Ask the Rabbi: Does repentance justify criminal pardons?

Rabbi Haim Joseph David Azulay claimed that since outsiders can never truly know if a sinner has repented, the court has no basis for leniency.

By SHLOMO BRODY
Judges preside in court (Illustrative) (photo credit: ILLUSTRATIVE: MARC ISRAEL SELLEM)
Judges preside in court (Illustrative)
(photo credit: ILLUSTRATIVE: MARC ISRAEL SELLEM)
Prison reform remains a major topic of debate around the world, as countries struggle to find the correct formula to prevent crime yet help rehabilitate prisoners and lower the rate of recidivism. Within that discussion, one element of debate relates to the impact that repentance has on sentencing: Should remorse lead to a reduced prison term, parole or clemency? Repentance, of course, plays a significant role in Jewish thought, and is particularly emphasized in the 40-day period leading up to Yom Kippur. Interestingly, scholars debate whether repentance is a formal biblical commandment.
Since penitence is a theme of several Biblical narratives and prophetic missions like those of Jeremiah and Jonah, many scholars enumerated it within the 613 mitzvot. Nahmanides and Rabbi Ovadia Sforno, for example, cited Deuteronomy’s promise of Jewish religious revival as a directive to repent.
Yet a clear verse calling for personal transformation remains elusive. As such, some scholars only counted confession (vidui) as a commandment, particularly when part of the sacrificial or Yom Kippur rite. Rabbi Meir Simha of Dvinsk argued that repentance would be a superfluous directive, since we are already commanded to perform the required action or refrain from certain sins. Others, like Rabbi Abraham Isaac Kook, view repentance as a gift from God that He bestowed upon us to voluntarily return to His good graces.
Since many of the biblical rites toward atonement are connected to sacrifices, medieval scholars disagreed regarding the process in the post-Temple period. Maimonides and others viewed repentance as a deep psychological undertaking in which the penitent feels remorse for his past deeds, acts to leave behind his harmful ways, confesses his sin and takes upon himself not to further transgress. While potentially powerful, this entirely internal process can lead to self-illusion; moreover, it provides no proof to others of one’s genuineness, which may be necessary in some cases, such as restoring a disgraced public official to office.
As an alternative, medieval German pietists suggested that internal remorse must be manifested in and strengthened by external actions. They called upon penitents to perform public confessions or commit acts of self-flagellation, including immersing in icy lakes in the winter. But others questioned the efficacy of these practices and whether they reflected Jewish attitudes toward penance.
Whatever its methods or its status as a commandment, penance was viewed by many Jewish thinkers as an act of “grace” or “mercy” that defies the rules of justice.
How can one otherwise explain the remission of guilt from harm that has already been done? Indeed, throughout our prayers, we beseech God for forgiveness using the “13 attributes of mercy” invoked by Moses to plead for the Jewish people.
Rabbi Moshe Haim Luzzatto added that repentance is necessary for the continued existence of the world; if Divine punishment would be conducted mercilessly, no one could survive. Yet some commentators demurred, noting that “truth” (emet) is included among these 13 attributes of mercy, indicating an element of justice to the process.
They further cited a well-known talmudic teaching that just as a lifelong evildoer can merit the world to come through an act of genuine repentance, so too can a righteous person relinquish his merits through remorse over his constant goodness.
The passage depicts repentance as a process of re-creation in which a person gets judged anew based on their reformed ways – the sinner receives pardon, while the formerly righteous are chastised.
Either way, one might expect God’s embrace of repentance to impact Jewish penal law. Yet two poignant talmudic passages seemingly reject this conclusion. In one case, the Talmud contrasts God’s approach to that taken by prophets or men of wisdom, implying that human judgment focuses exclusively on the crime, not the criminal. A second talmudic passage more explicitly states that while “heavenly courts” forgive the penitent, human courts must punish in accordance with the strict rules of justice.
Talmudic commentators offered various explanations of these passages, largely based on the debates regarding the nature of repentance.
Rabbi Haim Joseph David Azulay claimed that since outsiders can never truly know if a sinner has repented, the court has no basis for leniency.
Rabbi Yehezkel Landau further contended that should we accept claims of repentance, the Torah’s penal code would become nullified since all sinners would quickly proclaim their remorse.
Alternatively, Rabbi Moses Ben-Joseph of Trani maintained that while God may choose to act with mercy, courts of human law must follow rules to create a just society.
However, as Nahum Rakover has argued, these principles must be modified with an important caveat.
When adjudicating strictly according to talmudic law, repentance is not factored.
Yet as Rabbi Shlomo Ibn Adret and other medieval decisors argued, Jewish law also allows for local authorities to create an independent penal system in accordance with the needs of the time. This grants the authorities the flexibility to penalize criminals harshly, but also to provide leniencies to encourage repentance.
Indeed, a major principle of Jewish law stipulates leniencies for evildoers who abandon their sinful lifestyle and return to the fold.
As such, when thinking about penal reform, legislators must balance the need to protect society, serve justice and help rehabilitate criminals. While Jewish law cannot provide a formula to reach a happy medium in a given society, it does highlight the values that should guide the debate and give us something to think about during the season of repentance. ■
The writer directs the Tikvah Overseas Seminars, teaches at Yeshivat Hakotel and is a junior research fellow at the Israel Democracy Institute. An anthology of his Ask the Rabbi columns, A Guide to the Complex: Contemporary Halachic Debates (Maggid Books), will be published later this month.