How Should an Ethical Prosecutor Act if the Jails are Unsafe?
Lessons from Jewish Law
Michael J. Broyde
This is the final installment 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. Part two explained 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. This part applies these principles to the current American criminal justice system.
There are No Just Prisons: My Approach Reconsidered
The issue with endorsing prosecutions in all settings is that there are virtually no just prisons in America. Of course, the presence of lawless jails does not impact either the ethics of prosecuting violent criminals ― since the Jewish tradition is prepared to allow heinous things to happen to violent criminals to deter them ― or crimes where prison is never part of the punishment, since lawless jails are irrelevant when imprisonment is not possible. But lawless jails impact the ethics of prosecuting non-violent criminals who will be imprisoned for their offenses, such as a non-violent burglar, a white collar criminal, a shoplifter, or a destroyer of mailboxes.1 It is a felony. See 18 U.S.C. § 1705 (1982) (imposing a fine of not more than $1,000 or imprisonment of not more than three years for the destruction of a mailbox). Indeed, America incarcerates a wide variety of criminals who pose no physical risk to anyone.
Prisons are rough and difficult places: unjustified inmate-on-inmate violence is frequent, and sexual as well as physical assault is rampant. Furthermore, the guards are frequently ineffective or worse, and guard-on-inmate violence is a serious problem as well. Illicit drugs are rampant, neo-Nazi gangs are ever-present, inmates with suicidal tendencies are unwatched by sleeping guards, and so much more. Indeed, no one really thinks that we even understand the scope of the problem, as we as a society are both uncomfortable with the data and unwilling to spend the money to fix the problem.
Federal District Court Judge Richard M. Berman, who denied the bail request by Jeffery Epstein (who then subsequently killed himself in prison), writes simply and honestly in the New York Times on November 26, 2019:
There is at the very least anecdotal evidence that chronic understaffing, subpar living conditions, violence, gang activity, racial tension and the prevalence of drugs and contraband are the norms in many of our prisons. These conditions are worsened by the absence of necessary services, including meaningful mental health and drug rehabilitation, not to mention adequate heat and hot water.
Some Jewish law authorities have noted this as well. Rabbi Ezra Batzri, in his modern, multi-volume treatises on Jewish commercial law, Dinnai Mamonut, responds to the view that modern societies are just by insisting that this assertion is simply false. He writes in his explanation of the rules prohibiting cooperation with secular authorities (in Israel in the 1960s):
Do not be surprised by the rules in this chapter and think that they are inapplicable nowadays since governments are enlightened and democratic, a beacon for people to see. This should be thought true only by the very naive, as even in democracies, in truth when there is a matter that involves the government, the matter is treated as out of the normal protocol as happens when matters relate to security of the state. All rules of informing [and assisting in prosecutions] are applicable even currently.Anyone who knows and understands and sees not only what is externally visible, and what previously was, will see that only the external appearance has changed―the outside has changed―but the central characteristic [of government] has not changed. Even if they bring all matters to court, it is clear that, through interrogation and the police, governments can destroy people and in many places they do, in fact, destroy people.2 Rabbi Ezra Batzri Dinnai Mamonut 4:2:5 n.1 at page 86.
Batzri posits that even when the external justice system seems to work, nonetheless the executive and judicial systems are so deeply fraught with exceptions, extrajudicial misconduct, and coerced confessions that one must assume injustice will occur; thus participating in prosecutions is generally prohibited, as it always has been.3 This writer posits, but acknowledges that he cannot prove without a doubt, that this basic argument is factually incorrect in America when it comes to trials and the like.
Similar sentiments are expressed by Rabbi Yaakov Yeshaya Blau, author of the multi-volume Pit’hai Hoshen, which is a modern restatement of Jewish commercial law. He states simply that even if the justice system works up until the point of incarceration, “Nonetheless the punishment of imprisonment is analogous to endangering a person’s life by informing on them in a way that endangers their life, since imprisonment poses a possibility of life-threatening conditions.”4 Pit’hai Hoshen 7:4 n.1, in the course of a lengthy discussion of this issue.
