Noach: D'var Torah Delivered by Yael Yaaloz, October 24th

How do we make change? One dichotomy I often come across is whether we try to change from within or from without. Getting inside the system, with all its flaws, applying internal pressure, and making incremental, even glacial paced changes OR challenging the system from the outside, applying external pressure, sometimes incrementally sometimes more like a deluge, which is what we see god do in parshat noach. 

For the last 5 years I worked in an organization that worked with the system. We took cases from the legal system and brought them into a restorative justice process. I recently left, for a number of reasons, one of which relates to how systems aligned the work was. We sat at the table with prosecutors and police chiefs, defense attorneys, and policy makers. What brought our process outside the system is that we had control over it once a case was in our hands and could approach the case from a restorative lens as opposed to a criminal legal lens.

Howard Zehr, who is seen as the grandfather of the modern field of restorative justice explains that while the modern field began in the 1970s, the restorative justice movement incorporates and learns from restorative elements from indigenous practices. He offers the metaphor of a river: 

“...While the immediate sources of the modern restorative justice stream are recent, both concept and practice draw upon traditions as deep as human history and as wide as the world community...This river, like all rivers, exists because it is fed by numerous tributaries flowing in from around the world.”

In 2018, when the big criminal reform bill passed in Massachusetts, restorative justice was codified into Mass General Law. It was given its own separate section, MGL chapter 276B the B signifying a whole new concept that didn’t fit in perfectly to any other category. As defined by the Commonwealth of Massachusetts, restorative justice is “a voluntary process whereby offenders victims and members of the community collectively identify and address harms needs and obligations resulting from an offense in order to understand the impact of that offense; provided however that an offender shall accept responsibility for their actions and the process shall support the offender as the offender makes reparation to the victim or the community in which the harm occurred” also included in the definition is that the process requires consent and is confidential. 

So with this definition we have some wins and some losses. Confidentiality helps to ensure that no one gets into further legal trouble by participating in restorative justice and taking responsibility. support the person who caused harm, the responsible party is explicitly named, a huge positive. I want to emphasize one big loss: the language. We are thrust into system language, defining people as offender and victim (whereas I use terms like harmed person and responsible party and we all know that these terms are fairly fluid, a person who has caused harm has likely been harmed as well). No matter how you finagle your way into a process that is primarily outside the system, you’re still stuck to it and defined by it. If you’re getting cases from the legal system, this is the definition you’re working under with all its limitations. 

For practices founded in indigenous principles from across the globe, including North America, codifying restorative justice into an unjust legal system is controversial. Some questions come up. Do restorative practices belong in the criminal legal system? Is it possible for a process to be restorative if it is occurring in relation to an unjust system? Can you get true consent or is there always a coercive element? Is restorative justice a bandaid masking the harm that the legal system perpetuates? Can you keep the integrity of the process with this association?

Restorative justice is intended to center the people and voices most impacted by an incident. It is supposed to focus on repair and healing and center the harmed person’s needs. It is about relationships and best suited for interpersonal incidents. It is about taking accountability and working to make sure the harm doesn’t happen again. 

Is it possible to take these restorative principles and apply them within or around the unjust, harmful legal system?

My basic justification for working with a system that I know to be harmful was that A) I was working to support people in disentangling themselves from said system, and B) the system exists. These cases will be dealt with one way or another. I had to regularly convince myself to stay as I came up against challenges - like the “the thin blue line” where for example in cases where a police officer was the named harmed person, we would only get the referral from further down in the legal process (after arraignment, so after a person already has a criminal record) because it was “really serious.” OR when the Suffolk DA had a major turnover and all of a sudden with Rachel Rollins gone, there were simply no cases suitable for restorative justice in Boston. I was once asked if there was such a thing as a good prosecutor. I responded that I knew multiple people who got into the role of prosecutor so they could work to reshape the legal system. Just last night I heard the MA Attorney General Andrea Campbell say asking to quote “imagine a world without police, imagine a world without prisons”

And I know on an individual level, restorative justice with legal cases can be restorative, reparative, even transformative. I saw it.

I saw responsible party try to make repair, find healing for themselves and others, and take accountability. I saw harmed people take in the overwhelmingly amazing experience of someone actually trying to make things right. I’ve seen both sides of that equation in awe that their voices matter and are in fact essential, unlike in the legal system where they are typically actively excluded or rigidly limited.

