Supreme Court moderates a severe decree
By Rabbi Michael Leo Samuel
CHULA VISTA, California–This week, the Supreme Court made a very interesting decision and ruled that it’s unconstitutional to sentence a juvenile to life without the possibility of parole for the crime of murder. The original case involved the robbery and murder of Cole Cannon. Two young thugs, Evan Miller and Kuntrell Jackson, decided to beat Cannon to death with a baseball bat; both assailants stole his baseball card collection along with $350. Prior to the Supreme Court’s decision, the Alabama Court of Criminal Appeals upheld the original sentence and felt that Miller’s sentence was justified especially when considering the heinousness nature of his crime, but the Supreme Court overruled the Alabama Court.
- “Monday’s high court ruling “is an important win for children,” said Bryan Stevenson, executive director of the Equal Justice Initiative, who represented Jackson and Miller. “The court took a significant step forward by recognizing the fundamental unfairness of mandatory death-in-prison sentences that don’t allow sentencers to consider the unique status of children and their potential for change. The court has recognized that children need additional attention and protection in the criminal justice system.” (NPR June 25th 2012)
The story made me think. What would Jewish tradition say? Actually, there is a biblical passage that speaks directly to this particular problem:
- If a man has a stubborn and unruly son who will not listen to his father or mother, and will not obey them even though they chastise him ,his father and mother shall have him apprehended and brought out to the elders at the gate of his home city, where they shall say to those city elders, ‘This son of ours is a stubborn and unruly fellow who will not listen to us; he is a glutton and a drunkard.’ Then all his fellow citizens shall stone him to death. Thus shall you purge the evil from your midst, and all Israel, on hearing of it, shall fear” (Deut. 21:18-21)
Contextually speaking, the above section is an example of how the Torah limited patriarchal power. In Semitic societies the father could determine whether a son or a daughter lived or died. This attitude still exists in some contemporary Arab communities. Western societies have often heard about “Honor killings” that involve a father (or a brother) who disapproves of a daughter choosing her own life partner to marry, rather than marry the person the father designates. In biblical times, transferring such power to the courts in effect limited the father’s ability to punish a wayward child. Centuries later, the rabbis later restricted the power of the courts so the child would live to see manhood. They specifically accomplished this by imposing numerous restrictions that essentially nullified the biblical precept and its toxic potential for abuse.
Historically, in the medieval period, some Christian communities took these biblical prescriptions quite literally. For many centuries, people did not understand the nature of adolescent rebellion and its relationship to the psychological theory of the Oedipal Complex that Freud introduced in the early 20th century.
Here is how the rabbis saved the life of the vulnerable youth. The rabbis reasoned, “If a man has a … son”—a son and not a daughter, a son [i.e., a boy] and not an adult male. A minor is exempt, as he has not reached the age of responsibility for [fulfilling] the commandments.  In other words, if the minor is under the age of thirteen or if he is already an adult—the law of the rebellious child does not apply. The minor must be chronologically near to adulthood. A number of the Amoraim (latter Talmudic rabbis) concluded that the period of time pertaining to this law only applies to three months prior the boy’s thirteenth birthday.
If he ate any food but not meat, if he drank any drink but not wine—he does not become a stubborn and rebellious son until he eats meat and drinks wine, as it is stated: “He is a glutton and a drunkard.” Even though there is no proof for this interpretation, it is suggested in the verse, “Don’t drink too much wine and get drunk; don’t eat too much meat and get fat. Drunks and gluttons will end up on skid row, in a stupor and dressed in rags” (Proverbs 23:20-21). The passage therefore applies neither to a minor under the age of thirteen nor to one who is already an adult but to “a son who is near to adulthood,”  and the amoraim therefore concluded that “the time during which the law of the stubborn and rebellious son applies is only three months.”  Moreover, if a decision had not yet been made in his case by the time the three-month period expired, the son was exempted from punishment. 
The case gets even more interesting in the Talmud:
- “His father and his mother shall take hold of him.” This teaches that he is not guilty unless he has a father and mother. If one of them [of the parents] was maimed, lame, mute, blind, or deaf, he cannot become a stubborn and rebellious son, as is stated: “His father and his mother shall take hold of him”—thus, they cannot be maimed; “and bring him out”—thus, they cannot, be lame; “they shall say”—thus, they cannot be mute; “this son of ours”—thus, they cannot be blind; “he does not heed us”—thus, they cannot be deaf. 
