Retribution and Restitution

Shabbat Shoftim / 22 August 2015

This week’s Torah portion, Shoftim, takes me back to one of the richest and most challenging pages of Talmud I have ever taught. The eighth chapter of tractate Bava Kamma deals exclusively with laws of personal injury, and opens with the fundamental principle:

Essentially, anyone who causes a non-mortal injury becomes liable financially to make the damaged party whole, whether compensating for the injury itself or for any secondary losses like medical bills and time away from work. While this sounds reasonable to us — American law treats personal injury in much the same way — the Talmud immediately points out the obvious problem with this system:

In one simple and direct question, the Talmud points out the glaring contradiction between its own ruling — that personal injury demands financial compensation — and the many unambiguous verses in the Torah calling for direct retribution, “an eye for an eye.” The Talmud proceeds to spend a full page exploring complex logical and midrashic arguments in an attempt to reconcile these two approaches; my Talmud students last year spent eight weeks working their way through this notoriously difficult material.

When you reach the very end of the discussion, however, the Talmud has one last surprise in store:

Rabbi Eliezer’s opinion raises a difficult conceptual questions: the majority opinion, that the one causing damage must pay the victim compensation for the damage, makes logical sense; but according to Rabbi Eliezer’s view, in which the payments are calculated as if we had in fact inflicted the same injury on the liable party, the payments would ultimately bear little or no relation to the actual harm caused. Depending on the specific circumstances, the final payments could prove woefully inadequate or result in a significant windfall for the victim. What was Rabbi Eliezer thinking?

If we take a broader perspective, the real issues come into focus. The lengthy debate about ממש, the literal application of “an eye for an eye,” versus ממון, financial compensation, really deals with the inherent tension between two paradigms of justice: restitution, in which the justice system seeks to compensate victims for injuries they have sustained; and retribution, in which the goal is to punish the liable party for the harm she caused. The Torah verses, taken literally, advocate retribution. The Rabbinic majority, instituting a matrix of payments, seeks restitution. Rabbi Eliezer, in a sense, splits the difference: he, too, calls for monetary payments; but in calculating the payments according to the liable party instead of the victim, he adopts a form ofmonetary retribution. If the payments calculated in his system do not properly compensate the victim, that is because he isn’t interested in compensation — his focus is on punishing the liable party for causing the injury in the first place.

While several verses throughout the Torah emphasize the concept of “an eye for an eye,” the brief mention in this week’s parshah takes on additional significance because it appears in a context that focuses on structures of justice. In the firstaliyah alone, we get the Hebrew root ש.פ.ט, connoting judgment, nine times, and the root צ.ד.ק, connoting justice or righteousness, an additional four times. Through its use of repetitive language, the Torah highlights important questions of justice.

In its opening verse, the parshah calls for מִשְׁפַּט־צֶֽדֶק. The translation in your Etz Hayyim humashim renders מִשְׁפַּט־צֶֽדֶק as “due justice,” a phrase that is comfortable to the modern ear but loses some important nuance in the Hebrew. The earlier 1917 JPS translation gives us a more literal “righteous judgment,” while Rabbi Isaac Leeser — a Philadelphian and the first Jewish translator of the Bible into English — penned the awkward but precise formula “a just judgment.”^[5] The fair application of law, according to the Torah, is necessary but not sufficient by itself; the instruments of justice must also produce a just outcome, and the means must reflect the end. The father of the Mussar movement, Rabbi Yisroel Salanter, noted that a person can cause a great deal of damage in rushing to do good.^[6] Ramban, one of the all-time great Torah commentators, emphasizes that each citizen — not only the “magistrates and officials”^[7] — must work in pursuit of justice.^[8]

Our parshah deals with other leaders as well. The second aliyah focuses on a theoretical future king, instituting a set of boundaries and responsibilities that define and limit his role. The Torah invokes these requirements to ensure that the king “will not act haughtily toward his fellows or deviate from the Mitzvah.”^[9] Although the Torah focuses on a king specifically, none of us are immune to the temptations of power and arrogance. Rabbi Tzvi Hirsch Ferber, a mid-twentieth century leader of London’s Jewish community, points out that the greater privilege and success we enjoy in life, the greater our debt of gratitude to God and our fellow humans. “We must know,” he writes, “That one who has received more good [in life] than his brothers is even more indebted [to God] than they are.”^[10] Each of us is privileged in his or her own way, and maintaining a grateful perspective helps us ensure that our society promotes justice for all people.

