Monday, September 21, 2020

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,

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