different death sentences are pronounced, only the more severe one must be carried out, so we need to know which one is the more severe one. And it also matters because within each category – married and bethrothed – there is the more serious case of the priest’s daughter and the less serious one of the ordinary woman. By contrast, perjured witnesses who blemish the reputation of a woman are killed in the same way (for a married woman, strangulation; for a betrothed woman, stoning) regardless of the woman’s status.

The next verses all play with different aspects of the offense and the offender’s identity, as mentioned in verses in Leviticus and Deuteronomy, to try and deduce which punishment applies. For example, whether the term כִּי תֵחֵל (who profanes) could apply to any priest’s daughter who violates Shabbat rules, or only to those who do so through promiscuity; whether this punishable promiscuity applies when the woman is single, or only when she is married; whether the term נַעֲרָה in some of these offenses refers specifically to an adolescent, a young woman, or to a priest’s daughter of any age; whether marrying outside of the priest caste rules a woman out of the “priest’s daughter” category (or perhaps marrying a non-priest is already an act of profanity); whether it makes sense to burn a woman for a transgression but use a different punishment for her accomplice. Lest this seem like silly gamesmanship, modern law revolves around the question of these loopholes just as well.

Consider, for example, the aftermath of Atkins v. Virginia (2002). In Atkins, the Supreme Court announced the substantive rule that people with “mental retardation” could not be candidates for the death penalty under the Eighth Amendment, but ​“le[ft] to the State[s] the task of devel­op­ing appro­pri­ate ways to enforce the con­sti­tu­tion­al restric­tion.” Different states adopted different strategies, such as particular IQ cutoff points, or as functional tests of the person’s understanding of the criminal process, the sentence, and their culpability. Confusion continuously ensues, because there have now been numerous iterations of IQ testing, and the same individual could have different scores, or even test differently on the same test, and because psychological functional tests also morph over time. Generation after generation of legal interpreters–the legislature, the judiciary–have to wonder how to make the Atkins rule work in a variety of minute scenarios that were left unsaid in the original decision.

Or, for a closer example to the adultery case, consider the state of Wisconsin where, believe it or not, adultery is a Class I felony. The law states:

944.16 Adultery. Whoever does either of the following is guilty of a Class I felony:

(1) A married person who has sexual intercourse with a person not the married person’s spouse; or

(2) A person who has sexual intercourse with a person who is married to another.

The practical implications of this law are as slim as those of the biblical adultery rule: it is rarely enforced, and since Wisconsin is a no-fault divorce state, no one needs to call the police on their spouse for divorce proceedings. But you can imagine the theoretical discussion whether situations in which both parties are married should be treated differently, from a legal standpoint, than situations in which only one party is; or whether common-law marriage, which Wisconsin recognizes since 1917, can be the basis for adultery just like marriage in a wedding ceremony.

Still, there is something very discomfiting about thinking of guys who study currently at a yeshiva looking at this page today (as everyone who does a daf yomi in the Jewish world does), taking the discussion seriously, and then heading home to their mothers, sisters, girlfriends, and wives. Does even the theoretical discussion of this (mis)shape consciousness? And that’s before we’ve even come close to looking at Tractate sotah, which is full of stuff like this.

Who by Fire: b. Sanhedrin 50

Today’s page reminds me a lot of the litigation and debate surrounding execution protocols in the United States: three injections, one injection, this chemical, that chemical, the wildcard of bringing back the firing squad, etc. Following yesterday’s daf‘s concerns with the order of things, the sages are hard at work trying to figure out the order of four biblical execution methods: stoning, burning, killing by decapitation, and strangulation. Again, it is important to say that this is a purely academic exercise; at the time these debates took place (if they ever did in an organized fashion), there was no Sanhedrin, and even to the extent that there ever was one, it was not nearly as punitive as the biblical stories the disputes cited. Because the issue is so disturbing and jarring, the conversation comes off as very crass.

The talmudic debate addresses the severity of execution methods as a function of the seriousness of the offense; the underlying logic is that the harsher execution methods must correspond to the more heinous crimes and vice versa. Assorted arguments made in this vein:

  • Stoning is more severe than burning, because it is the sentence for a blasphemer, who פּוֹשֵׁט יָדוֹ בָּעִיקָּר (undermines the most basic principle of peoplehood).
  • Burning is more severe than stoning, because it is the sentence of a priest’s daughter who committed adultery, whose transgression מְחַלֶּלֶת אֶת אָבִיהָ, profanes her father as well as herself.
  • Stoning is more severe, as it is the sentence of an engaged (אֲרוּסָה) adulteress, which is more serious than being a married (נְשׂוּאָה) adulteress.
  • Stoning is more severe than decapitation, as it is the sentence of cursers and idol worshippers (who undermine the basic principle of peoplehood).
  • Decapitation is more severe than stoning, as it is the sentence for inhabitants of an idolatrous city, whose property is destroyed as well as their lives.
  • Counterargument: the instigator of idolatry (הַמַּדִּיחַ) is stoned, while those who are persuaded (הַנִּידָּח) are decapitated, and the former is a more severe transgression.
  • Stoning is worse than strangulation, as it is the sentence of cursers and idol worshippers.
  • Counteargument: strangulation is worse, as it is the sentence for those who hit their father and mother, whose honor is an analogy to divine honor (הוּקַּשׁ כְּבוֹדָן לִכְבוֹד הַמָּקוֹם).

