Parashat Vayikra and Mass Incarceration

This is my first stab at using Medium — or any social media — to share my work. In this post, I’m sharing a d’var Torah (a sermon) that I recently delivered at my Reform Jewish congregation, Temple Rodef Shalom of Falls Church, Virginia. I’ve done four lay sermons over the past two years, all on the theme of racial justice, which is a major focus of my post-retirement work. Here goes…

Drash on Parashat Vayikra

March 17, 2018

Gerson S. Sher

Today’s Torah reading, Vayikra, marks the beginning of the third book of the Torah, which in the Greek tradition we call Leviticus — “the book of the Levites” — and which in Jewish tradition is known as “Torah kohanim” — literally, “the law of the priests.” On its face, it is no more lively reading than the U.S. Federal Code. That is certainly true of today’s parasha, in which we read about the grain sacrifice, or the “mincha.” Here, we are treated to an interminable number of detailed instructions about animal and grain sacrifice as it relates to various offenses, both civil and moral. It all seems so remote to us nowadays, so archaic, so charming, so bloody — and so irrelevant.

But in fact, here we have the keys to an initial understanding of the Jewish approach to justice. For each type of offense, down to the most minute distinction, there is to be a carefully calibrated procedure of sacrifice, described down to the most microscopic, gory detail. The obvious lesson here is that we are not allowed to impose similarly harsh punishments for dissimilarly serious crimes. Hold onto that thought; we’ll come back to it later.

There are a few disturbing things about the way the text itself goes about defining crime and punishment. First, it distinguishes up front among acts committed by three different classes of persons: the Priests, the King, and the people. Today, however, we hold that all people are subject to the same laws and the same punishments. At least, that is our belief, if not always our practice.

Curiously, too, the text refers almost exclusively to violations which the violator acknowledges — or in other words, to which the violator confesses. Acknowledgment of guilt, the prescribed animal sacrifice, and where applicable, restitution, are adequate and suitable remediable measures, according to these passages.

We are left to wonder, however, what happens if the Priests or other clergy are found guilty of an offense — let’s say, sexual abuse — and refuse to acknowledge the offense, or if the King either does not acknowledge an offense or is not even aware that an act he has committed is a serious offense, if so judged by others: Can they just gut a goat and move on?

What seems completely irrelevant about these passages is that they prescribe a system in which animal sacrifice is sufficient to expiate most crimes, and most sins — at least those to which we admit. Today, we do not practice sacrifice. Or do we? For today, the sacrifices we demand are of a different kind — the sacrifice of one’s freedom, not to mention one’s life. One also wonders whether here, we have come full circle — perhaps, a curious inversion of the Akedah — from human sacrifice to animal sacrifice, and then back again, from animals to humans.

Let me talk briefly now about three different types of justice that are discussed nowadays in the literature on criminal justice: Retributive Justice, Restorative Justice, and Transformative Justice.

Retributive Justice is what we have been talking about so far today. It is also the most common conception of justice — crime and punishment. Its focus is the individual who committed the act and what consequences that person should suffer.

Restorative Justice is something we hear about less often. We have Restorative Justice when the offender physically meets with the victim and seeks not only forgiveness, but also reconciliation, and when the offender, having served their debt to society, is helped to rejoin society as a full citizen. This is more much challenging than Retributive Justice, and much less practiced.

Finally, the most challenging of all, is Transformative Justice. In Transformative Justice, society seeks to address the root causes of criminal behavior, what it is that drives people to commit criminal acts — be it poverty, racial and religious oppression, political exclusion, homelessness, and other deeply rooted social ills. While these and other evils do not account for all crime, much less excuse it, we ignore them at our peril.

Let me put some meat on the bones of this framework by applying these thoughts to an issue that we don’t often think about in our privileged community, and to what, in my view, we can do individually and together to address it.

The issue is mass incarceration.

Did you know that while the United States accounts for 4.4% of the world’s population, it accounts for 22% of all prisoners worldwide?

In other words, that the prison population of the United States per capita is nearly eight times the global average?

And did you know that while up until the late 1960s there were some 200,000 to 400,000 incarcerated Americans, afterwards that number shot up rapidly to nearly two and a half million today, a more than ten-fold increase?

Now, when there is such a massive jump in the order of magnitude of any phenomenon, there must be a special cause. It cannot be the case than ten times as many people turned bad almost overnight.

All the literature on the subject points to one major cause in this rise: the so-called “War on Drugs.”

Now, we know, from video-recorded testimony from none other than John Ehrlichman, that the Nixon Administration’s “War on Drugs” was nothing more than a lie, a fabricated pretext, to target their main perceived political enemies: the “hippies” and the Blacks. These were his words — “a lie” — not mine. Yet this war based on a lie — certainly not our only one — not only continued, but it grew, under both Republican and Democratic administrations, each of which seemingly strove to outdo its predecessor in their zealous protection of the Nation from certain types of drugs.

This was truly a nonpartisan issue: President Bill Clinton outdid even Ronald Reagan on the War on Drugs and he authored the “three strikes and you’re out” rule, and the African-American community will never forget it.

Today, we more or less take the War on Drugs for granted, as a part of the landscape. It is not. It is in fact a political declaration of war on racial and other minorities, as it has always been. It is Retributive Justice implemented regressively and unequally, rather than progressively and proportionately, as our tradition requires. And, as we know, it does nothing to address the real problems of drug addiction in this country, which go on unchecked.

As we have seen from today’s Torah reading, Judaism demands that “the punishment fits the crime” in a strictly, painstakingly proportionate manner. But Federal drug laws, along with mandatory minimum sentences that have recently been reinstated by the Department of Justice, have blatantly violated these precepts.

