Crime and Punishment

ESSAY: Crime and Punishment
The case of the criminal who was too guilty to be punished

INSIGHTS: Air
Summer's end brings a shift in the atmosphere of the soul

A TELLING STORY: Faith
History will repeat itself, said Rabbi DovBer of Mezeritch, but with one significant difference

Crime and Punishment

Judges and law-enforcers you shall appoint for you at all your city gates… and they shall judge the people with righteous judgment

Deuteronomy 16:18

One of the interesting features of the Torah's criminal justice system involves the manner in which the "Minor Sanhedrin"[1]—a tribunal of 23 judges[2] authorized to try capital offenses—operated. After hearing the evidence presented by the witnesses, the 23 judges would split up into two groups, one group serving as the "prosecution" and the other as the "defense." Each judge would take a position based on his first impression of the evidence, and then seek to convince the others. After hearing their colleagues' arguments and consolidating their final opinions, the judges would vote. A majority of one was sufficient to exonerate, while a majority of two was needed in order to convict.

[Hence the requirement for 23 judges: the Torah desires that there exist the possibility for a full "community"—ten individuals—of "exoneraters" among the judges even when the defendant is found guilty.[3] This requires a minimum of 22 judges—10 votes of "innocent" and 12 votes (a majority of two) of "guilty." The 23^rd judge is to satisfy the requirement that a court of law must always consist of an odd number of judges.[4]]

Any number of the 23 may choose to align themselves with the "defense team," and any number with the group of judges arguing for conviction. However, the law states that,

If a Sanhedrin trying a capital case all begin with an opinion of “guilty,” the defendant is exonerated. Only when there are merit-leaning judges who argue in his favor, following which a majority finds him guilty—only then is he executed.[5]

On the face of it, this seems a strange, even bizarre law: why should a criminal whose crime is so heinous, and against whom the evidence is so compelling, that not a single judge can find anything to say his favor, escape punishment precisely because of the gravity of his crime and the decisive nature of the evidence?

But upon closer examination, this law is fully in keeping with the philosophy behind the Torah's penal code and its concept of "guilt" and "punishment."

To understand how the Torah regards the person who stands accused and/or convicted of having violated one of its laws, let us first look at another interesting twist of Torah law, this from laws of divorce:

According to Torah law, a divorce is valid only when granted willingly. However, “If the law mandates that a person grant his wife a divorce and he refuses, a Jewish court, in any time or place, may beat him until he says ‘I am willing’ and writes the writ of divorce.”[6]

“Why is such a divorce not deemed ‘coerced’ and invalid?” asks Maimonides, the great 12th-century codifier of Torah law. “Because,” answers Maimonides, “an act is not considered to be ‘coerced’ unless the person has been forced to do something which is not obligated by the Torah: for example, if a person was beaten until he agreed to sell or sign away his property. But one who has been overpowered by his evil inclination to negate a mitzvah or to commit a transgression, and is forced to do what is right, is not considered ‘coerced’—on the contrary, it is his evil character which has coerced him, against his true will, in the first place.”

“In truth,” concludes Maimonides, “this individual wishes to be of Israel and wishes to observe all of the commandments and to avoid all of the transgressions of the Torah; only his evil inclination has overpowered him. So if he is beaten so that his evil inclination is weakened, and he says ‘I am willing,’ he has divorced willingly.”[7]

We can now understand why the Torah is convinced that there is a defense to be argued for every individual who stands trial, regardless of the gravity of the crime and the persuasiveness of the evidence.

Man was created in the image of G-d;[8] the essence of man is good and perfect, mirroring the goodness and perfection of his Creator. So the basic premise of Torah law is that every evil deed is committed against its perpetrator’s intrinsic will; every crime is a result of external forces that have overwhelmed the criminal’s true self.

In other words, every criminal is innocent in the ultimate sense of the word: his true self was never willingly involved in the deed, rather “his evil character has coerced him, against his true will.” Nevertheless, “A judge must judge only by what his eyes see.”[9] The Sanhedrin must decide the willfulness of the criminal’s deed based on the evidence presented before them, not their knowledge of the essence of humanity. (Indeed, it is not enough that we know that the reluctant divorcer wishes deep down to do the right thing: unless he mouths the words “I am willing,” the divorce is regarded as “coerced” and invalid. It is only after he expresses his willingness that we accept it, knowing that it stems not only from his desire to avoid a beating but also from his quintessential will.)

