Plea for Mercy – “Miscarriage of justice” against Pollard begs for commuted sentence

It is not easy writing about Jonathan Pollard and his case without becoming emotional. I spent almost five hours with him in a federal maximum security prison, and find it difficult to subdue my anger that such a gifted man should be kept inert. Five days after that visit, his appeal for a new trial was denied by two federal judges, while one dissented, saying Pollard had suffered a “miscarriage of justice.”

Nonetheless, he has no relief while the character of his incarceration evokes indescribable sympathy and even moments of horror. Yet both Israel and the Jewish establishment in the United States are blind to his plight and deaf to his plea.

These thoughts I must repress because I know that my anger will get him nowhere. Instead I must exercise all the influence and persuasion that I can to get the groups hostile to his cause to join in a respectful request for the commutation of his sentence to the time already served. If a federal appellate judge described what has happened until now as a “miscarriage of justice,” who can possibly deny a modest plea for mercy without reopening, reviewing or erasing the past?

Several months ago I appealed in this column to those involved in the matter to respect the feelings of what I held to be the overwhelming majority of the world’s Jews that there was antiSemitism in the conviction and sentence of Pollard. For the purpose of this new plea I will assume for the sake of argument, and notwithstanding the mischief of Caspar Weinberger, that there was no such antiSemitism. No one has argued that position more effectively than did Judge Abraham Sofaer in a debate with Alan Dershowitz. And he confirmed the Anti-Defamation League decision to avoid involvement in the matter.

Nonetheless, even Judge Sofaer, who argued that there was guilt and a basis for the unbelievably severe sentence, supported a call for rachmones, compassion. In his own words: “If you want

to call for rachmones, how am I going to say no? How should anyone say no? Compassion? Find an appropriate basis for it and express it in appropriate terms after appropriately condemning this man, after appropriately condemning what the government of Israel did, and I have no difficulty with compassion.” (The outstanding federal appellate judge David Bazelon was wont to call this a “writ of rachmones.”)

In Judge Sofaer’s argument he faults Israel more than the accused. If he is correct, then Israel s cabinet should take an active part in getting Pollard out of jail. The prisoner himself deserves compassion not only for having already been subjected to six years of the most harrowing prison experience, but also for his great contribution to humanity in having prevented a disaster during the Persian Gulf war. One dreads to imagine what might have happened if Israel had not had the information from Pollard’ s unlawful but overwhelmingly benign and heroic act.

In great measure, Judge Sofaer’s presentation to the Anti-Defamation League influenced that organization, as it did other groups similarly minded, to leave to the courts to decide whether an injustice is being committed. Fine. The court has now decided. Must Pollard try against odds for an appeal to the U.S. Supreme Court to get the dissent upheld? Has not one federal judge already provided the “basis” for the commutation of Pollard’ s sentence to time served?

True, two judges disagreed. But why should it take a unanimous jury to convict an offender, while the opinion of one judge that there has been a “miscarriage of justice is inconsequential to get a convicted felon out of jail after he had served for six years, most of them in solitary confinement?

My earlier plea to the Jewish establishment was to no avail. But now my plea is not for a new trial but only for the commutation of sentence. And if to that Judge Sofaer says, “How should anyone say no,” why should there not be a unanimous Jewish community joining in a plea for a result that can please all?

If the strong words of the dissenting judge are not enough of a basis for commuting Pollard’ s sentence, let me offer two others that are found in the reasoning of the two judges who denied the appeal.

Why did they do so? For technical reasons. Do such reasons justify leaving a man in solitary confinement when many acknowledge his case has merit?

These two judges declined to offer an opinion on the life sentence. Yet it was the sentence that has aroused the ire of many. Must one be denied justice because of consideration for the honor of a fellow judge and a government official in high places? The second excuse is unbelievable  it is alleged the case should have been brought sooner. Must one languish in jail because he was too poor to appeal with haste?

“God of Abraham!” I must scream. Why did our sages use this phrase when they felt outraged? I now know why. Because it was Abraham who screamed even at God, saying, “Will the judge of all the earth not do justice?” (Genesis 18:25)

To judges of the earth I make my appeal. God yielded to Abraham’s challenge. I pray that President Bush will yield to yours and ours no matter how he feels about Jews not voting for him.

Pollard stands convicted. He admits his guilt. He has expressed his remorse. He has suffered an unusual punishment. No organization need admit that it did wrong. They can all unite on one prayer  the commutation of the sentence to time spent. And an anguished Jewish community can put to rest at least one cause for internal strife.