How Should an Ethical Prosecutor Act if the Jails are Unsafe?

Lessons from Jewish Law
Part I


Michael J. Broyde

This is the first part of a three-part essay offering a radical proposal for how ethical prosecutors ought to approach sentencing recommendations for non-violent criminal offenders given the often dangerous and abusive conditions that exist in many American prisons. This perspective is informed by Jewish law’s complex history and jurisprudence criticizing cooperation with unjust legal systems, and its prohibitions against exposing lawbreakers to unjust and unlawful punishments.  The first installment of this series explains Jewish law’s classical approach to Jewish support and participation in unjust criminal justice systems. Part two explains how this attitude evolved in response to the development of what today we consider generally just and lawful criminal justice regimes, characterized by due process, equal treatment under law, and proportional punishment.  Part three applies these principles to the current American criminal justice system.

Introduction  

The Jewish legal tradition is designed to be a functioning legal system for its adherents in a variety of settings. On one end of the spectrum is a completely just society where all aspects of the secular legal system are consistent with basic norms of justice. On the opposite end is a brutally lawless society where no aspect of the secular legal system can be considered proper, and the “legal system” is one used by the government to torture and abuse people. In the criminal law setting, the relevant steps of the system ― regardless of its level of justice ― are investigation to arrest, trial to incarceration, and release from incarceration.

This short thought exercise is intended to familiarize the reader with how the Jewish tradition would view a society in which all of the processes before incarceration are just and the jails are less than completely lawful. It argues that in such a situation ― and we might be in such a situation in America in 2020 ― ethical prosecutors should hesitate to sentence non-dangerous convicts to any jail sentence when prison is a dangerous and lawless place. This is rooted in the ethical ideals of the Jewish tradition that physical punishments of people are limited to situations in which criminals physically threaten others.

This essay makes a simple, if unsettling, point. Assuming that American prisons are — to the shame of modern society — places where inmates are routinely brutalized and often sexually molested, an ethical prosecutor must consider whether any particular crime merits punishment through such treatment. The prosecutor may have little choice about violent criminals, such as murderers and those who assault the innocent. Such people must be removed from society for the safety of society, even if there is a possibility that they will suffer serious mistreatment in prison. Society could not function otherwise, and it is therefore ethical to prosecute them and have them go to jail, even jails where violence reigns among the inmates. However, there is a broad range of criminal conduct that is non-violent, yet subject to serious prison terms in America. Consider someone who shoplifts, or sells marijuana, or possesses cocaine, or intentionally bounces checks. Does such a person deserve to be beaten and brutalized? If the answer is no — and I think it is — an ethical prosecutor must not send such criminals to jail where the criminals will be brutalized and molested.

However, there is a broad range of criminal conduct that is non-violent, yet subject to serious prison terms in America. Does such a person deserve to be beaten and brutalized?

This essay is divided into three parts, each of which will take the reader into a segment of Jewish law. In total, this essay aims to help the ethical prosecutor understand the worldview of Jewish law in this area. The first part summarizes the ethical issues associated with prosecuting criminals and being a witness for such prosecutions in just and unjust societies in the Jewish view. The second part discusses how to function in a society in which the legal systems are just, but the jails are not. The final section puts this all together and provides ethical advice to prosecutors.

The Historical Prohibition of Assisting in Prosecutions: A Review

A brief essay of this type is not the place to introduce the reader to the intricacies of Jewish law, a 2,500-year-old legal system that provides a full code of law and ethics for Jews and covers topics from commercial law and criminal law to ritual law and Temple law. All of law and ethics is encompassed in the Jewish law term halakha ― “the way” ― and it is intended to denote a core idea in the Jewish tradition, which is that law is just one of the tools used in an ethical society to ensure that good people act properly and bad people are constrained.

Furthermore, Jewish law ― a legal system that lived in constant and varied diasporas for two thousand years ― spends quite a bit of its intellectual time and energy pondering conflicts of legal matters: when Jewish law should incorporate the law of the land; when Jewish law should march to the tune of its own drummer; and when Jewish law should mandate full non-participation in secular society’s law for ethical reasons. Furthermore, sometimes Jewish law allows full participation in the commercial law and yet abstention in the criminal law and family law. This field is complex and cannot be well summarized in a short article.

In the field of criminal law, the historical view of Jewish law can be summarized as follows: Jewish law mandated non-participation in the apprehension of Jewish criminals by the secular society in which Jews lived, unless these criminals posed a danger to the life of others or to the community. It did not rule such apprehension by the secular government to be illicit since the “Jewish criminals” were actually criminals, but it simply directed that Jews not participate in such a system because participating in an unethical system was very problematic. In other words, it is better to let non-violent criminals roam free ― or to arrange a just system of internal punishment supervised by the autonomous Jewish courts ― than to participate in the brutalization of non-violent criminals by secular society.

The reason was clear and easy to understand. In an unjust society, one never could really have a great deal of confidence in the justice system. When the cops are also the robbers, and the judges are also the criminals, non-participation makes logical sense for non-violent crimes. This was true even if the criminals were truly guilty of the crimes accused, since the process of punishment was itself deeply unjust.

