Yom Kippur Morning 5776/2015 All Lives Matter: Rabbi Rachel Goldenberg
All Lives Matter
Yom Kippur Morning 5776/2015
Rabbi Rachel Goldenberg
In the Midrash, our rabbis bring a teaching on a case of the court-ordered punishment of flogging:
Two men go to court, and one is determined to be guilty.
The Torah says[1],
If the guilty one is to be flogged, the magistrate shall have him lie down and be given lashes in his presence, by count, as his guilt warrants. He may be given up to forty lashes, but not more, lest being flogged further, to excess, your brother be degraded before your eyes.
The Midrash teaches[2],
From the moment he is flogged, he is your brother.
From this it was said, “all who are liable for excommunication and are flogged immediately are exempted from excommunication.” Rabbi Chananya ben Gamliel said, “all day, the text calls him ‘wicked,’ . . . . but from the time that he is flogged, the text calls him ‘your brother’. . . .”
According to our tradition, trom the moment the punishment is brought against a guilty person, he is no longer called “wicked”; he is called “your brother.”
And this punishment takes place before our eyes, so that we can be sure that the number of lashes accords with the count that his guilt warrants, and no more.
In her book, “The New Jim Crow,” Ohio State law professor and civil rights advocate Michele Alexander shares innumerable stories and studies, about the War on Drugs and mass incarceration, especially of African American men. Our country’s enormous incarceration system, and its injustices, are largely hidden from our view. It is hard for us to even know what the magistrates are doing, as our systems of justice and punishment are not carried out as described in the Torah: before our eyes.
But in the haftarah this morning, Isaiah reminds us that today is a day for scrutiny – of ourselves and of the society we are building. The fast that God expects from us today is one that forces us to face the stories we would rather not hear.
Alexander argues, based on enormous amounts of research, that the current War on Drugs, including mandatory minimum sentences, and many other aspects of the criminal justice system comprise a new manifestation of a racist system of control. This system began with slavery, morphed into Jim Crow, and now uses the justice system to severely limit and control the lives of a huge proportion of Black people in this country.
Alexander tells the social history of how from slavery, through Jim Crow, to today, Black men have been presumed to be criminals. Today, they are swept up into the criminal justice system in huge numbers, the system pressures the accused – and often the innocent – to plead guilty to lesser charges. They are then left with a record of arrests, jail time, and the label of “felon” for the rest of their lives.
This label of “felon” then releases the rest of society from any responsibility for a person’s future welfare. He is forever known as “wicked.” He is no longer our “brother.”
Here are just two stories from Alexander’s book[3]:
Imagine you are Emma Faye Stewart, a 30-year-old, single African American mother of two who was arrested as part of a drug sweep in Hearne, Texas. All but one of the people arrested were African American. You are innocent. After a week in jail, you have no one to care for your two small children and are eager to get home. Your court-appointed attorney urges you to plead guilty to a drug distribution charge, saying the prosecutor has offered probation. You refuse, steadfastly proclaiming your innocence. Finally, after a month in jail, you decide to plead guilty so you can return home to your children. Unwilling to risk a trial and years of imprisonment, you are sentenced to ten years probation and ordered to pay $1000 in fines, as well as court and probation costs. You are also now branded as a drug felon. You are no longer eligible for food stamps; you may be discriminated against in employment; you cannot vote for at least 12 years; and you are about to be evicted from public housing. Once homeless, your children will be taken from you and put in foster care.
A judge eventually dismisses all cases against the defendants who did not plead guilty. At trial, the judge finds that the entire sweep was based on the testimony of a single informant who lied to the prosecution. You, however, are still a drug felon, homeless, and desperate to regain custody of your children.
Now place yourself in the shoes of Clifford Runoalds, another African American victim of the Hearne drug bust. You returned home to Bryan Texas to attend the funeral of your 18-month-old daughter. Before the funeral services begin, the police show up and handcuff you. You beg the officers to let you take one last look at your daughter before she is buried. The police refuse. You are told by the prosecutors that you are needed to testify against one of the defendants in a recent drug bust. You deny witnessing any drug transaction; you don’t know what they are talking about. Because of your refusal to cooperate, you are indicted on felony charges. After a month of being held in jail, the charges against you are dropped. You are technically free, but as a result of your arrest and period of incarceration , you lose your job, your apartment, your furniture, and your car. Not to mention the chance to say good-bye to your baby girl.