For example, the amount of cocaine by weight that triggers a mandatory sentence for possession is eighteen times less for crack than for powder. And before 2010, the ratio was a hundred to one. It doesn’t take much to figure out that these punishments are not only massively disproportionate, but also that they target very different demographic groups in our country. And if you happen to belong to the demographic that uses cocaine, not only are you allowed to possess far more cocaine, and not only is the punishment less harsh if you are convicted, but you are also more likely to be able to afford a good attorney who can get you off the hook entirely.

Here’s another example of injustice in the service of mass incarceration. In Virginia, when an individual is convicted of stealing anything of a value of more than five hundred dollars, she automatically becomes a felon for life, permanently losing the right to vote. Until this year, the level was $200, tied for the lowest in the Nation with New Jersey. In Maryland and DC, it’s a thousand dollars, and in many other states, double that amount. While the increase in Virginia was laudable on the surface, in practice it was tied to other measures that compensated by making other minor offenses more punitive. And by the way, most states allow ex-felons to vote either automatically or after a short process.

What can we do? Well, for one thing, we can demand from our elected officials to do better. And we can elect legislators and others who commit to doing better and we can vote out the rascals who perpetuate this brand of immoral injustice year after year. We can also advocate on a nonpartisan basis for better laws through our communities, including our houses of worship — as we are doing at Rodef Shalom through the “Eighteen in ‘18” initiative.

Let me turn next to Restorative Justice. The shocking treatment of ex-felons in this country — two-thirds of whom return to incarceration, often willingly, because of the challenges they face after release — is a shameful reminder that we have a long way to go in this respect. And while it affects members of every ethnic group, it overwhelmingly affects People of Color, especially in our area, and it is in fact part and parcel of the legacy of slavery in the United States.

If you have any doubts about this, consider the following statistics. One in three African-American males will be incarcerated at some point in their lives. One in seventeen White males will suffer the same fate. And we have already seen that 2.5 million Americans are in incarceration — about seven-tenths of one percent. Not much, right?

Now imagine, if you will, the following picture. Imagine that everyone shows up at Temple Rodef Shalom on Erev Rosh Hashanah. Assuming that males make up roughly 49% of our population, and considering that there are precisely 5,697 men, women, and children in our TRS sacred community, that means that if our congregants were representative of the national average, ten of the adult males you would see, plus or minus one, would actually be in prison; while if it were an African-American population, a staggering nine hundred thirty of the males, give or take, regardless of age, will be incarcerated at some point in their lives. How many TRS members have actually been incarcerated? You can probably count them on the fingers of one hand. If you have any doubt about the concept of “White Privilege,” which Rabbi Schwartzman discussed in her Erev Rosh Hashanah sermon three years ago, consider these numbers. We are indeed blessed, but in part by nothing more than the color of our skin.

Returning to the lot of ex-felons: Employment, mental health treatment, and housing are at the top of the list of challenges so overwhelming for returning citizens that a prison cell with three meals a day is more attractive than the life of a free person. And the costs to society, in terms of maintaining the most massive prison system in the world, the perpetuation of the cycle of crime, and the loss of these individuals’ productive power, are staggering.

At Temple Rodef Shalom, we are partnering to address this issue with community organizations in Fairfax County that work night and day on it, with the Fairfax County NAACP, and with other local houses of worship — including a nearby African-American church. Later this Spring, there will be a Job Fair for “returning citizens” — the polite code for ex-felons recently released from incarceration — to help them make contacts with local employers and to pool other community resources to provide support. As this project matures, we will be reaching out to this congregation to solicit your participation in the many ways, indirect and direct, that we as individuals can help. I hope that many will step up to meet the challenge.

Finally, there is Transformative Justice. This is the most challenging task of all. In this discussion, it means looking at the deepest causes of the blight of mass incarceration in America, in all its historical, economic, political, legal, social, and moral dimensions. And it asks the question: Why is a country that prides itself on being the most free society in the world also the country that surpasses all others, including tyrannical dictatorships, in the number of incarcerated individuals?

As a study just released by the Eisenhower Foundation points out, fifty years after the Kerner Commission report on the links between pervasive poverty and racism in America, the same patterns persist. Now, people will differ about the approaches to be taken, but if we refrain from taking them at all, we are no more than accomplices in allowing and enabling this cancer to consume us, our country’s resources, and our most precious resource: our people. Yes, accomplices.

A movement that I have recently joined that aspires to address these root causes of injustice in our society, including mass incarceration, is the Poor People’s Campaign, headed by the Rev. Dr. William J. Barber, who keynoted last December’s URJ Biennial. The campaign will involve forty days of direct action beginning in mid-May, including acts of civil disobedience, that will target a broad range of issues around poverty and inequity throughout the country. I will be the first to acknowledge that there may be better approaches, but this is one that has not been tried in earnest since the great victories of the Civil Rights movement, and it deserves — and it will get — our attention.

We read in Pirke Avot that “the day is short, the labor vast, the toilers idle, the reward great, and the Master of the house is insistent.”[1] And we also learn that “you are not obligated to complete the work, but neither are you free to desist from it.”[2]

Again — we are not free to desist from it.

For, in my view, if we desist from it, not only will we fail to carry out our Jewish obligations, but, in freeing ourselves from this work, we will also be less free.

Let us vow to ourselves this day, this sacred Shabbat, that while the work of combating injustice in this world will never be done, we will not allow ourselves to fail to engage in it actively in whatever way we can, large or small, and that we will do so in accordance with our Jewish tradition and teachings of fairness and righteous conduct.

Ken y’hi ratzon

May it be God’s will

© Gerson S. Sher, 2018

[1] Avot 2:20.

[2] Avot 2:21,