It is for this reason that a Sanhedrin in which not a single judge chooses to argue in the defendant's favor cannot judge him at all. Conceivably, the evidence and arguments presented by the "prosecutors" might be so compelling that all 23 judges will, at the end of their deliberations, cast a "guilty" vote. But though the judges must reach their verdict solely on the basis of "what their eyes can see," they must also be aware of of the essential goodness of the person standing accused before them, and look for signs and expressions of this goodness in his actual behavior (even if these signs and expressions do not suffice, in the final weighting of the evidence, to prevent a verdict of "guilty"). So in the case that the defendant is faced with a court in which not a single one of its members even sees grounds for his innocence, we know that he is being misjudged. We know that his true self is so completely hidden from the eyes and souls of his judges that they see not even the slightest glimmer of in his exterior self. A court with so shallow a knowledge of the human being standing trial before it cannot sit in judgment of him.

But there is also another, deeper rationale behind the law of the "too-guilty" criminal—a reason which goes to heart of the Torah's concept of “punishment.”

Why is a criminal punished by a human court? The ultimate function of the penalties which the Torah instructs and empowers a Sanhedrin to impose is not to exact vengeance, nor is it to serve as a deterrent for other would-be criminals (although the Torah mentions this as a secondary aim), but the rehabilitation of the criminal.[10] In the case that a death sentence is passed (G-d forbid), this indicates a crime so severe that it can be atoned for only with this most terrible penalty. But the punishment always comes to effect the purification of the criminal’s soul, to cleanse it of the stain inflicted upon it by the evil of his deed.

In light of this, the arguments put forth by the “defense contingent” of the Sanhedrin during its deliberations can be understood not only as an attempt to exonerate the defendant, but also as part of the process of his rehabilitation. Also in the case that the majority (or even the entire tribunal) ultimately find him guilty, these arguments serve as the first step in the court’s exorcism of the taint of his crime from his soul. These arguments accentuate his intrinsic innocence—an innocence that exists even in the most technically “guilty” criminal. At times, they may indeed succeed in bringing the defendant’s innocence to light on a level perceivable to the judge who must judge “only by what his eyes see,” and the defendant will be declared innocent in the earthly courtroom. In other instances, the defendant’s intrinsic innocence will not be found to have sufficiently asserted itself in his actual behavior, and his guilt and a sentence would be decreed. In such a case, the punishment will complement and complete what the arguments in his defense have begun: the obliteration of his external guilt and the reassertion of his underlying goodness and perfection.

Thus, a verdict and punishment which are not preceded by the court’s elucidation of the defendant’s quintessential blamelessness lack the very basis upon which a punishment is executed. Having failed to discern even the faintest glimmer of his innocence, the court has invalidated itself for the task of exorcising his guilt.

Based on an address by the Rebbe, Adar 14, 5745 (March 7, 1985)[11]

Air

 “Though summer still lingered and the day was bright and sunny, there was a change in the air. One smelled already the Elul-scent; a teshuvah-wind was blowing. Everyone grew more serious, more thoughtful…. All awaited the call of the shofar, the first blast that would announce the opening of the gates of the month of mercy.” So describes the previous Lubavitcher Rebbe, Rabbi Yosef Yitzchak Schneersohn, the onset of the month of Elul in the shtetl of Lubavitch.

As the last month of the Jewish year, Elul is a time for sober review of the achievements and failings of the closing year; a month of trepidation on account of the approaching “Days of Awe” of Rosh HaShanah and Yom Kippur, when "all inhabitants of earth pass before the Divine Judge as a flock of sheep."[12] But Elul is also a gentle month, softened by the reconciliatory prophecies of the “Seven of Consolation”[13] and the vibes of divine compassion that linger from the time that Moses spent the whole of Elul on the summit of Mount Sinai procuring G-d’s wholehearted forgiveness for Israel’s first sin.[14] In a word, Elul is a time of teshuvah: a time of regret, forgiveness and reconciliation; a time of return to pristine beginnings to rediscover one's true self and the spark of G-dliness at the core of one's soul.

To keep body and soul together, the human being needs air, water, food, clothing, shelter—in that order. Without air, G-d forbid, a person would expire in a matter of minutes. He may survive a few days without water, a few weeks without food. The need for clothing and shelter are less immediately apparent, but without them man would ultimately succumb to an environment often hostile to his life and health.

