Why We Shouldn't Sit Out Criminal Justice Reform

Rabbi Melanie Aron

Friday, February 19, 2010

There are many issues in our local community, and it is impossible to address them all. In general, one of the issues that I have been content to leave for others to deal with has been the reform of our criminal justice system.

Why have I not been concerned enough to be involved in this issue? Certainly I have been aware that there are inequities in our justice system. I remember spending time in juvenile court in San Jose as part of my involvement in ALF. I saw the consequences of a system that often returned juveniles to their parents care on the west side of town, and incarcerated them on the east. I also know that Jews sometimes go to jail, and have visited not only white collar criminals but also, when I was a rabbi in New Jersey, an unfortunate young Jewish woman from an Orthodox family in Brooklyn who got involved in prostitution. At the time I was visiting her, she was accused of murder.

But there always seemed to be so many other people in difficulty more worthy of my attention than criminals. I didn’t really think much about the net effect of myself and many other people like me, ignoring what was going on with the American system of criminal justice, until my visit this January to Sacramento with the Confirmation class.

Directly and indirectly the growth of our state’s prison population is a major contributor to our present California budget challenges. Without addressing this issue, the funds we would like to see available for education, health and other human services, will likely continue to go to building and maintaining larger and larger prisons.

Over the last two decades some significant changes have taken place in relation to the prison system without many of us thinking about the implications of these changes.

In 2008 it was estimated that 2.3 million Americans, that is more than 1 in 150 American adults, were incarcerated. This represents a threefold increase since the 1970’s.

The death penalty gets the most attention in terms of the religious community’s reform activity, but death row inmates are only 3,500 of the over 2 million people in jail, though they are a very expensive minority of the prison population. More common are those imprisoned for non-violent crimes. In recent years as drug rules have grown more stringent, those convicted of non-violent, drug related crimes are estimated to be half the prison population.

Over the last few decades prison as a means of rehabilitation has lost support and programs such as the Pell grants for education in jail have been eliminated. Not surprisingly, we have seen enormous increases in the rates of recidivism.

In 1974 well known sociologist Robert Martinson reported that, with few and isolated exceptions, there was no evidence that rehabilitation programs reduced recidivism. He retracted his argument in 1979, too late though as California in 1977 became the first of many states to abandon rehabilitation and indeterminate sentencing, sentencing based on one’s behavior during incarceration. In the 1980’s California joined many other states in replacing parole with a three strikes policy and also lowering the age that juveniles are tried as adults. Drug use and alcohol play a very significant role in crime, with one or the other being present in 70% of all crimes, yet programs for drug and alcohol rehab are limited. Particularly expensive is the maintenance of elderly jail inmates, a group that is exploding as today one of every eleven prisoners is serving a life sentence, a 83% increase since 1992.

This week in our Torah portion we read about the construction of the tabernacle. A place of sanctity and worship would seem to have no connection with criminal justice. But in ancient times a sanctuary was exactly that — a place of refuge and protection. In earliest Israel the sanctuary’s protection was absolute, anyone could flee there and no one could remove them. Later a different sense of justice developed, and it was decreed, that the premeditated murderer could be taken off to justice, even from the horns of the altar.

In ancient Israel there was no long-term imprisonment. People were held until their case could be heard, but the punishment choices were fines and lashes, or in the most extreme cases, the death penalty. In the Bible it is only the Egyptians, Philistines, Babylonians and Persians who imprison their fellow human being. Throughout Jewish history, redeeming someone held captive has been a major mitzvah; this includes those in prison. Redeeming captives is considered so important that we can take money designated for schools or to help the poor to do so. It is one of only a small list of mitzvoth mentioned in the list of God’s great deeds in the Gevurot prayer we recite at every service. Matir Asurim, means literally, who frees the imprisoned.

As Jewish law developed, there were two categories of cases — dinei nefashot (cases dealing with persons) and dinei mamonot (cases dealing with property). Those crimes that involved only property could be punished only with fines. The focus was on restitution to the victim, restitution not only of the stolen object, but also restitution for loss of use, hardship, etc. There was no perceived need to separate the criminal from society in this category of cases.

Another interesting aspect of Jewish law was the concern expressed that the punishment imposed not prevent teshuvah. The goal was the return of the wicked to the ways of righteousness. It was understood that in some cases the punishment itself could be a barrier to repentance.

Let me share with you some of this medieval discussion. Rabbi Yom Tov ben Abraham Ishbili ruled leniently in the case of a young man who had been sentenced to a five year cherem, ostracism by the community, as punishment for breaking into the synagogue and attempting to steal the ornaments from the Torah. He expresses concern that if the young man had done teshuvah, this overly harsh punishment would drive him out of the community and into a lifetime of bad behavior. Another 13th century figure, Rabbi Shlomo ben Aderet counsels treating criminals gently at first so that they don’t return to their wicked ways.

In both the Bible and Talmud, a person who had done teshuvah is no longer considered a sinner. If he has repented, been sentenced and made restitution, he is eligible to fully return to society. If a priest, he can resume his service in the Temple. Since the fall of the Temple, he may be called up for the honor of the Torah reading.

The foundational Jewish concepts of tzelem elohim, the mitzvah of remembering that every human being was created in God’s image, and kavod haberiyot, the honor due to every human being, have an important message necessary to balance the overwhelming dehumanization of the prisoner. Tzelem Elohim in Jewish law has meant that it is necessary to maintain the dignity of every human being, even during punishment.

In discussing criminals, the Bible at first calls them rasha, the wicked one, but at the end of the passage, calls them achichah, your brother. The goal of punishment is to return the criminal to the state of being your brother. This is further read by the rabbis as an encouragement for us to consider how we would want our own relatives to be treated were they to fall into such a state.

The struggle against abuse in the American prison system began in colonial times with William Penn leading a reform effort in 1682. In 2007 the 2nd Chance Act, represented the first recent, if partial, success in that area. Congress is currently considering a similarly named bill to further efforts to enhance the re-entry of former criminals into society. In California as well, reform of the criminal justice system is a hot topic. Our current criminal justice system includes much that is inhumane and ineffective. For moral and fiscal reasons, it is time for good people of all faiths to involve themselves in reform efforts.