Rabbi Blau proposes the possibility that even if a justice system works only to incarcerate people who are deserving of incarceration, jail is a most unpleasant place to be, with physical duress exactly of the type we see in America. Assisting in incarcerating a person in such a prison should only be done when we are ethically certain that this person deserves such a punishment.5 Prison, thus, has the status of an indeterminate sentence (mas she’ayn lo kitzvah, see Rashba 1:1105, and Pit’hai Hoshen volume 5, Chapter 12, paragraph 5 in the notes), which is definitionally void according to Jewish law ― in prison one is subject to random extrajudicial punishment by both the guards and fellow prisoners. One well-known commentator on prisons in America observed, “Prisons, never safe places, are growing increasingly dangerous to inmates. The most recent Department of Justice research shows that 14% of all prison inmates ― and 20% of those under the age of 25 ― have been assaulted while in prison.”6 See John R. Williams, Representing Plaintiffs in Civil Rights Litigation Under Section 1983, 596 PLI/Lɪᴛ 117, 160 (1998). See also Sharone Levy, “Balancing Physical Abuse by the System against Abuse of the System: Defining ‘Imminent Danger’ Within the Prison Litigation Reform Act of 1995,” 86 Iowa L. Rev. 361 (2000) which notes: Studies demonstrate that life in prison is becoming more dangerous, and prison violence is increasing. In 1996, the U.S. Department of Justice found that fourteen percent of all inmates were assaulted while serving prison sentences. Further, not all of these incidents occur between inmates. Guards often subject both male and female prisoners to rape and physical abuse.
According to Blau, it is in prison where Jewish law now fears that the observations of the Rabbi Asher from seven hundred years ago are correct ― people are abused and tortured without any basis in law.
In this model, who should be ethically sentenced to prison in Alabama? The Jewish tradition answers that only people who deserve to be treated in the manner of prisoners are treated as such in Alabama! As the New York Times reports it, “Prisoners in the Alabama system endured some of the highest rates of homicide and rape in the country, the Justice Department found, and officials showed a “flagrant disregard” for their right to be free from excessive and cruel punishment.”
The Jewish tradition would limit prison in Alabama to severely violent individuals or those who endanger society.
Let me give an example. Many years ago, when I was a synagogue rabbi for a congregation, one of the members of a different congregation ― a small and petite man ― pled guilty to a state crime similar to non-violent embezzlement. At his sentencing hearing, I testified that I thought that this man ― otherwise a good person ― should be sent to a “Club Fed”7 For more on the minimum security prisons and the term “club-fed,” see Helena Andrews-Dyer and Emily Heil, What It’s Really Like Inside ‘Club Fed’ Prisons, Tʜᴇ Wᴀsʜɪɴɢᴛᴏɴ Pᴏsᴛ, Jan. 5, 2015, https://www.washingtonpost.com/news/reliable-source/wp/2015/01/05/what-its-really-like-inside-club-fed-prisons/ (“It’s kind of like a junior college setting,” explained Larry Levine, director and founder of Wall Street Prison Consultants, which advises clients before going into lock-up. “I don’t want to call it a stress-free environment, but it’s a lot of hanging out with the other inmates, you know, just bull—-ing.”). type of minimum-security state jail, or he should be freed on probation or confined to home jail. I remarked that given the sexual assault rates in state prison, no one thought that the crime this man committed justified the possibility of being raped in prison. Assuming that these numbers are correct, a very strong case can be made that abuse in prison is a statistically noticeable event and must be considered an event of some real possibility with all of the ramifications associated with that. Consider how one would respond if a judge explicitly sentenced a non-violent felon to “three years in prison where he might be raped by fellow prisoners as part of his sentence.” We would all recognize that such a sentence is wrong and improper and ought to be defied, even if that meant no punishment for such a person, as this was the only sentence the government could actually provide. Rabbi Blau is arguing that such is exactly the reality of a prison sentence for a non-violent prisoner sent to a prison with violent inmates.
This is the Jewish law dilemma of a progressive prosecutor: given the sorry state of our jail system, is there ever any place to actually incarcerate a non-violent offender? The system post-conviction is grossly unsafe and thus deeply unjust for all but the few who are sent to the rarest of creatures ― a safe jail.
If this approach is correct, one can divide cases of prosecuting people into three categories. One situation occurs when a person who is being informed upon is an individual who is violent, threatens violence, induces harm to others, or endangers the welfare of the community. Such a person must be prosecuted and incarcerated, as Jewish law recognizes the need to remove these people from the civilized community, even if they might be harmed by the brutal prison system.
The second situation is when the jails are safe and the criminals non-violent. In that situation, as I explained in my article,8 See Michael J. Broyde, Informing on Others to a Just Government: A Jewish Law View, 41 J. Hᴀʟᴀᴄʜᴀ & Cᴏɴᴛᴇᴍᴘ. Sᴏᴄ’ʏ 5, 20-40 (2002). this is a dispute among Jewish Law authorities of the last century, with most permitting informing in such a case and a few dissenting. It seems logical to cooperate with the legal authorities in this situation, since in a just society, even non-violent crimes need to be punished.
