Thursday, September 24, 2020

Breanna - no justice any time soon.

The Breanna Taylor story just got worse.  But it is the judge and the statutes that are to blame for her death even more than the police officers that killed her.

Breanna Taylor was killed in her apartment by gunfire from Lexington KY police officers on March 13, 2020.  The source cited below has the fact-checked summary of what happened, so I won't review that here.  Yesterday a grand jury declined to charge any of the three police officers in the death of Breanna, instead charging one for recklessly firing his weapon in a way that endangered other people in the neighborhood.  In other words: the shooting and killing of Breanna was entirely legal.

Not surprisingly, this is a terrible situation. The sustained cries for Justice in the face of proven systemic racism in the criminal justice system (seem my post from the second day of Rosh Hashanah) have loudly and consistently put Breanna's name at the top of the list of innocent victims of police actions.  The protestors are out in force again, demanding a prosecution for the death of Breanna itself. And in a criminal move, someone shot two police officers during the protests last night.  Horrible.

I say this is a terrible situation because both sides are right and everything about the night she died was wrong.  

Why is it the Judge's fault?

I hate the rules and laws that allowed for the police action that night. While there was police incompetence that aggravated the situation, the fact is that the system is built for the no-knock middle of the night warrant to exist.  Once that exists, the police are right to use it - and they did. It is the judge who is supposed to use discretion to permit or not permit a warrant, and a judge does not have to permit those warrants just because they are an option.  

The no-knock warrant is a travesty of justice that inevitably and predictable creates exactly this kind of shootout.  A citizen has a right to defend their property when under violence invasion.  The police have a right to violently invade.  It is insane. The police legally returned fire after Kenneth Walker lawfully used his legal firearm to shoot in self defense at whoever (the Police) were breaking down his door in the middle of the night. What does anyone think is going to happen? 

It is revolting, but the grand jury is saying that what happened did not break the law.  It was terrible, and that's why the police department settled a wrongful death lawsuit with a $12,000,000 pay out to the family. But don't expect jail time for the officers when it was the judge and the statute that created the shootout's circumstance in the first place.

Unfortunately, the calls for justice in the form of prosecution are unrealistic, and will never be satisfied.  The ongoing FBI investigation will be about her civil rights, and to convict an officer they had to know at the time that they were violating those civil rights.  The only justice Breanna's family will ever see will come from the ballot box.  The city of Louiseville has already banned  no-knock warrant protocols by local statues.  A national version is dying on the table of the Senate Judiciary Committee.  

If that is all that comes of this, it is not enough and the protestors have every moral ethical and fact based right to rage over the injustice of the system.  It will get worse before it gets better.


Monday, September 21, 2020

Racial Justice - Proven Truths in the 2020 Protests

 Rosh Hashanah, second day

Racial Justice - Proven Truths in the 2020 Protests

September 19, 2020

Rabbi Robert L Tobin


Bnai Shalom, West Orange NJ



Shanah Tovah and Good morning.  And after yesterday’s embrace of Law and Order, I am sure you are all waiting for the other shoe to drop.  And you are right.

This year, there has been a loud shofar call in our country, blowing for justice.  Can you hear the voice of the shofar?  Prophecy works this way.  It interrupts the powerful, condemns the complacent and demands attention.  Prophecy is rude, uncomfortable and often unwelcome.  People usually don’t like prophets. And that is why we need them.  If you are already uncomfortable with the topic I have chosen, and I haven’t said anything other than that, then I encourage you hear the voice of the shofar knowing that being challenged is part of being loved.

Today I will talk about the core belief that the protests this year espoused: that there is systemic racism in the criminal justice system.  Yes, I understand that the issue of racial justice and race inequality is bigger than that. But how long to you really want the sermon to be?  Again, like yesterday, there is a basic moral and religious content here which Judaism speaks to.  How can we not? Judaism, both our religion and our history, condemns racism.  The only legitimate Jewish argument is whether or not the racism is real.  And since we know that racism has been a constant component of our country’s history since its founding, the question isn’t “is there racism?” but “how bad is it?” And it is that basic belief about the nature of racism in this country that has become the dividing point for so many in this year, and even in this synagogue. 

My hope is to unite us in both Jewish beliefs and a context of social science research and fact.  It is not my goal to set a political agenda for you, or to tell you how to vote or what, exactly, you should change about America.  People with strong progressive believes will probably feel that I have not gone far enough.  People with strong conservative beliefs will probably wish I had picked a different topic.  But if I can bring us together on some basic Jewish beliefs, and point you at scientifically proven problems, I will have done my job for today.

