Benjamin Brafman
Elyakim Rubinstein

Retired Israeli Supreme Court Justice Elyakim Rubinstein and prominent criminal defense attorney Benjamin Brafman held a wide-ranging conversation addressing Criminal Justice and Civil Liberties: Israel and America at Congregation Beth Sholom in Lawrence. The discussion was hosted by Touro Law Center and moderated by Harry Ballan, dean.
The event was part of a Touro Law Center program dedicated to exploring the Israeli legal system as a symbol of Israel’s commitment to promoting democracy, human rights, and the rule of law.

Ballan began the program by asking each of the panelists to talk about their relationship to the State of Israel and its laws and legal system.

Justice Rubinstein expounded on the way the Israeli Supreme Court functions. He explained that unlike in the U.S, many human rights cases go straight to the Supreme Court in Israel and that any member of the public has standing to petition for human rights issues for others even if the individual himself has not been injured. Rubinstein said this is a unique feature of the Israeli Supreme Court and does not exist anywhere else.

The Human Rights Of Prisoners
Justice Rubinstein mentioned the last decision he made on the bench before retiring. “It was a human rights case on the ‘space’ prisoners should have in jail cells. Many times over the course of my career, I made surprise visits to prisons so I could see where I was sending people. I would recommend this practice to every judge. I spoke to the prisoners and took a look at the showers, the food they were being given, and the facilities. I wrote my decision regarding the space allotted to people in a cell by taking a humane approach to ensuring proper conditions for prisoners, even though they committed terrible crimes. The basis and rationale for my decision included both Jewish and secular Knesset legal positions,” said Rubinstein.

Mr. Brafman mentioned that there are some international aspects to his role as a criminal defense attorney. There are times when he helps people resolve criminal cases in Israel. Interestingly, Rubinstein’s last decision regarding prisoner dignity was used by Brafman’s Israeli co-counsel to obtain early release for a client who had committed a white collar crime but did not pose a threat to the community. The prisons had not yet been able to comply with Rubinstein’s decision to limit the amount of prisoners in each cell, so Brafman’s client was able to be released early.

Mr. Brafman said that “the Israeli court system has more of an understanding of the dignity of the individual and of human rights. In the U.S., there is often little concern for humane issues relative to prisoners, it’s more about managing the prison population. Very few American judges ever visit prisons, and there is no one in the judiciary advocating for prisoners.”
Differences Between U.S. And Israeli Criminal Justice System
Brafman noted one major difference in the two countries’ criminal justice system. In the U.S., we have a jury system, Israel does not have that. “Despite our problems, we in the United States have a remarkably fair criminal justice system…some of the best jurors in America are people who don’t have substantial formal education but who do understand the basic difference between right and wrong.”

Justice Rubinstein explained that the reason Israel doesn’t have a jury system is because the British, during their mandate in Palestine, decided that neither the Jews nor Arabs had the mental faculty or intellectual capacity to sit on a jury. “I’m satisfied with the fact that Israel has professional judges without the jury system,” said Rubinstein. “Indeed, while no system is devoid of mistakes, Israel has succeeded in building a professional and clean judiciary.”

Justice Rubinstein went on to highlight another difference in the two systems. The Israeli court is fundamentally apolitical, judges are not affiliated with political parties.

Mr. Brafman explained that in the U.S., some judges are elected and the difficulty arises when prosecutors get too aggressive in their sentences or bend to public will because of political or reelection considerations that have nothing to do with the crime or the person being charged.

Mr. Brafman said that part of our U.S. criminal justice system has become a “reality TV show. Pundits analyze cases but viewers are getting partisan analysis and will hear a different story if they’re watching FOX, MSNBC, or CNN. It is a very politicized, biased view that is filtered through the eyes of someone who has a certain preconceived perspective of whether the outcome is good or bad…In Israel there is a bit more dignity to the proceedings,” said Brafman.

In closing comments about the Israeli justice system, Rubinstein invoked the familiar haftorah of Shabbat Chazon and the words of Isaiah the prophet, “Zion bamishpat tepadeh, vishaveha b’tzdekah—[Zion will be redeemed through justice and those who return will do so with fairness.] That is what the court system is based on, it’s the Jewish way and the notion of justice that is embedded in the books of the prophets. The Israeli Declaration of Independence speaks of principles of the State of Israel—aliyah and kibbutz galiyot on a foundation of freedom, justice, and peace in view of prophets of Israel,” continued Rubinstein.
Anti-Semitism In The U.S.
Ballan then took a question from the audience on how American Jews should respond to anti-Semitism in the U.S. Congress. Brafman expressed strong feelings that this anti-Semitism begins on college campuses across America. “Young people who have been brainwashed in college by pro-Palestinian groups are now getting elected to Congress and trying to delegitimize Israel… Many people involved in the BDS movement are Jewish. Nonreligious Jews in America are moving further away from Israel. Most of the public doesn’t care and sees Israel as the root of many problems… and our own kids don’t know how to defend Israel, so when someone criticizes Israel, they don’t respond. We need to teach kids in our yeshiva high schools how to defend Israel so they are prepared when they get to college.”

Justice Rubinstein agreed, saying “BDS is not anti-Israel, it’s an anti-Semitic organization. We need to advance education to address anti-Semitism, the oldest hatred around. In the Purim Megillah, Haman said thousands of years ago, ‘Yeshno am echad mefuzar umeforad bein ha’amim.’… Jews should not be afraid to speak up and we must educate others not to be afraid to speak up.”

Justice Rubinstein pointed out that if one looks at the Middle East, Israel is the only country with a democracy and noted that the relationship between Israel and the U.S. offers mutual benefit. “Israel is an asset to the U.S., it’s not simply that the U.S. is an asset to Israel. In our part of the world, the U.S.’s interests are best served by Israel’s presence as the only democracy.”

Mr. Brafman closed the program by saying that the only thing that makes him feel optimistic about the future of the Jews is the “existence of thr state of Israel. Given what’s going on in the U.S. and Europe today, I think the future of the Jews is in Israel rather than in the U.S. I think more and more people will make aliyah as times are difficult for Jews in the U.S.”

Mr. Brafman mentioned that his own grandfather was killed in the gas chambers in Auschwitz. “He and so many others with him were murdered simply because they were Jews, they did nothing wrong…for me to even be sitting here having this conversation about justice and human rights is amazing.”
The Jewish Law Institute At Touro Law Center
The Jewish Law Institute at Touro College Jacob D. Fuchsberg Law Center offers a scholarly and intellectual framework for the academic study of the Jewish legal experience. The Institute acts as a center for the study and teaching of Jewish law throughout the United States, bringing together leading scholars, teachers, and lawyers, and serving as a clearinghouse for new ideas and independent research. 

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