I worked on cases that spanned the spectrum of severity. In one case 2 responsible parties, one 17 and the other 18 were riding blue bikes. One of them rode his bike into another rider, knocking the other rider over, the Responsible parties beat him up, and stole his bike. This is a case where the harmed person both consented to the process and agreed to participate in it; the harmed person and his friend were able to sit in a circle with the 17 year old responsible party. It was an incredibly powerful circle, the responsible party heard about the impact he had on another person and on the broader community. The man who was hurt was able to share his piece and guide what repair looked like. But related to the challenges of system work, while the 17 year old was referred to us, the 18 year old was not referred to us, and when asked the DA said that his case was being handled differently because of his age. I’m realizing I might be in a cynical headspace, but I’m trying to show the good and the challenge.

In another case a man was walking his dog, a teenage girl was driving with her friend and it was sleeting. The man and his dog began crossing the street at a crosswalk, the girl approached the crosswalk, didn’t see him, and almost hit him and his dog. The man went over to the car and aggressively yelled at the driver, swearing and threatening her and he kicked the car hard enough that he dented it. In this case, the man was the official responsible party facing criminal charges. And while the crime was a felony relating to the dent, the impact was primarily about how terrified the young driver was, she thought he was going to attack her, to pursue her later to get revenge, etc.

The responsible party really wanted to repair his reputation, for everyone to know that this isn’t like him, he is an upstanding person and good neighbor. He struggled to take full responsibility because he felt like it was partially the driver's fault. While we can’t make anyone take responsibility and are especially careful not to pressure an impacted person to do so, she was willing to acknowledge her role, saying that she didn’t see him and that she should have been driving more cautiously. Her acknowledgement allowed the man to really own his part. NONE of this would have happened in the legal system. The girl might still be fearful of retribution. The man would have been told not to own up to what he did. There would be no opportunity to humanize each other and no opportunity for repair beyond restitution.

These are just 2 examples of when I saw restorative justice with legal system cases work. 

And I can hold that there is power in the legal system tethered restorative justice, while also believing that we’re not going to completely transform a biased, foundationally harmful system founded on the idea that punishment is justice. Instead, we might need to flood it and come up with an alternative. 

I want to turn to some jewish illustrations of restorative justice. I would like to counter the supersessionist trope that the Hebrew Bible is just retributive - full of punishment and violence and instead highlight Jewish sources that uplift principles of restorative justice while also acknowledging that it’s not all restorative by any means and we see systems of enslavement and other harms, but we also do see restorative leanings. So essentially restorative principles intermingling with unjust systems.

1. In shemot, exodus, we start with an eye for an eye. This feels like direct retribution. But then the Talmud monetizes it. And while we can certainly see the problems with monetization of legal systems in todays world, back then this was a huge, harm reducing shift. 

2. In perek hachovel (the chapter of the damager), the Rabbis make it very clear that we are never to go back, under any circumstances to the eye-for-an-eye system. The Mishna says that hachovel, the damager, is obligated to pay for for these 5 forms of nezek, harm:  harm - nezek (aka damages), tzaar (pain), boshet (embarassment), shevet (unemployment), repoi (medicine/cost of healing). There is a whole different conversation about why these specific categories and how we monetize them, but they certainly make sure that no one is inflicting direct retribution for harm endured.

3. Here’s another example of a restorative approach direct from the Torah. In Bamidbar 35:6 we learn about an ir miklat a Town for people who committed murder and were being pursued (similar to an indigenous hawaiian tradition of Pu-uho-nua which is essentially an island of refuge - it’s amazing to find threads of restorative practices across cultures, some with a lot of overlap. It says,

   1. שֵֽׁשׁ־עָרֵ֣י הַמִּקְלָ֔ט אֲשֶׁ֣ר תִּתְּנ֔וּ לָנֻ֥ס שָׁ֖מָּה הָֽרֹצֵ֑חַ - shall be six cities of refuge, which you shall provide [as places] to which a murderer can flee. 

