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("Jewish Law" continued from page 1)
married and had a child. Rabbi Fink and the custodian were invited to the wedding.
Restorative Justice
This innovative disposition occurred because of the foresight of the Polk County (Des Moines) Attorney's Office in adopting programs reflecting Restorative Justice principles. While our current criminal justice system determines who broke what law and when and how do we punish that person, Restorative Justice explores the ways in which crime harms relationships between people and within community. Crime is viewed as a violation of the victim and the community, not only the state. Therefore, the offender becomes accountable to the victim and the community, not the state as represented by the prosecutor. Punishment for past behavior and concern for public safety are not cast aside, but empowering individual victims in their search for healing, impressing upon offenders the human consequences of their actions, and promoting community involvement in the justice process become equally important. The process focuses on healing for the future of the main actors: the victim, the offender and the community.
Restorative Justice and Jewish Law
Jews have traditionally been intimately involved in the criminal justice system. Perhaps it is our long-standing devotion to justice and our people's tradition of legalistic thinking which has led many of us to work as lawyers, judges, social workers, and criminologists. Our traditional texts reveal that our forebears understood a justice system which looks remarkably like today's restorative justice. The justice system found in Jewish law does not differentiate between civil law and the religious-spiritual life of the Jewish people. Thus, Rashi, the 11th century Jewish scholar said "A courthouse must be close to a place of worship" to ensure that justice is truly done. Restorative justice brings a new spiritual dimension to the criminal justice system. It relies upon a more holistic approach, seeking shalom (the Hebrew root of shalom also means wholeness). It seeks to involve all the actors and emotions called upon by a criminal act.
Judaism requires a person to have some commitment to fellow humans. That commitment must be in terms of justice. But justice is not a passive principle calling upon us to do no harm to anyone. Nor is it to be activated only when one's own welfare is at stake. Justice is a positive principle requiring an active allegiance for its own sake: "Seek peace and pursue it" (Psalms 34:15). The Talmud notes that all other commandments are to be observed only when the occasion offers itself; however, in regards to this commandment, Jews are to constantly seek its fulfillment (Simon Greenberg, Foundations of Faith #1).
Jews know that repentance on Yom Kippur atones for sins between humans and the Creator. Maimonides, the great 12th century Jewish philosopher, wrote that sins between humans will never be forgiven until the offender restores the property to the victim, or makes other financial restitution. But that is not enough: the victim must be appeased. Appeasement means asking for forgiveness and assuaging the emotional discomfort caused by the offending act (Rambam, Hilchot t'shuvah, ch.2-#2). Our current criminal justice system rarely allows for true repentance by the offender. Rather, we often see what amounts to a rehearsed pronouncement about "being sorry" during the course of a guilty plea, when the victim is not likely to be present.
The role of community is paramount in righting wrongs in Jewish law. Cities of refuge were created (Numbers 35:9) as a sanctuary for those who committed unintentional murder. But were these cities barren outposts, a la Australia of the 18th century? No, they were inhabited by Levites, learned teachers and good role models. Thus, those who committed the terrible wrong of unintentional murder (punishable by prison today) were sent to live amongst people who would serve as role models on how to live their lives as productive members of society; they were not sent to prison.
The principles of restorative justice are firmly rooted in Jewish tradition. We owe it to ourselves, our communities, and our heritage to become involved in assisting our local criminal justice systems to adopt restorative justice principles and practices. A total overhaul is not what is needed: our current adversarial and retributive justice system is necessary for many criminal cases where there is a real question of culpability, and where there is a need to separate a predatory individual from society. Yet, restorative justice principles will help our communities re-weave the social fabric which continues to be torn asunder from within by many things, including fear of crime. As people become more involved in the process, their fear will decrease, and our communities will re-assert the internal social control necessary to successfully prevent crime.
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