Change the Conversation about Justice by Rabbi Rachel Mikva
Throw the [Good] Book at Them: Changing the Conversation about Justice
by Rabbi Rachel Mikva
Romain Dukes says President Obama has given him his life back. Expecting to spend the rest of his years in prison after being convicted in 1997 of distribution and conspiracy to distribute crack cocaine, Dukes is among the forty-six individuals who recently had their sentences commuted. Jason Hernandez says the same thing; sentenced at age fifteen to life without parole for his part in a drug conspiracy, he’s been out since 2013 after the president commuted his sentence. Hernandez works as a welder (a trade he learned in prison), and mentors juvenile offenders at Café Momentum in Texas, eager to make a difference in the lives of these teens:
I hope one of these days when they ask the president, “What were some of your greatest decisions?” And when he names the Affordable Care Act and the other accomplishments that he has done, that he also says, “You know what? There’s also the Clemency Initiative and that one Mexican kid, named Jason Hernandez. I’m glad I let him out because he has done so much for the community.” That’s kind of how I live my life. I want to make him very, very proud of me.” (KFOR, July 16)
Obama has commuted nearly ninety sentences, and this month became the first sitting president to visit a federal prison. He went to Federal Correctional Institution El Reno to call attention to the flaws in our criminal justice system, especially draconian drug laws that have locked up many non-violent offenders for life—including people who would already be free if convicted under current sentencing guidelines. After meeting with inmates the president remarked to the press, “When they describe their youth and their childhood, these are young people who made mistakes that aren’t that different than the mistakes I made and the mistakes that a lot of you guys made.” His video statement released with the most recent set of commutations argued that America is, at its heart, a nation of second chances.
While Republicans took their usual potshots—Rep. Jim Sensenbrenner (WI) called the prison visit a publicity stunt that will not do much to address the problems of mass incarceration, and Sen. Charles Grassley (IA) wryly commented that the president was finally doing something he was constitutionally authorized to do—they are not disagreeing with him on the substance of the issue: We are locking up too many people for too many years.
Suddenly there is bipartisan enthusiasm for criminal justice reform. Forty years after liberal and conservative forces joined to restrict discretionary sentencing, thirty years after launching a futile war on drugs, twenty years after a Democratic president signed the “three strikes” law, the winds are shifting. It is still politically dangerous to be seen as soft on crime, but “smart on crime” is in. We now talk about public safety rather than law and order.
Why the change of heart? Governments are reckoning with the enormous financial burden of housing over two million people in county jails, state and federal prisons: eighty billion dollars a year that is surely needed elsewhere. Leaders are struggling with the economic and social legacy of a nation that claims 5% of the global population but 25% of the world’s prisoners.
For juvenile and minor drug offenses, they are turning increasingly to diversion programs that focus on treatment, community service and other ways to avoid imprisonment. Red and blue states are exploring policy reforms throughout the incarceration lifecycle, from bail to parole. Some have decriminalized marijuana or “banned the box” on employment applications. On the federal level, there appears to be broad support for the REDEEM, CORRECTIONS and Smarter Sentencing Acts. These proposals advertise cost-cutting priorities but, for a limited range of non-violent crimes, they also allow more criminal records to be expunged, reinstate public assistance eligibility (TANF and SNAP benefits) for recently-released individuals, invest in re-entry projects to reduce recidivism, offer time credits toward release, and reduce mandatory minimum sentences.
Not everybody is happy about the triumph of bipartisanship. Prosecutors whose success is often measured solely by conviction rates, legislatures that continue to add new crimes to the list with mandatory minimums, agencies that are partially funded by civil forfeiture, and the increasingly privatized prison-industrial complex all have some stake in perpetuating mass incarceration.
Raymond F. Morrogh, Commonwealth’s Attorney for Fairfax County, Virginia, testified before the U.S. Sentencing Commission in March that crime is down in large part because more criminals are locked up. He also argued, “Rewarding convicted felons with lighter sentences because America can’t balance its budget doesn’t seem fair to both victims of crime and the millions of families in America victimized every year by the scourge of drugs in America’s communities.”
