Justice Too Harsh in Pollard Spy Case
Rabbi Aaron Soloveichik - Chicago Tribune - December 31, 1987
CHICAGO- As a human being with ethical sensitivity toward harshness in judicial decisions, I felt offended by and indignant at the exaggerated, stringent justice inherent in Judge Robinson's sentence of life imprisonment against Jonathan Pollard and five years' imprisonment against Mrs. Anne Henderson Pollard.
The Romans, under Judaic influence, coined a remarkable expression in Latin, namely "summum jus summa injuria" - "A most stringent judgment is the hardest injustice." Judge Robinson imposed upon Jonathan Pollard the maximum sentence that could be imposed upon one who engages in espionage activity on behalf of an ally; namely, life imprisonment.
The Bible speaks of two kinds of judicial judgments: a judgment of mishpat, or "strict justice," and a judgment grounded in tzedek, or righteousness or equity.
There is a basic distinction between justice and righteousness. Both are based upon the concept of human rights. However, justice takes cognizance only of the rights of the plaintiff; justice does not take cognizance of the undue hardship that a stringent judgment might impose upon the defendant.
Theft is a very serious crime, indeed it is a felony. But there is a basic difference between a thief who is motivated by moral turpitude and total insensitivity to human rights like the thief who breaks into a bank and steals a million dollars, and a poor man who, under extreme, extenuating circumstances like starvation, steals a loaf of bread from a bakery in order to satisfy his hunger and the hunger of his wife and children.
Judge Robinson might have been justified from the perspective of stringent justice. Espionage is a very serious crime, even under the most extreme, extenuating circumstances. However, from the perspective of righteousness, the maximum penalty should be meted out only against a spy who, because of moral turpitude, engages in espionage activity against the U.S. on behalf of an enemy of the U.S. for the sole purpose of undermining and destroying the U.S.
Jonathan Pollard engaged in espionage activity on behalf of Israel, and American ally that shares in many confidential data with the U.S., because of a misguided and distorted notion that he was doing something sublime and noble whereby he would save and preserve Israel and the U.S. together.
In my humble opinion, life imprisonment against Jonathan Pollard is repugnant to the spirit of the 8th Amendment of the Constitution, which declares that cruel and unusual punishment cannot be inflicted. In my opinion, too, the sentence of five years' imprisonment imposed upon Mrs. Pollard, who did not engage in espionage activity but pleaded guilty only to illegally possessing classified documents, is excessive. As a Jew and as a rabbi, and Torah teacher, I am scrupulously and meticulously committed to the fulfillment of every precept of the Torah; nay, to the scrupulous and meticulous fulfillment of every nuance of the Torah.
I am certainly committed to the fulfillment of the commandment in Deuteronomy 16, verse 20: "Righteousness, righteousness shalt thou pursue." This implies, by virtue of the repetition, that the concept of righteousness has to be practiced equally towards Jews and non-Jews alike, toward God-fearing people and pagans alike. This concept has been the foundation of all civilized conduct all over the world throughout the millennia.
Rabbi Aaron Soloveichik is President of the Rabbinical College of Chicago and Professor of Talmud at Yeshiva university, New York.