Cash Bail in Jewish Law – Shoftim 5778

Of the many problems that California is currently facing, bail reform is one that has recently been in the news.

That is because there is a bill, SB10, that has been going through the California State Assembly and is going to be up for a vote this week after numerous modifications over the past year.

The latest version represents a compromise that does not please everyone.  The law would eliminate the cash bail system.  Instead, each county’s court system would determine whether to incarcerate an accused criminal based on a pre-trial assessment of whether a person would be a risk to society or pose a flight risk.

If SB10 passes the Assembly, it will still need to clear the State Senate and then be signed by the Governor.

Let me state at the outset that I do not know whether this law will solve the problem.  But the problem certainly needs solving.

Even though all of us are experts on the judicial system due to our careful viewing of Law & Order, please allow me to review a few details.

Bail is the release from custody of an accused person before the trial.  

It originated in England in medieval times as a way to make sure that a suspect would show up in court.  It does not necessarily involve the payment of money.

Cash bail, which SB10 would eliminate, means that the court requires the accused to come up with a certain amount of money in order to be released.  If the money is not raised, then the accused remains incarcerated through the end of the trial.  If the money is raised, the accused is released on bail, with the money being returned after the trial is complete, minus fees. 

In the 8th Amendment, the Founding Fathers included the clause – “Excessive bail shall not be required.”  The Supreme Court has never determined what “Excessive” means.

Under current federal law, certain crimes are not subject to bail.  Suspects must be kept in jail before the trial.  This includes cases in which there might be a sentence of death or life in prison, certain drug offenses, and a few other categories.  A judge who determines that a suspect would pose a risk to his/her community or be a flight risk can also deny bail.

For all other crimes, there is a bail hearing.  Most states use the cash bail system.  Accused persons who are unable to afford the bail amount face a choice.  In states where it is legal, like California, they can go to a bail bond agency, which loans them the money in exchange for a payment, usually 10% of the total bail amount.  The bail bondsman then makes sure that the accused shows up in court.

A person who cannot afford the bail bond must remain in jail, even though bail has been granted.

There are a number of problems with the cash bail system.

Keep in mind, first of all, that under American law a suspect is innocent until proven guilty.  This means that when a person accused of a crime who is kept in jail, he is kept there as a legally innocent person.

The median bail amount in California is $50,000.  Only 1 in 10 can afford to pay it.  63% of those who are currently sitting in jail have not been convicted of anything.  They are waiting for trial or sentencing.  A person who is in jail awaiting trial is unable to work.  He (it is usually a he) typically loses his job, and possibly his home.  He is unable to support his family.  He has great difficulty meeting with his legal team and preparing his defense.

In contrast, a person who has the means to post bail can continue to work and has a much easier time of meeting with his lawyer and preparing his case.  The result is that for those convicted of the same crime, those who post bail, on average, receive a lesser sentence than those who have to remain in jail before the trial.

There is evidence, as well, that bail rates for black and Hispanic defendants are set higher than for white defendants who are charged with the same crime.

Finally, the prospect of spending a long time in jail awaiting trial encourages innocent people to plead guilty to crimes they did not commit.  This gets them out of jail, but it also gives them a criminal record, which can have a lifetime impact.

SB10 tries to address these issues.  As the bill itself states:

It is the intent of the Legislature in enacting this act to safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system, and to ensure that people are not held in pretrial detention simply because of their inability to afford money bail. (SB10, Sec. 2)

I do not know whether SB10 will achieve these goals.  I am trying to learn more about it, but am certainly no expert.  I encourage all of us to educate ourselves on this issue.

When trying to understand an issue of criminal reform, it can be helpful to look at other systems.  While not perfect, our Jewish legal tradition is rooted in principles of fairness and equity.  It turns out that Jewish law, or halakhah, has something to say about bail as well.

This morning’s Torah portion, Shoftim, is primarily about the justice system.  Moses instructs the Israelites, collectively, to establish and maintain just institutions of government.  In the second verse.  Regarding judges, he declares:

Lo tateh mishpat, lo takir panim, lo tikach shochad ki hashochad ye’aver einei chakhamim visalef divrei tzadikim.