Yesterday I talked about Law and Order.  But what happens when that all goes wrong? After all, over the course of Jewish history we have certainly learned that not every government is worthy of our prayers and not every police force is noble in character. God knows that our people knows that better than any other.  100 years ago, Law and Order meant violently breaking up union strikes.  200 years ago it meant enforcing the largest institution of slavery in human history.  When George Floyd was murdered, every police officer I know said they were disgusted and they condemned the officer who did it. But saying it was just a few bad cops avoids the difficult topic.  Each example might be explained away, but the big picture must be understood.  Something has changed.  When upper middle class moms and dads lie down in on the main street of South Orange and chant about racism, something has definitely changed.

Every pulpit in America this year will be talking about Racial Justice, in one way or another.  We have been talking about it, you and I, for years. Let’s remember the other sermons I have given in recent years, so we all understand that my teachings this morning are part of a sustained effort of teaching Torah on this topic from this pulpit over time.  I am not blowing with the wind, and this message is not about the election.  I am again talking about the single most important social evil in our society: racism.

To review: On the first day of Rosh Hashanah five years ago I gave a sermon entitled, “Black Lives Matter.”  On the first day of Rosh Hashanah three years ago I gave a sermon entitled, “White Supremacism.”  On the second day three years ago, my sermon was “Law and Criminals.” 

In 2015, I spoke about the deaths of Treyvon Martin, in Florida, of Michael Brown in Ferguson, MO, and of Eric Gardner here in NY. I spoke of Freddie Gray from Baltimore.  I said their names.  At the time I raised the question, in these exact words: is there institutional bias in policing against black people in America?  And I pointed out that saying “Black Lives Matter” is a sentence that should all can agree with.  Now, the leadership of that group did, and often still does, espouse anti-Zionist and antisemitic beliefs. Granted.  That is a serious issue for us to combat, and I do not endorse the movement or those leaders when I affirm a simple truth: Black Lives DO Matter. It is astounding that people can’t say that sentence without immediately saying some kind of “but, but but” to undermine it.  So we have been struggling with this, you and I, as a theme of Rosh Hashanah for years.  And yet, somehow, this year is different.  This year is worse. This year is more active. And this year real change may actually begin.  

What I want to do this morning is to understand the Torah view, and especially the facts that the social science research has documented on the issue.  I have certainly been educated this year and am on a path to greater understanding and greater empathy. I hope that you will be as well because those values, the image of God, equality, mutual understanding and empathy, are essential to the religion that says over and over again “because you were slaves in the Land of Egypt.”

In addition to my previous messages on race in America, I also gave a sermon two years ago about listening to the other side of the argument.  You may recall I told you to switch cable t.v. news programs.  Many of you did, and boy did I hear about it.  Many of you did not, and I challenge you again to do so.  It is annoying, even infuriating, but it is essential if you want to bridge the gaps between us in this deeply divided country.  It is the stone statue of idolatry in Judaism that has ears that cannot hear, eyes that cannot see and mouths that cannot talk. So too the prophet condemns the people who are like them. Today we need ears that hear, and eyes that see.

When we talk about systemic racism in America, we are talking about listening to another person’s story.  I don’t need to like it, and I may not draw the same conclusions politically about society as a they do.  But I do need to hear it, and to listen to it, and to value it.  And when I do, I am not destroying the lessons of America. Like all good exercises in writing history over time, it is about getting a more 3 dimensional picture of what has actually happened in the past, so I better understand what is happening in the present.  If we value learning, we need to accept that our myths may not be literally true. Like dinosaur bones force us to reconsider Creation’s path, so too the historian may force us to reconsider America’s path.

First, we absolutely must admit that the average black person’s experience of race in America is profoundly different from the average white person’s experience of race in America. Profoundly.  In community gatherings, on campus at Drew University, in conversion with clergy and just in the narratives that we have heard this year through the voice of the protests is abundantly clear: black America has no reason for nostalgia for American History and the average black person’s experience of – and attitude towards - policing and the criminal justice system is very different from the average white person’s experience.  And until we all understand why, we will never fulfill the highest ideals of our country - equality and freedom.  This is where it begins.

A few years ago, I went to the Governor’s Ball music festival.  While there, a particular musician had several thousand people packed together jumping up and down enthralled by the performance.  Being an old guy with academic tendencies, I couldn’t really hear or understand the lyrics that flew out of his mouth but the kids loved it. It was very cool, even if I wasn’t. Then came the refrain, with every mouth shouting in unison over and over, F the Police, F the Police, F the Police.  Na├»ve and out of touch with his voice, his views, and his experience, my jaw dropped in horror. After all, Judaism – as we saw yesterday – believes in Law and Order, and sees law enforcement as an essential part of the just society.  I saw anger, indoctrination and incitement.  I was very disturbed. 

