Prison Insights

By: Rabbi Jay Kelman |

In an almost unbelievable application of the verse, “Love your neighbour as yourself”, our Sages teach that one must give a convicted killer a “pleasant death”. Even those who commit capital crimes are to be dealt with humanely.

Thus, Judaism has no concept of death row; and in the rare circumstances when a death penalty is to be administered, it had to be done on the morrow of conviction. Such an attitude may help explain why—strange as it sounds to us moderns—the Jewish penal code apparently does not allow for a jail system. Monetary restitution was required for violations of civil law; exile to another city was the sentence for criminal negligence (with the caveat that a relative of the victim was allowed to kill the criminal who left his new abode). Those considered a threat to society—and the Talmud makes little mention of such occurrences—were dealt with on an ad hoc basis.

With little left but a lifetime in jail, Bernie Madoff has expressed his view that the banks were well aware of his Ponzi scheme but chose to turn a blind eye as the profits rolled in. He has also claimed that he, too, is a victim, admittedly by his own doing.

Madoff, like many sinners, waited until after the fact to reflect on what he did. And that is often too late.

As to the role of the banks, while the “testimony” of a convict is not admissible, I have no reason to doubt his words are, in fact, true. It is the rare person—and even rarer business—that concerns him/itself with the possible moral wrongdoings of others. Often they are not too concerned with their own wrongdoings.  The Torah forbids one to partner in a business transaction, no matter how legal or moral one’s piece of the deal, if others involved are behaving unethically. But our Biblical notions of rebuke don’t seem to play a role in the “modern marketplace”.

Minding our own business is a mantra that allows us to deal with others without giving their issues a second thought. One does not steal fifty billion dollars on one’s own, and the many signs and opportunities to expose the fraud before it caused so much damage were ignored. As both the Jewish and secular legal systems mete out no punishment for those who could prevent harm, but chose not to, we can only rely on moral suasion.

In the realm of morality, it is quality, not quantity, that matters most. Jewish law recognizes no distinction between petty and grand larceny. While the damage caused to others in the latter is greater—hence, the amount the criminal must return is greater—if we also understand that stealing is an affront to G-d, then numbers don’t really matter. From this perspective, Bernie Madoff is little worse than your “petty” white-collar criminal, who may “only” steal a million dollars or so. He was just “better” at what he did. Both those who steal a penny and those who embezzle a billion dollars lose their ability to be trusted in any and all matters of Jewish law, whether civil, criminal or religious law. While their words carry no legal weight, even a moral leper can at times have moral insight into the actions of others. We would be wise to listen.