You shall not skew judgment.  You shall recognize no face and no bribe shall you take, for a bribe blinds the eyes of the wise and perverts the words of the innocent.  (Deut. 16:19)

These are the three principles of judicial fairness.  They appear numerous times in the Torah.  Usually, the Torah addresses them to judges specifically.  Here, Moses delivers these requirements to the Israelites collectively, as if to say that we all bear responsibility for the behavior of soceity’s officials.  We must make sure that those whom we appoint as justices and magistrates abide by principles of equality and fairness.

These three concepts present three aspects of judicial fairness.

Jewish law recognizes that judges are human beings.  A judge may not do anything in the court that would show favor to a wealthy person or an acquaintance.  Not only is a judge not allowed to take a bribe, for obvious reasons, a court is not allowed to charge fees to the plaintiffs in a case.  Mishnah Bechorot (4:6) states that “anyone who charges a fee to the litigants to judge – his judgment is nullified.”

The judge cannot allow anything to occur in the courtroom that might prevent a plaintiff from presenting the best possible case.

The judicial system the Torah describes is fairly uncomplicated.  In a real legal system, however, there are a lot more moving parts.  It is not difficult to imagine a flawed court that is comprised of well-intentioned, knowledgeable professionals of high moral character.

Regarding bail, the Talmud (BT Sanhedrin 78b) deals explicitly with the question of what to do with a suspect before the trial is held.  If it is a capital crime – in other words if the accused has been charged with murder – he must be jailed by the court until guilt or innocence can be determined.  In such a case, no bail is permitted.  If the accused has severely injured a person, and it is not clear if the victim will survive, he is also held in jail.  The reason is because the court does not yet know if he will need to be tried for murder or for injury.  Rashi explains that the accused is imprisoned out of a concern for flight-risk.  If the suspect injures another, but the injuries are not considered to be life-threatening, then he is released until the trial.  

The Mekhilta (Mishpatim, Ex. 21:19, 2), an early legal midrash collection on the book of Exodus, addresses the question of cash bail directly.  In the situation described in the Talmud, the accused is not permitted to post bail and go free.  He must remain incarcerated until the victim’s fate resolves.  

An entry under “Bail” in the 1906 Jewish Encyclopedia concludes as follows:

…as a rich man can readily give Bail and the poor man can not, the release of the prisoner on Bail would run counter to that other oft-repeated rule of the Torah, ‘One law there shall be to you.'”

Over the centuries, Jewish law has not traditionally employed incarceration as a punishment in the legal system.  It was basically used just for holding an accused murderer before trial out of concern for public safety and potential flight.

There are essentially three types of punishments that a Jewish court can administer.  For capital crimes, the punishment is death.  For sins, the court can administer lashes.  For civil and personal injury cases, there are fines.

One form of imprisonment that is mentioned in ancient sources is called the kippah.  It was a small cell in which a person would be imprisoned and fed meager rations until he died.  This could be used in a case in which a murderer was found guilty, but could not be sentenced to death because of a technicality.  There is no evidence that the kippah was ever actually used, though.

Dina d’malkhuta dina is an ancient concept that is applied in particular to monetary laws.  “The law of the land is the law.”  In order to participate in the economies of the societies in which they live, Jews need to adopt those society’s laws, including when they do not conform to Jewish law.

For most of the past two thousand years, Rabbis did not have the authority to issue legal rulings except in cases that were internal to the Jewish community.  Many of the discussions on criminal and civil law, therefore, are theoretical.  But there is a historical record of a cash bail system being utilized by a Jewish court.