Finally, the parshah ends with a macabre and troubling ritual. A body is discovered in the fields, the murder goes unsolved. The “elders and magistrates”^[11] — שפטים again — work out which town is closest, and the elders of that town bring a heifer down to the river and break its neck. Then — with blatant symbolism — they wash their hands over the heifer, and recite a ritual declaration: יָדֵ֗ינוּ לֹ֤א שפכה [שָֽׁפְכוּ֙] אֶת־הַדָּ֣ם הַזֶּ֔ה וְעֵינֵ֖ינוּ לֹ֥א רָאֽוּ, “Our hands did not shed this blood, nor did our eyes see; absolve, O Lord, Your people Israel… and do not let guilt for the blood of the innocent remain among Your people Israel.”^[12] 

The declaration raises a glaring question: granted that the murderer’s identity remains unknown, but would anyone really think that the elders committed this crime?^[13] Of course not. Rather, many commentators explain that with this declaration the elders attest that they did not indirectly cause or even tacitly allow this crime to happen.^[14] Modern interpreters raise the stakes further: Rabbi Ferber reads this passage as holding responsible those who know of a person in distress but look the other way and allow the problem to continue;^[15] and Rabbi Menahem Ben-Zion Sacks,^[16] a Jerusalem-born American teacher, argues that the elders can be held responsible for their failure to address an environment in which such a crime could occur.^[17] 

Today in America, we face pressing questions about our approach to criminal justice. What does it say about us that we are the only Western democracy to employ capital punishment — and that we continue to do so after hundreds of death-row inmates have been exonerated? What kind of society builds Supermax prisons that deny inmates meaningful human contact for years on end, leaving them permanently scarred and unable to live normal lives upon release?^[18] How can we explain juvenile probation systems that lead wayward youth into more, not less, legal trouble;^[19] a school-to-prison pipeline in which infractions of school policies become criminal offenses;^[20] the disproportionate incarceration of African-Americans^[21] and people suffering from mental illness and substance abuse, and the highest per-capita prison population in the world?^[22] Ragnar Kristofferson, an anthropologist who trains prison guards at Norway’s Correctional Staff Academy, puts it succinctly: “What are the principles of humanity that you want to build your [justice] system on? … If you treat people badly, it’s a reflection on yourself.”^[23] 

Around the country, some law enforcement organizations have started work to address these problems. Milwaukee’s district attorney, John Chisholm, started shifting minor offenses, particularly small-scale drug possession, into early-intervention programs in which offenders receive drug treatment and other counseling instead of jail time; the goal, according to one of his assistant district attorneys, is “to get people back on track, based on their risk and their need,” while still locking away the most dangerous criminals.^[24] In Wayne County, Michigan, which includes Detroit, juvenile probation has been replaced by social workers and other support systems to ensure that troubled teens stay on the right path.^[25] On the Federal level, the Justice Department has started moving away from harsh mandatory minimum sentences. And yet, the voices calling for harsher penalties remain dominant in the national discourse.

Ultimately, the message of this week’s Torah portion is clear: as a society and indivually, we are accountable for how justice is administered in our country. Will we emphasize more and more retribution, no matter the consequences? Or will we, like the Rabbis, seek a model of restitution that emphasizes helping everyone move forward in life and contribute to society? Either way, our true values will show in the choices we make. As we learn this week, each of us — from the “elders and magistrates” to individual citizens — will be held accountable for the social environment we create. Let us work to ensure that we and future generations can take pride in our nation.

שבת שלום

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Tags: America, Justice, Prison Reform, Responsibility, Shoftim, Teshuvah