How Should an Ethical Prosecutor Act if the Jails are Unsafe?
Lessons from Jewish Law
Michael J. Broyde
This is the second 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 explained Jewish law’s classical approach to Jewish support and participation in unjust criminal justice systems. This part 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 will apply these principles to the current American criminal justice system.
Living in a Just Society: A New Rule of Jewish Law
How has living in America ― a society with a just government ― changed this view? In a previous article, I noted various approaches taken to the question of whether just and democratic governments have a different status according to Jewish law, and I concluded that they did, according to almost all authorities. Quoting a variety of modern Jewish law sources, the article argues that normative Jewish law does not treat the prohibition of assisting in governmental prosecutions as really applicable in modern western democracies which are just. Rather, broadly speaking, most Jewish law authorities adopt some version of the view of Rabbi Yechiel Epstein in his grand restatement of Jewish law, the Arukh HaShulhan, which states:
Note: As is widely known, in times of old in places far away, no person had any assurance in the safety of his life or money because of the pirates and bandits, even if they took upon themselves the form of government. It is known that this is true nowadays in some places in Africa where the government itself is grounded in theft and robbery. One should remind people of the kingdoms in Europe and particularly our ruler the Czar and his predecessors, and the kings of England, who spread their influence over many lands in order that people should have confidence in the security of their body and money. The wealthy do not have to hide themselves so that others will not loot or kill them. On all of this [the presence of looting and killing] hinges the rules of informing in the Talmud and later authorities, as I will explain infra: these rules apply only to one who informs on another to bandits and so endangers that person’s money and life, as these bandits chase after the person’s body and money, and thus one may use deadly force to save oneself.1 Arukh HaShulhan, Hoshen Mishpat 388:7. Perhaps a similar such statement can be found in the Biur Hagola Hoshen Mishpat 388 (ayin), who writes: It has been already well accepted as a custom and decree that the leaders of the community, charged with a fiduciary duty, do not lie or commit fraud to the secular community, and they publicize and give permission to publicize and reveal to the secular community those individuals who buy on credit without expecting to pay, or borrow money without expecting to repay it.
Since I wrote that article, other sources have come to light to support this view, including the late great Rabbi Joseph Soloveitchik, the leading Modern Orthodox voice in America, as well as many of his disciples and intellectual progeny.2 See, e.g., Aharon Ziegler, “Mesirah In Contemporary Times” June 14, 2012, Jewish Press page 57 which notes, “Soloveitchik had a different point of view on this matter. He said in the name of his father Rabbi Moshe Soloveitchik that the laws of mesirah simply do not apply in democratic countries.” Rabbi Aharon Lichtenstein, Rabbi Joseph B. Soloveitchik’s son-in-law felt the same way (See Dr. Moshe Simon-Shoshan, Mesirah: Two Contemporary Views at https://www.torahmusings.com/2013/05/mesirah-two-contemporary-views/) as did Rabbi Moshe Soloveichik’s second son, Rabbi Aharon Soloveichik, as I noted in an article entitled “Reporting Child Abuse” at https://www.torahmusings.com/2012/05/reporting-abuse-2/. Indeed, one can lay considerable claim to the idea that this approach is the most logical one to take in a modern western democracy.
The core of the argument here is easy to understand: the Jewish tradition was seeking to avoid injustice. Furthermore, when living in an unjust society, it sought the path of least injustice. Living in an unjust society is complicated and requires moral balancing. One needs the organs of “justice” even in an unjust society to prevent terrible crimes, but otherwise one should be as uninvolved as possible. Once society becomes just ― and the organs of government cannot be confused (as Rabbenu Asher does, correctly, in the 1300’s) with bandits ― there is no real reason to abstain from being involved in the prosecution of criminals and the enforcement of secular law in all of its different forms. If people are punished, it is because they have violated a just law and have been given a fair trial and a reasonable punishment. The rabbinic decree mandating non-involvement is limited to unjust societies.
Of course, the rabbinic decree here ― what is widely called “the prohibition against informing” ― is grounded in exactly the ethical difficulties of living in an unjust society: what should a person do when an unethical person is trying to be a cat-burglar in an unjust society that will, if it catches him, dismember him limb from limb or otherwise unjustly punish that person? The Jewish tradition proposes a fine solution: DO NOTHING. Do not assist the burglar and do not assist the bandits who are seeking to catch and brutalize the thief. There is no good way, the Talmudic Rabbis averred, to be an ethical person in that situation: assisting the thief is wrong, and assisting in the murder of the thief is also wrong.
