Every week during the summer, it is traditional Jewish practice to study a chapter of a work called “Pirkei Avot.” It’s a collection of inspiring quotes and sayings by some of the most prominent Jewish leaders and sages. The first chapter contains the following universally-known quote by Hillel the Elder:
“If I am not for myself, who will be for me? But if I am only for myself, what am I? And if not now, when?”
The criminal justice system works for me. I have no gripes about how it is applied to me. Why should I? I’ve never been wronged by the police. But “if I am only for myself, what am I?” And if I don’t call out injustice this time, when is a good time?
George Floyd should be alive today. So should countless others whose lives were stolen by police officers drunk with power.
I desperately want cases of police brutality to stem from a few “bad apples.” I don’t doubt that the vast majority of police officers took the job to protect and to serve. But given that the perpetrator had 18 previous complaints against him, it’s hard not to condemn the system that placed him on the streets and kept him there.
The riots taking root in Minnesota and branching all over the country are not aimed at individual officers, not even at individual precincts; they are targeting the criminal justice system as a whole.
Criminal Justice Reform
When I say the criminal justice system works for me, I don’t just mean in terms of police brutality. Unfortunately, as common as police brutality is, most problems with the system manifest themselves in much more subtle ways: the level of surveillance and monitoring of individuals depending on their race/religion, differing means to hire competent legal counsel with reasonable caseloads, prosecutorial discretion in what charges to file (and whether to file charges at all), findings by an impartial jury, and sentencing by a fair judge.
All that said, a reform of the criminal justice system is meaningless without the improvement of the players within it. This isn’t basketball where one player can carry a team. One “bad apple” jeopardizes the function of the whole criminal justice system, which last I checked is justice.
It’s easy to award prosecutors with more filing discretion and to unbind judges from mandatory minimum sentencing. All it takes is a vote by the legislature. And, no doubt, we should advocate for these changes.
But these votes won’t result in much actual change if the players in the system remain the same.
Most of today’s quarrels with criminal justice stem from the way the system is implemented, not how it is designed. The system rightfully requires the law to be applied and enforced equally, rightfully requires every person charged with a crime to be tried by an impartial jury and to be convicted unanimously by that jury, and rightfully requires judges to sentence the condemned justly and not to favor any race, gender, or familial background. The reality is, however, that every victim, every prosecutor, every defense attorney, every jury, and every judge is different. Many of the players involved bring their prejudices into the courtroom, whether consciously or subconsciously. Discretion, by its very nature, differs between individuals and will always result in some unjust outcomes.
Fixing a Broken System
What laws do we pass to fix this?
A few come to mind: weaken the shield of police qualified immunity, allow more civil rights lawsuits to be brought against the government when they miscarry justice and sanction violators more often.
But laws are just words on paper as sports plays are just plans on a whiteboard. The only way to achieve true reform is by training — or substituting — the players already on the court. In other words, we need to produce a new batch of criminal justice players: Prosecutors who are educated and aware of their biases in charging decisions, judges who don’t consider uncontrollable factors when it comes to sentencing, and jurors who sit in culpability judgment fairly.
The system won’t work if we only attempt to fix it from the inside. We also need capable defense attorneys and an empowered media to place a check on those with the power to impact people’s lives and to call out the wrongdoers.
We will always need this check because power will always corrupt over time, because the fight for justice never stays won. “Justice, justice you shall chase,” the Torah says. You chase justice, but you never end up catching it.
Perfect justice — a fair decision by a prosecutor, judge, jury or police officer — isn’t always recognizable, but perfect injustice — an unfair action by any of these players — is clear as day. It should always be called out. Today, we’re dealing with the latter.