The third situation is that of the non-violent criminal who engages in crimes that do not involve violence or the threat of violence, and the jails are dangerous. Depending on the circumstance, this can cover a wide range of different crimes, such as sale of marijuana where that is illegal, prostitution, shoplifting, possession of narcotics such as heroin and cocaine, intentionally bouncing checks, destroying mailboxes, and white collar crime ― all of these seem to be situations of non-violent crimes where lives are not destroyed.
Because these crimes are punished by jail sentences commonly and yet the prison system will be brutal to them, Jewish law avers that ethical people should not participate in their prosecution because the punishment imposed on them ― brutalization in prison ― is unacceptable given the non-violent nature of the crime. Other areas of prosecution ― such as parking violations, building code violations, unintentional environmental damage, and the like, where a prison sentence is not a realistic possibility ― would not be prohibited by this rationale, since these are mere civil violations.
In this writer’s opinion, this observation ― that most prisons are (sadly enough and to the shame of our society9 As I was writing this article, yet another such discussion was triggered, this time in New Jersey by the New York Times. Katie Benner, Inmates at N.J. Women’s Prison Endured Years of Sex Abuse, Justice Dept. Finds, Tʜᴇ Nᴇᴡ Yᴏʀᴋ Tɪᴍᴇs, April 14, 2020. ) treacherous places with tortious conditions incapable of punishing people justly ― has a powerful practical logic to it and seems factually persuasive. If American society cannot run a criminal justice system that punishes non-violent criminals justly, Jewish law would rule that people should not be accomplices to a criminal justice system that brutally punishes people for non-violent offenses.
Of course, there are serious shades of gray when considering any particular crime. For example, it is possible ― even reasonable ― that a set of financial crimes are so serious and so endangering to the welfare of the community that they are treated like violent crimes; indeed, Rabbi Moshe Isserles in his glosses on the classical code of Jewish Law from more than 500 years ago seems to indicate that counterfeiting currency was such an example,10 See Glosses of Rabbi Moshe Isserless to Shulchan Aruch Choshen Mispat 425:1. It is possible to read this material not in this way but in response to anti-Semitism as well. This awaits further analysis beyond the scope of this paper. and other crimes ― like systemic fraud ― might also fit this bill in modern times. Such crimes also warrant imprisonment, even in a brutal and unjust prison system, as they deeply endanger the community as a whole.
Furthermore, some non-violent crimes might also be considered an endangerment to life. Therefore this would justify them being treated like violent crimes because the consequences of these crimes are physical harm or death to others. An example of such a crime might be the sale of illegal “hard” drugs like opioids or heroin, which frequently cause death to innocent people, or even the sale of alcohol to people who are expected to drive. Indeed, it might even be applicable to some commercial crimes, like the intentional pollution of the environment with toxic chemicals.11 E.g., the Bhopal disaster was both unintentional and extremely toxic; see, Bhopal Disaster, Wɪᴋɪᴘᴇᴅɪᴀ, https://en.wikipedia.org/wiki/Bhopal_disaster; see generally, Jᴏɴᴀᴛʜᴀɴ Hᴀʀʀ, A Cɪᴠɪʟ Aᴄᴛɪᴏɴ (Random House, 1995). Even as the criminal activity is not violent, the consequences are violent to others, which would seem to be the test used by Jewish law.12 In the sense that one could use violence to prevent this crime from occurring. See, Shulchan Aruch Choshen Mishpat 388:1-7 and 425:1-4.
Whether the reason is underfunding, racism, societal apathy, or a simply inept administration of justice, we see repeatedly that jails are dangerous places where prisoners are subject to negligent care, violent attack, and worse. From the perspective of Jewish law, this reality causes one to question the ethical, moral, and religious validity of ever sending someone who is not a danger to society to such a jail.
The basic central message of Jewish law is that an ethical person involved in incarcerating a criminal ― witnesses, prosecutors and judges ― bears an ethical duty to ensure that the actual punishment fits the actual crime which the convict is guilty of. In a society in which the prisons are places of brutality, that brutality needs to be considered as part of the reality when sentencing people. People who have not committed a crime worthy of brutalization in prison should not ethically be sent to a prison where brutalization will occur. If there are no prisons that do not brutalize prisoners in our society, then only people whose conduct threatens others or endangers society should be sent to brutal prisons–and even that is far less than ethically ideal. That is the mandate of Jewish law in this matter and the ethical advice it would present to prosecutors.
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.