I recalled that moment this year during the protests and I looked up the rest of the lyrics for the first time. They were all about traffic stops, racial profiling, stop and frisk, false arrests, biased courts and prison. They were about the anger of the innocent.  And yes, they also included fantasies and threats of violence against the police. They were a voice of prophecy, so similar to Isaiah Jeremiah and Ezekiel in our own texts, threatening the face of unjust power with destruction. All I could hear was the refrain that shocked me. It took effort to hear the message it was based on.

Perhaps your experience was similar to mine. Even though I was raised is a very liberal political home, where advocacy for migrant workers was a Sunday outing, I was taught a white view of this country’s history, to the exclusion of blacks in particular and the group experiences of most minorities in general. I was taught to draw the Mayflower bringing Pilgrims to a land of freedom. I knew that there were 200 years of slave gallows who brought over 300,000 people in chains under the whip with no hope for freedom, grew there numbers and owned their children and their children’s children. But I never considered it part of my story of America. 

I was told of the brave pioneers of the old west and President James Polk’s manifest destiny. And while I was taught of the despoiling and destruction of native peoples, it was safely distant and sad but irrelevant ultimately as a lesson about what America is or has been.  I was taught that Christopher Columbus was the great explorer who might even have Jewish background we could all be proud of. Only in the past year, when a statue was removed from the valley section of West Orange, did I really dive below the surface as history uncovered the violations, enslavement and murder that was done at his command.  And I played cowboys and Indians as a kid, which always meant cap guns and play at killing at some point.

When I was young, I learned of the equality that defined the human rights in the US Constitution, and was not troubled that women and blacks were not included from the beginning or that blacks were 3/5’s of a person for the math. We are over that now, I was taught. That is part of what makes American great. So why dwell on it, right?  I was educated that we fought the Civil War fought to end slavery, and Lincoln achieved that with the Emancipation Proclamation. But I never really understood how Reconstruction after the war had failed, how equality was never granted, how in some places chain gangs replaced slavery and why Jim Crow held on for another 100 years after the Civil War was over. 

It’s not that I didn’t know those things, and more, but they also weren’t the story. They weren’t the point. They were some marginal side story that didn’t reflect the real lessons that I was being taught about the greatness, the exceptionalism that is America.  Now, voices of protest are demanding that I reconsider those blind spots not only in my knowledge of the past, but in my conclusions about the past.  America is exceptional, and worthy of every patriotic pride that I hold.  But that doesn’t mean it was perfect, or even always good. We have national sins in our history, and racism is one of them.

Earlier this summer, someone asked me how many black teachers I have had in my life.  Again, this was an uncomfortable truth to learn about myself.  I attended 3 elementary schools, two junior high schools, high school, 4 different universities, hold two bachelors degrees, three masters degrees, speak four languages and have lived on 4 continents. In all that time, I have had a total of one single black professor for one class, and that wasn’t until I was 24 years old and never since.  I had black classmates, friends and colleagues. In a cringeworthy admission, I recognize that my liberal parents never had black people over for dinner and we had no black friends in my childhood.  We had black housekeepers and nannies.  I was never taught the narrative experience of black America from a black American. I never was pointed to a black person and told “that is someone you should learn from. That is someone you should try to be like.”  Perhaps you, like me, were never exposed to that other experience of America and American history in a personal way.

How could I possibly understand what we are being told about systemic racism now if we have never experienced it?  Just like my nudnick side telling you to watch the other cable station, I realized that I have to really listen to the narrative that I am being told.  I may decide it will or won’t define my politics – that is up to me.  But I can not put my head in the sand, block up my ears, and refuse to hear the experience and narrative of 20% of our this country and still think that I am smart or well-informed.

Perhaps the words systemic racism are too shocking for a lot of people.  Racism, to a lot of people, means overt hate and prejudice.  Racists are people who use the N word, or its Yiddish equivalent the Shin word, and think Blacks are somehow less than whites or Jews or whoever because they are Black. But that is not what the words mean.  The words “systemic racism” means that the system, not the people in it, has racially biased outcomes.  When one accuses the criminal justice system of systemic racism, it does not mean that all cops are racists, or the district attorneys, judges or prison guards are racists.  It means that a black person in the system is more likely to have a negative outcome, all other things being equal, than a white person.  In science that is called a hypothesis.  Only a closed minded or biased person rejects or accepts a scientific hypothesis without weighing the evidence. The claim is measurable, and can be proven true or false. Objectively, it has been proven true.

