Mental Illness and Incarceration: Cutting People Off or Bringing Them Home?

Sources from essay by Rabbi Joel Mosbacher
in The Social Justice Torah Commentary

Parashat Acharei Mot holds out the idea that we can be transformed, describing rituals and practices that make change possible. However, some of the key rituals of change in the parashah- the concepts of kareit (Leviticus 17:4), of being permanently cut off from one's people, and of the goat sent out to Azazel (Leviticus 16:20)-are so foreign to us as to seem irrelevant to our modern sensibilities.
As Jews, we believe that repentance and return to wholeness are possible. Especially as Reform Jews, we don't cut people off from our community; instead, we seek to have a tent open on all sides.' And we certainly do not believe in the ancient idea that we can symbolically put our sins on the head of a goat and send it out to the wilderness. These punishments and rituals are anathema to us; they make us recoil when we read them.
But how foreign to our modern experience are they, in reality? How much differently did the ancients treat their fellow human beings than we do? When it comes to approaching citizens facing mental illness, we are still cutting people off from society. We are still putting the sins of society on God's creatures, still sending them, like the scapegoat in Leviticus, off into the wilderness, hoping they will not come back.
-Rabbi Joel Mosbacher

ויקרא ט״ז:כ״א-כ״ב

(כא) וְסָמַ֨ךְ אַהֲרֹ֜ן אֶת־שְׁתֵּ֣י יָדָ֗ו עַ֣ל רֹ֣אשׁ הַשָּׂעִיר֮ הַחַי֒ וְהִתְוַדָּ֣ה עָלָ֗יו אֶת־כׇּל־עֲוֺנֹת֙ בְּנֵ֣י יִשְׂרָאֵ֔ל וְאֶת־כׇּל־פִּשְׁעֵיהֶ֖ם לְכׇל־חַטֹּאתָ֑ם וְנָתַ֤ן אֹתָם֙ עַל־רֹ֣אשׁ הַשָּׂעִ֔יר וְשִׁלַּ֛ח בְּיַד־אִ֥ישׁ עִתִּ֖י הַמִּדְבָּֽרָה׃ (כב) וְנָשָׂ֨א הַשָּׂעִ֥יר עָלָ֛יו אֶת־כׇּל־עֲוֺנֹתָ֖ם אֶל־אֶ֣רֶץ גְּזֵרָ֑ה וְשִׁלַּ֥ח אֶת־הַשָּׂעִ֖יר בַּמִּדְבָּֽר׃

Leviticus 16:21-22

(21) Aaron shall lay both his hands upon the head of the live goat and confess over it all the iniquities and transgressions of the Israelites, whatever their sins, putting them on the head of the goat; and it shall be sent off to the wilderness through a designated agent. (22) Thus the goat shall carry on it all their iniquities to an inaccessible region; and the goat shall be set free in the wilderness.

ויקרא י״ז:א׳-ד׳

(א) וַיְדַבֵּ֥ר יְהֹוָ֖ה אֶל־מֹשֶׁ֥ה לֵּאמֹֽר׃ (ב) דַּבֵּ֨ר אֶֽל־אַהֲרֹ֜ן וְאֶל־בָּנָ֗יו וְאֶל֙ כׇּל־בְּנֵ֣י יִשְׂרָאֵ֔ל וְאָמַרְתָּ֖ אֲלֵיהֶ֑ם זֶ֣ה הַדָּבָ֔ר אֲשֶׁר־צִוָּ֥ה יְהֹוָ֖ה לֵאמֹֽר׃ (ג) אִ֥ישׁ אִישׁ֙ מִבֵּ֣ית יִשְׂרָאֵ֔ל אֲשֶׁ֨ר יִשְׁחַ֜ט שׁ֥וֹר אוֹ־כֶ֛שֶׂב אוֹ־עֵ֖ז בַּֽמַּחֲנֶ֑ה א֚וֹ אֲשֶׁ֣ר יִשְׁחַ֔ט מִח֖וּץ לַֽמַּחֲנֶֽה׃ (ד) וְאֶל־פֶּ֜תַח אֹ֣הֶל מוֹעֵד֮ לֹ֣א הֱבִיאוֹ֒ לְהַקְרִ֤יב קׇרְבָּן֙ לַֽיהֹוָ֔ה לִפְנֵ֖י מִשְׁכַּ֣ן יְהֹוָ֑ה דָּ֣ם יֵחָשֵׁ֞ב לָאִ֤ישׁ הַהוּא֙ דָּ֣ם שָׁפָ֔ךְ וְנִכְרַ֛ת הָאִ֥ישׁ הַה֖וּא מִקֶּ֥רֶב עַמּֽוֹ׃

