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Topics in this digest: Kedoshim 5765
by Rabbi Dr. Barry Leff
Congregation B'nai Israel
Toledo, OH
You shall do no unrighteousness in judgment; you shall not respect the
person of the poor, nor honor the person of the mighty; but in
righteousness shall you judge your neighbor. …Leviticus 19:15
This week’s Torah portion charges us with being righteous in judgment.
Throughout the Torah we have teachings about justice. Several volumes of
the Talmud are taken up with discussions about court proceedings,
qualifications of judges, acceptance of testimony and evidence and so on.
We are charged with being righteous in judgment. But what does that mean?
One of the headlines this week was about the trial of Private First Class
Lynndie England. Pfc. England was one of the people charged with abusing
prisoners at Abu Ghraib prison in Iraq. She is infamous especially for a
picture of her grinning while holding a naked Iraqi prisoner on a leash.
I’m not going to talk about the details of the case or the issues behind
it. My opposition to the use of torture or “unconventional interrogation
techniques” is well known. I have signed the Rabbi for Human Rights
letter to the White House expressing opposition to these activities.
What I want to look at this morning is what the judge did in the Lynndie
England case. England had arranged a plea bargain with the prosecutors.
Among other charges, she pleaded guilty to conspiracy. Spec. Charles
Graner, already serving a sentence for related charges, testified that the
pictures were taken to be a legitimate training aid for other guards. Pfc
England, on the other hand, said she knew the pictures were purely for
amusement grounds. The judge ruled that you can’t have a conspiracy of
one—the testimony of the two supposed co-conspirators conflicted,
therefore there could not have actually been a conspiracy. England was
pleading guilty to something she was not guilty of—or at least did not
consider herself guilty of. Therefore the judge threw out the plea
bargain and declared a mistrial.
As I read about this case, I thought about the teaching from this week’s
Torah portion about not doing any unrighteousness in judgment, and I got
to thinking about the whole idea of plea bargaining, and whether plea
bargaining is in keeping with a Jewish view of justice.
While I know something about halacha and Jewish law, I’m not an expert in
US criminal law. So I decided to ask some friends, colleagues, and
congregants who are lawyers what they think. A few of the people I asked
are both lawyers AND rabbis so can bring a perspective from both systems.
I sent an email to these lawyers asking the following questions: Why do
we have plea bargains in the first place? Are plea bargains
unrighteousness in judgment brought about because of a lack of resources
in the judicial system? In a perfect world, would there be no such thing
as a plea bargain? If a person is guilty of crime "x" shouldn't he
receive the punishment for crime "x" and not for some other lesser crime?
And if the person is not guilty of crime "x" why should he be punished for
it?
Several of the comments I received supported my thought that plea bargains
represent, on some level, a compromise to the strict standards of justice
the Torah would have us live up to. My friend Michael Glenn said “Plea
bargains are really a negotiation. Each side evaluates their odds and
makes concessions. It's a market of justice.” I interpret that as
meaning in an ideal world, we would have real justice: the guilty punished
for what they deserve, the innocent go free. Since, unlike God, our
ability to administer justice is flawed, people do the math and settle for
the justice they think they are likely to get.
Our congregant Jim Rothschild said “The problem that you raise involves
the distinction between justice and a system of justice. Justice in its
purest form does not involve plea bargains and does involve the
application of uniform punishments and procedures. On the other hand, a
system of justice is a process for obtaining as much justice and fairness
as societal resources and community priorities and values permit. We lack
the resources to dispense justice in its purest form.”
What Jim is saying is that we cannot achieve true justice in this world:
that perfect justice would require nearly infinite resources. We have to
accept that the justice we get is going to be a flawed justice—only God
can deliver perfect justice. We strive to get the best justice that
society as a whole is willing to pay for. So justice would perhaps be
better served if there were no plea bargains, but society is not willing
to pay the price that would cost--and maybe for society as a whole one
could argue instead of spending limited resources on more judges and
attorneys, society is better served with the priorities in different
places, more money for schools or unemployment insurance or medical care
or the military, for example.
My classmate and colleague, Rabbi Mark Anckorn, has a truly unique
perspective: before going to rabbinical school, he served for a number of
years as prosecutor. Rabbi Anckorn says plea bargains are not about
letting someone off the hook for a more severe crime. As he describes it,
“It's not "well, I can't prove you're guilty of murder, so if you agree to
be punished for insider trading, that’s fine, we'll call it a day." In
practice it doesn't work much like a "bargain" or agreement at all, rather
it's a reduction from full punishment for what the federal sentencing
guidelines call "early acceptance of responsibility." In other words,
you're guilty of murder, which the statute says is punishable by life in
prison. By pleading guilty you're agreeing that you've done something
very very wrong and that you ought to be punished for it. So in
recognition for your accepting responsibility, we'll have leniency on you
and not sentence you to the
maximum term.”
This is a concept which finds support in the Torah. In Numbers (5:7) it
says if someone has sinned, “then they shall confess their sin which they
have done; and he shall make restitution for his trespass in full, and add
to it its fifth part, and give it to him against whom he has trespassed.”
