“It is known that a wide open living space widens one’s mind, and thus the opposite, a crowded living space and lots of people together, degrades one’s mind. Pharaoh strove to degrade the minds of the Israelites, and so he would press them in one place.” —Netziv (Shemot 2:25)
Jewish tradition highly values the principle of teshuvah (turning away from wrongdoing). But how can people who have run afoul of our criminal justice system turn their
lives around if they don’t even have the space to turn around in their cells?
Last month, the U.S. Supreme Court confronted severe overcrowding in California prisons, ruling that existing conditions constitute cruel and unusual punishment. This important victory offers an opportunity to reform a broken system that crowds out the possibility of restorative justice.
Since 2005, there has been, on average, one preventable death a week in California prisons. The Supreme Court determined that “needless suffering and death have been the well-documented result” of overcrowding. Earlier, the lower court heard copious testimony, finding that “[a]s many as 200 prisoners may live in a gymnasium [and] as many as 54 prisoners may share a single toilet.” “Wait times for mental health care range as high as 12 months.” Prison infirmaries were operating at twice their capacity, with only half the needed clinical space. At times, “up to 50 inmates may be held together in a 12-by 20-foot cage for up to five hours awaiting treatment.”
Substandard conditions were found in every category, including cleanliness, quality of medical personnel and responsiveness. One prisoner suffering from severe abdominal pain waited five weeks to see a specialist, and died. Another, with “constant and extreme” chest pain, died after not being seen for eight hours. In several cases, cancers were not diagnosed or properly treated for more than a year.
These severe outcomes serve no valid punishment goals and demonstrate an abdication of basic ethical and constitutional duties. The Court agreed, affirming an order to trim prison rolls to 137.5 percent of capacity. This reduction should permit greater access to services, rehabilitation and voluntary religious ministry (which have demonstrably contributed to personal recovery of many offenders). Nevertheless, greater reforms are needed.
The California prison system has evolved into the opposite of what “corrections” and “rehabilitation” should mean. Though the criminal justice system removes people from society for specified time periods, the overwhelming majority of inmates will be returned to the general population. The purpose of the separation is to allow a process of repairing and learning to take place in preparation for resuming membership in society according to the social compact. This would logically entail rehabilitation, education, social services and/or religious ministry, all designed to produce a smooth path to reintegration after incarceration.
But because of severe overcrowding, California fails to afford prisoners opportunities to engage in the requisite mental and physical activities and achieve the desired outcomes of imprisonment. Instead, at a cost of approximately $50,000 a year per prisoner, California is maintaining an extravagant revolving door, forgoing services that would reduce the astronomical recidivism rate.
Moreover, since U.S. incarceration rates have quadrupled in recent decades, we are jamming additional people into a system that was already failing to provide basic care and services necessary to sustain its inhabitants and ready them for return to society. As a consequence of these conditions, we are fostering the very criminality we seek to control. We can’t (nor would we want to) imprison everyone forever, so we have a compelling interest in making sure that people come out better, not worse, and more able to contribute to society.
Jews, with our history of enslavement and alienation, should be especially sensitive to forced deprivations of liberty under inhumane conditions. Indeed, in the Jewish tradition, even persons convicted of crimes are created in the Divine image. The Talmud seeks to protect the humanity of those facing capital punishment as well as lesser sentences. Dangerous overcrowding and unsafe conditions are an assault on a person’s humanity and, by extension, his/her Divine image. Even when society deems conduct criminal, Judaism calls for justice and compassion, and prophets like Amos, Micah and Isaiah taught that everyone must be treated fairly and equally.
In considering the current state of prisons in California, an urgent question is whether we are willing to perpetuate a system that forces people — largely the young, people of color and our most vulnerable — into unproductive and irretrievably negative paths. The Court has done its duty by ruling that the Constitution cannot allow overcrowding when the results are death, infection and inhumane conditions.
Now it is our duty to design and implement the necessary reforms to ensure true teshuvah, of individuals and the system.
Stephen Rohde, a constitutional lawyer and author, is vice chair of the Progressive Jewish Alliance (PJA)/Jewish Funds for Justice and represented a man on California’s death row. Hanna Liebman Dershowitz, an attorney who has specialized in criminal justice reform, serves on PJA’s Los Angeles regional council. PJA was a signatory to an amicus brief in the overcrowding case in the Supreme Court with various Christian, Muslim and Jewish groups.
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