So here are some of the facts, to dispel the noise. The following facts are peer reviewed, social science studies that account for other discrepancies and differences, such as location, economics, etc.  When all other factors are removed the following remains true:

A massive study published in Nature in May 2020 of 95 million traffic stops by 56 police agencies between 2011 and 2018 found that while black people were much more likely to be pulled over than whites, the disparity lessens at night, when police are less able to distinguish the race of the driver. The study also found that blacks were more likely to be searched after a stop, though whites were more likely to be found with illicit drugs. The darker the sky, the less pronounced the disparity between white and black motorists.

A 2020 report on 1.8 million police stops by the eight largest law enforcement agencies in California found that blacks were stopped at a rate 2.5 times higher than the per capita rate of whites. The report also found that black people were far more likely to be stopped for “reasonable suspicion” (as opposed to actually breaking a law) and were three times more likely than any other group to be searched, even though searches of white people were more likely to turn up contraband.  Other studies confirm that nationwide, while whites and blacks are roughly pulled over equally for traffic violations, stops of blacks for other reasons – or no – reasons – are double or triple the rates of white motorists.  And once stopped, they are much more likely to be searched even though the results of searches nationwide result in a higher percent of vehicles with contraband by white drivers.

So a black is more likely to be pulled over, and then more likely to be searched. That is a measurable, systemic bias.  The joke about driving while black is no joke.

Once in contact with the police, the likelihood of arrest is also higher.  A national study of misdemeanor arrests published in 2018 in the Boston University Law Review found that the “black arrest rate is at least twice as high as the white arrest rate for disorderly conduct, drug possession, simple assault, theft, vagrancy, and vandalism. The black arrest rate for prostitution is almost five times higher than the white arrest rate, and the black arrest rate for gambling is almost ten times higher.”

And the numbers for violent interaction with the police, and escalation are also higher for blacks.  In the much debated topic of black deaths at the hands of police, the studies show that if you adjust for age and remove suicidal adults, “Young unarmed nonsuicidal male victims of [police] fatal use of force are 13 times more likely to be Black than White.”

In particular, Black people are consistently arrested, charged and convicted of drug crimes including possession, distribution and conspiracy at far higher rates than white people. This, despite research showing that both races use and sell drugs at about the same rate. And given the 3 strikes and you are out crime bills that ballooned the American prison population in the last 30 years to insane numbers, this systemic difference in racial outcomes was transferred directly into the prison population.

A 2019 review of academic literature by the Prison Policy Initiative found that “in large urban areas, Black felony defendants are over 25% more likely than white defendants to be held pretrial" when charged with similar crimes. Nationally, the review found that young black men were about 50 percent more likely to be detained pretrial than white defendants, and on average were given bail amounts that were twice as high.

Blacks are less likely to receive plea deals or reduced sentences in the judicial system and A 2013 study found that after adjusting for numerous other variables, federal prosecutors were almost twice as likely to bring charges carrying mandatory minimums against black defendants as against white defendants accused of similar crimes.

According to figures from the National Registry of Exonerations (NER) black people are about five times more likely to go to prison for drug possession than white people. According to exoneration data, black people are also 12 times more likely to be wrongly convicted of drug crimes. Black people comprise about 12.5 percent of drug users but 29 percent of arrests for drug crimes and 33 percent of those incarcerated.  And once there, the sentences are more severe as well. according to a 2012 study, “black defendants who kill white victims are seven times as likely to receive the death penalty as are black defendants who kill black victims. … Moreover, black defendants who kill white victims are more than three times as likely to be sentenced to death as are white defendants who kill white victims.”


According to a 2018 study by Pew, 1 in 23 black adults in the United States is on parole or probation, versus 1 in 81 white adults. And while blacks make up 13 percent of the U.S. population, they make up 30 percent of those on probation or parole.  A 2018 survey found that 63 percent of blacks have had a family member incarcerated, versus 42 percent of whites.

While black youths make up 14 percent of the youth population, a 2018 study found that they make up 53 percent of minors transferred to adult court for offenses against persons, despite the fact that white and black youths make up nearly an equal percentage of youth charged with such offenses. Blacks are more likely to be suspended from school, all things considered, and the pipeline to prison begins.

      And prison has other consequences.  By removing an adult from the family, family structures and communities are gutted.  And the prison record has lasting consequences.  According to a 2016 study, “One in 13 African Americans of voting age is disenfranchised, a rate more than four times greater than that of non-African Americans. Over 7.4 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population.”  If imprisonment is systemically off, then the removal of voting rights is also systemically off.