   2.  עָרֵ֥י מִקְלָ֖ט תִּֽהְיֶ֣ינָה לָכֶ֑ם וְנָ֥ס שָׁ֨מָּה֙ רֹצֵ֔חַ מַכֵּה־נֶ֖פֶשׁ בִּשְׁגָגָֽה: -  they shall be cities of refuge for you, and a murderer who killed a person unintentionally shall flee there

      1. Now this is for a specific scenario but it has a bunch of restorative layers. It tries to avoid making more murderers; so essentially anti death penalty; AND it protects the person who initially committed manslaughter; and finally, it provides them with a city of refuge  NOT incarceration.

4. A final example is from the talmud - Hagozel eitzim the wood thief - this is a story and discussion in tractate baba kama that answers the essential question of what to do when someone steals something. It goes through various iterations. What if someone steals a piece of wood? What if they take that wood and turn it into a chair, to make repair do they need to return the chair? Who does the chair belong to? At what point does ownership change? The same question applies to a stolen sheep with wool, and a pregnant cow. 

   1. In this same section, R yehudah hanasi Shares a story. A man is a career thief and decides he wants to make do tshuva, let’s define teshuva as he wants to make repair. 

   2. The career thief sits down and tells his wife about his plan and she tries to talk some sense into him. She reasons with him saying,  if you do that, if you make repair and return all these items, we will be left with nothing, how will we survive? So he doesn’t - he doesn’t return the items, he doesn’t do tshuva

   3. Noting her response, R yehuda hanasi controversially concludes that one should not accept returned stolen property. Because if someone steals and knows that if they offer to return the item, you will accept their offer leaving them with nothing,  this might deter them from making the offer and thus be a hindrance to doing tshuva. So in order to encourage tshuva, the talmud says, if you are wise, you will not accept in the hopes that that may result in someone ultimately choosing to do tshuva.

In parshat noach, we see god burning the system down, in this case flooding it down. There was apparently no other way. But after the flood there are key events that make us question if this was the right move.

After the flood we see god make some amends. This feels big. However you imagine god, that entity takes some accountability, promises never to do the kind of damage done by flooding the world ever again. If god thought flooding the world was the best decision, god might not make such a commitment.

וְזָכַרְתִּ֣י אֶת־בְּרִיתִ֗י אֲשֶׁ֤ר בֵּינִי֙ וּבֵ֣ינֵיכֶ֔ם וּבֵ֛ין כּל־נֶ֥פֶשׁ חַיָּ֖ה  בְּכל־בָּשָׂ֑ר וְלֹֽא־יִֽהְיֶ֨ה ע֤וֹד הַמַּ֙יִם֙ לְמַבּ֔וּל לְשַׁחֵ֖ת כּל־בָּשָֽׂר׃ 

I will remember My covenant between Me and you and every living creature among all flesh, so that the waters shall never again become a flood to destroy all flesh.

The rainbow shows that even god takes accountability for god’s actions.

After the story of the flood, the parsha continues. Noach gets drunk and ends up naked in his tent. One of his sons responds disrespectfully, the other two respond in a respectful way, honoring their father and limiting his potential embarrassment (which we learned is one of the 5 core harms you can do to a person).

Finally, the parsha closes with genealogy - the Torah’s way of quickly delineating family relationships over the generations. 

It feels meaningful that this story that began with a rupture of relationship between god and peoples, segues into nigh complete destruction of the world, perhaps in an effort to fix it, followed by some accountability on god’s part through the promise to not destroy the world again. And then, instead of closing with a happily ever after, immediately goes into another conflict, a violation of relationship and respect, illustrating that it continues to be a challenge to be in right relationship with one another. Finally the parsha closes with the generations, showing that life, community, relationship, and conflict go on and on and on. And while I’ve defined restorative justice in a number of ways, what it comes down to is that we are in relationship to one another, there will be conflict and harm, that’s just a given, it is upon us to figure out how to respond to conflict and navigate our relationships. 

So maybe Parshat noach, and other jewish texts don’t come to one clear conclusion (and neither have I). Maybe flooding the system and effectively starting anew achieved some goals, but didn’t result in perfection. If we wait for a perfect alternative system before we flood a harmful one, a whole lot of harm will persist in the waiting. Maybe some changes to a flawed system work, while at the same time help to maintain the system. Finally and unquestionably, relationships are flawed and messy and our response to conflict is meaningful. Restorative justice and practices, inside or outside the system offer a relationship centered and humanizing approach to dealing with this mess. Shabbat shalom