These arguments raise a few issues. The first is that the punishment logic is circular. It’s fair to argue that the principle of proportionality, as articulated by Cesare Beccaria and considered a fundamental aspect of the fairness edifice of modern law, requires that more heinous behavior be punished more severely. According to this logic, we can debate apriori which the harshest punishment is (by the infliction of pain? by duration? by disgrace?) and then ascribe that to the most serious transgression. But the directional logic here operates in the opposite direction. There doesn’t seem to be the assumption that stoning is worse than, say, burning because stoning is more painful, lasts longer, shames the condemned, etc., but because stoning is prescribed for the more heinous offenders–and if, therefore, stoning is more serious, then it should be prescribed to more heinous offenders. The only way out of this circularity is to remember that the sages are not in the business of making prescriptive law – they are merely interpreting biblical law. So a better way to understand these arguments is this: stoning must have been regarded by the divine, the biblical lawmakers, etc., as the more severe of the punishments, because it was attached to the most heinous behaviors.

The other interesting issue is that the gemara leaves us with no consensus about which offenses are more serious than others. It looks from the language that each expressed viewpoint assumes there’s no other way to see things: because of course idol worshipping is worse than parent hitting, or because of course parent hitting is worse than idol worshipping. But does this really work in real life?

As early as the 1970s, criminologists and legal scholars attempted to figure out how people, communities, nations, calibrate the relative severity of different offenses. As Maynard Erickson and Jack Gibbs explained, the exercise is worthwhile even for those who don’t believe in punishment, and later studies have confirmed that severity scales are useful even for calibrating community corrections and treatment options. It turns out that, to a large degree, people throughout many countries and societies tend to agree that offenses against the person are more serious than offenses against property, and that offenses that endanger the basis of society (betraying king and country) are especially severe. Even within the category of homicide, people seem to share the idea that more malicious/sinister intent makes the crime more severe even if the outcome is the same. There is, however, considerable disagreement about the minutiae. Is it worse, for example, to kill a police officer than to kill another citizen? Some of these questions are left unanswered even if the law has provisions that settle them, and I’m not surprised the Talmud hosts disagreements on that count.

Toward the end, the daf turns to some deeply misogynistic inquiries into the particular execution methods of adulteresses, which we will discuss, and if need be, eviscerate tomorrow.

Oh, My Goodness, Look at This Mess

Many years ago, when I was in the army, I had a client who had been convicted of murdering a fellow soldier over a minor dispute. I met him years after his conviction, when he was already well into his sentence in a civilian facility, and handled some outstanding issues for him, and was very surprised to find him delightful. Over the years I would meet lots of convicted murderers, many of whom committed the crime years before and matured to be thoughtful, kind, calm individuals, but back then I didn’t quite know what to expect so I was somewhat surprised by the wit, warmth, and kindness. The charges were pretty brutal, so when my client and I got to know each other, I asked him why he did it – what on earth was he thinking?

“Honestly, I don’t know,” he said. “I think about this all the time, of course, and I’m so horrified by what I’ve done that sometimes it’s hard to believe I did it. But I did, of course. I don’t think I thought about it a lot in the heat of the moment. I was just so angry with him that I wished he didn’t exist anymore.”

When I heard yesterday’s press conference, that conversation with my client floated back into my mind, because the idea of wishing another person into nonexistence, wishing a problem someone else poses into nothing, is not really a solution. It’s the sort of thing three-year-olds confuse with problem-solving: “I wish he didn’t exist anymore.” Which is why it’s so on-brand for the current American administration.

The Trump proposal–I can’t think it’s serious, I suspect it was put forth publicly to bolster Netanyahu’s coalition–is absurd on its face (Netanyahu won’t need a plane to come home, he’ll be flying on the wings of his own ego). How does he plan to persuade so many people to move out of the home they know and love and have been willing to fight, and die, and kill for? Is the U.S. government going to offer a buy-out to every single Palestinian family? Does he understand that no other country–Jordan, Egypt–wants to absorb these people? Does he understand why? Is the proposition of American military boots on the soil putting people on trucks at gunpoint really a winner with the American public, of any political stripes? Even in the unlikely event that some people take him up on it, does he not realize it will be the political moderates with the better prospects, leaving behind the more radical ones firmly dug into ideological and literal tunnels? The delusional dimensions of this parallel the “river to the sea” chanters around me. Leave it to Trump to punch a hole in the wall and expand the Overton window in ways that beggar belief.