According to Alexander, these “brutal stories. . . are not isolated incidents, nor are the racial identities of Emma. . . and Clifford . . . random or accidental. In every state across our nation, African Americans –particularly in the poorest neighborhoods—are subjected to tactics and practices that would result in public outrage and scandal if committed in middle-class white neighborhoods. . . .”[4]
“Where is your brother” – God asks Cain.
“Am I my brother’s keeper?” is his response.
And the Torah reminds us, “You shall not remain indifferent.”
Here are just a few statistics[5]:
· When the War on Drugs gained full steam in the mid-80’s, drug related prison admissions for Blacks nearly quadrupled in three years, and then increased steadily until in 2000, it reached a level more than 26 times the level in 1983.
· Today, in at least 15 states, blacks are admitted to prison on drug charges at a rate from 20 to 57 times greater than that of white men.
· These are the numbers, despite the fact that the vast majority of illegal drug users and dealers nationwide are white.
· Incarceration rates continue to climb in all communities – even though violent crime rates are at historic lows.
· Overall, one in every 14 black men was behind bars in 2006 compared with one in 106 white men. And for black men between the ages of 20 and 35 the rate skyrockets to one in nine.
In the book of Deuteronomy[6], we read,
“Tzedek, tzedek tirdof,”
“Justice, justice you shall pursue.”
The commentators ask why the word “tzedek,” or “justice” is repeated twice.
One answer they give is that just ends can only be achieved through just means[7].
The means: our system of law enforcement, how we enter a plea of guilt or innocence, the way we populate juries, how we sentence people, the punishments themselves, and what happens afterwards. The means must be just in order for us to call what we are doing, “tzedek,”– “justice.”
Another story – this time from the Washington Post[8]:
In February 2010, Louis Sawyer, a 49-year-old Black man, was released from federal prison in Pennsylvania after spending more than half of his life behind bars for murder. Authorities rejected his plan to live with family, who could support him while he looked for work. Sawyer was left to return to Washington, D.C., where he had no home, no job prospects and no family. A blizzard had hobbled the mid-Atlantic, and Sawyer called Hope Village, his appointed halfway house, to ask if he could delay the trip. Permission denied. If he wasn’t there by midnight, he’d be considered an escapee.
Sawyer checked in and entered the kitchen-less, two-bedroom apartment he’d share with up to seven roommates. He had four months to find a job and permanent housing. If he failed, he could be evicted and end up homeless.
Louis began signing up for classes. One taught him about the internet, which he had never encountered. Hope Village threw up obstacles, though: the computer lab was reserved for a GED course, not job searches, and cellphones and laptops were not allowed.
Another training program rejected him because there was a nursery school in the building where it met, even though his offense had occurred 25 years ago and had nothing to do with children.
His job applications were rejected, one after another, because he had to check “the box” indicating he had a criminal record. He went to city jobs fairs, though he soon learned that most of the organizations represented there did not hire returning citizens. Ultimately he was accepted into a transitional home and eventually did land a part-time job, more than 6 months after leaving prison, through a contact made a church. Today he works as a peer advocate for people recently released from prison.
Mass incarceration has enormous consequences, not only when a person is in prison, but even more so when they are released. Nationwide over 46,000 statutes impose consequences on people convicted of crimes. Many states bar people with felony convictions from jobs that require licenses – including nursing, hair dressing and plumbing. Many employers are reluctant to hire people with criminal records, reducing the likelihood of job callback or offer by around 50%.
When citizens return from prison, if they are able to find a job, they rarely earn a living wage, perpetuating the cycle of poverty and incarceration. And this doesn’t just affect those who served time; simply having an arrest record can affect an employer’s decision.
Louis is an exceptional example – he doesn’t drink or use drugs, he was able to develop marketable skills while in prison, and he is healthy. Many other returning citizens have minimal education and are also struggling with addictions and mental health issues, creating even more obstacles.
