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Plea-Bargaining and Jewish Law

December 17, 2017 | by Lori Holzman

It’s surprising how many innocent people confess to crimes they didn’t commit. This can’t happen in Jewish law.

Shortly before midnight on Monday, September 21, 2000 three masked man broke into the home of Walter Bowman. The men wore gloves and had their faces covered with bandannas. Walter Bowman heard a lot of noise outside of his room, opened the door and saw the robbers. He quickly shut the door.

One of the intruders fired his gun at the bedroom door and kicked it open. “I shot him, I shot him!” he cried. The men fled the house and Walter Bowman died before he could get to a hospital.

A crime-stoppers tip led the police to investigate three men, Robert Rutherford, Bradford Summey, and Lacy “J.J.” Pickens, but the police determined that Pickens couldn’t have committed the crime because he was already in police custody at the time of the murder. So they dropped their investigation into all three men.

The police investigated other tips and eventually arrested Robert Wilcoxson and five other men. Facing the threat of the death penalty if convicted, Wilcoxson pled guilty and was sentenced to 15 years and 9 months in prison.

After serving nine years in prison, Robert Wilcoxson was finally found innocent.

What the police didn’t realize was that Lacy Pickens was confined on weekends, but free on work release during the week. In 2003 Robert Rutherford admitted that he, Summey and Pickens committed the crimes. Four years later DNA evidence matched Summey’s bandanna and investigators realized that the getaway car – a 1971 Oldsmobile Cutlass Supreme – was the same one that Pickens had owned at the time.

In 2011, after serving nine years in prison, Robert Wilcoxson was finally found innocent.

Confessing to a Crime He Didn’t Commit

The Economist (“A deal you can’t refuse,” Nov, 2017) notes that the use of plea-bargaining, the practice of having suspects confess to a crime in exchange for a reduced sentence, is rising in justice systems all over the world. In 1990 a study of 90 countries found that 19 used plea-bargains; today 66 countries do. In America it is used all the time. Fewer than 3% of federal defendants stand trial; most take plea-bargains.

Plea-bargaining became popular during the Prohibition era when there was such a steep increase in the number of criminal offenses that the courts didn’t have the manpower to bring them all to trial. Plea-bargaining is supposed to persuade guilty people to confess; it’s not supposed to create false confessions. Why would an innocent person plead guilty? Why did Robert Wilcoxson confess to a crime he didn’t commit?

According to Jewish law, an accused person is not allowed to testify against himself. If America courts followed the Torah’s laws, a suspect’s confession, “I killed him,” could not be used against him. Nor could they threaten him with the death penalty or promise him a short jail sentence in return for a confession.

Maimonides (12th century) suggested a reason behind this Torah law. A person accused of a crime is in a very vulnerable state – they may become depressed, even suicidal, and admit to a crime just to get it all over with (Mishnah Torah, Sanhedrin 18:6) . And Rabbi Yosef Ibn Migash (11-12th centuries) wrote that if confessions were admissible as evidence, the courts would be overly influenced by it and not pay attention to other important evidence that might prove his innocence (Menachem Elon (ed.), The Principles of Jewish Law (1975), at 614).

Of the 149 Americans cleared of crimes in 2015, 65 had pled guilty.

Today, modern psychologists are demonstrating what these Rabbis from the middle-ages knew all along. In 2013, Lucian Dervan, a law professor at the Belmont University College of Law, and Vanessa Edkins, a psychologist at the Florida Institute of Technology, created an experiment to see if guilty people were more likely to confess than innocent ones. They asked students to solve logic problems, first in a team, and then on their own. When they were supposed to be working alone they had researchers ask half of them for help, which was technically “cheating.” Afterwards, all the students were accused of cheating and offered a plea-bargain to avoid punishments, such as losing payment for participation or having their supervisors notified. Nearly 90% of the “cheaters” confessed, but so did most of those who were innocent.

In real life cases, this has been the case as well. Of the 149 Americans cleared of crimes in 2015, 65 had pled guilty.

Changing the System

Will the American Justice system take a page from Jewish law and get rid of the plea-bargain? It’s not as crazy as it sounds. In 1966, the Supreme Court ruled that all criminal suspects have to be instructed that they have the right to remain silent and that anything they say can and will be used against them in a court of law. In explaining his agreement with the ruling, Chief Justice Warren observed that the “roots” [of the privilege against self-incrimination] go back to ancient times,” and in the footnote he quotes Maimonides that, “the admission that no man is to be declared guilty on his own admission is a divine decree.”

There are many other ways that Jewish law could help reform the criminal justice system as well, such as:

  • Using more creative punishments: In America today there are over 2 million people in jail. Jail is the punishment given uniformly to everyone from petty thieves to mass murderers. In Jewish law, there’s a more creative range of penalties. For example, instead of sending a thief to jail, he has to pay double what he stole. So if he stole 100 dollars he would have to pay his victim 200 dollars. In this way, what he planned to take away from someone else is taken away from him instead. After paying what he owes he can go back to being a productive member of society.

  • Reducing the death penalty: So far this year the death penalty was used 23 times. While the Torah allows the death penalty in extreme circumstances, it greatly discourages its use. The Talmud states that a court that executes someone once every 70 years is considered blood-thirsty. The Torah also states that “You shall not eat over the blood,” which Rashi (a 10th century scholar) says means that a court must fast on the day it pronounces a death sentence. A jury that has to fast before rendering a death-penalty verdict would probably approach the decision with the right amount of gravitas.

Perhaps the biggest lesson that the American justice system can learn from the Torah is that every person is created in the image of God. The courts systems are busy and over-worked, and it’s easy to see a criminal suspect as just another cog in the machine. But we must remember that no matter how far a person has fallen they still have a divine soul. As the Torah commands, “You shall not pervert judgment… nor take a bribe; for a bribe blinds the eyes of the wise, and perverts the words of the righteous. Justice, justice shall you pursue” (Deut. 16:18-20).

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