"Forgive Me Victim for I Have Sinned": Why Repentance and the Criminal Justice System Do Not Mix - a Lesson from Jewish Law

By Bader, Cheryl G. | Fordham Urban Law Journal, November 2003 | Go to article overview

"Forgive Me Victim for I Have Sinned": Why Repentance and the Criminal Justice System Do Not Mix - a Lesson from Jewish Law


Bader, Cheryl G., Fordham Urban Law Journal


INTRODUCTION

The appropriate intersection of religious values and an attorney's functions as a legal advocate and a counselor has been hotly debated. At a recent conference on this topic at Fordham Law School, I had the pleasure of learning about the extraordinary work of the Georgia Justice Project ("GJP"), (1) a criminal defense organization with a practice philosophy grounded in Christian theology. (2) The GJP maintains a central mission of redirecting the lives of its clients to achieve moral religious redemption? A central feature of this practice is the GJP's encouragement of client confession, in the form of letters written to victims and their family members, whereby clients seek forgiveness prior to the adjudication of their criminal cases. (4)

Unfortunately, the criminal justice system is not an ideal setting to pursue religious redemption, (5) as our secular courts are not designed to advance a criminal defendant's potential goal of seeking absolution of sin. (6) In fact, under the American criminal justice system, a criminal defendant who asks a victim for forgiveness creates legally admissible evidence of his own guilt. (7) This evidence is admissible whether the defendant's motive is to pursue religious repentance and redemption or otherwise. (8) This provides a clear disincentive to seeking religious absolution through confession while a criminal case is pending. (9)

Taking another approach that avoids mingling of criminal prosecutions and repentant confessions, ancient Jewish law places a complete prohibition on the use of confession in the adjudication of a criminal case. (10) This prohibition bars both admissions of guilt in the form commonly known as a guilty plea and admissions of guilt in an extra-tribunal context. (11) The lack of any evidentiary value of confessions under Jewish Law stands in stark contrast to the high premium placed on an accused's confession under the American criminal justice system. (12)

This essay will critique the GJP's encouragement of confessions in the context of the secular American justice system via comparison with the treatment of confessions under ancient Jewish law. (13) Specifically, this essay posits that the absolute prohibition on the use of confessions in a legal system firmly rooted in religious values recognizes the danger inherent in combining the act of speaking of one's sins for religious penance with the use of such confessions in the criminal adjudication process. (14) The Jewish legal system avoids these inherent dangers by completely devaluing the accused's confession. (15) The GJP, in contrast, merges the process of seeking absolution with the criminal adjudication of the client's criminal case, not only running the risk of exposing the client to greater criminal liability, (16) but also risking devaluing the act of speaking ones sins to achieve true spiritual repentance by compelling confession as a condition to legal representation. (17)

The GJP has devoted substantial resources and energy to providing clients with quality legal representation and a wide array of social services and emotional and financial support. (18) I applaud the GJP for its holistic approach to lawyering and its commitment to the laudable ideology of restorative justice. Nonetheless, I intend to strike a note of caution to defense attorneys who utilize their role as legal advocate and advisor to seek religious repentance for their clients in the context of a secular criminal justice system that does not subjugate evidentiary efficacy to religious aspirations. (19)

Part I of this Essay briefly reviews the unique approach to representation provided by the GJP. (20) Part II discusses the role of confession in the context of the American criminal justice system. (21) Part III contrasts the treatment of criminal confessions under traditional Jewish Law with their treatment under the American secular system. (22) Part IV concludes with the contention that efforts to combine the process of repentance with the criminal adjudicative process are problematic from both a legal and religious perspective. …

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