Rabbi Yitzchak ben Sheshet Perfet, known by his acronym as the Rivash, was a 14th century Spanish Rabbi.  He wrote a teshuvah, a legal decision, that deals with a question of whether a debtor who could not pay off his debts could be incarcerated.  He rules that this would be forbidden under Jewish law.  But then he laments:

The truth is, in my own city, the judges’ custom is to imprison a person who is liable in this manner, according to an act of the community.  And they further enacted that even without being found guilty, any person can be held over a lawsuit, unless they pay collateral, and they call this a ruling of the court.  I did not want to allow this act to stand, because it is not in accordance with our Torah’s law.  And they said to me: this is in accordance with the “marketplace act” [a principle allowing new rules that make commerce smoother], because of swindlers, and so as not to bar the door in the face of borrowers. And I allowed their custom to stand. (Teshuvot HaRivash 484) 

In other words, in the Rivash’s day, Rabbinic courts were sending Jews to debtors prison and allowing them to post bail.  This was apparently the dominant practice in the area, and was deemed necessary by the leaders of the Jewish community to preserve the integrity of the marketplace.  Knowing that it was against the Torah, the Rivash reluctantly allowed it to stand.

The existence of the modern State of Israel has made the question of how to punish criminals in a Jewish legal system practical.  

Rabbi Haim David HaLevy, the former Chief Rabbi of Tel Aviv, who died in 1988, wrote a Tehuvah in which he stated categorically that a person who is being charged for a capital crime should be incarcerated without bail under any circumstance.  Citing the Rivash, he concludes that “that for all other crimes, for which the punishment is monetary, we let them go [on bail] until the determination of the sentence.”  (Aseh L’kha Rav 3:48)

Like any legal system, Jewish law is not perfect.  Nevertheless, for more than three thousand years, it has strived to conform to principles of justice and equity that are rooted in the Torah itself.  As such, it has something to teach us today.

I would never suggest that state or federal law must conform to Jewish law.  We Jews should be nervous whenever a religious group tries to impose its beliefs on secular law.

But our ancient tradition has much to teach us concerning the establishment of societies and institutions that are guided by justice and equality.  We would be wise to improve our understanding of Jewish law as we try to determine the best way forward for our community, our state, and our nation.

 

BIBLIOGRAPHY

Incarceration in Jewish Law: A Brief Overview

10 things you need to know about money bail

Limits on Kings and Presidents – Shoftim 5774

In Hebrew, the name of the United States is not a translation of “United States of America.”  If it were, it would be something like Medinot HaIchud shel Amerika.  Instead, our nation is described in Hebrew as Artzot HaBrit, “Lands of the Covenant.”

While not a direct translation, this name expresses an aspect of our nation that is particularly valued in our Jewish tradition.  What is the covenant of which Artzot HaBrit speaks?  It is the Constitution of the United States of America, the supreme law of the land.

This concept appeals to us because we are the first people in the history of the world to have a document that functions as the supreme law.  Of course, it is the Torah.

Having a written brit, or covenant, at center of national identity is not the only similarity between Judaism and the United States.  Both polities imagine some of the same qualities in the ideal leader.

The Declaration of Independence, after establishing the fundamental human rights of “life, liberty, and the pursuit of happiness,” along with the rights of people to reject a government that fails to ensure those rights, lists a number of grievances against the King of Great Britain.

In establishing the Republic, the Founding Fathers wanted to draw clear distinctions between the monarchy that they had rebelled against and the democracy that they were establishing.  They understood the need to have a unitary executive, but they were fearful of the abuses that could ensue if power was left unchecked.

In creating the office of President, the Founding Fathers limited his powers and ensured that he would have to serve the Constitution, rather than the other way around.  That is why, when the President is sworn into office, he promises to “Preserve, Protect, and Defend the Constitution of the United States – so help me God!”

The Federalist Papers were published in the years 1787 – 1788 under the psuedonym Publius.  They were written by Alexander Hamilton, James Madison, and John Jay to promote the ratification of the Constitution by each of the States.

In Federalist Paper number 69, Alexander Hamilton enumerates some of the differences in power between the President of the United States and the King of England.  He notes that the President is limited to a four year term, while the King serves for life.  The President can be impeached and removed from office, while the King is personally sacred and inviolable.  The President has veto power, but he can be overruled, while the King’s veto is absolute.  Both are the supreme commanders of the military, but the President cannot independently declare war, sign treaties, or raise armies, while the King can do all three.  The President does not have unlimited power to appoint officials, and the King does.  And finally, the President has “no particle of spiritual jurisdiction,” while the King is the “supreme head and governor of the national church.”