Critics on the left similarly object to the idea that financial costs might determine penal policy. Stephen Lurie recently complained in The New Republic that the Smarter Sentencing Act’s official purpose, “to focus limited Federal resources on the most serious offenders,” sounds like “We’d keep doing what we’re doing, but we just can’t afford it” (May 18, 2015). Having lobbied against New York’s Rockefeller drug laws in the 90s, and having taught about restorative justice for much of the last decade, I side with the progressives who are more than a little thrilled that something important might get done in this otherwise polarized political moment. But I share Lurie’s concern that substantive differences are being papered over. Admitting that mass incarceration exacerbates poverty is not the same as recognizing how poverty contributes to mass incarceration, or grappling with the profound impact of institutional racism on the whole system.
My solution? Throw the book at them – the “Good Book,” that is. No, I am not like State Senator David Schnoor who recently spoke against repealing the death penalty in Nebraska, claiming that the U.S. Constitution is based on biblical principles and we should be guided by the teaching, “an eye for an eye.” As a scholar who studies the intersections of biblical interpretation, culture and ethics, I insist that the Bible was not the primary model for establishing the ground rules of constitutional democracy. (Thank goodness.)
Still, we will find that the Good Book is a better book than we might think for thinking about justice—not as a set of policy prescriptions, but as a catalyst to deepen our national conversation about the meanings and methods of a just society.
I get tired of careless interpretation of Scripture that reduces this complex collection to texts to a single idea and a static meaning. It seems inevitable that someone will trot out “an eye for an eye” when defending state-sponsored retribution; recently we heard it also from a few folks in the bright blue state of Massachusetts after Dzhokhar Tsarnaev was sentenced to death. They don’t mean it literally, most of the time. Based on reaction to the Iranian court blinding a man convicted of an acid attack that blinded his victim, Americans tend to think of such acts as barbarism—except the “life for life” part.
The truth is that most people have no more contemporary language to grapple with the profound challenges of securing justice within society. The paucity of popular discourse is evident when you look in the dictionary. Online, Merriam-Webster’s primary definition of justice is “the process or result of using laws to fairly judge and punish crimes and criminals.” Is that really all there is to it?
Contrary to our own meager vocabulary (and the current tendency to think about justice in terms of its budget ramifications), Hebrew Bible presents at least four significant approaches to justice: retributive, restorative, distributive and procedural. A brief overview of these terms might be helpful:
Retributive justice focuses on punishment as a response to violation. It is also assigned a deterrent effect, and incapacitates the perpetrator so that s/he cannot do it again. Restorative justice emphasizes repairing damage, restitution, taking responsibility, rehabilitation, and restoring relationships.
Procedural justice aims for fairness in the processes of decision-making. Distributive justice sets as its goal the equitable distribution of resources to all members of society, even if it means violating some aspects of equal treatment under the law.
Politics in the United States generally considered these as a pair of binary choices: We support either retributive or restorative methods of justice. We measure fairness by either distributive or procedural means—and then we know our political party. In Hebrew Bible, however, they are all required.
Fundamentals of procedural justice are established through Torah law: equal justice, direct justice, proportional response, fairness in adjudication. Citizen and stranger, rich and poor—all are to be treated equally (e.g. Ex 23). Yet distributive justice is also legislated: portions of one’s field and a tithe for the poor; special protections for the widow, orphan and stranger (e.g., Ex 22 Lev 19, Deut 24, 26); release of debts in the sabbatical year (Deut 15); and a redistribution of wealth in the jubilee so that society does not allow the growth of a perpetual underclass (Lev 25).
We do find “an eye for an eye,” but we also find restorative justice. Sometimes it seeps subtly through a verse: You shall not hate your neighbor in your heart. You should surely reprove your neighbor, but incur no guilt because of him (Lev 19:17). Maimonides and Nachmanides, two Jewish medieval scholars, both maintain that it requires we address one who has wronged us, to hold them accountable and to repair the breach. Covenant is the organizing principle of the biblical polity, and becomes the foundation of justice with its mutual obligations and profoundly restorative dimensions. Biblical legislation often involves several approaches in response to a crime. Regarding theft, robbery or fraud, for instance, it requires return of the stolen object, an additional payment to the victim, and atonement for the trespass against God.
