Timshel: The Need for Compassion Within the Justice System

I first read John Steinbeck’s East of Eden more than thirty years ago, as a young lawyer who had just opened a criminal defense practice. I remember cherishing the vivid descriptions of the Salinas Valley and being mesmerized by how Steinbeck dissected the family conflicts and captured the intricacies of sibling rivalries. The disastrous effects of a parent loving one child more than another resonated with me. Over the years, as I parented two girls through adolescence, I have sometimes thought of the book and admonished myself for disseminating love unevenly.

For no good reason (other than the dearth of end-of-year published fiction), I recently picked up East of Eden again. I quickly came to realize that reading East of Eden as a 62-year-old criminal lawyer was an entirely different experience from reading it as a young man. Though the themes that had previously endeared me to the book were still apparent, they were not what captivated me. Having spent the last thirty years representing individuals charged with committing often terrible crimes, I was focused on Timshel.

At its core, East of Eden is an allegory of the biblical story of Cain and Abel, which has been described and interpreted in a variety of ways. The King James Bible states that when God speaks to Cain after he has murdered his brother Abel, God says, “Thou shalt” overcome sin. In the American version of the Bible, God says “Do thou,” which seems to mean that Cain will undoubtedly overcome sin. But the actual Hebrew word that is used, Timshel, is arguably more accurately translated as “thou mayest,” implying that Cain has the opportunity to exercise his free will. It’s not a command or an order: Timshel allows for free choice of one’s moral destiny and recognizes that each of us is capable of redemption.

All the major characters in East of Eden, across several generations, struggle with the conflict between good and evil. Cyrus, the patriarch of the Trask family, steals money from the US Army and uses it to create a family fortune. His son, Charles, is driven by lifelong jealousy of his brother, Adam. As a child, he feels that his father favored his brother and this emotion becomes the driving force of nearly all his actions. As a youngster, he physically attacks and intimidates Adam and, years later, unbeknownst to his brother, has sexual relations with his wife. Cathy (Adam’s wife) personifies evil in nearly every regard. She manipulates everyone she associates with, ultimately shoots Adam in an effort to get away from him and spends years running a local brothel. Cal (Adam’s son) is obsessed with the idea that he may have inherited a legacy of wickedness from his mother. He is debilitated by the thought that he is destined to be evil. Just as his uncle was, he is haunted and ultimately scarred by the effects of his father’s preference for his sibling. He craves affection, but it is often withheld from him by Adam. Towards the end of the book, out of anger and frustration, he sets in motion a series of events that result in the death of his brother. His fear of inhabiting a destiny of evilness seems to have been validated.

But the novel ends on an optimistic note. Adam has suffered a stroke and is lying on his deathbed. Cal approaches him to seek absolution. He craves the opportunity to be freed of his guilt and provided with a chance to move forward with his life. He wants his father’s blessing and reassurance that he is loved and forgiven. Adam raises his hand, looks directly at his son and whispers, “Timshel.”

The United States has the highest rate of incarceration in the world. The prison population has increased from 300,000 people in the early 1970s to nearly 2.5 million today. There are over 6 million people on probation or parole. One in every fifteen people born in the United States in 2001 is expected to be incarcerated. For many years, being tough on crime has been seen as both necessary and politically expedient. Mandatory sentences and three strikes laws have been routinely passed and almost uniformly viewed as essential tools for creating safer communities. The rehabilitation and education of individuals who have been convicted or even just accused of criminal behavior have been dismissed as ineffectual. Once a person has committed a crime, he (or she) is permanently labeled an offender. Someone who has dealt drugs is forever a drug dealer. Someone who has stolen something is immutably branded a thief. These identities are irrevocable. Regardless of the circumstances of the crime or the improvements people make in their lives, this label stubbornly persists.

The irony is that every one of us would be horrified if we were forced to adopt an identity consistent only with the worst thing we’ve ever done in our lives. Each of us has done (many) things that we are embarrassed about and that have hurt other people. Being fallible is part of being human. Good people act regrettably all the time. The opportunity to express remorse, acknowledge that the indiscretion was out of character and make amends for it is a basic tenet of social existence. Indeed, it provides the basis of nearly every modern religion.

The consequences resulting from the creation of these ingrained identities are pervasive. By othering anyone who has been convicted of committing a criminal offense, we are able to justify continuing to punish him or her long after the completion of the sentence. Former convicts may be banned from voting, collecting food stamps, living in public housing and, in many instances, made virtually unemployable. In addition, our justice system is far from inerrant. In the past decade alone, hundreds of people have been exonerated of crimes by DNA testing. Some of these individuals had been sentenced to death and were on the verge of being executed. Being released from prison and told that a mistake has been made does not alter the identity of criminality that has been created. The social status of an ex-con, even one who was been falsely imprisoned, remains remarkably durable.

But how did we get here? Isn’t the justice system in the United States supposed to be a model for the entire world? Our constitution was designed to protect and safeguard citizens, ensuring that they are treated properly. However, the blame for these abuses can be directly traced to the Bill of Rights. Among other things, the first ten amendments to the constitution mandate our right to a lawyer, our right to refuse to self-incriminate and our right to challenge the legality of searches of our homes and other property. We stoutly protect people against procedural errors, but provide almost no protection at all against outrageous violations of simple fairness. You can potentially get off if the search warrant was bad, but if you get caught with some pot and it’s your third strike, in some states you can be given a life sentence.