At the time, these kinds of restrictions on the power of a national leader were unique in the world.  But the idea of subjecting the leader to a written covenant, limiting his warmaking powers, and otherwise preventing him from self-aggrandizement was not unheard of.  In fact, it bears striking similarities to the Torah’s vision of the ideal king, as presented in the Book of Deuteronomy.

I do not suggest that the Founding Fathers explicitly modeled the Presidency on Deuteronomy’s laws of kings. but there certainly seem to be similarities.  How did this come to be?

In the 18th century, a complete education included learning classical languages like Latin, Greek, and Hebrew, as well as acquiring extensive knowledge and mastery of the Hebrew Bible.  Yale, Columbia, and Dartmouth have Hebrew inscriptions on their university seals, and until 1817, Harvard graduation ceremonies included a Hebrew oration.

For Puritan colonialists, what for them was the Old Testament had great significance.  I think it is safe to say that the Founding Fathers’ critiques of the overreaching of King George and their imposition of limits on the power of the President were influenced, at least in spirit, by the Torah.

This morning’s Torah portion, Parashat Shoftim, teaches us much about leadership.  It commands that judges and officials administer the law justly and impartially.  It mandates the establishment of a higher court that will issue rulings on cases that are too baffling for local leaders.  (The Rabbis understand this as the basis for the Sanhedrin, the court of 71 rabbis, judges, and priests who function as the High Court of the land, with added legislative and executive powers.)

The Torah portion also deals with kings, albeit with ambivalence.  Unlike its treatment of judges, officials, and the High Court, the Torah does not command the appointment of a King.  It is optional.  “If,” Moses tells the Israelites,

after you have entered the land that the Lord your God has assigned to you, and taken possession of it and settled in it, you decide, asima alai melekh –  “I will set a king over me, as do all the nations about me,” you shall be free to set a king over yourself… (Deuteronomy 17:14-15)

So what powers does a King have?  If we go exclusively by what is written in the Torah, absolutely none.  The King only has limitations.  Listen to these restrictions on the power of the monarchy.  Does this fit your image of a King?

• He is not allowed to accumulate too many horses, or send people down to Egypt to get more horses.

• He is not allowed to acquire too many wives.

• He is not allowed to amass too much gold and silver.

• He must have a copy of the Torah, written by the Priests, always at his side.  He must read it constantly so that he will learn to revere God and follow its laws.

• He may not act with haughtiness towards other people.

Nowhere in the Torah are the people actually commanded to follow the king and do what he says.  In the relationship between king and subjects, the responsibility is unidirectional – it is the king who serves the people.

When we think about royalty in pre-modern times, we usually think about the unlimited exercise of power.  The king’s word is law.  He rules by divine right.  The people owe him their total obedience and respect.  He can impose taxes and raise armies.  He gets to live a life of extravagance and pleasure.  As a famous monarch once said, “It’s good to be the king!”

Parashat Shoftim’s model is that of an anti-king.

Not only is he not allowed to build up the army, impose heavy taxation, and live the good life, he is also bound by a constitution – the Torah.  His job is to promote and enforce the commandments, and lead the people in observing the terms of the covenant not with a human king, but with God, the King of Kings.

It is a utopian vision of leadership not so dissimilar to other systems that place a wise, benevolent executive in charge of leading a society in accordance with principals of justice, “the good,” or philosophy.  Think Plato, Aristotle, Locke, and so on.

But is such a utopian vision realistic?  Apparently not.

After the Israelites conquer the Promised Land under the leadship of Joshua, they split up into tribes.  Various local and regional chiefs lead the people through one crisis after another.  Order gradually breaks down over the next two hundred years, and the Israelites have finally had enough.  They turn to the Prophet-Chief Samuel and ask him to appoint a King over them.  Tnah lanu melekh lshofteinu – “…appoint a king for us, to govern us…”  (I Samuel 8:6)

Samuel is disappointed, but God reassures him and tells him to ascede to the people’s request.  Samuel’s reaction is surprising, because the Torah already anticipated the Israelites’ future desire to be ruled by a human king.  Had not Samuel read Parashat Shoftim?

