Unless you, like Honi the Circle-drawer or Rip Van Winkle have been asleep for a long time, you know that Michael Brown was killed in Ferguson, Missouri August 9, 2014 by Officer Darren Dean Wilson. After months of weekly meetings, a grand jury returned a “No True Bill” against the officer, declining to indict him on any of five possible indictments, triggering violence, arson, looting, rage and demonstrations in Ferguson and more than 115 cities.

The huge media attention, and the enormity of the response are testament to deeply-held grievances. The events in Ferguson proved to be the powerful catalyst that triggered major explosions, still reverberating.

What can the Talmud teach us about American law as it relates to events like this?

“Plenty,” according to said Noson Gurary, a Lubavitch rabbi who thought up the idea of a National Institute for Judaic Law. ” “It will be an eye opener for judges, scholars and law students,” he told The Jewish Week. “Before you know where you’re going, you have to know where you came from. And Jewish law is the basis of our legal system in America.”

US President George W. Bush sent the Institute greetings and applauded it for promoting an “understanding of Judaism’s rich tradition of legal thought.” It was inaugurated in a gala  Kosher Dinner held at the Supreme Court Building on November 5, 2002.  Four sitting Supreme Court Justices, Antonin Scalia, Ruth Bader Ginsberg and Stephen Breyer supported it by their attendance.  Harvard Law School professor Alan Dershowitz, former U.S. Solicitor General Seth Waxman and top constitutional lawyer Nathan Lewin and his law-partner/daughter, Alyza all attended.

Apparently, despite the prestigious guest list, the Institute itself did not take root, although its ideas have gotten much more currency and remain relevant.

For good reason.

Other than anarchists, nearly everyone agrees  that society has both the right and the obligation to exact punishment, primarily to deter would-be offenders. Retribution is sometimes also justified as a secondary objective.

How society exacts punishment, the standard of proof and fairness and evenhandedness in the administration of justice seem to lie at the heart of the Ferguson dispute.

Here, Jewish law has much to offer.

Incarceration affects 2.4 million in the United States at any one time, a staggering number.  60% are members of racial and ethnic minorities. For Black males in their thirties, 1 in every 10 is in prison or jail on any given day. Incarceration takes a huge toll on the inmate and on his entire family.

Burning the Talmud

This significant cause of rage – incarceration – was little used in Talmudic times. Fines or corporal punishment were the preferred societal remedies.

Burning at Ferguson

The Rabbis of the Talmud also proactively instituted important rules for protection of the accused. Some have become widely adopted; others we can learn from.

  • Courts were mandated to give defendants the benefit of the doubt.
  • Self-incrimination was unacceptable as evidence in criminal matters and circumstantial evidence in capital cases was also inadmissible.
  • Double-jeopardy was not allowed.
  • The principle of “natural justice” (equity) as innate was affirmed. Fairness has to be manifest. Judges, if asked, have to explain their reasoning. The famous precept of Hillel’s, which “embodies the whole of the Torah,”is that you should not do to another what you would not like to have done to you (Shabbat 31a). Hillel’s rule is derived from this same principle of natural justice. By the same token, capital crime is seen as an infraction of natural law as well as a violation of God’s commandments.

The prosecutor in the Ferguson trial elected, as permitted, to present to case to a grand jury, rather than to file a complaint, which is a statement of charges,. The Fifth Amendment to the U.S. Constitution requires a grand jury indictment for federal criminal charges. All states have provisions for grand juries, but only half of the states actually use them. A complaint, based on the Fourth Amendment, (unless waived by the defense) requires that a prompt  “probable cause hearing” is held to show facts or evidence that, if proven at trial, would lead a reasonable person to believe that a suspect has committed a crime.

Unlike grand juries, which meet in secret, the defendant has a number of important legal rights in connection with a probable cause hearing. These include:

  • The right to appear in person during the hearing
  • The right to be represented by a lawyer during the hearing
  • The right to cross-examine witnesses called by the prosecution
  • The right to contest the existence of probable cause
  • The right to waive the probable cause hearing

World-wide, grand juries remain in use solely in the United States. Their purpose is to determine whether or not there is probable cause to believe that one or more persons committed a certain offense within the venue of the district court. It’s a concept that traces back to the Assize of Clarendon, an 1166 act of Henry II of England. Evidence, inspection, and inquiry was made by laymen, knights or ordinary freemen, under oath.

One of the seven Noahide laws, a set of moral imperatives that, according to the Talmud, were given by God as binding on all the “children of Noah” – that is, all of humanity – calls for the establishment of courts and a legal system to ensure civil obedience. Jewish law does not prescribe how non-Jewish courts must operate.

Be that as it may, it’s clear that the Talmud would not look favorably on a grand jury system. Jewish law relies solely on fair and expert judges. Judges in early times required authorization, called ordination (smicha) which was suspended after the destruction of the Temple (70 CE) or at the latest,  upon the forced abolition of the office of Nasi, the president of the court, in 425 CE. Since then, a Jewish Court (Beth Din) is, in theory at least, sits as a court of laymen (as permitted by Jewish law), at least one whom is knowledgeable in Jewish law. members of the Beth Din act as arbitrators, rendering decisions binding on the parties. Often, these courts were also granted authority by the community as well as secular authorities and their decisions were enforced by civil authorities. Today, the parties often consent in advance to enforcement of the decision of a Beth Din in civil courts.