Leviticus 17:1-4

(1) יהוה spoke to Moses, saying: (2) Speak to Aaron and his sons and to all the Israelite people and say to them: This is what יהוה has commanded: (3) if anyone of the house of Israel slaughters an ox or sheep or goat in the camp, or does so outside the camp, (4) and does not bring it to the entrance of the Tent of Meeting to present it as an offering to יהוה, before יהוה’s Tabernacle, bloodguilt shall be imputed to that party: having shed blood, that person shall be cut off from among this people.

משנה כריתות א׳:א׳

(א) שְׁלשִׁים וָשֵׁשׁ כְּרֵתוֹת בַּתּוֹרָה... וְהָעוֹבֵד עֲבוֹדָה זָרָה, וְהַנּוֹתֵן מִזַּרְעוֹ לַמֹּלֶךְ, וּבַעַל אוֹב, הַמְחַלֵּל אֶת הַשַּׁבָּת, וְטָמֵא שֶׁאָכַל אֶת הַקֹּדֶשׁ, וְהַבָּא לַמִּקְדָּשׁ טָמֵא, הָאוֹכֵל חֵלֶב, וְדָם...הָאוֹכֵל חָמֵץ בְּפֶסַח, וְהָאוֹכֵל וְהָעוֹשֶׂה מְלָאכָה בְיוֹם הַכִּפּוּרִים, ...הַפֶּסַח וְהַמִּילָה בְּמִצְוֹת עֲשֵׂה:

Mishnah Keritot 1:1

(1) There are thirty-six cases in the Torah with regard to which one who performs a prohibited action intentionally is liable to receive excision from the World-to-Come [karet]. They include...One who blasphemes the name of Heaven, and one who worships an idol, and one who gives of his children to Molekh (see Leviticus 20:1–5), and a necromancer, and one who desecrates Shabbat. And the same is the punishment of one who is ritually impure who ate sacrificial food; and one who enters the Temple while ritually impure; and one who eats forbidden fat, or consumes blood...One who eats leavened bread on Passover, and one who eats or performs prohibited labor on Yom Kippur...And one is liable to receive karet for failure to fulfill the mitzva of bringing the Paschal offering and the mitzva of circumcision, which unlike the cases of prohibitions enumerated in the mishna, are positive mitzvot.

Yitzchak Abravanel, in his commentary on another text about kareit, notes that "we see that there are various sins that invoke kareit that are quite different in their severity, but the punishment is nevertheless the same, and this cannot be according to God's just and righteous ways." Abravanel acknowledges, as might we, that there may be people who commit acts that are so heinous, so violent, so unfor-givable, that being cut off from the community feels like the only fitting punishment. But he also asserts, as we might similarly, that not every crime listed in the Mishnah deserves the same level of severity in punishment.
-Rabbi Joel Mosbacher

רש"י על ויקרא י״ז:ט׳

(א) ונכרת. זַרְעוֹ נִכְרָת וְיָמָיו נִכְרָתִין:

Rashi on Leviticus 17:9

(1) ונכרת [THAT MAN] SHALL BE CUT OFF — his offspring are cut off (die out) and his own life-time (lit., his days) is shortened (cf. Rashi and Tos. Shabbat 25a; Tos. Yevamot 2a).