      And so the science has spoken. Statistically, all things being equal, blacks do not have the same engagement with law enforcement or equal outcomes with the criminal just system. They are more likely to be stopped, searched, arrested, held without bail, tried as adults, convicted, sentenced more severally and are less likely to be let out on parole.  And yes, they are more likely, all things being equal, to die in the hands of law enforcement. So the essential critique of the black lives matter slogan is objectively correct.

      The prophets of old did not have social science research to back up their critique of power or their calls for justice.  Justice Justice you shall seek.  Speak truth to power. Hold the king accountable. Heed the voice of prophecy. Champion the cause of the widow the orphan and the stranger.  For you were slaves in the land of Egypt, and for that reason I have brought you out with a strong hand and an outstretched arm.  Hear the voice of prophecy in our streets and respond.

      And when you think of these issues, think of Elijah McClain in Aurora, CO, a teenager in a ski mask walking home listening to music and dancing.  Someone called the police, because they thought he was strange. The police encountered him, restrained him, put a choke hold on him and the paramedics were called.  They administered a ketamine shot to tranquilize him, and he died of a heart attack.  Why?

      There is no reason that is good enough. Things must change.  I leave it to you to decide how, but the truth of the complaint is proven and our core beliefs about God Torah and the ideal use of power in society demand that we not turn away or rationalize that the problem does not exist.


         L’shanah tovah tikateivu.


Law and Order - Rosh Hashanah 1, 2020 (5781)



Rabbi Robert L Tobin


September 18, 2020

L’shanah Tovah, and good morning.  

I appreciate the sacrifices that everyone has made this year in our efforts to keep our community absolutely safe during the active COVID 19 pandemic. Believe me when I say: no one is completely happy with how we are doing all of this, and we all hope for a complete return to communal prayer in our building next year.  

This is a difficult time, exacerbated by the presidential politics which surround us.  We are in the midst of a multidimensional crisis in this country right now.  The crisis is one of science, during the COVID 19 pandemic.  The crisis is one of justice, as protests and calls for change roll around the country. And the crisis is one of law and society, as citizens, residents and law enforcement have crossed the lines of legality against each other - challenging the very essence of what is law, what is moral, what is right and what is wrong.  

I am not here to teach science, and tomorrow I will talk about Justice.  This morning, I must focus on what Judaism teaches us about Law and the good order of society.  I must do this because our Torah, our God, our covenant have a clear moral ethical and religious point of view on the topic which no Jew should ignore when acting in society.  I must teach this because the politics of Law and Order have attempted to make it a partisan issue rather than a unifying issue.  I will only teach the Torah view, which should be for all of us. I leave it to you to apply this view when you participate in society and when you make political choices. But at its core, there are Torah teachings on Law and Order that you, as a Jew, need to know and you need to know now - not because of the election in November, but because today is Rosh Hashanah - HaYom Yom Din.  Today, as the unetaneh tokef prayer in musaph will declare, is the day of Judgement.

Law & Crime

The word Torah, which means Instruction, is often translated as the Law of Moses.  Our belief has always been that LAW is good and right and ethical and moral, unless it is abused or twisted into something immoral, unethical and wrong.  We believe in Law.  

Rabbinic Judaism takes all the law in the Torah and splits it a few different ways.  Sometimes we talk about laws that are between us and God, or laws that are about human interaction.  Sometimes we talk about things that are commanded to DO, and others that we are commanded NOT to do.  And sometimes we talk about “chukkim” - laws like many of the sacrifices which have no logical basis, and “mishpatim” laws which all of us can look at and see logical social benefit - like thou shalt not still, kill, commit adultery, covet and more.  

Today we stand before the King of Kings, to be judged by the Law - the content of the Torah.  We believe in judgement, and so too we must believe in enforcement.  Massive portions of the Torah, and even more of the Talmud, are in fact rules not just about punishments and consequences for breaking laws but also the concept of pursuing the guilty party, apprehending them, affording them a trial and executing judgement upon them.  In the modern world, this is called Criminal Justice - the process that starts with law giving, and moves from policing, to courts to consequences.  The purpose of a criminal justice system is to protect society and to reform, where possible, the guilty person to re-enter society as a productive citizen.

When we look at law in American society, and our commandments as Jews, it quickly becomes clear that we are really talking about the laws that are between people, that are things you shall not do, and that have a reasonable and logical benefit for society.  Or in rabbinic language, mitzvot mishpatim she-lo ta’asei bein adam l’chavero.  We are commanded to obey these laws by both the force of secular law and the force of Torah Law.  