In turning to Scripture as a mirror to reflect on the meanings of justice, however, the stories often speak to us more profoundly than the legislation, and they beautifully illustrate the text’s capacity to grapple with complexity. Let’s look at Joseph, Jonah and Abraham.
After being sold into slavery by his brothers, Joseph’s dramatic rapprochement with them enables the Divine plan for blessing to unfold. The covenantal promise is, for the first time, transmitted to all the siblings, and they thrive in relationship with each other and with the Egyptians. Blessing flows between and among the households of creation… until a Pharaoh arises who does not “know Joseph” and he identifies the Israelites as a threat.
Yet this narrative of reconciliation also involves an element of measure for measure. Joseph briefly imprisons his brothers, as he was imprisoned, and forces them to re-experience the loss of a brother, Benjamin. Then Judah offers to take Benjamin’s place in prison or servitude, and everything changes. Joseph is moved to tears; he reveals his identity and reconciles with his family. It is the subtext of retributive justice that allows restorative justice to prevail.
The Book of Jonah complicates our simple equation of reward and punishment. Instructed to warn Nineveh of its impending doom, Jonah knows from the outset that God’s real purpose is return and restoration. He claims this is the reason he didn’t want to go. What if people took the threat seriously? What if words could truly effect change and all the inhabitants sincerely repented (and their beasts as well)? Forgiveness appears to undermine God’s claim to justice, especially when the city in question is the capital of the Assyrian Empire, oppressor of Israel. It deserves to be destroyed. Besides, the idea of reconciling the empire with God seems patently absurd; recidivist oppression seems certain. And still the Divine voice in the text insists that the threat of punishment is meaningless without the real possibility of restoration in its place.
What kind of justice do we see in the story of Sodom and Gomorrah? At first, it appears to be retributive: God is going to destroy the cities for their sinfulness. When Abraham hears the plan, however, he challenges the God of justice to do justly, and the equation shifts from one of collective punishment to one in which a whole city might be spared by the efforts of a righteous few. The fact that this agreement is reached in a call for “justice” rather than mercy is remarkable.
Destruction does ultimately befall the cities (and the rescue of Lot’s family is badly compromised by the trauma that envelops them), but it is the introduction to the narrative that has the greatest consequence for our thinking about justice. God feels obliged to consult Abraham: for I have singled him out, that he may instruct his children and his household after him to keep the way of the Lord by doing righteousness and judgment (Gen 18:19). It is the first time the choice of Abraham is linked to moral performance.
Jewish interpretation discerns two distinct and equally essential approaches to justice in the verse, retributive and distributive. A law-governed society is a place of judgment; we need the rule of law to survive. But law cannot alone create a good society. It must have righteousness (tzedakah), a Hebrew root that has become so linked to the redistribution of resources that can make for justice, it now gets translated as “charity.” If there is no equitable distribution of resources, if people are driven to crime by abject poverty or lack of opportunity, the law cannot effect justice.
Early interpretations grasped how the diverse modes of justice are inextricably linked. Jesus’ challenge to those who would read “an eye for an eye” literally is well known. Focusing on individual response rather than social order, since the Romans were basically running the place, he urged his followers to turn the other cheek (Mt 5). It may have been a way of defusing conflict, or a subversive effort to upend their power relationships with civil and religious authorities, but either way it removes the verse as a prooftext for retributive justice.
Less familiar is a rabbinic text called the Mishnah, which testifies that Jewish law transformed “an eye for an eye” into a system of restorative justice: One is liable to compensate the injured party for pain, for time lost from work, for medical expenses, for any permanent loss in earning potential, and for emotional suffering. No reciprocal eye-gouging is involved (m. Baba Kama 8:1). Redacted in the second century but evidently recounting law that was already in force in the Jewish community, the text is later buttressed by the gemara which justifies the principle with rather creative interpretation. (Mishnah + gemara is known as the Talmud.)