In Jewish courts, the overriding objectives are to establish truth and then to rule fairly. Where the letter of the law might yield an unfair result, it might be bent to ensure fairness.

A rabbinic judge may directly question and cross-examine witnesses, and often so, to ferret out truth. US judges also have this right, but tend to use it very sparingly. The accused has the right of counsel. Truth is ultimately established through an adversarial proceeding, where the prosecution bears the burden of proof.

One criticism of the handling of the Ferguson case is the “independence” of the prosecutor which was questioned by some who said he lacked independence from the police.

As Sol Wachtler, the former chief judge of New York state famously said, district attorneys now have so much influence on grand juries that “by and large” they could get them to “indict a ham sandwich.” He said he believed grand juries “operate more often as the prosecutor’s pawn than the citizen’s shield.”

Under Jewish law, courts have no such problem. The judges have to be totally disinterested parties; a judge can only consider evidence – “what his eyes can see,” (Bava Batra 131a) and not hearsay. US courts also disallow hearsy, but with numerous exceptions.

Several other relevant messages jump out at us when exploring Talmudic attitudes to crime and punishment and their relevance to the events in Ferguson:

  • Punishment had to be measured and limited.
  • Justice must be righteous – both as perceived and as effectuated.
  • Corporal punishment (flogging) was Biblically limited to no more than 40 lashes (Deut. 25:3). Lest the whipper err, the Rabbis preemptively limited the punishment to no more than 39 lashes (Makkot 22a). The person to be flogged was first physically examined in order to determine the maximum number of lashes that could safely be administered to him (Makkot. 3:11). Corporal punishment in Israel was abolished in 1950.

The punishment had to be administered only in the presence of the convicting judges.

  • Notably, the attitude of the Rabbis is much different. Prior to conviction, and punishment, the felon is referred to as “the evildoer;” after the punishment was administrated, he is termed, “your brother” (Makkot 3:15). Having paid the penalty, his slate is clean and he is to be rehabilitated.

In various ways, US law marks ex-felons for life, including disenfranchising them from voting. Aware of this, Attorney General, Eric Holder called on 11 states to repeal “counterproductive” laws that bar convicted felons from “the single most basic right of American citizenship-the right to vote,” with a few caveats.

As a conservative Republican, I’m not usually rushing either to defend Mr. Holder or to coddle criminals. But in this matter, the Rabbis of the Talmud would agree with Mr. Holder, and so do I.

In our society, voting is one of the most important tools American citizens have to influence the policies the government adopts.  Though not enumerated in James Madison’s Bill of Rights, it too ought to be, an “unalienable right,” as Thomas Jefferson understood the term (based on his contemporary, Oxford’s William Blackstone).  He described “unalienable rights” as “absolute” rights—they were absolute because they came from Him who is absolute, and that they were, are, and always will be, because the Giver of those rights—Jefferson’s “Creator”—was, and is, and always be. Unalienable rights are given to us by our Creator rather than by government; accordingly, government cannot take them away. Voting, as an inalienable right is the law in Israel and twenty other countries. Only 11% of the 45 countries in a study by ProCon.org had voting bans post-release. Even Russia wasn’t on this list. By way of comparison, nearly all states prohibit incarcerated felons from voting. The only two states that allow it are Maine and Vermont. Another 13 states and the District of Columbia allow felons on parole to vote. Nineteen states restore voting rights once release is final and any conditions of parole have been fulfilled of have expired. Astonishingly, in 12 states, felons -even low-grade, non-violent felons can be disenfranchised – permanently barred from voting.

All of the laws that continue to restrict an ex-convict’s rights after completion of the terms of punishment (i.e., post-parole) stand as barriers to reintegration into society; they encourage recidivism. They are a source of much of the pent-up anger, such as was manifest in Ferguson.

It appears that various parties in Ferguson are not only angry; they have incited others to arson and destruction. The Talmud, in general, prohibits imposing criminal liability on accessories, because they are indirect or secondary accomplices. Not so the inciter, based on Deuteronomy 12:14-17 (Sanhedrin 43a, 67a, 97a and 104b, Shabbat 32b and Sotah 46b), who is liable for incitement.  Current Israeli law, following the Talmud takes a grave view of incitement; incitement to war can be a capital offense.

More generally, the Talmud warns, “One should not incite the Evil Inclination by ‘picking a fight’ with it” (Succah 38a).

Incitement is often a crime in the US but is rarely prosecuted in situations like Ferguson; in practice it is usually viewed as an exercise of free speech – a fundamental right or a “delicate balance” between freedom of speech and incitement to criminal activity.

As we search for answers, the Talmud (compiled about the year 500) still has much to teach us about the issues manifest in Ferguson.

 

David E Y Sarna is a writer and former entrepreneur. He has six published books including Evernote For Dummies, V2, has nearly completed his first novel, about the Jewish treasures in the Vatican’s secret archives and is hard at work on a book about the Talmud for general readers.

©2014 by David E. Y.  Sarna