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Still Imperfect Mortals

We should think through the issues and apply pure Torah values



The United States of America is, as Rav Moshe Feinstein used to refer to it, a medinah shel chesed, a benevolent country. Founded on enlightened ideals of equal justice and opportunity for all, it’s filled with decent people who strive to uphold those principles. We all ought to be greatly thankful for everything we gain from living here, and we Jews have a particular debt of gratitude to this welcoming haven.

But, at the same time, America has always been comprised of imperfect human beings who create and enforce imperfect laws from which people suffer. In historical terms, this country is likely unsurpassed in its benevolent governance, but that’s a relative statement. Utopia it is not.

A newcomer to Gemara whom I know often airs his gripes about aspects of the Torah’s civil and criminal laws that don’t jibe with his sense of fairness and justice, because his unexamined assumption is that the Torah’s system of justice is essentially a Western-style one, just that it’s for Jews. In truth, however, the premises underlying the Torah’s system — most importantly, that it is for Hashem, not man, to mete out ultimate, inescapable justice — is very different from those of man-made systems.

I’ve told my friend that he ought to be a bit more dubious of the American justice system he holds up as such a worthy role model. I’ve noted, to his great surprise, that there are numerous features of American law that, were he aware of them, would make his hair stand on end. One need not be a lawyer to know about these laws; there have been many articles in the general press discussing them.

Nor are these laws merely dead letters. They’re being used by judges and law enforcement agencies every day of the year to deprive innocent Americans of life, liberty, and property, trampling on the very ideals that make this country the wonderful place it is. This is not about judicial or prosecutorial misconduct and rogue cops — these are legally sanctioned practices, which courts and legislatures have often refused to overturn or limit.

Consider the judicial practice known as “acquitted conduct sentencing.” Shana O’Toole, president of the Due Process Institute, explains this with the example of a defendant exonerated by a jury for one crime who is later indicted for an unrelated and less serious crime. He pleads guilty, expecting to receive a fair sentence, and even the prosecutors agree that by law an appropriate prison sentence should not be more than four years.

But the presiding judge, the same one who presided over the first case, sentences him to eight years in prison. That’s because the sentencing judge decided there’s a 51% chance that he should have been found guilty in the first case, ignoring the jury’s earlier verdict and basing the current sentence on those past unproven crimes. And, Ms. O’Toole writes, “if you think this describes what happens… under some authoritarian regime, you’re wrong. This describes a real case.”

This runs afoul of the spirit and perhaps the letter of the Sixth Amendment right to a jury trial, and allows one person to arbitrarily wipe away everything a jury may have done to examine evidence and deliberate for hundreds of hours over a span of months. But above all, it offends most people’s plain sense of what’s just and fair.

Yet, it remains legal in every federal court and a majority of state courts. Ms. O’Toole writes that while the actual number of victims has not been tallied, “our office mailbag is full of letters from those trapped behind prison walls who are serving sentences well past what their actual convictions should have brought them.”

The United States Supreme Court has thus far declined to hear challenges to this practice, but Justices Antonin Scalia, Ruth Bader Ginsburg, and Clarence Thomas joined in dissent to urge “an end to the unbroken string of cases disregarding the Sixth Amendment….” A bipartisan group of US senators recently introduced legislation that aims to reform this practice.


THEN THERE’S THE OUTRAGE known as civil asset forfeiture, also known as “policing for profit.” I prefer to call it what it is — a legal pretense for armed robbery. An illustration: Terrence Rolin, a 79-year-old retired Pittsburgh railroad engineer, had his life savings — $82,373 — seized by narcotics cops from his daughter, to whom he had given the money to take back with her to her home in Massachusetts for depositing in their joint bank account.

Civil asset forfeiture allows law enforcement officials to seize anything — cash, cars, houses — without compelling evidence of wrongdoing and without charging anyone with a crime. All that’s needed is the mere suspicion that an object is connected to criminal activity. To retrieve one’s property, the owner must pursue a lengthy, complicated, and costly appeal process — the opposite of “innocent until proven guilty.”

According to the Institute for Justice, a public-interest law firm, the Department of Justice takes in roughly $4.5 billion annually from civil asset forfeiture. IJ also found that in “43 states, police and prosecutors can keep anywhere from half to all of the proceeds they take in from civil forfeiture,” with the assets going into their own department’s coffers.

Since 2014, 35 states have enacted reforms in these laws. But police departments have created a clever workaround called “equitable sharing,” under which they take people’s assets, then “partner” with federal agencies, which operate under a much broader standard, and they split the bounty.

The Supreme Court has refused to hear challenges to this rampant form of legalized thievery, too, although legislation pending in the Senate would eliminate “equitable sharing,” require clear evidence that seized property was connected to a crime, and give indigent property owners the right to a court-appointed attorney.

Next, there’s the controversial “qualified immunity,” which shields government officials from being held personally liable for constitutional violations so long as the official did not violate “clearly established” law. The Supreme Court’s 1982 ruling came out of concern that the threat of lawsuits could chill even lawful law enforcement conduct. Yet what this means practically is that an unscrupulous police officer can walk off scot-free after committing a crime such as shooting or violently assaulting unarmed bystanders, or destroying or robbing innocent people’s homes.

And in fact, it’s become the too-frequent reality in America of 2021. Although many judges and public interest groups from right to left oppose qualified immunity, the Supreme Court has refused to reconsider this doctrine. Efforts in the Senate to reform qualified immunity have stalled under intense pressure from police unions, which maintain that absent qualified immunity, individual officers will be bankrupted by civil suits against them. Yet a study covering 44 of the country’s largest law enforcement agencies found that police officers are virtually always indemnified by their employers.

America is a good, imperfect nation, peopled largely by decent, flawed mortals. It is, like any decent society — or person, for that matter — a work in progress. We have come far but still have a way yet to go, and there is no dishonor in conceding either of those things.

Both Presidents Obama and Trump rejected American exceptionalism, manifested differently. For the former, it was compulsive apologizing for our flawed past and present to countries with monstrous human rights records. For the latter, who virtually never spoke of mainstay American values like individual liberty and tolerance, we were as corrupt as anyone else; indeed, we needed to be even more cutthroat in order not to be taken advantage of.

They were both wrong. America is exceptional — and a large part of what makes it so is its willingness to face its flaws and address them. Their views, in combination, represent the false choice between the extremes of self-flagellating national shame on the one hand, and jingoistic rejection of self-reflection and improvement on the other. This false binary choice has tragically polarized the national conversation about race relations and other topics.

As Torah Jews, we ought to approach this with our mental and emotional slates wiped clean of everything we hear and read from societal figures right and left alike, whose values are not ours. Instead, we should think through the issues and apply pure Torah values.

And when we do, I believe we will find that we share the outlook of neither extreme in many of today’s most heated debates.


Originally featured in Mishpacha, Issue 865. Eytan Kobre may be contacted directly at kobre@mishpacha.com

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