We believe that it is morally and ethically wrong to steal, to destroy, to attack, to defraud, to kill, to oppress or to hate.  We have these laws in the Torah because they have always been wrong and they will always be wrong.  With or without secular law, they are wrong. We have these laws in the Torah, and in secular society, because people want to do these forbidden things, and will choose to do them if they are not held back by a criminal justice system.  

We believe that people therefore can choose to sin or not to sin.  We believe therefore in free will, and that the essential cause of crime is human choice, even as we know that broken social structures, systemic poverty, poor education and more stack the deck against so many in our country.  We believe that when someone in a crowd decides to smash a window, steal clothes and household items, or set the building on fire, that they have committed crimes and should be held accountable.  Thou shalt not destroy, steal or even covet.  These are essential sins.  The cry for justice never justifies stealing a toaster and burning down a Target.  

I recently heard a local religious leader speak about looting with a forgiving tone.   They said that the Boston Tea Party is held up as a patriotic act of revolution, but it is just like burning a Target. One riot was okay because they were white, they said, and the other is condemned because they were black.  I was horrified, not because I am racially out of touch, but because of the gross misrepresentation of the two acts. In Boston, the Tea was the item that was protested, and its destruction was on topic for the tax being forced upon the colonies.  In my brother’s neighborhood in Minneapolis, the Target store that was looted and torched was vandalism and destruction in the foment of a riot. No, there is no sin of America’s past to condone the sins of America’s present.  Smashing, grabbing and burning are simply criminal, and those who did it should be pursued to the full extent of the law.  The Torah didn’t say, thou shalt not steal unless you are really angry.  Thou shalt not steal.  We believe that the law is the path to justice.  

Our View of Secular Government

So what is the Torah view, the Jewish view, of secular Law?  We have always cared about the government, and its power anywhere we have lived as Jews.  As a minority people under emperors, kings, queens, politboros, generals, dictators, prime ministers, sultans, kalifs and presidents, we have seen it all.  And we have prayed for them all.  

In the Biblical era the prophet Jeremiah, in addressing exiles from Jerusalem then living in Babylon, urged them to “Seek the welfare of the city to which I have exiled you and pray to the Lord in its behalf; for in its prosperity you shall prosper.” In Roman times, the sage R. Hanina asserted, “Pray for the welfare of the government, for were it not for the fear of it, man would swallow his fellow alive.” The first halachic texts that discuss praying for the kingdom appear in the 14th century. Some mention a generic idea to “bless the King,” with others adding that God should “help him and strengthen him against his enemies.” These sources indicate that we should pray for the government, since we are dependent on it for our security and prosperity. The medieval commentator, R. Yonah of Gerona, added that there is a religious value to pray for the welfare of all countries around the world to ensure peace and tranquility.  Yes, we need good government because without it people will eat each other alive.

And that is precisely what has happened in so many places in these past six months since the killing of George Floyd.  Tomorrow I will talk about racial justice and what is behind so much of the upheaval.  But for now, let’s focus on the legal side of individual human behavior and policing. We have seen when peaceful protests about illegal policing have resulted in illegal violence. Unfortunately, you have been told that all police are racist on the one extreme, or all protestors are violent hoodlums on the other extreme.  Both narratives are horrific and wrong.  They are manipulating you. Resist the simplicity of extremism and stereotyping.  The police are a good and a necessary part of our society.  The protests are a good and a necessary part of our society.

So yes, Judaism believes in the value of civil law, and we pray for its success.  But when things go wrong, who are you going to call?  So much for law.  Let’s talk about Order. 

Judaism and Law Enforcement

 For Judaism, enforcers and legal experts are a presumed part of the ideal society.  In Exodus, Numbers, Deuteronomy, Joshua, Proverbs and Chronicles we have over two dozen mentions of people called Shotrim.  When commanding the good order of society, Moses spoke of Shotrim, Shoftim, and Zekeinim - they are the legal enforcers, the judges and the elders.  Shotrim in modern Hebrew means police, but the ancient roots of the word in the bible refer to a person who was much more like a scribe, a lawyer, or perhaps a district attorney.  

The Shotrim knew the law and brought it to bear.  Ultimate evil in the Torah is “every person doing whatever is right in their own eyes,” because that road leads to idolatry, injustice and national destruction.  The shotrim were the watchers, teachers and enforcers.  The zekeinim  were the political leaders in the community.  And the shoftim judged the accused according to the law.  Shotrim  have a sacred trust to use the law to safeguard the safety and justice of society. And in our Torah, that included protection of the stranger, the widow, the orphan and the poor.  The political leaders had a role to play. The Judges and penal system had a role to play. And the legal enforcers had a role to play.