The crux of the matter is that there are two peoples on a smallish piece of land. Each one wants the other gone, wishes the other did not exist. It’s not a perfect symmetry, and no one can sell me on the idea that it is after what I’ve seen in the last year and a half (and certainly in the last few weeks), but from each perspective there are claims to the whole land, not to a percentage of it. On each side this is backed up by massive amounts of mythology, history, culture, politics. It is impossible–impossible!–for everyone to get what they want. And here we are, looking at a mess that no one wants to clean up. Cleaning up after ourselves is a job for grownups, and in this case everyone would have to alter their bargaining stances so fundamentally that I wouldn’t know where to start. But perhaps the best place to start is to understand that just wishing the other person did not exist is not a solution.

The Order of Things: b.Sanhedrin 49

My grad school journey was saturated with Foucault, who found his way to my dissertation as well. Criminologists tend to read Discipline and Punish, a book that identifies prison with modernity and with a shift in punishment from body to soul and from a central display of regal power to diffuse loci of power, and ultimately to having people exercise power upon themselves (which is why it is an important part of the setup for my book manuscript Behind Ancient Bars). Other books I got to pick up from the shelf quite often were Madness and Civilization, and History of Sexuality. Thing is, if I could help it, I tried to avoid The Order of Things as much as I could. Which is lamentable, because in many ways The Order of Things uncovers the mechanism that makes many of Foucault’s other works tick. He examines how different sciences and disciplines view things; in other words, the book is preoccupied with the creation of knowledge, which is a central factor in Foucault’s knowledge/power spiral.

The reason I bring up The Order of Things is that Sanhedrin 49b is very preoccupied with the production of lists and mnemonics. It is, in other words, a list of lists; a talmudic order of things, if you will. The excuse for this meta conversation is the issue of execution methods. The mishna lists four methods, but Rabbi Shim’on disputes the order:

מַתְנִי׳ אַרְבַּע מִיתוֹת נִמְסְרוּ לְבֵית דִּין: סְקִילָה, שְׂרֵיפָה, הֶרֶג, וָחֶנֶק. רַבִּי שִׁמְעוֹן אוֹמֵר: שְׂרֵיפָה, סְקִילָה, חֶנֶק, וָהֶרֶג. זוֹ מִצְוַת הַנִּסְקָלִין.

MISHNA:Four types of the death penalty were given over to the court, with which those who committed certain transgressions are executed. They are, in descending order of severity: Stoning, burning, killing by decapitation, and strangulation. Rabbi Shimon says: They are, in descending order of severity: Burning, stoning, strangulation, and killing. This execution, described in the previous chapter, is referring to the mitzva of those who are stoned, i.e., to the process of execution by stoning.

Which raises an interpretive question: When the halakha provides a list, does the order of the things on the list matter? Rava quotes Rav S’hora, who quotes Rav Huna as saying that, usually, the order is not important, but there are a few exceptions, where the order is crucial:

  1. The investigatory list of substances to be applied to a stain found on a woman’s clothing, to investigate whether it is menstrual blood (and thus impure) is a sequence (think: chemistry test);
  2. The aforementioned list of execution methods (deduced from the fact that there was a dispute, meaning that the parties to the dispute thought the order mattered);
  3. The items on the order of service for Yom Kippur;
  4. The order of the daily offering at the temple;
  5. The sequence of events necessary for releasing a woman from the obligation to marry her late husband’s brother;
  6. The order in which the temple priests put on their ritual garments.

Here, the sages return to the question of the order of executions, which will be discussed in the next page. But for now, let’s focus on the issue of putting things in order. One possibility with lists is that sometimes the order matters; one must put on their undergarments before their clothes and their outerwear. Another, as in the case of the tested stain, is that there is scientific logic in moving from step to step. And another is ritualistic: a ritual has flow, and there are usually good reasons for why certain prayers, songs, and actions were strung together into a religious service. But the statements that, other than these exceptional matters, things do not usually follow an order, make sense when one considers how often they are strung together into a mnemonic–not because the order matters, but because it is an easier way to memorize.