Why didn’t the Jewish tradition ask each person to choose the lesser of these two evils and decide on a case-by-case basis whether to help the thief or the police, depending on the relative equities of each case? I think a few answers can be put forward. First, the Talmudic rabbis were worried about resistance against the government and the anti-Semitism it would generate. Second, they were worried that letting individuals balance the equities on a case-by-case basis would produce inconsistency, bias, or clashing communal norms. Finally, in situations where the person who is called upon to inform is themselves threatened with unlawful harm, even when otherwise violative of the Jewish tradition, the Talmudic rabbis are widely understood to have allowed informing, allowing the balancing of the equities only when a person with “clean hands” is being threatened. More than that, however, is not allowed.
Let me add that the Jewish law view ― both of reporting and staying distant ― are both compatible with American law specifically and the common law generally. As a general proposition, members of our American society are never obligated, according to American criminal or tort law, to report violators of American law.3 See, e.g., In re The Liverpool Household Stores Ass’n, 59 Law. Rep. 616, 617 (England, 1890) (“A misfeasance does not include a nonfeasance, and … no complaint can be made … of a sin of omission, as distinguished from one of commission ….”); see also Restatement (Second) of Torts § 314 (1965) (“The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”). As one well-known police officer stated, “There is no law requiring citizens to report a crime … or to stop a crime” (quoted in Jennifer Bagby, Justifications For State Bystander Intervention Statutes: Why Crime Witnesses Should Be Required to Call For Help, 33 Iɴᴅ. L. Rᴇᴠ. 571, 572 (2000)). Of course, in the last twenty years there have been a few modern statutes to the contrary, but they are far from the trend of American Law; for more on this, see Sarah L. Swan, Bystander Interventions, Wis. L. Rev. 975 (2015) and contrast this with the classical article from more than a century ago; see Francis H. Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, 56 U. Pa. L. Rev. 217 (1908). In modern American law, unlike Jewish law, if one did not cause the violation or have some other special relationship either to the victim or the criminal, one bears absolutely no legal obligation to intervene to stop a crime or even call the police.4 See Jessica R. Givelber, Imposing Duties on Witnesses to Child Sexual Abuse: A Futile Response to Bystander Indifference, 67 Fordham L. Rev. 3169, 3169-3205 (1999). In American law, one need not report one’s neighbor for tax fraud, or call the police when one witnesses a crime, or rescue a drowning person from a river. Thus, even in circumstances where Jewish law mandates that one not inform on a person, the person who has knowledge of criminal activity by another and does not report it is not violating American law at all. Of course, no matter what the secular law is, Jewish law is not discussing serial killers, armed robbers, sexual predators, muggers, or other similar violent criminals. They must all be informed upon and prosecuted if that is needed to protect society from them as a matter of substantive Jewish law, no matter what the secular law avers is the duty.5 Jewish Law avers that there is an affirmative obligation “not [to] stand by while [one’s] neighbor’s blood is shed.” (Leviticus 19:15-17 Common English Bible (CEB)). Preventing, for example, a murder is mandatory in Jewish law, even if the secular society one is living in has no such mandate. Talmud Mas. Yoma 85a:20-23 (Rabbi I. Epstein ed., The Soncino Press 1935) (“Whence do we know that in the case of danger to human life the laws of the Sabbath are suspended? — R. Ishmael answered and said: If a thief be found breaking in. Now if in the case of this one it is doubtful whether he has come to take money or life; and although the shedding of blood pollutes the land, so that the Shechinah departs from Israel, yet it is lawful to save oneself at the cost of his life — how much more may one suspend the laws of the Sabbath to save human life! R. Akiba answered and said: If a man come presumptuously upon his neighbour etc. thou shalt take him from My altar, that he may die. I.e., only off the altar, but not down from the altar. And in connection therewith Rabbah b. Bar Hana said in the name of R. Johanan: That was taught only when one’s life is to be forfeited.”); See also, Talmud Mas. Yoma 85b, (“[T]o save life one may take one down even from the altar.”).
If this article stopped at this point, a good summary of the Jewish Tradition to an ethical prosecutor would be that there are no important limitations found in the Jewish tradition towards being a prosecutor in a just society. The ethical limitations ― indeed the ethical duty ― is to refuse to participate in an injustice, which is limited to an unjust society. Being a prosecutor in a just society is a commendable deed, like being a firefighter ― both help reduce the danger in and to society, and both help ensure that the world is a better place.
So far, this three-piece article has not discussed what one does in an ethical society with unethical prisons. That will be discussed in Part III.
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.
Broyde, Michael J. “How Should an Ethical Prosecutor Act if the Jails are Unsafe? Lessons from Jewish Law – Part II.” Canopy Forum, May 13, 2020. https://canopyforum.org/2020/05/13/how-should-an-ethical-prosecutor-act-if-the-jails-are-unsafe-lessons-from-jewish-law-part-2/