Justice in Minnesota / Injustice in Paris

A native of Lod, Rabbi Joshua ben Levi was one of the greatest scholars in the Land of Israel in the first half of the third century BCE. Not too much is known of his family other than that he had a son named Joseph, who later grew up to become a rabbi like his father and to marry the daughter of Rabbi Judah, Patriarch of the Jewish community. But before Joseph grew to adulthood and achieved rabbinic ordination, it once happened that he fell terribly ill and sunk into a kind of coma during which he had vivid hallucinations. It lasted for days, but eventually he came out of it and, when he did, his father asked him what he had seen in the course of those hours spent in hallucinatory delirium. “I saw a topsy-turvy world,” Joseph reported, a crazy place in which things were the opposite of what they really are: “the things that belong on top were all on the bottom and vice versa—the things that belonged down below were all up on high.” Rabbi Joshua listened carefully to his son’s report about the olam hafukh, the topsy-turvy world that had been so prominently featured in his comatose dreamscape. And then he gave his considered, now famous, answer, “My son,” he said, that wasn’t hallucination, it was insight, because there, in your protracted dream, “you saw things as they truly are in this world.”

For twenty centuries, students of Talmud have been discussing what Rabbi Joshua could have meant. But now, just this very week, the secret has finally been revealed: Rabbi Joseph must have been dreaming about France, my new candidate for the most topsy-turvy nation in the world, a place where criminals bear no responsibility for their deeds, where murder is not an actionable crime, where voluntary drug use can relieve even the most vicious criminals of any responsibility for their crimes, and where the fully intentional murder of an elderly Jewish physician, a woman whose entire professional life was devoted to helping others, can be deemed an unfortunate mishap, an inconsequential accident unworthy of adjudication in the courts. These would have constituted a shocking turn of events to consider in the course of any week at all. But coming in the course of the same week in which the American justice system showed itself capable of convicting a veteran police officer who was deemed responsible for the death of a citizen in his custody, it was especially hard to swallow.

I am thinking, of course, of the decision this week by the Court de Cassation, France’s highest appeals court, to accept a lower court’s decision not to try Kobili Traoré, 31, for the 2017 murder of Sarah Halimi. Ordinarily, this would not be a subject for discussion at all. The crime was as horrific as it was brutal. The details themselves, including the identity of the perpetrator, are not in doubt: Traoré, a neighbor of Mme. Halimi, forced his way into her apartment and beat her so severely for a full thirty minutes before shoving her out a window of her third-story apartment that one of the few details that remain unresolved with respect to the crime is whether the victim was already dead when pitched out her own window to crash-land on the street or whether she died upon impact. Nor is the motive for the murder in any sort of doubt: Traoré, an immigrant to France from Mali in West Africa, was motivated, to quote his psychiatric evaluation, by a “frantic outburst of hate” directed towards his victim because of her Jewishness. As she shoved her out the window, he was heard to have called out the Arabic words Allahu akbar (“God is great”) and “I have killed the devil.” More specifically, it seems that Traoré was particularly enraged by the daily sight of the mezuzah affixed to the outer doorway of Mme. Halimi’s apartment, its mute presence reminding him daily that he was forced to live under the same roof as a Jewish woman.

So if neither the details of the crime nor the identity of its perpetrator are in doubt, why would the Court de Cassation have confirmed a lower court’s ruling forbidding the government from putting Kobili Traoré on trial? The answer, they said, is simple: according to French law, “a person is not criminally responsible [for his or her own deeds if those deeds were done while their doer was] suffering at the time of the event from [the kind of] psychic or neuropsychic disturbance that eliminate [the possibility of] discernment or control” and which that person might otherwise have brought to bear to rein in his or her behavior. For Americans, that too sounds like a familiar concept: we too do not put mentally ill people unable to distinguish right from wrong on trial. Indeed, the famous outcome of Durham v. United States in 1954 to the effect that a defendant can avoid conviction if it can be demonstrated convincingly that the “unlawful act was the product of mental disease or mental defect” could hardly be more well known in our country.

