On May 24, four students poised to graduate high school in Howard County painted swastikas, a racial epithet and a homophobic slur on the building, walkways, trashcans, outbuildings and parking lot of their school. As I write this on the day after, the consensus opinion is that their target was their African-American principal. The four are charged with misdemeanors. I’m hoping restorative justice — including education, accountability and amends — will figure into their judgments.
In Parshat Shelach, 10 of 12 spies sent to reconnoiter the land of Canaan bring back a report so demoralizing that despite Joshua and Caleb’s attempt to rally the people, the nation falls into despair and turns against Moses and Aaron. God responds, “How long will this people spurn Me, and how long will they have no faith in Me despite all the signs that I have performed in their midst?” (Numbers 19:11). Once again, Moses talks God down from inflicting harsh punishment and disowning them.
It often appears that God’s preferred mode of response is retribution, but that is not reflective of either the biblical or rabbinic traditions — and rarely constructive in our day. Unfortunately, people often speak of retributive justice and restorative justice and if one must choose between them. In Jewish tradition, that is not the case.
Torah stipulates that restoration is essential (Exodus 22:3, 5, 12; 24:12). The Talmud (BT Ta’anit 16a) asserts that restoration requires repayment.
Torah stipulates that in addition to repayment, one-fifth value is added as a punitive payment. The rabbis stipulate that this is only if the thief confesses. Why? Because the payment is an act of atonement, and punishment should ultimately facilitate the perpetrator’s repentance and atonement.
A disagreement about arbitration recounted in the Talmud (BT Sanhedrin 6b) affirms how essential restorative justice is. “R. Eliezer b. R. Yose the Galilean says: It is forbidden to arbitrate in a settlement and one who arbitrates thereby offends [God] … And thus Moses’ motto was: let the law pierce the mountain. Aaron, however, loved peace and pursued peace and made peace between people.” The Tosefta adds, for those who think judgment and peace are mutually exclusive, “What is judgment that includes peace? Necessarily, it is compromise.” We should seek judgments that restore peace by encouraging and facilitating repentance and atonement.
God balances justice and mercy. Halachah accomplishes this by weaving together legal, ethical and spiritual concerns toward the highest goal: restitution for the victim and repentance and atonement by the perpetrator. What would restorative justice for the Israelites have looked like? I hope that those who decide the fates of the four young men will have restorative justice in mind.
Rabbi Amy Scheinerman is community hospice chaplain at the Jewish Federation of Howard County.