Interminable periods of probation and parole ensure that, once an individual has been convicted, he will be forever viewed as a pariah. Our system does not acknowledge that providing justice is not the same as providing fairness. Instead, cruelty and vindictiveness are endemic to our justice system today. This must be effectively addressed if we are to have any hope of achieving civility and decency. But how do you teach Timshel?

The short answer is that it must be taught early and often. Compassion exists for everyone, but its seeds need to be activated. Adolescents must be taught that gender-based stereotypes are not indelible. Masculinity can encompass much more than just toughness and stoicism. Young boys and girls must be shown that more intimate behavior patterns can and should be praised, not subtly inhibited. It’s okay to cry and a boy who does so in public should not be made to feel emasculated by other boys. Girls (and women) often uphold the same restrictive gender stereotypes, thereby helping to maintain the status quo. Historically, women were denied agency and thus frequently sought out strong, traditionally masculine partners. Being power adjacent is preferable to having little or no power at all. This attitude, however, facilitates the very behavior that many women abhor. Compassion and vulnerability are far more easily displayed when they are reinforced in a positive way. Men are afraid to show weakness because they’re aware of how it’s often received by women and other men. To foster benevolence, we need to stop demonizing it. Judges, prosecutors and defense lawyers cannot be expected to operate from a place of empathy until our culture instills it in young people.

Additionally, those working in the justice system need to be trained very differently from the way they are now. Before they take the bench, newly elected judges are given a crash course on relevant legal issues and judicial comportment. But so much more is needed if the goal is to truly achieve justice. A compassionate understanding of the effect that criminal behavior has on both the victim and the perpetrator is an essential component in reaching an equitable decision as to culpability and sentencing. Sentencing guidelines create sentencing uniformity, but they do not promote decency. Simply incarcerating enormous numbers of offenders is not making communities safer. It is creating disillusionment and tearing families apart. Judges must be taught to look beyond the crime and examine a case more holistically. Mass incarceration makes people feel safe, but that’s a mirage. Safety in a community is only achieved by actions that directly facilitate self-worth. Sentencing alternatives that demonstrate sensitivity and provide opportunities for betterment are essential.

Law school curriculums need to be broadened. It’s not enough to teach law students legal concepts and modes of rational thinking. They need to be exposed to the plethora of issues relating to race and poverty that they are certain to confront if they work in the justice system. It’s very difficult to develop empathy for people you’ve never met and who are living in circumstances that are completely foreign to you. The privileges that often enable students to attend law school and the status and opportunities that graduating as an attorney engender are often taken for granted by young lawyers. It is essential that a legal education include reminders of just how fortunate most young lawyers truly are. Poor people and people of color face social, economic and political impediments that are frequently unimaginable to those with privileged identities. Law schools need to promote public service far more ambitiously than they do now. They need to teach the communication skills and emotional literacy that facilitate empathy.

Young prosecutors must be better educated about their role in the justice system. Their job is not just to win guilty verdicts. They have access to enormous resources and often wield formidable power. They must be trained to exercise it with discretion to ensure that every defendant is treated properly. Too many prosecutors view criminal defendants as less than human and unworthy of sympathy and compassion. It’s easy to be cruel to someone whom you believe is a criminal and nothing else. No one should be personified on this basis. Fear and anger drive people to be spiteful and abusive. Compassion is the antidote that can bolster self-esteem and help chart a course to redemption.

The characters in East of Eden lead damaged lives and often act selfishly and with little regard for the ramifications of their behavior. It is a testament to the power of Steinbeck’s writing that, despite their flaws, he is able to elicit enormous compassion for his characters. Adam totally neglects his newborn twins when he becomes depressed over his wife leaving him. Later, he treats Cal disdainfully, when he all he wants is a father’s love. Surprisingly, however, he is a thoroughly sympathetic character. We desperately want him to thrive and succeed and his shortcomings as a father are easily forgiven. His son Aron, who initially appears almost angelic and attempts to enter the priesthood, nevertheless displays extraordinary selfishness and ultimately runs away from his family to escape their perceived inadequacies. Again, however, we are drawn to him and hope that he can overcome the anguish that has prevented him from achieving self-actualization. Cal is troubled his whole life by his perception that he is unloved and destined to be evil. He acts out violently against his family and others, ultimately inducing his brother to join the army, where he is killed. But, when Adam grants him the opportunity for redemption, for Timshel, we cheer him on. His remorse is genuine, which makes it easy to absolve him of his sins.

Many of my clients have done horrendous things. They have frequently acted out of anger or tried to take advantage of a situation to create a benefit for themselves. But they are not evil and seeking to incarcerate them for long periods of time has proven to be an ineffective tool for creating safer communities. We need to invest less in new prisons and more in education and employment opportunities in minority neighborhoods. We must provide a platform for families to thrive together, rather than tearing them apart through mass incarceration. Lives are scripted early on. Growing up without a father or in a family devoid of love and kindness can permanently taint a child’s perception of the world. I believe that the vast majority of offenders would welcome the chance to atone for mistakes made out of rage or desperation and move forward. Being tough on crime is easy and politically expedient. It’s more difficult to invest time and resources in improving the foundations of our communities. We need to foster compassion within the justice system, not vindictiveness. Timshel is the path to grace.