What the Torah despised was vigilante justice. No one should take the law into their own hands.   A person was allowed to kill only in defense of life, not property.  And the ancient concept of the blood avenger, family members pursuing a killer of their kin, was completely eliminated with cities of refuge. You have a right to defend your own private property, to be sure. But grabbing a gun, gearing up, and driving across state lines to respond to a political disturbance is not your job. If the courts are fair, than local law enforcement and local testimony is enough.  Enforcement of the law is for identified specialist, professionals.  And they have a sacred trust. We empower them. We must rely upon them.

The Wrong Role for the Police

The police are the first contact, the entry point, of the criminal justice system.   And they are trained to assess a scenario, gain control of the scene, and then to sort things out.  They arrive, need to gain control of the scene before fully assessing it.  This is what starts the conflict when things go south.  It is also the moment that starts the positive intervention when things go right.  Police arrive empowered, vulnerable, and in the dark about what is really going on.  If they are to be safe, the scene needs to be calm.  Unfortunately, it is not always calm, so they are not always safe. 

I believe that police are often placed in untenable circumstances right away and that we are calling them for things that the police simply should not be involved in.  My home town of Rochester NY is in the news because the family of Daniel Prude called them one cold March night for help. Mr. Prude was high on PCP, in the throes of a mental breakdown, walking naked down the street. The police stopped him, offering assistance but also taking control of the situation, as they are trained to do. He threatened them with spitting, claiming he had COVID.  They put a bag designed for that purpose over his head, to stop the spitting.  The situation escalated, degenerated, and Mr. Prude was held handcuffed on the ground, he passed out, was transported in an ambulance to the hospital and eventually died from the encounter several days later. The coroner determined his death to be a homicide - the direct result of police action.

The biblical view of power is that it is accountable to the values and norms of society, in our case the Torah.  King David sinned with his power, and the prophet Natan was there to accuse him in court: You are the man.  Because of the power they are granted, police must be held to the highest standard of transparency and accountability.  The police deserve the right of first explanation and we must hold off accusation until that has been given.  Yet that telling must happen immediately and completely and openly. Any delay only raises suspicion and anger.  If you have a badge and a gun, the public has a right to know.  

And the problems are so much worse when there is a cover up.  Several of the officers in the Rochester case lied on their reports. Some of their supervisors knowingly and intentionally misled the mayor in understanding what had happened.  They withheld the body camera footage until forced by a court to turn them over.  Then the truth came out, and all hell broke loose.  They knew it was bad at first, and they found the only way to make it worse.  And for the cover up, they are all gone from the police force, and justifiably so.  Again, the Torah commands clarity.  You shall not be a lying witness.  You shall have honest weights and measures. You shall not place a stumbling block before the blind. Repeatedly the Torah demands honesty in the pursuit of truth in human relations.

Social science studies of corruption in police departments reveal that there are two main motivations to become a police officer:  to combat crime, or to protect and serve the community.  The former sees themself as a superhero, or a cowboy. The studies show that the cowboy is more likely to use profiling, bias or excessive force.  They are also more likely to seek employment in conflict situations.  The public servant model has the ideal motivation from a Jewish point of view.  They are there to protect the widow, the orphan and the stranger as much as the citizen.  Like the Torah says, there shall be one law for all those who reside with you, the stranger and the citizen alike.

The Rochester case is easy to criticize, but difficult to solve.  We have to ask ourselves “Are the police the best tool for drug use? Are they the right first responders for psychiatric interventions? Should they enforce masks wearing or social distancing?”  We have come to the point where we call the police for everything.  They are not social workers, and shouldn’t be.  They are not health inspectors, and shouldn’t be.  Their first aid training does not qualify them as the lead on suicides, overdoses, and other matters of the spirit.  Mr. Prude did not need to die in Rochester, but under current training and standard operating procedures, the police are the responders. And they only have handcuffs, head bags and physical restraint as their tools of intervention.  Those are the wrong tools for that job.  We need to create a different kind of response team for social crisis.  It needs to be an interdisciplinary team, with flexible components that can be called in and brought to bear.  And that will take money, and time, and training and patience. The police may have a safety role to play for that team, but they should not be the lead.

