The Torah portion this week - Mishpatim - could be renamed a myriad things: crime and punishment, law and order, or simply actions have consequences. The most famous injunction to come out of it is “an eye for an eye, a tooth for a tooth.” We moderns identify this particular phrase as an echo of the Babylonian law code of Hammurabi, and in fact, the two are probably related.
Yet there are two big differences, both of which we Israelite descendants can be proud of. First, in Hammurabi’s code, there is explicit mention of enacting physical punishments that equally match the crime. A broken bone means a breaking a bone. A tooth knocked out means a dental extraction. Yet when it comes to the Hebrew Bible, archaeologists, scholars and the rabbis warn against understanding the phrase literally. Instead, it seems pretty clear from the context and the archaeological record that “an eye for an eye” refers to financial compensation and carries a greater message of simply making sure the punishment (typically a fine) fits the crime.
The other main difference between Hammurabi’s code and its cousin here in Exodus has to do with social status. While the crime may be the same, the Babylonian laws differentiate the proper punishment depending on the social status of the offender and the victim. So, if an aristocrat destroys the eye of an aristocrat, his eye is destroyed. But if he destroys the eye of a commoner, he simply pays one mina of silver.
Compare this to Exodus, where the only class differentiation is between slaves and freepeople. But even at that, the status of “slave” or “free person” doesn’t come into play in the same way here. Slaves are clearly seen as human and the portion this week asserts that. Mishpatim says that when a freeperson strikes the eye of a slave, and destroys it, that person should let the slave go free on account of the lost eye. The text asserts the humanity of the ancient slave, and it’s cautioning against abuse of power and status.
Conceptually, the laws of the United States look like the modern update of these ancient Jewish values. Our legal and penal systems endeavor to give people fair trials and fair punishments. Yet you don’t need me to tell you that there is room for improvement. Tonight, I’ll highlight just one way the penal system falls short in this capacity. And importantly, I’ll tell you how you can help restore the ideals our tradition preaches this week.
First, I’ll tell you what you know: when a person is convicted of a crime, they may be sentenced to time in jail. Going to prison, even for just a day, can have a massive impact the trajectory of a person’s life. If they can’t show up to work, they will likely lose their job. No job means no money, which can mean financial strain and homelessness. Their chance of getting a job when they get out of jail is lower. If they have kids, they will need to scramble to find care for them, and often the relationship between parent and child is strained or broken from the time away. We know that prisons are often overcrowded and taxing on the economy.
But, for now, jail is one of the punishments you may face for breaking the law. So when someone has served all or part of their time, they may be released on parole. Parole, in theory, helps a person effectively re-enter society. But herein lies the rub. We do little to help people re-enter the workforce, find housing, and otherwise get back on their feet. Our society, in an attempt to be “tough on crime,” is preoccupied with recidivism, reoffending or recommitting a crime. If you break the terms of your parole, you are likely sent back to prison as punishment. The concern is that the person is a public safety threat and we have to send a strong message to scare them straight.
But get this – in New York, only 14% of people on parole who are reincarcerated return to prison because they are convicted of a new crime. 65% go back to prison due to “technical parole violations.” Technical violations are behaviors like missing curfew or missing a check-in meeting. A technical violation often means being sent right back to jail. But the failure to comply with parole terms doesn’t necessarily indicate that a person is a public safety threat or will engage in new criminal activity.
Consider an individual who told his parole officer he would be returning later than usual from his job because he had to drive his inebriated boss home. They were pulled over by police because he was driving with only running lights on by accident. “When the officer ran my license,” the individual recounted, “he saw I was on parole and arrested me for breaking curfew and coming into contact with police.”
Or consider a man named Michael Hilton, who served 17 years for robbery in a jail upstate. He came back to New York City in the midst of the pandemic, and even lost his daughter to COVID in the spring. Michael himself has a host of medical conditions. His parole officer ordered him to take up residence at a homeless shelter, but knowing the dangers of COVID and the conditions in the shelter, particularly the lack of adherence to mask guidelines, Michael feared for his life. Michael informed his parole officer of a different residence where he would be staying. A warrant squad picked him up at that residence and he was sent to Rikers. Michael doesn’t argue with the fact that he violated his parole, but his violation had nothing to do with being a public safety threat. He simply wanted to protect his life. He argues that the punishment, being sent back to jail, does not fit the crime in this case. There has to be a better, less destructive alternative.
Research has shown that technical violations and their disproportionate response do little to reduce recidivism. In fact, extending the time a person serves in jail only makes re-entry more difficult. This is a particularly pressing issue in our home state of New York.
Two statistics related to this that are important for you to know:
1) In New York, the proportion of people who ended their parole term by being incarcerated for a technical violation – without a new conviction – is almost double the national average. This is a blemish on our state.
2) Black people are incarcerated for minor, technical parole violations at 12 times the rate of white people in NYC jails and 5 times the rate in NYS prisons. Unsurprisingly, folks, this is a racial justice issue.
35,000 people are currently on active parole in New York State. Think of how many people will return to prison because of minor offenses. When we know about the overcrowding in our prisons, the way COVID has ripped through them, when we know how hard it is to get back on your feet and how the system disrupts lives and families, how can we stand idly by?
Yes, crimes deserve penance. But Torah teaches us that a) the punishment must fit the crime and b) we must make sure everyone is treated the same under the law. Torah teaches that a moral system works toward restoration, not perpetual condemnation.
Which leads me to what you can do. Right now, 226 organizations have signed on to the Less is More Act, a bill gaining traction in New York State. RAC-NY, our regional Religious Action Center of Reform Judaism lobbying group, is one of those organizations. The bill would restrict the use of incarceration for technical violations and bolster due process. It would help with re-entry and incentive positive behavior.
I’m inviting you this evening to get involved in this call to justice. Our synagogue’s Civic Engagement Task Force, in partnership with the Racial Justice Task Force, is taking up the issue and joining the coalition. The big kick off is March 1. If you’d like to be involved, please email CETF@wct.org, which will get you in touch with Andrea Olstein. The Civic Engagement Task Force is not only working on this important issue, but has worked hard in the last year to bring justice to undocumented immigrants and to get out the vote among people who are traditionally targets of voter suppression. There will be more issues to come, for sure, so please email Andrea and get involved either in this initiative or another one.
When God speaks to the Israelites this week, God says “you should not wrong the stranger or oppress him, for you were strangers in the land of Egypt. You shall not ill-treat any widow or orphan” – otherwise put – do not abuse or keep down those who are most vulnerable and in need of your assistance. “If you do mistreat them,” God says, “I will heed their outcry when they cry out to Me.” Our job, Torah teaches, is to hear the cry before God does and create a system in which all can be restored to wholeness and a life of dignity.
*The majority of statistics are taken from the Less Is More informational website. https://www.lessismoreny.org/