April 2, 1998
Crime and Punishment
By J.J. Goldberg
It's time that the American Jewish community wascalled to account. One of its number is languishing in the jaws ofthe criminal justice system, suffering for a mistake -- a gravemistake, admittedly -- to which the system has responded far, far outof proportion to the deed.
This is a Jew who, though publicly regretful,faces what some might consider a very high price. The reason?Possibly because, in this mostly Christian society, the Jewish way ofseeing things doesn't count for much when society sits in judgment.In a way, Jews have a permanent disadvantage. That's supposed to beone reason Jewish organizations exist. But in this case, theorganizations and their leaders have been woefully silent.
We are speaking, of course, about Amy Grossberg,the New Jersey teen-ager accused of murdering her newborn son in aDelaware motel room in 1996.
Did you think this was about someone else?Jonathan Pollard, perhaps? Hold that thought.
Delaware police say that Grossberg, then 18, gavebirth in a motel room on Nov. 12, 1996, with the help of boyfriendBrian Peterson. The remains were left in a nearby Dumpster. She wasarrested the next day in a hospital room while being treated forlife-threatening complications from childbirth. Peterson turnedhimself in a week later. Both were charged with first-degree murder.Prosecutors have threatened to seek the death penalty.
Grossberg's lawyers have submitted documents thatindicate she was not fully alert at the time of birth, thought thebaby was stillborn, and let Peterson dispose of it. Also submittedwas medical evidence of a rare fetal disease. Peterson, fearing asetup, agreed last month to testify against her in exchange for areduced charge of manslaughter. She goes on trial May 4.
The case has aroused vast national interest, withpundits wondering endlessly why the affluent, privileged teens failedto seek abortion or adoption. There's been far less attention to themystery of the prosecutors' unprecedented harshness.
Infanticide, killing a newborn baby, is a rare andlittle-understood crime. Patchy statistics suggest that it occursperhaps 600 times yearly in America, generally involving singlemothers, mostly young, poor and psychologically ill-equipped for thestresses of motherhood. Most cases end in manslaughter convictionsand prison terms up to four years, often suspended. In England, whereit's been studied, courts usually mandate psychotherapy rather thanprison.
Delaware, by contrast, threatens lethal injection.What's behind this fantastic overreaction? No one knows for sure.Some informed commentators call it a grandstanding prosecutor'sappeal for the influential right-to-life vote. You can't prosecutemothers who kill babies before birth, but this comes close. Themessage: We defend babies.
Judaism, of course, insists that abortion is nothomicide. In Judaism, a fetus is not a person but, at most, apotential person. Its rights cannot outweigh the mother's. Even afterbirth, rights accrue developmentally. An infant that dies beforeeight days is not named. One that dies within 30 days cannot receivea funeral. The idea of lodging capital murder charges against asemiconscious mother just after labor should be repellent bytraditional Jewish standards.
What does all this have to do with the Jewishcommunity? Not much, unless you believe the community is obliged todefend Jews whose mistreatment by the courts offends Jewishvalues.
Most of us don't think so. American Jews tend tothink our best protection as a minority lies in demanding we betreated the same as everyone else, not differently. Unless there's alegal attack on Judaism -- denying inmates kosher food, for example-- Jews who fall afoul of the law are on their own.
In recent years, however, a bold few have comeforward to advocate just that: defending Jews hurt by the judicialsystem. Their rallying cry is freedom for Jonathan Pollard, anAmerican Jew arrested in 1986 on charges of spying for Israel.
Pollard, a former U.S. Navy intelligence analyst,was sentenced in 1987 to life in prison -- despite having spied foran ally, and despite a plea bargain promising a lesser sentence. Hisadvocates argue that the organized Jewish community has an obligationto demand his freedom.
The claim is not that Jews should be allowed tospy for Israel. No, advocates say that Pollard's sentence wasexcessive, and that the community should protest because it wasIsrael he spied for.
Not that he's innocent, but that his crime has adifferent meaning to Jews.
Pollard's advocates, then, should be the first tospring to Amy Grossberg's defense. Curiously, the suggestioninvariably prompts horrified protests: "The cases have nothing to dowith each other." "Judaism doesn't support killing babies."
Well, does Judaism support spying for foreigncountries? Here's where it gets messy. Pollardistas insist that theydon't mean that. But it's not clear they're being frank.
The most vocal advocates tend to speak heatedlyabout Pollard's violated plea bargain, in which he expressed remorseand was promised leniency. In the same breath, they often note theimportance of the information he supplied to Israel. Unfortunately,one claim undercuts the other. If he stands by the information hepassed on, how remorseful is he?
The discrepancy hasn't gone unnoticed at thePentagon. High-ranking sources say that it was the Joint Chiefs ofStaff who urged the judge, through then-Defense Secretary CasparWeinberger, to ignore the plea agreement and throw the book atPollard. The reason was their fear of thousands more Pollards insidethe defense establishment. They wanted to send a message: This isn'tacceptable.
Pollard is still in jail, these sources say, notbecause his crime merits his lengthy sentence -- it doesn't -- butbecause too many American Jews still haven't gotten the message. IfPollard is a hero, if spying for Israel is defensible, then all thosedecades of Jews protesting their loyalty to America must be a joke.That can't be.
Thus, these sources say, every time Jews rallyagain to call Pollard a hero, every time another Israeli leader treksto North Carolina to greet this loyal soldier of Israel, it adds amonth to his sentence.
Let's be clear: Pollard should not be in jailanymore. He's arguably done more time already than spies whose crimeswere greater. And there's a strong case to be made that AmericanJewry should demand his release.
But not because he was working for our team. Hewas not. If the Jewish community should speak up for Pollard, it'sfor the same reason the community should speak up for Amy Grossberg:because the punishment is supposed to fit the crime.
J.J. Goldberg is the author of "Jewish Power:Inside the Amercan Jewish Establishment." He writes from regularlyfor The Jewish Journal.