Power, Politics & People

Crime and Punishment

J.J. Goldberg - L.A. Jewish Journal - April 3, 1998

It's time that the American Jewish community was called to account. One of its number is languishing in the jaws of the criminal justice system, suffering for a mistake -- a grave mistake, admittedly -- to which the system has responded far, far out of proportion to the deed.

This is a Jew who, though publicly regretful, faces what some might consider a very high price. The reason? Possibly because, in this mostly Christian society, the Jewish way of seeing things doesn't count for much when society sits in judgment. In a way, Jews have a permanent disadvantage. That's supposed to be one reason Jewish organizations exist. But in this case, the organizations and their leaders have been woefully silent.

We are speaking, of course, about Amy Grossberg, the New Jersey teen-ager accused of murdering her newborn son in a Delaware motel room in 1996.

Did you think this was about someone else? Jonathan Pollard, perhaps? Hold that thought.

Delaware police say that Grossberg, then 18, gave birth in a motel room on Nov. 12, 1996, with the help of boyfriend Brian Peterson. The remains were left in a nearby Dumpster. She was arrested the next day in a hospital room while being treated for life-threatening complications from childbirth. Peterson turned himself in a week later. Both were charged with first-degree murder. Prosecutors have threatened to seek the death penalty.

Grossberg's lawyers have submitted documents that indicate she was not fully alert at the time of birth, thought the baby was stillborn, and let Peterson dispose of it. Also submitted was medical evidence of a rare fetal disease. Peterson, fearing a setup, agreed last month to testify against her in exchange for a reduced charge of manslaughter. She goes on trial May 4.

The case has aroused vast national interest, with pundits wondering endlessly why the affluent, privileged teens failed to seek abortion or adoption. There's been far less attention to the mystery of the prosecutors' unprecedented harshness.

Infanticide, killing a newborn baby, is a rare and little-understood crime. Patchy statistics suggest that it occurs perhaps 600 times yearly in America, generally involving single mothers, mostly young, poor and psychologically ill-equipped for the stresses of motherhood. Most cases end in manslaughter convictions and prison terms up to four years, often suspended. In England, where it's been studied, courts usually mandate psychotherapy rather than prison.

Delaware, by contrast, threatens lethal injection. What's behind this fantastic overreaction? No one knows for sure. Some informed commentators call it a grandstanding prosecutor's appeal for the influential right-to-life vote. You can't prosecute mothers who kill babies before birth, but this comes close. The message: We defend babies.

Judaism, of course, insists that abortion is not homicide. In Judaism, a fetus is not a person but, at most, a potential person. Its rights cannot outweigh the mother's. Even after birth, rights accrue developmentally. An infant that dies before eight days is not named. One that dies within 30 days cannot receive a funeral. The idea of lodging capital murder charges against a semiconscious mother just after labor should be repellent by traditional Jewish standards.

What does all this have to do with the Jewish community? Not much, unless you believe the community is obliged to defend Jews whose mistreatment by the courts offends Jewish values.

Most of us don't think so. American Jews tend to think our best protection as a minority lies in demanding we be treated the same as everyone else, not differently. Unless there's a legal attack on Judaism -- denying inmates kosher food, for example -- Jews who fall afoul of the law are on their own.

In recent years, however, a bold few have come forward to advocate just that: defending Jews hurt by the judicial system. Their rallying cry is freedom for Jonathan Pollard, an American Jew arrested in 1986 on charges of spying for Israel.

Pollard, a former U.S. Navy intelligence analyst, was sentenced in 1987 to life in prison -- despite having spied for an ally, and despite a plea bargain promising a lesser sentence. His advocates argue that the organized Jewish community has an obligation to demand his freedom.

The claim is not that Jews should be allowed to spy for Israel. No, advocates say that Pollard's sentence was excessive, and that the community should protest because it was Israel he spied for.

Not that he's innocent, but that his crime has a different meaning to Jews.

Pollard's advocates, then, should be the first to spring to Amy Grossberg's defense. Curiously, the suggestion invariably prompts horrified protests: "The cases have nothing to do with each other." "Judaism doesn't support killing babies."

Well, does Judaism support spying for foreign countries? Here's where it gets messy. Pollardistas insist that they don't mean that. But it's not clear they're being frank.

The most vocal advocates tend to speak heatedly about Pollard's violated plea bargain, in which he expressed remorse and was promised leniency. In the same breath, they often note the importance of the information he supplied to Israel. Unfortunately, one claim undercuts the other. If he stands by the information he passed on, how remorseful is he?

The discrepancy hasn't gone unnoticed at the Pentagon.

High-ranking sources say that it was the Joint Chiefs of Staff who urged the judge, through then-Defense Secretary Caspar Weinberger, to ignore the plea agreement and throw the book at Pollard. The reason was their fear of thousands more Pollards inside the defense establishment. They wanted to send a message: This isn't acceptable.

Pollard is still in jail, these sources say, not because his crime merits his lengthy sentence -- it doesn't -- but because too many American Jews still haven't gotten the message.

Thus, these sources say, every time Jews rally again to call Pollard a hero, every time another Israeli leader treks to North Carolina to greet this loyal soldier of Israel, it adds a month to his sentence.

Let's be clear: Pollard should not be in jail anymore. He's arguably done more time already than spies whose crimes were greater. And there's a strong case to be made that American Jewry should demand his release.

But not because he was working for our team. He was not. If the Jewish community should speak up for Pollard, it's for the same reason the community should speak up for Amy Grossberg: because the punishment is supposed to fit the crime.

J.J. Goldberg is the author of "Jewish Power: Inside the Amercan Jewish Establishment." He writes from regularly for The Jewish Journal.