In another words, if someone stole something, and then felt regret, took
responsibility for his actions, and turned himself in, he had to pay a
fine of 25% (the rabbis understand as add to it its fifth part meaning he
pays ¼ of the value so that after he adds his part, there are five parts,
of which he paid one). On the other hand, if the person does not take
responsibility for himself, and instead is caught, we are told in Exodus
21:37 that he pays five oxen for an ox or four sheep for a sheep—a penalty
of 400 or 500%!
In the England case, the accused pled guilty, and the judge disallowed the
guilty plea. Which raises an interesting question. If a person pleads
guilty how can it be “unrighteousness in judgment” to convict him?
One reason might be that under the Jewish concept of justice, confessions
are not allowed at all. In secular law, thanks to the 5th Amendment, a
person cannot be compelled to give testimony against himself: in other
words, a confession cannot be forced, it must be freely given. Jewish law
goes much further than this: under Jewish law, confessions, even voluntary
ones, are not valid at all, unless the same facts can be attested to by
independent witnesses. Two reasons are given for this. In the first
place, we don’t allow testimony regarding a crime by a related party: you
can’t testify against your brother or wife, because it is assumed there
might be some bias. Who is more a “related party” than one’s own self?
But another reason is cited by Rambam (Maimonides) in Hilchot Sanhedrin,
the Laws of the Sanhedrin, the Jewish Supreme Court.
Rambam says that we do not punish someone on his testimony because the
person might be very upset over the whole matter of being charged and so
on, and could be depressed, even suicidal. If they are suicidal, they
might falsely confess to a capital crime because they have no desire to
live. According to Rambam, the idea that we do not punish someone on the
basis of a confession is a “decree of the King,” a ruling from God.
While at first, this might seem to be a barrier to plea bargains, which
depend on the accused “confessing,” agreeing to a lower charge, this is
not necessarily the case. As Rabbi Anckorn describes it, people enter a
plea bargain “Because people know they're guilty and after some
investigation are generally satisfied that the government can prove that
they are. It's not out of fear, but really more accepting the inevitable
and people really want to move on with their lives and put things behind
them. People really, really hate the unknown and seek to get to a place
of certainty as soon as possible.” From this we see that as a general
rule people don’t enter into plea bargains unless they know they are
guilty, and they know they are likely to be found guilty.
Which brings us back to the case of Pfc England. There is no question of
her guilt: there are pictures of her engaged in very inappropriate
behavior with prisoners. The question is what exactly is she guilty of,
and what therefore, is the appropriate punishment.
If an ethically justifiable reason for accepting a plea bargain is that
the defendant is accepting responsibility for their crime, we can see that
this was lacking in the England case. You can’t enter a guilty plea, and
then testify that you didn’t really do it, which is what Pfc England in
essence tried to do. She entered a plea of guilty to conspiracy, but her
testimony said “there wasn’t a conspiracy, we were just doing this for
laughs.” So the judge did exactly the right thing: rejected the guilty
plea, because the defendant was not actually taking responsibility for her
actions. According to Rabbi Anckorn, judges are very careful about only
wanting to accept a guilty plea from those who are truly acknowledging and
accepting their guilt.
You might be wondering, well, isn’t all this all a little arcane? What’s
the point of seeing how a legal system that hasn’t functioned as a real
legal system in nearly 2000 years would deal with a case from this week’s
headlines?
The point is that justice is one of the most fundamental principles in the
Torah. The admonition from this week’s Torah portion, to do no
unrighteousness in judgment, is repeated over and over again in many
different ways throughout the Torah. Psalm 89 says that righteousness and
justice are the foundation of God’s throne. In Deuteronomy chapter 16 we
are told tzedek, tzedek tirdof, justice, justice you shall pursue. We are
charged with creating a just world. If we are to fulfill our
responsibilities as Jewish citizens of America, we need to lobby for
system of justice that conforms with the Jewish ideals of justice. To do
that, we need to know what the Jewish ideals of justice are.
A sign of how relevant these ideas are to today’s world is the fact that
Rabbi Alan Sokobin teaches a Jewish Law class for the University of Toledo
Law School. And his class is not an anomaly—there are many law schools
that offer similar classes. When looking for models and principles on
which to base a just legal system, the lawyers of today can learn a lot
from looking at principles found in the Torah and Talmud.
Ultimately, we pursue justice, but perfect justice can only come from God.
In the Haftorah we read today, the prophet Amos shares God’s words: “For I
will give the order and shake the House of Israel through all the
nations—as one shakes sand in a sieve, and not a pebble falls to the
ground. All the sinners of My people shall perish by the sword, who boast
“Never shall the evil overtake us or come near us.” In that day, I will
set up the fallen booth of David: I will mend its breaches and set up its
ruins of anew.” God will punish the wicked and reward the faithful. In
the meanwhile, we must do the best we can to fulfill God’s commandment
given in this week’s parsha: to do no evil in judgment, but rather to
judge each other righteously.
Shabbat Shalom.
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