But Kobili was not mentally ill in the way the term is normally used. Instead, his mental state—including his rage against his victim because of her ethnicity and faith and his willingness to express that rage brutally and sadistically—had been brought on by himself through his intense use of cannabis. And so the court concluded that Mme. Halimi’s murderer could not stand trial for his deeds because he had self-stupefied before entering his victim’s apartment. The moral of the story: if you are planning to travel to France to murder someone, be sure to pack your bong along with your gun and your ammo!

It has been a difficult decade for the Jews of France. Many will remember the 2012 murder by an Islamic fanatic of three children and a teacher in a Jewish school in Toulouse. And it was just three years later, in 2015, that Amedy Coulibaly entered a kosher supermarket in Paris with the specific intention of murdering the four Jews he killed there because of his hatred of Jewish people. And then, just a year after Mme. Halimi was murdered, a different elderly woman, Mireille Knoll, was also murdered—she was stabbed to death—by a madman who targeted her specifically because of her Jewishness. Those cases, it is true, were duly prosecuted and the defendants found guilty. But, even so, this week’s decision by the Court de Cassation, in effect excusing Mme. Halimi’s murderer from prosecution because of his voluntarily, intentional, and—it turns out—exceptionally well-timed drug use, was something that struck many onlookers as bizarre and more than slightly menacing.

The responses to the court’s decision have been angry. One of the public prosecutors on the case referred to the court’s decision as a gift of “complete impunity” to the murderer. Shimon Samuels, director for international affairs of the Simon Wiesenthal Center, wrote that the court’s decision “potentially creates a precedent for all hate criminals to simply claim insanity or decide to smoke, snort, or inject drugs, or even [just] get drunk, before committing their crimes.” Even Emmanuel Macron, President of the French Republic, got into the act, calling for a swift change to the law to avoid the possibility of murderers going free after claiming that their own intentional drug use rendered them incapable of understanding the gravity or consequences of their own deeds. “Deciding to take narcotics and then going ‘like crazy’ should not in my eyes remove your criminal responsibility,” the President said clearly and unambiguously.

But future changes in the law will come too late to bring Sarah Halimi’s killer to justice. And that too seems to be universally understood by all concerned parties in France and abroad.

There is something logical and just about the basic notion that people unable to understand the consequences of their own actions should be treated kindly and mercifully by the criminal justice system. We treat children differently than adults in that regard, and for the same reason. As well we should, too—I don’t think anyone is arguing against that principle, which pertains not only in the U.S. and in France but in all enlightened countries of the world, nor would any normal person. But to extend that thought to include people who intentionally drug themselves to the point at which they can argue later on that they should not be held responsible for their own actions—that seems to me like the extension of a logical idea into the realm of true craziness. Kobili Traoré murdered Sarah Halimi because he found her existence as a Jewish woman offensive to the point of being unbearable. And, yes, he acted on his deeply anti-Semitic beliefs in a way that he might have not done had he not been high. But to conclude that the man should reasonably escape prosecution, conviction, and punishment because he willingly set himself outside the boundaries of culpability and responsibility through drug use—that seems to me to skate far too close to excusing the basic principle upon which all just criminal laws lies: that people who can tell right from wrong should be obliged to take responsibility for their own actions.

Sarah Halimi will rest in peace because she lived a decent, good life. She was the mother of four and a former physician, an older woman living a peaceful life in retirement. Why shouldn’t she rest in peace? But that her murderer will apparently legally avoid having to take any responsibility for her death—that seems to me to constitute an outcome wholly at variance with the facts of the case under consideration. I believe that justice was done for George Floyd this week in Minneapolis. I wasn’t sure how things would turn out, but the bottom line is that the basic principle that individuals, even police officers, must take responsibility for their own actions was upheld and affirmed. It’s too bad Paris isn’t in Hennepin County, Minnesota!