This reminded me of Foucault’s oft-quoted opening to The Order of Things, in which he quotes Borges, who seeks to show the arbitrariness of listmaking and categorization:

This book first arose out of a passage in Borges, out of the laughter that shattered, as I read the passage, all the familiar landmarks of my thought — our thought, the thought that bears the stamp of our age and our geography — breaking up all the ordered surfaces and all the planes with which we are accustomed to tame the wild profusion of existing things, and continuing long afterwards to disturb and threaten with collapse our age-old distinction between the Same and the Other. This passage quotes a “certain Chinese encyclopedia” in which it is written that “animals are divided into: (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f) fabulous, (g) stray dogs, (h) included in the present classification, (i) frenzied, (j) innumerable, (k) drawn with a very fine camelhair brush, (1) et cetera, (m) having just broken the water pitcher, (n) that from a long way off” look like flies”. In the wonderment of this taxonomy, the thing we apprehend in one great leap, the thing that, by means of the fable, is demonstrated as the exotic charm of another system of thought, is the limitation of our own, the stark impossibility of thinking that.

As we’ll find out tomorrow, the sages are in a rush to show that there is much more method than that to their madness; we’ll embark on a series of classifications that could evoke in us modern readers “the stark impossibility of thinking that“, and yet they are hell-bent on coming up with a rationale for the classification of execution methods.

Interrogation Dilemma: Criminal (UK)

While out of the country, I got to while away the copious leisure time I didn’t have watching a fascinating international production: a Netflix series called Criminal. Four countries – the UK, Germany, Spain, and France – participated, each producing three episodes. The setting is very bare-bones: all four series utilize the same interrogation room with a one-way mirror in it. We see the interrogation of one witness or suspect, privy to what happens in the interrogation room as well as to what occurs behind the scenes. Some differences in procedure and legal culture are evident, but for the most part, it is a psychological drama.

In one of the Season 2 UK episodes, we see an interview with a woman named Julia, the ex-wife of a convicted murderer. Her ex-husband, who was a tutor for international students, apparently was involved with a young man from a foreign country and killed him. It now turns out that a second young international student is missing, and the team wants to figure out whether this young man met the same fate as the murder victim.

Julia has come to the interview on her own accord and appears very eager to help the interrogation: she is horrified by her husband’s deeds. It is a Sunday, and the team on the ground is sparse – just the interviewer and one more detective behind the mirror. But suddenly, the detective’s ears perk up: Julia has mentioned a few details about the peculiar method of the killings that were never released to the public; they were only included in the pathologist’s report, which she hasn’t seen. So how does she know?

The detective who is conducting the interview is, as of yet, unaware of this momentous fact. But the people behind the scenes are checking to make sure. The detective calls up the rest of the unit and, one by one, they arrive. They all seem to agree that, as long as the interviewer is unaware that Julia is incriminating herself, there’s no need to formally warn or charge her with a crime. It is only after the amicable interview is over and Julia exits the room that the commanding officer of the team approaches her, warns her, and places her under arrest. The following morning, she is interrogated under caution, and eventually provides more incriminating statements.

What if this had happened in the U.S.? That depends on whether the detectives were required to provide Julia with her Miranda warnings. It’s pretty easy to determine that, at the outset of the first interview, Julia is not in custody; she has come of her own free will to the station, she is collaborating, etc. As we know, Miranda warnings must only be provided to people under custodial interrogation; no custody, no Miranda requirement.

The more complicated question is whether the interrogating team’s awareness of the incriminating questions changes the nature of the interview into a custodial interrogation. By the time the team behind the mirror ascertains that only the killer could know the information Julia provided, it should be reasonably clear to them that she’s not going anywhere; she is the killer and, to top that, has framed her husband for the first murder. Does this change the constitutional status of the interrogation? Is Julia, at that point, in custody?

The definition of custody is: an arrest or its functional equivalent–a situation in which a reasonable person would feel that their freedom is considerably limited. Custody case law uses the suspect’s point of view: in at least one case, the suspect’s age is a relevant consideration as to whether they were in custody or not. Given that the actual interrogator in the room gives no indication that anything has changed (and is unaware of that herself), Julia doesn’t have any reasonable grounds to assume that her situation has changed. According to this view (and I suspect this is how many U.S. lawyers and legal scholars would see this), the warnings were unnecessary–which also means that the statements given during the second interrogation, in which she is given the warnings, are also admissible.

This does, however, raise the problem. If we say that Julia was not in custody during the first interview, we signal to detectives that there is an incentive for inviting people in as friendly witnesses and refraining from alerting them that their situation has changed. This is a fair argument in support of the idea that, once the interrogating team has become aware of the fact that the person is a suspect, rather than a neutral witness, they must give the person the warnings.

But that’s not the end of the story, because even according to this second view, while the first set of statements might not come in, the second one might. If the passage of time, the new warnings, and perhaps the added comment that the prior statements are inadmissible, count as curative methods, it’s quite possible that the statements from the second round will be admissible even if the first ones are not.