The Talmud reimagines the biblical teaching by applying procedural requirements: Since equal justice is essential, there is a special problem with a one-eyed attacker. If you take an eye, the assailant will be blind but the original victim will still be able to see. That’s not equal justice! It is also possible that s/he might die as a result of the operation, resulting in “life and eye for eye”—a clear violation of proportional response. Taking the argument to the point of absurdity to demonstrate that retributive justice cannot itself fulfill the underlying values of Torah, the Talmud inquires: Can it be equal justice if a small man kills a large one; is the “smaller” penalty sufficient when he forfeits his life? (b. Baba Kama 83b-84a).
Rabbinic tradition and New Testament expand on other foundational restorative principles: They insist on the reform-ability of human character, they identify reconciliation between individuals as central to legal redress, and they affirm the ultimate goal of repairing the community. There is also continuing concern for the poor and the marginalized as a requisite part of fashioning justice. (Remember the bumper sticker that came out a while back? “Obama is not a brown-skinned anti-war socialist who gives away free health care. You’re thinking of Jesus.”) At the same time, they express an abiding commitment to the concept of reward and punishment and the ideal of measure for measure.
Why, with this rich biblical and interpretive tradition, do we hear only an eye for an eye? We love to see “bad guys” get what we think they deserve, a sentiment fueled more by Hollywood than the Bible these days. We are hard-wired to think this way; evolutionary biologists explain how ideas of reward and punishment are embedded in our DNA, how their ancient tribal forms ensured survival of the group. Integral to how we developed human community, retributive justice will always be a fundamental part of our penal code. David Garland explains, “Penal signs and symbols are one part of an authoritative, institutional discourse which seeks to organize our moral and political understanding and to educate our sentiments and sensibilities.”
His point also suggests why people reflexively turn to quoting Scripture when thinking about criminal justice, even if they don’t thump the Bible very often or know it very well. It is an effort to ground the conversation in a moral framework. Sometimes the connection can be compelling. Who is not moved by President Lincoln’s second inaugural address, when he laments of the Civil War: “…If God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword…, the judgments of the Lord are true and righteous altogether” (Ps 19:10)?
Since most of us probably don’t believe that God thrust the war upon us as retribution for the sin of slavery, it’s strange that this speech so captures the imagination. Is it due simply to the elegant rhetoric? Do we translate it to natural law, and embrace it as the poetic justice sometimes revealed in historical rhythms of the universe?
Lincoln’s address is persuasive because it explains ourselves to ourselves. The Civil War helped us reorganize our moral and political understanding of slavery. It catalyzed a long, slow, painful process of reeducating our sensibilities—still being worked out in flags and voting rights and policing and affirmative action and a host of other symbols and policies.
Is there a fundamental reorientation currently underway in criminal justice reform, or simply a temporary confluence of interests among budget-cutters, libertarians and social progressives? Using the polyphonic resonance of Scripture as a measure, with its complex interrelationship of personal, penal and social justice, the reform effort appears to fall short. A more robust conversation is emerging regarding the retributive-restorative polarity but the procedural-distributive one still triggers polemical postures of red and blue. Locked in the binary thinking and sound-bite limitations of the digital age, few people are asking what is really required to establish justice in society. Probing too deeply could cause the coalition to collapse.
For the Bible to be fertile soil for cultivating our moral and political understanding of criminal justice, we will need to embrace its multifaceted, integrated approach to justice. We’ll also need to embrace its ambiguity. It is not a simple collection of prooftexts to be wielded by religious leaders on the right or the left. Redacted over centuries and revealing diverse contexts, perspectives and agendas, its contradictions and dialectical tension serve as a crucible for critical self-reflection. The Bible, which is so good at telling stories, can lead us to consider: What are the stories we want to tell about ourselves?
Rabbi Dr. Rachel S. Mikva is the Herman Schaalman Chair in Jewish Studies at Chicago Theological Seminary and Director of the Center for Jewish, Christian and Islamic Studies.
 Garland, Punishment and Modern Society (Oxford: Oxford University Press, 1990), 252.