R. Judah presents the most extreme interpretation:
- R. Judah says: If his father and his mother are not the same in voice, appearance, and height, he cannot become a stubborn and rebellious son. What is the reason for this? Scripture states: “He does not heed us” (i.e., heed our voice”]. Since the voices must be the same [as the words “our voice” are interpreted to mean that the voices of the mother and father are equivalent and identical], their appearance and height must also be the same. 
- In the end, why did the Torah teach us about this subject? [i.e., especially since its occurrence is so rare). The law of the rebellious son was never and will never be applied in practice. Why was it written? To tell us, “Study and you will be rewarded." 
The rabbinical interpretation realized, much like the majority members of the Supreme Court involved in this case, that minors undergo considerable psychological changes as they become adults. NPR radio had a man who murdered someone when he was only seventeen, and has served over twenty years in prison. Now, at age 37, realizing that half of his life is over, he feels anger at himself for being so young and stupid. Whenever his parents visit him, he cries for the pain that he caused them. He feels ashamed for killing an innocent young man—whose memory he will never forget.
Is he a different person today? One could argue that he is a different person.
I am not suggesting that a minor serve only a few years after committing a heinous crime, but keeping him in prison until he is almost forty is probably a just sentence. Upon reaching our 40th birthday, we begin to think about our lives very differently than we did when we were in our teens. Midlife in the Bible is a time of upheaval and change. In broad terms, forty is a number associated with hardship, affliction, retribution, purification, repentance and sometimes–even–revelation, where people discover God and faith.
Life is often a series of rebirths. We can go through several incarnations within one lifetime. I often marvel at the different stages people sometimes discover God and begin reliving their lives with a renewed sense of purpose and vigor.
Teshuvah (repentance) involves a dramatic re-turning of our souls. It is never too late for a person to make the necessary changes that will dramatically impact the world we live in for the better. It seems as though the ancient rabbis may have had this thought in mind when they reformed one of the more ethically challenged passages of the Bible. Fortunately, our Sages taught us a valuable lesson about the importance of oral interpretation. Laws should not be manacles that we slavishly observe and enforce. Sometimes, there is a place for mercy—even in law. The Supreme Court showed considerable wisdom in rendering their recent decision. I think the rabbis would have arrived at a similar conclusion had they been asked.
 Sifrei, Deuteronomy, Ki Teẓe, sec. 218 (pp. 250–251); cf. Mishnah Sanhedrin 8:1.
 The Mishnah creates exaggerated conditions that make the biblical law virtually impossible to enforce:
- When is he liable? When he eats a tartemar of meat and drinks a half-log Italian wine. Rabbi Yose says, A maneh of meat and a log of wine. If he ate at a religious gathering; if he ate at the intercalation of the month; if he ate Second Tithe in Jerusalem; if he ate things that died of themselves and torn flesh, swarming or creeping things, (if he ate tevel and ma’aser rishon whose terumah had not been taken, and ma’aser sheni and dedicated produce which had not been redeemed); if his consumption is a mitzvah or a transgression; if he ate other food and not meat; if he drank other drink and not wine – he cannot be a stubborn and rebellious son, until he eats meat and he drinks wine, for it is written, “a glutton, and a drunkard” (Deut. 21:20). And though there is no proof for the matter, there is an indication, for it is written, “Be not among wine imbibers; among gluttonous eaters of meat” (Prov. 23:20). (Mishnah Sanhedrin 8:2).
 BT Sanhedrin 68b; see Maimonides, MT, Mamrim 7:5–6.
 BT Sanhedrin 69a.
 Mishnah Sanhedrin 8:4; Maimonides, MT, Mamrim 7:7, 9.
 Sifrei, Deuteronomy, Ki Teẓe, sec. 219.
 Mishnah Sanhedrin 8:1.
 BT Sanhedrin 71a.
 Tosefta Sanhedrin 11:6; BT Sanhedrin 71a.
 Moses (Exod. 24:18; Deut 9:9) and Elijah (1 Kgs 19:8). The generation in the wilderness wanders for forty years (Exod. 16:35; Ps 95:10). Israel is in the hand of the Philistines for forty years (Judg. 13:1). Forty days is the length of time Ezekiel lies on his side to symbolize the punishment of Judah (Ezek 4:6). Jonah prophesies that Nineveh will be destroyed in forty days-a prophecy which proves to be contingent because the forty days become a period of repentance that nullifies the forecast (Jon 3:4).
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