A Lubavitch legal scholar told a local symposium on Jewish law that “the most popular form of punishment in the Western world, prison, is extremely problematic from a Jewish point of view.”
Disparities in sentencing for minorities and lengthy sentences for minor or first-time offenses are often antithetical to Jewish notions of restitution and rehabilitation, said Rabbi Shlomo Yaffe, dean of the Institute of American and Talmudic Law, a division of Chabad Lubavitch of Midtown Manhattan.
“We have to find ways to enable them to pay back, to rectify, to give back to society, maybe with certain limits on their movement,” said Yaffe, speaking before 700 attorneys Sept. 16 at the Birchwood Manor in Whippany. “But the idea to throw people away as so much human garbage is unconscionable for the Jewish people.”
Yaffe was a featured speaker at the seventh annual Jewish Law Symposium, sponsored by Chabad of Southeast Morris County.
Veteran television journalist Jeff Greenfield moderated a discussion that included Yaffe; Stephen Gillers, a professor at NYU School of Law; and Judge Freda Wolfson, since 2002 a judge for the United States District Court for New Jersey.
An Aug. 13 article in the Washington Post reported that some 2.4 million people are serving time in American prisons, meaning that more than one out of every 100 American adults is behind bars. The rates are disproportionately higher for black and Latino men.
“There are some crimes so horrendous that to allow that person to exist is a negation and a discarding of the values of human life, so maybe the ultimate punishment is some kind of incarceration,” Yaffe conceded. “Other than such cases, it would follow that to throw someone in prison, where all they will do is rot and they will do nothing to make the lives of those they harm better, they will do nothing to help society, and some of them will learn to be better criminals.
“This is unconscionable, because if a person has the right to live, he or she has the right to contribute.”
Turning to Wolfson, moderator Greenfield said, “My sense is that sometimes when you look down from that bench when you are sentencing, you see evil. Am I wrong about this?”
“You’re right,” said the judge. “But it is rare.”
Wolfson, who said she can be lenient on sentencing felons, recalled an occasion when she faced a convicted drug dealer who had been threatening witnesses.
“When I sentenced him, it was mandatory life imprisonment under the guidelines. It was the one time where I had no qualms,” she said. “As I looked at him he was essentially laughing at me. He was cold. There was not one bit of remorse. I guess I felt so much anger at this person for being who he was.”
Greenfield asked Gillers if a crime should be considered more “heinous” if, like Bernard Madoff, the offender used Jewish connections to exploit coreligionists.
“Absolutely,” said Gillers. “It is part of a larger picture; it is using the trust you improperly earned because of religion or your social network.” To have earned that trust and “to have betrayed those people, it is certainly the basis for enhanced punishment.”
In 2008, Yaffe and the institute hosted a seminar on alternative sentencing and rehabilitation programs for nonviolent offenders. The guest speaker was Charles J. Hynes, the Brooklyn district attorney.
Calls for alternatives to lengthy jail sentences are usually associated with liberal Jewish organizations like the Reform movement’s Religious Action Center. In one example, RAC lobbied in 2010 for the Fair Sentencing Act, which reduced the disparity in prison terms for crack and powder cocaine offenses.
A Conservative rabbi who did not attend the symposium, Elliott Dorff, agreed with Yaffe that “there are certain crimes against persons and property that really do require putting such people in prison to provide safety for the rest of us.”
But Dorff, rector and professor of philosophy at American Jewish University in Los Angeles, also defended appropriate prison sentences for offenders.
“In some cases the very experience of being confined leads people to change their lives, but only if they are supported once they are released in finding housing and a job,” he wrote in an e-mail to NJJN.
He agreed, however, that Judaism believes in second chances.
“The Jewish tradition is frankly wiser than the American tradition, for felons in most American states must record that fact in any job application, while Jewish law says that once a person has gone through the process of teshuva and has really changed, we are not allowed even to mention his or her past offenses unless they are directly relevant to the job for which she or he is applying,” wrote Dorff.