Not incidentally, this order also describes the relative accessibility of these resources. Shelter is the most toilsome and expensive of human needs to acquire. Clothing less so, food yet less so, water even cheaper and more available. Finally, air, the most crucial resource of them all, is the most bountiful and the most effortless to attain.

Thus, the idioms “a change in the air,” “Elul-scent,” and “teshuvah-wind” in the above quote from Rabbi Yosef Yitzchak are not mere poetic figures of speech, but also express a truth about the month of Elul and the spirit of teshuvah that pervades it. The effort to cut through life’s accumulated debris of failings and inequities and touch base with the untarnished purity at the core of one’s soul, is a round-the-year endeavor. But in the month of Elul, we enter into an atmosphere of teshuvah.

In Elul, teshuvah is not a factor of cataclysmic “moments of truth” or something to be extracted from the depths of the prayerbook. It is as plentiful and accessible as air: we need only breathe deeply to draw it into our lungs and send it coursing through our veins. And with Elul comes the realization that, like air, teshuvah is our most crucial resource, our very breath of spiritual life.

Based on an address by the Rebbe, Shabbat Mevarchim Elul, 5727 (September 2, 1967)[15]

Faith

And you shall come to the Levite priests, and to the judge who shall be in those days…. And you shall take heed to do according to all that they instruct you. According to the Torah that they shall teach you, and according to the judgment which they shall say to you, so shall you do; you shall not deviate from what they tell you, right or left

Deuteronomy 17:9-11

"Right or left"—even when he tells you that right is left and that left is right

Rashi, ibid. verse 11

Some twenty-seven hundred years ago, one of the most dramatic events in Jewish history took place atop Mount Carmel in northern Israel.

The people of Israel were torn between their allegiance to G-d and the dominating Baal culture espoused by King Ahab and his queen, Jezebel. The prophet Elijah challenged Ahab and the “prophets” of the pagan gods Baal and Asherah to a contest before the entire nation. When all had assembled on the summit of Mount Carmel,

Elijah approached the entire nation and said to them: “How long will you go on wavering between both sides? If G-d is the L-rd, follow Him, and if Baal is, follow him.” And the people answered him not a word.

Said Elijah to the nation: “I alone remain a prophet of G-d, while the Baal’s prophets are four hundred and fifty men. Let there be given us two bullocks; and let them choose one bullock for themselves, and butcher it and place it on the wood pile, and put no fire underneath. I will prepare the other bullock, lay it on the wood pile, and put no fire underneath.

“Call on your gods and I will call on G-d, and the one who shall answer with fire, he is the true G-d.” And the entire nation responded: “It is good [what you propose].”

... [The prophets of Baal] prepared their bullock. And they called upon Baal from morning till noon, saying, “Baal! Answer us!” But there was no voice, no response. And they pranced about the altar they had made…. And Elijah mocked them, saying, “Cry aloud, to this god of yours. Perhaps he is conversing, or meditating, or off on a trip; perhaps he is asleep and must be awakened….”

Come evening, Elijah the Prophet approached [G-d] and said: “G-d, the L-rd of Abraham, Isaac, and Israel, let it be known this day that You are G-d in Israel and I am Your servant, and that I have done all these things at Your word. Answer me, O G-d, answer me, so that this people may know that You are G-d, for it is You who has caused their hearts to turn away from You.”

And the fire of G-d fell, and consumed the offering, the wood, and the stones and earth [of the altar], and licked up the water that was in the trench. The entire nation saw, and fell upon their faces. And they said, “G-d is the L-rd! G-d is the L-rd!”[16]

Said Rabbi DovBer, the Maggid of Mezeritch:[17]

Just prior to the coming of Moshiach, the contest of the “Two Bullocks” will again take place. Again, the people of Israel will be polarized between faith in G-d and the prevailing idols. Again, a lone prophet of G-d will challenge the many and the powerful. Again, a nation will await a sign from Above as to where to place their loyalty.

The showdown atop Mount Carmel will repeat itself, but with one significant difference: this time, the fire will fall on the side of the Baal.

This time, the prophet of G-d will be ignored, while a fire from heaven will endorse the prophets of Baal. This time, those who call upon the true G-d of Israel will be mocked and derided, as their cries go unheeded and their prayers unanswered.

Just prior to the coming of Moshiach, the Jewish people will face the greatest test of faith in history. Those who will persist with their faith in G-d and His prophets despite all, will merit to bring the complete and ultimate Redemption.

Adapted from the teachings of the Rebbe by Yanki Tauber