As is obvious to anyone with even a vague familiarity with the flow of Jewish history, Jews until modern times have nearly always lived in situations where government was unjust (or unjust towards Jews) or banditry formed the basis for government. Thus, telling the abusive government a Jew had broken the law was a dangerous act. Indeed, this conduct clearly, readily, and directly caused people to have their money taken unjustly, to be beaten or tortured, or to sometimes simply be murdered. The Talmudic Sages had no choice but to enact rabbinic decrees prohibiting such informing and participating, and this view is commonly codified in Jewish law.1 See Talmud Bavli Bava Kamma 115b-117b. Indeed, classical Jewish law considers a person engaged in an act of illicit informing as engaging in an activity that threatens the very life of the people one is informing on. In some circumstances, such a “collaborator” could even be killed, since they are threatening the life of another.2 Id. at 117a-b; Shulhan Arukh Hoshen Mishpat 388:10.

The reason for the rabbinic decree positing that an informer is a life-threatening pursuer is simply stated by Rabbenu Asher (d. 1327) in what was widely considered the Golden Age of Spain (but which really was not so “golden,” as is widely known3 See, e.g., Bᴇɴᴢɪᴏɴ Nᴇᴛᴀɴʏᴀʜᴜ, Tʜᴇ Oʀɪɢɪɴs ᴏғ ᴛʜᴇ Iɴǫᴜɪsɪᴛɪᴏɴ ɪɴ Fɪғᴛᴇᴇɴᴛʜ Cᴇɴᴛᴜʀʏ Sᴘᴀɪɴ (Random House, 1995) (noting many times that the “Golden Age” was less than perfect). ):

The general rule is that Jewish law prohibits one from participating in the prosecution of another when the government is unjust, unless the misconduct prosecuted is violent, threatens the community, or otherwise causes serious physical harm to people

One who runs to inform so that Jewish money is given to the governments of bandits (anas)4 Precisely translating the word anas is important but hard. The word denotes an illicit oppressor. Thus, a rapist is an anas, as is an armed robber. A cat burglar would not be called an anas. In this context, it is used to denote an oppressive government. is analogized by the rabbis to one who is running after a person to kill him. This is seen from the verse (Isaiah 51:20): “Your children lie in a swoon at the corner of every street, like an antelope caught in a net.” Just like when an antelope is caught in a net, the hunter has no mercy towards it, so too the money of a Jew, once it falls into the hands of the bandits who are the government; they have no mercy [toward] the Jew. They take some money today, and tomorrow all of it, and in the end, they capture and kill him, since perhaps he has more money. Thus, an informer is like a pursuer to kill someone, and the victim may be saved at the cost of the life of the pursued.5 Responsa of Rabbi Asher Ben Yechiel 17:1 (as found on the Bar Ilan Responsa Project edition 27).

Of course, even in pre-modern times and under bad governments, the Jewish tradition understood that some people still needed to be reported on and prosecuted, even if the prosecution was unjust. The proper response to violent criminals, or people whose conduct endangers other people or the community as a whole, is to inform on them and assist in their prosecution, even if they are killed improperly by the police or the courts or in jail. Even in unjust societies, it was clear that one must bring such dangerous people to the attention of the secular authorities if that was the only way to get them to cease their violent ways. Furthermore, there is nothing wrong with being a prosecutor of such individuals. Their violent ways ― and the disregard they show to others’ security ― justify the unjust punishment, and this is the only way to rescue the innocent from them. Indeed, the balance of the equities inclines one to think that this process is not as unjust as letting these people roam free in society physically harming people, even in an unjust society. Since the choice in such a society is either to let these people harm others or let society harm them, the Jewish tradition logically chooses to protect the innocent.

The general rule is that Jewish law prohibits one from participating in the prosecution of another when the government is unjust, unless the misconduct prosecuted is violent, threatens the community, or otherwise causes serious physical harm to people.6 See Shulchan Arukh HM 388:2-3 (noting when an informer is himself under physical duress to inform and does so inform, no liability follows), Shulhan Arukh HM 388:12, and Shakh 388(45) (permitting informing when the criminal is violent or a threat to the community); Rama Shulhan Arukh 388:5 (according to some decisors, when one informs to protect his own property, that is not informing). By its simple, direct application, this rule would prevent a person from informing on his neighbor who is cheating on his taxes (since the government imprisons such people and does not merely retake the money owed), violating non-safety-related zoning law, stealing cable television from the cable company, engaging in insider trading, or participating in a host of other similar violations of American criminal law. Informing on a serial killer, mugger, assaulter, child abuser, or any other violent criminal would be permitted.7 I acknowledge here that the late and great Rabbi Moshe Feinstein dissented from this consensus. As explained in the original article, this is a minority view. Even he permitted employment as a prosecutor, but he only prohibited voluntary cooperation. See Moses Feinstein Iggrot Moshe, Hoshen Mishpat 1:92.  For more on this, see my original article at Michael J. Broyde,Informing on Others to a Just Government: A Jewish Law View, 41 J. ᴏғ Hᴀʟᴀᴄʜᴀ & Cᴏɴᴛᴇᴍᴘ. Sᴏᴄ’ʏ  5, 35-40 (2002).


Michael J. Broyde is professor of law at Emory University School of Law, a senior fellow and projects director at the Center for the Study of Law and Religion at Emory University. He is a professor at Emory’s Tam Institute of Jewish Studies, and was last year a Fullbright Scholar at Hebrew University and visiting professor at Stanford Law School. His primary areas of interest are law and religion, Jewish law and ethics, family law, and comparative religious law.