The nineteenth century Polish Rabbi, Yehoshua Trunk from Kutna (1821-1893), points to a subtle distinction between what Deuteronomy allows, and what the people request.  In Deuteronomy, when the people ask to set a king over them, they say asima alai melekh.  Whereas in Samuel, the people say t’nah lanu melekh, give us a king.  What is the difference between setting and giving?

Without going into the complexities, Rabbi Yehoshua from Kutna says that Deuteronomy’s vision of sima, setting a king, implies that he is going to be immersed in the people, and his job will be to guide them in the ways of God, influencing their thoughts and actions, and helping them to focus on the innermost realm of the heart.

When the Israelites in Samuel request n’tinah, to be given a king, they are asking to have a leader placed above them.  What they want are the pomp and circumstance, the external trappings of power that characterize the leaders of all the other nations of the world.

But God does not want Israel to be like the other nations of the world, and certainly does not want its king to fall to the hubris that afflicts so many human leaders.

In telling Samuel to go along with the people’s request, God knows that they are not motivated by the lofty ideals of the Torah, but as the saying goes, “people get the leaders they deserve.”

Samuel warns the people what the king is going to do them.  He will draft your sons into his army and your daughters as cooks and bakers.  He will seize farmlands, vineyards, and orchards.  He will tax you, and consign you to serfdom.  Eventually, you will regret this decision.

But the people insist that they want someone to go out in front of them and lead them to victory in battle.

Things start to unravel almost immediately.  The first king, Saul, turns out to be deeply flawed.  David brings the nation to greatness, capturing Jerusalem and expanding the borders, but not without his share of trouble.

His son Solomon builds the Temple, but violates every single  one of Deuteronomy’s laws about Kings, fulfilling Samuel’s warnings from just three generations ago.  He imposes heavy taxes and forced labor to build the Temple.  He buys horses and chariots from Egypt.  He accumulates vast riches.  Solomon marries seven hundred wives and three hundred concubines, whom he allows to introduce their idolatrous foreign practices into the Holy Land.

When Solomon dies, the united monarchy ends as the northern kingdom of Israel breaks off from the southern kingdom of Judah.  The righteous king, as described in Shoftim, is an ideal that turns out to be exceedingly difficult to implement.

The establishment of Israel in 1948 has reignited issues about Jewish power that have not been practical considerations for nearly two thousand years.  Is Israel a nation like any other, or do Jewish history and values make it different?  What should the role of Torah and Jewish law be in a country that is committed to freedom of religion and equal rights?  Who is authorized to interpret Jewish law?  How does Israel maintain itself as a Jewish state and a democracy?  What does it even mean to be a Jewish state?

You might be surprised to know that Israel does not have a constitution.  According to Israel’s Declaration of Independence of May 14, 1948, there was supposed to have been Constitution in place by October 1 of that year.  But the above questions were so difficult to resolve, the question of an Israeli constitution was placed on the back burner.

Because of the international and domestic pressure cooker that Israel always finds itself in, these questions are being dealt with and tested on a daily basis.  Israelis wrestle with the dilemma of creating a society based on the lofty ideals and values expressed in Jewish law and tradition while facing the very real and practical challenges that often are a question of survival.

One of the reasons that Israel is so important to Jews everywhere is because it creates powerful opportunities to put Jewish values into practice on a national level.  That is a possibility that did not exist for nearly two thousand years.  As we see on a daily basis, it is not easy.

We refer to the modern State of Israel in our prayers as reishit tz’michat geulateinu, the beginning of the flowering of our redemption.  The question of whether that is true or not depends on how Israel the country and Israel the people deal with these challenges.  I take it as a positive sign that Israelis, as well as Jews in the Diaspora, are actively engaged in wrestling with the question of how to exercise power in ways that embody the ethical principles of the Torah.