Making Aliyah with a criminal record in Hebrew law

As you may know, people who have been convicted of a criminal offense will find it difficult to exercise their right to make Aliyah to Israel based on the Law of Return. The applicant must present real evidence of their rehabilitation in order to convince the Ministry of the Interior not to reject the Aliyah application. Our office specializes in immigration law and immigration to Israel. We have previously written about the challenges in submitting an Aliyah application for people with a criminal record. This article illuminates the issue from another angle, explaining the subject of Aliyah with a criminal record in Hebrew law.

Aliyah with a Criminal Record – Brief background

In the Law of Return there is a 1954 amendment, known as subsection 2 (b)(3), which allows the Minister of the Interior to reject an application for Israeli citizenship if the applicant has “a criminal record that may endanger public safety”. In practice, anyone who wishes to obtain legal status under the Law of Return is required to present a police clearance certificate, and any criminal record may serve as grounds for rejection.

The Supreme Court (in its function as the High Court of Justice) ruled that a person can have a criminal record and yet not endanger public safety. In this same ruling, they established tests to assess the degree of danger posed by an Aliyah applicant.

Also, there have been many statements by Israeli courts regarding the rights of those who committed a criminal offense, completed their prison sentence, and then corrected their ways and rehabilitated themselves. The picture that emerges from a study of Israeli jurisprudence is that serving a prison sentence or punishment and changing one’s ways, that is, sincere and real rehabilitation, should lead to true forgiveness and reaching out to the past offender, rather than to continued persecution and condemnation.

But, as people who live in the reality on the ground, applicants with a criminal record still encounter difficulties and delays that sometimes amount to actual malice. This can apply even for a minor offense such as personal use of cannabis, or an offense that was committed more than a decade or even two decades ago.

This article will briefly examine Judaism’s attitude to forgiveness and the erasure of a person’s sins in Hebrew law. The goal is to offer another tool to strengthen the legal rationale and to fortify the position that in Aliyah applications a criminal record does not in itself indicate dangerousness, and that a change is called for in the attitude towards Jews worldwide who want to make Aliyah to Israel and are rejected even though they have paid for their crime and been rehabilitated.

What is the value of forgiveness in Hebrew law?

In the Jewish view, there is no sin or offense that does not result in punishment. And the need to atone for the act is twofold: before the person who was hurt and before God. The word forgiveness in Hebrew, in its original meaning, is a waiver – thus the forgiveness of a sin is actually a waiver of the punishment the sinner owes.

The prayer “Our Father, Our King” which is recited around the High Holidays says:

“Our Father, our King, pardon and forgive all our iniquities.
Our Father, our King, blot out and remove our transgressions from before Your eyes.
Our Father, our King, erase in Your abounding mercies all the records of our sins.”

You can see that forgiveness means erasure of the sin/crime and the cancellation of its punishment.

The concept that people can atone for their transgressions has been woven into Jewish thinking and law since its beginning. A well-known biblical Midrash says that already at the time of the creation of the world, when Adam transgressed and ate the fruit of the tree of knowledge contrary to God’s commandment, the idea that a crime can be forgiven arose for the first time. Also in the story of Cain and Abel in Genesis 5, God gives Cain an opportunity to confess to the murder and repent, and only after Cain does not take responsibility does God impose a heavy punishment on him. Similarly, we can learn this from the great importance surrounding the “Ten Days of Repentance” which reach their peak on Yom Kippur when everyone is required to go through a process of asking for forgiveness, atonement and reckoning.

The idea of repentance and atonement in Jewish thought plays a central role in Hebrew criminal law, where repentance to atone for the criminal act can lead to complete cancellation of the punishment.

What is the difference between repentance of atonement and repentance of purity?

Rabbi Yosef Dov HaLevi Soloveitchik explains in his important book On Repentance: The Thought and Oral Discourses that there are two types of repentance: repentance of atonement and, in contrast, a higher and deeper repentance which is repentance of purity. While the repentance of atonement only requires the transgressor to repent and agree not to repeat the same offense, in the repentance of purity the sinner undergoes a profound change in their lifestyle, which includes moving away from the factors that led them to the crime in the first place. According to Rabbi Soloveitchik, repentance of purity literally eliminates all sin and the sources of sin from the life and soul of the offender. But even if the repentance of atonement holds a lower rank than repentance of purity, paying for the crime and not repeating it is sufficient for forgiveness.

The case of the people of Nineveh

Rabbi Zvi Grozman demonstrates the superiority of repentance of purity (he calls it repentance of love) through the story of the book of Jonah and the people of Nineveh: God sent the prophet Jonah to the people of Nineveh to inform them that they had sinned and done evil in the eyes of the Lord. When Jonah comes to them he informs them that Nineveh will be destroyed within 40 days, and they are frightened and decide to repent. However, their repentance was done out of fear of being punished, and not out of an understanding that they must change their ways.

The prophet Jonah predicts the destruction of Nineveh, but their repentance, even though it was only out of fear of punishment, saves them. But Rabbi Grozman claims that as time passed, the fear was forgotten, and the people of Nineveh returned to doing evil, because their repentance was lacking; it was a repentance of atonement and not one of purity.

Punishment for a sin or a crime may cause fear of punishment, but it does not uproot the source of crime. On the other hand, repentance of purity or repentance of love means an internal change that leads not only to erasing the crime but to abolishing the chance and desire to commit another crime.

The importance of non-repetition (recidivism) of the offense in Hebrew law

It is clear to us, however, that most sinners/criminals do not necessarily undergo a repentance of purity, one that changed their way of life and uprooted the sources that led them to transgression. But, even in this case, Judaism, which is a religion of law and practice, sees the non-repetition of the offense as a very central element in forgiveness.

According to Maimonides, one achieves complete repentance when, if placed in the same situation in which one previously committed the crime – one does not commit it again. From Maimonides’ point of view, if what stands between a criminal and committing the crime is fear of punishment, that is perfectly fine, their repentance will be complete as long as they do not repeat the crime. This approach of Maimonides brings me back to the Law of Return and the connection required there between a criminal record and dangerousness in order to reject the Aliyah application. The lack of repetition of the offense indicates repentance, and indicates the absence of dangerousness.

Criminal record in Hebrew law – a conclusion

Hebrew law sees the possibility of atonement for a crime and receiving forgiveness as a central value that has its origins in the book of Genesis in the story of Adam and Eve, continues through the story of Cain and Abel and has had a place of honor in Jewish thought for many centuries since.

Just as the Supreme Court justices reiterated in their rulings the need to reach out to those who have committed offenses, paid the price for them and rehabilitated themselves, so does Hebrew law sanctify atonement and forgiveness.

Although Hebrew law has an interpretive status in the legal system in Israel and is only a supplementary source (the Law on the Foundations of Law, 1980), when dealing with the Law of Return, a law that transcends political boundaries and gives Jews status in Israel due to their being part of the Jewish people, the principles of Hebrew law can have a more decisive meaning.

The speed with which the Aliyah applications of Jews with a criminal record are rejected indicates that not only the rulings of the Supreme Court justices, but also central concepts in Israel’s heritage that reinforce them, have not been assimilated into the Interior Ministry’s decision-making process.

Although Hebrew law does not, as mentioned, have a binding status in the Israeli legal system, it does offer a wide variety of sources of thinking and wisdom that can strengthen and support the legal arguments, and may lead to the much-needed change of approach towards Jews with a criminal past who do not pose a current danger to the public but are rejected time and time again just because of their criminal record.

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