When we treat people with serious mental illness as we are today, it is as if, in the words of Rashi, we are cutting their life and the life of their children short." We are thus acting in place of God, and not in a good way; just as God "set{s][God's] face against them," so do we. We are dealing with them as we might deal with someone who has committed an irredeemable crime and deserves life in prison.
The shame of this should weigh heavily on us, for the Torah imagines that people can be transformed. In today's United States, it is as if we have lost that imagination, giving up hope on people who need our help. We have relegated them to a life of endless incarceration without the support they need. And in sending them off to prison, we believe we are absolving ourselves of responsibility for them.
-Rabbi Joel Mosbacher

ויקרא י״ח:ה׳

(ה) וּשְׁמַרְתֶּ֤ם אֶת־חֻקֹּתַי֙ וְאֶת־מִשְׁפָּטַ֔י אֲשֶׁ֨ר יַעֲשֶׂ֥ה אֹתָ֛ם הָאָדָ֖ם וָחַ֣י בָּהֶ֑ם אֲנִ֖י יְהֹוָֽה׃ {ס}

Leviticus 18:5

(5) You shall keep My laws and My rules, by the pursuit of which human beings shall live: I am יהוה.

משנה תורה, הלכות שבת ב׳:ג׳

(ג) ...וְאָסוּר לְהִתְמַהְמֵהַּ בְּחִלּוּל שַׁבָּת לְחוֹלֶה שֶׁיֵּשׁ בּוֹ סַכָּנָה שֶׁנֶּאֱמַר (ויקרא יח ה) "אֲשֶׁר יַעֲשֶׂה אוֹתָם הָאָדָם וָחַי בָּהֶם" וְלֹא שֶׁיָּמוּת בָּהֶם. הָא לָמַדְתָּ שֶׁאֵין מִשְׁפְּטֵי הַתּוֹרָה נְקָמָה בָּעוֹלָם אֶלָּא רַחֲמִים וְחֶסֶד וְשָׁלוֹם בָּעוֹלָם. וְאִלּוּ הָאֶפִּיקוֹרוֹסִים שֶׁאוֹמְרִים שֶׁזֶּה חִלּוּל שַׁבָּת וְאָסוּר עֲלֵיהֶן הַכָּתוּב אוֹמֵר (יחזקאל כ כה) "גַּם אֲנִי נָתַתִּי לָהֶם חֻקִּים לֹא טוֹבִים וּמִשְׁפָּטִים לֹא יִחְיוּ בָּהֶם":

Mishneh Torah, Sabbath 2:3

(3) ...It is forbidden to hesitate before transgressing the Sabbath [laws] on behalf of a person who is dangerously ill, as [reflected in the interpretation in the phrase of Leviticus 18:5,] "which a person shall perform to live through them," as "['to live through them'] and not to die through them."
This teaches that the judgments of the Torah do not [bring] vengeance to the world, but rather bring mercy, kindness, and peace to the world. Concerning those non-believers who say that [administering such treatment] constitutes a violation of the Sabbath and is forbidden, one may apply the verse [Ezekiel 20:25]: "[As punishment,] I gave them harmful laws and judgments through which they cannot live."

As Maimonides suggests, we have a question to resolve as a society: Are our laws meant to help people with mental illness so they might live among their neighbors? If not, then the current system of incarceration is working exactly as designed. If so, however, we must work to unlock the system that incarcerates people on a mass and recurring scale, cutting them off from society and sending them into the wilderness. Instead of kareit, we must provide the compassionate treatment that they need.
-Rabbi Joel Mosbacher

Discussion Questions by Ariel Tovlev

What does kareit mean? Why is the goat sent out to Azazel? What are the goals of the practices of kareit and the scapegoat?
In what ways do we as a community improperly practice the concept of kareit? In what ways do we treat others like scapegoats?
What are Rabbi Mosbacher’s suggestions for how we can prevent treating mentally ill people as scapegoats? Who else do we scapegoat and/or excommunicate? How can we work toward ensuring no one is undeservingly cut off from our community? How can we bring back those who have been sent away?