What does it mean to wake up? Maimonides, in his Laws of Repentance (Chapter 3) writes that the function of the shofar is to wake a person up. “Those who forget the truth in the emptiness of the passing time…” should heed the blast of the ram’s horn and stir from their slumber. Nowadays, it is common in activist quarters to speak of people who have recognized certain systemic injustices as being “woke.” Maimonides and the activists are speaking to the same point. There is a crying need to step out of the familiar and often lazy thinking about our own and society’s actions. We are called to take an unvarnished look at our society, and ourselves.
I want to suggest that the first place we should be looking is the criminal justice system. Can we think differently about our carceral system (the justice system in the way that it impacts those who are themselves incarcerated, formerly incarcerated, and their families and communities)?
When the State of Israel was young, questions about what a justice system should be like were in the air. This is how the Rishon le-Tziyon, the Sephardic Chief Rabbi of Israel, Rabbi Ben Zion Meir Hai Uziel responded in 1952.
From this we derive that the punishment of imprisonment is distant from and opposed to the laws and punishments of the Torah of Israel. This is also logical since not only does this punishment not reform the criminal, rather it reduces him to very low moral level, since he is constantly found in the company of criminals similar to himself, and he spends time in idle conversation with them—sometimes even ugly and contemptible conversation. This company habituates him to a life of idleness which are a curse to him and others. This prison and the uniform of a prisoner, and the degraded and ugly living conditions in the prison, their tables and their beds, and all the more so when they are accompanied by hard labor, degrade the prisoner in his own eyes and in the eyes of his children and his wife and family. The moral degradation of a person in his own eyes removes his feelings of embarrassment and therefore he gives himself over to sin, from which he will never return. The opposite is the case, he will continue to sin in order to free himself from the worry for his support and the support of his children and wife all of his time in prison, when he is dependent upon those who provide him with food and water.
Rav Uziel makes three points. First, imprisonment is not a punishment that is grounded in Jewish law or tradition. In Jewish law, the only time a person is subjected to imprisonment is when they are awaiting judgement in very specific cases.* However, imprisonment as a punishment in and of itself is nonexistent.
Second, imprisonment does not make sense since it does not lead to reforming a criminal but rather puts criminals into the community of other criminals so that they do not reform, but actually become worse offenders.
Finally, the prison is physically and mentally degrading, thus leading a person to believing that the only option they have is a life of crime.
Before we immediately dismiss the idea of doing away with imprisonment as naive—“Sure the prison system is not perfect, but what is the alternative?”—let us sit with Rav Uziel’s critique for a minute. If prison does not really “work”—that is, if prison benefits neither prisoner nor society—why would we have it? Well, does it work? According to National Institute of Justice statistics, within three years of release, about two-thirds (67.8 percent) of released prisoners are rearrested. Within five years of release, about three-quarters (76.6 percent) of released prisoners are rearrested. If a company manufactured cars, two-thirds to three-quarters of which were defective, that company would soon go out of business. A recidivism rate this great points to the obvious conclusion that prisons are doing almost nothing to rehabilitate prisoners. At the same time, the fact that the released prisoners are re-offending points to the fact that the current system is not making the society any safer.
A recent study also claims that the societal costs of our carceral system are enormous. Some of the societal costs of incarceration include the wages people no longer earn while imprisoned — $70.5 billion — and the amount of lifetime earnings they will likely lose out on — $230 billion — after they get out because of employment restrictions and discrimination against the formerly incarcerated, the study says.
The formerly incarcerated also have a mortality rate that is 3.5 times higher than people who were not incarcerated, according to the study, and researchers estimated the cost of their shortened lives to be $62.6 billion. As for the communities where incarcerated people live, the researchers believe the biggest cost — $285.8 billion — is the criminogenic effect of prison, or the theory that prison reinforces criminal behaviors that carry over into a community.
Are we awake yet?
The United States imprisons more people than any other country on the planet. There are more than 2.3 million people in prison, according to this report by the Prison Policy Initiative. The carceral system disproportionally impacts the Black community. While African-Americans are 13% of the general population of the United State, they make up 40% of the prison population.
Are we awake now?
What can be done? The current system of imprisonment is broken seemingly beyond repair. It seems insane, though, to just shut it down, right? There are those—prison abolitionists—who suggest shutting down the system as a whole and investing the enormous resources into restorative justice and transformative justice efforts.
However, there are some immediate things that we can do as a society, short of complete and immediate abolition. Get rid of determinate sentencing. Get rid of mandatory minimums. We commission judges to try cases because they are supposed to be the arbiters of justice not the agents of vengeance for a community. Reintroduce earned parole. We should incentivize prisoners to study, to better themselves spiritually, and psychologically. While we still have prisons we should transform them into a way-station where a majority of the prisoners can go through and come out the other side as productive members of society.
We must make re-entry into society easier. We have to make it illegal to ask job applicants for their criminal history until a tentative job offer has been proffered, and then only relevant criminal history would be reason for not hiring. (If you embezzled funds, you can still drive a bus.) We have to make it illegal to ask for criminal background checks in rental applications, and for government housing. We should decriminalize nonviolent drug offenses and used the money saved for addiction prevention and drug rehabilitation programs.
“Awaken sleepers from your sleep, rouse yourselves from your slumber, investigate your deeds and repent…”
* When a person hits another person and the second person is badly injured. The court imprisons the first person to see whether the case is a capital case or not. Another type of imprisonment is actually an alternative capital punishment. On that see here.
Resources and actions:
Support Proposition 57: The Public Safety and Rehabilitation Act in the November election
Call your councilmember and tell them to support the Fair Chance Act
Bryan Stephenson, Just Mercy: A Story of Justice and Redemption