The Changing Role of the Police

So who are law enforcement officers, and what are they supposed to be doing? Modern police forces were created in America only in the past 100 years.  They grew out of an earlier need to protect property, and their predecessors in this country from the 1700’s to the early 1900’s were often private muscle, union busters or hunters of runaway slaves depending on where you were in the country and in time. It is not a noble ancestry.  The Hoover administration that tried to create the first politically neutral professional police forces but those reforms did not work.  From Tammany Hall to Jim Crow, police forces were often the tool of prejudice against the immigrant, the minority or the poor.  Representing the bias of power, they moved to protect ruling society rather than all citizens.  When the enemies of power were communists or anti-war demonstrators, J Edgar Hoover’s FBI was right there to wiretap, infiltrate, disrupt or destroy the perceived threat and it took acts of congress and rulings in the courts to uphold the privacy rights and constitutional freedoms of our democracy. 

Over time, police forces have moved slowly behind social change to adapt to the new moral mandates of society. Whereas once they raided the Stonewall Inn to crush gay life in New York, today they defend citizens against gender and identity bias crimes.  The political fabric of American is always changing, and so too the mission of policing must adapt.  The police are a mirror of our society, but not a perfect mirror. The police are often a reflection of the older generation as America develops, and therefore often most valued by reactionary forces and people.  That is a sad fact, because it alienates policing as a concept from the next generation that seeks protection for their emerging ideals.  As we will discuss tomorrow, some change is painful and based in conflict.

But for now, to understand the Jewish view of Law and Order, we must break the current cycle of inflammatory accusation and counterattack. We all must restore our gratitude and admiration for law enforcement as a profession in service of the people. These are the same men and women who we applauded after 9/11 and who put their lives at risk every day they put on the uniform.  These are the same men and women who roll up on a domestic dispute, called by us to help, and know when they get out of the car that the domestic dispute scenario is when they are statistically  most likely to be shot and killed.  But they answer the call, and deserve our respect and our support even as changes in their roles and their powers are forced upon them from the political process.

Training and Use of Force

And, of course, change will be hard for them.  There are certain standard operating procedures which must be reconsidered from both a social and political point of view, not just a criminal justice point of view.  I can understand the argument for a no-knock warrant.  That doesn’t mean it should be legal.  I understand why there is so much departmental delay as police prepare public reports for police involved shootings.  That doesn’t mean it should be done that way.  Choke holds are effective tools,  but they should be removed from the toolkit in most cases.  Re-evaluating policing is the other side of the coin.  With tremendous trust comes complete accountability.  The age of the blue wall that blocks all oversight is long gone. Political oversight of the police, like over the military, is the basis of our democracy. It is what prevents military rule.  Remember, in the Torah the king had to carry the Torah with him every day and read from it.  And ultimately it was the king, the priests and the prophets, and never the army, that was in charge of the ideal society.  All power is accountable to the core values of society.

But it is possible.  Our West Orange police force, for example, has been proactive and exemplary in being trained and certified in national standards for the use of force.  They have been responsive and involved in calls for more information about their practices.  They have not had the kind of record of abuse that we see boiling over in other towns and cities, because they have taken that value - to serve and protect - seriously as a culture of their department.  Similarly, New Jersey has statutes that immediately require the state Attorney General to investigate when any person dies in police custody or in contact with police action. Transparency, accountability, proactivity are possible and need to be the national models.  It is no surprise that our Jewish values demand these actions as well.

Law & Order (Conclusion)

So yes, Judaism deeply cares about this very political debate about Law and Order.  And you will form your own political opinions and act upon them.  But as your rabbi and on Rosh Hashanah, I say clearly and with no hesitation.  Law is good.  Law is the path to justice.  Order is the fruit of Law and Justice.  The Criminal Justice system is not a necessary evil, it is a qualified good.  It is important, as part of the moral and ethical fabric of society.   Police officers, District Attorneys, lawyers, judges, probation and corrections officers are all part of a sacred service whose purpose is to enforce law, judge actions and protect society by either removing the sinner or demanding a sacrifice and their restoration.  Calls to defund the police are simplistic and destructive.  Don’t be simple and don’t be destructive.  As our society continues to develop, evolve and bend the arc of history towards God’s hope for humanity, policing will need to be re-invented, re-envisioned, re-designed, along with non-police based responses to social crisis in our country.  

And now, the elephant that is in the room.  I have ignored the accusations of systemic racism in law enforcement which are in the forefront of the protests and calls for racial justice in America.  As Paul Harvey would say, come back tomorrow, for “The Rest ... of the Story.”

L’shanah Tovah Tikateivu.

Suzanne Last Stone, Religion and state: Models of separation from within Jewish law, International Journal of Constitutional Law, Volume 6, Issue 3-4, July-October 2008, Pages 631–661,