Our brothers’ voices cry out to us.
Shall we remain indifferent?
How can it be that in our country, the only jobs that will hire returning citizens are those related to helping other returning prisoners.
The Midrash I opened with says, “all who are liable for excommunication and are flogged immediately are exempted from excommunication.”
How can it be that our society does the bare minimum, if that, to help our brothers reintegrate and become contributing members of the community.
This afternoon, we will read in the book of Leviticus that we are commanded to have accurate and honest scales, weights and measures. The word used for “accurate” or “honest” is again this word, “tzedek” or “just.”
A holy society is based on a justly calibrated system of scales, weights and measures. The Torah doesn’t use this word “tzedek” by accident. I think these verses are teaching us that if our system of tzedek is out of whack – if the scales and systems of justice are not calibrated correctly – we will end up doing acts of great injustice.
Let me be clear – I am not laying the blame here on any one person or group of people or facet of our justice system. I don’t believe that all of our police are corrupt or are out on the streets purposefully looking for Black men to arrest. But I do believe that the scales – the system –has been calibrated – and Michele Alexander argues – purposefully calibrated –in a way that incentivizes and rewards unjust and racist practices that have unjust and racist results.
The system has been calibrated such that the prisoner is no longer considered our brother.
It is calibrated such that not enough weight is given to elements of compassion such as rehabilitation, mental health and addiction services, housing, and real support for finding employment after release from prison.
The system has been calibrated such that outrageous numbers of African Americans –shockingly disproportionate to their population and the crime rates in their communities – are under correctional control today.
One result of this distorted system is that “more African American adults are under correctional control today – in prison or jail, on probation or parole – than were enslaved in 1850, a decade before the Civil War began.”[9]
One result is that “more [black men] are disenfranchised today than in 1870, the year the Fifteenth Amendment was ratified prohibiting laws that explicitly deny the right to vote on the basis of race.”[10]
One result is that “Young black men today may be just as likely to suffer discrimination in employment, housing, public benefits, and jury service as a black man in the Jim Crow era – discrimination that is perfectly legal, because it is based on one’s criminal record.”[11]
When we break our fast today, there are a number of actions we can take.
One is to learn more –every American of conscience should read Michele Alexander’s book The New Jim Crow, and I hope to create an opportunity to discuss it as a congregation this year.
We can also thank our state lawmakers and our governor for recently passing Second Chance Society legislation. These laws reduce sentences for non-violent offences, abolish mandatory minimum sentences for drug possession, increase services to reintegrate non-violent offenders into society and work to close the school-to-prison pipeline. We will have a chance to get involved when it comes to implementing this legislation.
We can also be proud that multiple cities in CT have already agreed to Ban the Box on employment applications – the box a person has to check to indicate a prior conviction or felony – before even having a chance for a job interview. However, this only applies to the public sector. Those of us in the private sector and in the non-profit world should also refrain from excluding a job applicant from consideration solely based on a past conviction.
Our brothers cry out to us,
And on this day of self-scrutiny, we are called upon to ask ourselves, “What truly disturbs us?” “Whom do we really care about?” “Whose lives really matter?”
In our Torah portion this morning, when Moses reaffirms our sacred covenant, demanding that we choose life, Moses addresses our entire nation – men and women, children, strangers, from woodchoppers to water drawers.
Everyone is a part of this sacred covenantal system.
No one can say, “it is not my responsibility.”
Our sacred American covenantal system of justice, as it is currently calibrated, is not just.
This should disturb us.
It is our responsibility.
And when we are told to choose life, we should never be asking, “for whom?”
Because All Lives Matter.
[1] Deut. 25:3
[2] Sifrei Ki Tetze 286
[3] Michele Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, New York: 2012, p. 97-8.
[4] Ibid. p. 98
[5] Ibid. p. 98-100
[6] Deut 16:20
[7] Simcha Bunem, quoted in Etz Hayyim commentary on Deut 16:20
[8] http://www.washingtonpost.com/wp-dyn/content/article/2011/01/14/AR2011011405709.html
[9] Ibid. p. 180.
[10] Ibid.
[11] Ibid.
