Justice, Justice Thou Shalt Pursue

In modern lingo, “justice, Justice you shall pursue.”  This is from Deuteronomy 16:18–21:9 and it has become a rallying point for many Reform Jews.  The concept of Tikkun Olam or repairing the world includes social justice and is the objective of many Jewish outreach programs and philanthropic support.

Today, Judaism has evolved away from a literal interpretation of “an eye for an eye and a tooth for a tooth” recognizing two fundamental realities:  first, there is no justice in taking the perpetrator’s eye, that is, the victim gains nothing from taking the perpetrator’s eye – thus these types of crimes are better settled with monetary damages paid to the victim.  Second, as many punishments were traditionally carried out by the victim and/or witnesses, well, there are not that many folks who actually want to carry out such acts of retribution.

I like the idea of monetary damages for financial crimes.  I don’t think Bernie Madoff or Jeff Skilling should have gone to jail.  I think they should have been sentenced (along with those complicit with them) to forfeit their wealth and work non-executive jobs while being required to fork over a substantial amount of their earnings, with all of the collected funds going to restitution.  Rich guy financial crimes are best punished by making the perpetrator and those enriched by the perpetrator (like family) poor.

Same for crimes against property.  You cut down my tree, you owe me.  You drive your car across my lawn, you owe me.  On this front, it is pretty much the way we work today, although suing for civil damages is a long, drawn-out process usually involving a lot of lawyers.

I like the idea of monetary damages for other non-violent crimes as well.  Most criminals come out of prison as better criminals and recidivism rates are quite high.  Better to put them to work and have them pay their assigned debt to society and/or the victim.  I like the idea of convicting George Santos for fraud and then having him work in fast food for a long, long time to “pay back” what he owes his constituents.

Fewer prisons, fewer inmates, more tax receipts, and real-life lessons applied.  That’s a win-win in my book.  Given the number of people we have in prison (2.2 million) one could argue that, for most crimes, prison is not an effective deterrent.  The United States has 4.2% of the world’s population and 24% of the world’s prisoners.  We are doing something very wrong.

When it comes to violent crime I guess you could label me a liberal Old Testament guy.  I don’t believe rehabilitation is always possible (and the recidivism rates would seem to prove this out), moreover, there really isn’t anything in a prison sentence that “helps” the victim(s) of violent crime.  Thus, we are left with defining adequate punishments for these perpetrators and adequate recompense for the victims.

I’m in favor of abolishing capital punishment, perhaps with a few exceptions like crimes of treason and mass murder.  Why?  Because we know a few things about the death penalty.  First, it is skewed disproportionately to people of color.  Second, a prosecution based purely on circumstantial evidence may be sufficient for a guilty verdict but it shouldn’t be enough for the death penalty.  Third, we know that eyewitness testimony is demonstrably unreliable.  Fourth, we know that prosecutors are not always pristine about their tactics.   And, finally, without positive visual or DNA proof, there is always a shadow of a doubt.  Yes, there are evil people in this world, and they need to be removed from society.  And, yes, there are some people who can change, evolve, be rehabilitated.  The death penalty is irreversible, and people are fallible – and I, for one, do not want to take that chance.

We need a few changes.  First, we need to add “guilty, but insane” and retire “not guilty by reason of insanity” as a potential verdict.  These people, according to the legal definition, cannot tell right from wrong and/or are mentally ill.  But they did the deed.  They need to be isolated from others and treated, if possible.  Institutionalization is the answer, but we will need to reestablish institutions and their funding to treat mental illness and house those who are untreatable. Just imagine the MAGA reaction to that.

Second, we need to reexamine our definition of mitigating circumstances when we are dealing with violent crimes.  Being poor is a mitigating circumstance for someone who steals food, but not a murderer.  Yes, the abused become abusers, but without any indication of a chance at rehabilitation, they are likely to abuse again.  Crimes of passion are substantially different than planned mass murder.  Being Black should not add to your sentence. 

Third, we need a lot more study on whether it is possible to rehabilitate a sex offender (I’m not talking about a voluntary sex worker or client).  If it is not, we need to employ other solutions like better living through chemistry.  Should some sex offenders be considered mentally ill?  Surely this seems likely.   My guess is that prison doesn’t help the mentally ill.

Here is a radical thought:  Why don’t we, as a society, decide what our objective is before sentencing.  Is our goal rehabilitation, mental health care treatment, or punishment?  At least then, the judge and jury have an idea of which outcome fits the crime and the criminal.  Moreover, we need to think about transitioning from one category to another.  People like Caryl Chessman and Malcolm X became different people in prison, unrecognizable as the perpetrators of the crimes of which they were convicted.  Being able to recognize these changes would lead to figuring out how to produce better outcomes.

The Talmud teaches “Whoever saves a single life is considered to have saved the whole world.”  Yes, I am willing to let a real killer live (although in prison) rather than see an innocent person put to death.  Judicial murder is still murder.

Addendum:  I have not forgotten about George Santos, but think that Andy Borowitz summed it up perfectly for The New Yorker and I quote:

Satire from The Borowitz Report

Giuliani Praises George Santos: “The G.O.P. Must Pass the Torch to a New Generation of Liars”  By Andy Borowitz  January 23, 2023

NEW YORK (The Borowitz Report)—Offering his full-throated support for Representative George Santos, Rudolph Giuliani said that “it’s time for Republicans to pass the torch to a new generation of liars.”

“I get why some Republicans are knocking the kid—they’re envious of his raw talent,” Giuliani told Fox News Channel’s Sean Hannity.  “But we should be showing him our respect.  I mean, look at this kid’s body of work. He could turn out to be the Michael Jordan of lying.”