The Department of Justice announced last week that after a nearly two-decade lapse it will resume executing federal death row inmates. The decision follows direction from U.S. Attorney General William Barr to the Federal Bureau of Prisons to adopt an addendum replacing a three-drug procedure previously used in federal executions with a single drug — pentobarbital — and to schedule the killings of five prisoners found guilty of murder.
“Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the president,” said Barr in a statement. “Under administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law — and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”
When asked about the Jewish perspective on capital punishment, local rabbis referenced a long corpus of rabbinic writings, but generally all agreed that the death penalty still requires considerable study, thought and conversation.
Tractate Sanhedrin of the Mishnah offers much insight on the subject, but the puzzle really begins elsewhere, explained Rabbi Keren Gorban, associate rabbi at Temple Sinai.
“The Torah allows the death penalty in certain cases, and actually commands it, but the question then becomes how do we actually enforce this,” said Gorban.
The Talmud teaches that “what you need is a clear eyewitness account, that it wasn’t contradicted by any other eyewitnesses, it has to go through a lengthy cross-examination on the part of all the judges and they have to determine if they can find any reason to question the account. Only after the whole process would they administer this penalty, and the Talmud stresses that it would be expected to be very rare,” said Rabbi Levi Langer, dean of Kollel Jewish Learning Center.
The infrequency of its occurence is noted in Jewish law, which teaches that “if the death penalty was imposed once in 70 years, it was considered a cruel court,” said Rabbi Sara Rae Perman, rabbi emerita of Congregation Emanu-El Israel — and this is despite the fact that Jewish law prescribes four methods of capital punishment.
Gorban said the reluctance to actually enforce the death penalty “is fascinating to me because even though there is a command to punish someone who has committed a capital crime with the death penalty, the rabbis are so uncomfortable with doing that. They recognize that that’s the worst possible thing they could do.”
By stipulating cases requiring capital punishment but creating barriers to its implementation, the topic becomes “somewhat ambiguous,” said Rabbi Amy Bardack, Jewish Federation of Greater Pittsburgh’s director of life and learning, via email. “While the Torah teaches that capital punishment is allowed for certain serious crimes, rabbinic Judaism expresses tremendous reluctance to actually implement the death penalty. Our tradition holds a deep and abiding belief in the sanctity of life, perhaps even the life of one who has committed terrible acts.”
The ambiguity represents a cautious approach, Langer explained.
“There seems to me to be an idea that we want it as part of the code — one reason that some traditional sources give is the deterrent effect of having it as part of the legal system — but at the same time, you want to be very certain that you’re not applying it too broadly or wantonly.”
There are numerous conditions created by the rabbis that reveal their apprehensiveness.
“You could not have a trial at night,” Perman said. “It had to take place at daytime because you needed real light to expose any evidence you have, and I like that there’s this idea. … They didn’t have electricity. They had oil lamps, and they are smokey and don’t always cast a broad view of the light. Everyone can’t see the same things.”
As human beings, “we are fallible,” said Gorban. The early rabbis “put as many bounds around actually sentencing someone to death as they possibly can because they don’t want to accidently kill someone who is innocent, or particularly innocent of the crime that would require the death penalty.”
Fear, either of misapplication or of committing the act itself, actually leads to some incredible legal maneuvering, explained Rabbi Jeremy Markiz, Congregation Beth Shalom’s director of Derekh and youth tefillah.
The Torah says that capital punishment exists, so “the rabbis can’t say we can’t do it, but they created so many hoops to go through that the circumstances they require for someone to be put to death are profoundly difficult,” said Markiz. “They effectively legislated it out of existence.”
“I think it’s in such stark contrast to what we see in our current legal system,” said Gorban.
“It’s clear that the death penalty as administered today in the United States operates according to a much looser set of standards than that which is outlined by the Talmud and by Jewish law,” said Langer.
“To some extent, the people who are being convicted, while some of them are certainly guilty of the crimes, many are not and people don’t care,” said Gorban.
“If you look at the Innocence Project, the way that they’ve gone back over many cases and have found that the evidence was originally wanting and was lacking, and yet the prosecutors rammed through for example, should give us a cause for concern,” said Langer.
Since its founding in 1992, the Innocence Project has used DNA testing to clear wrongly convicted, resulting in 365 exonerations, including 20 for people who had been on death row.
For this reason and others, said Rabbi Sharyn Henry of Rodef Shalom Congregation, “the death penalty is a problem in concept and practice. I think it’s so flawed. It’s connected to race, wealth or lack thereof. It doesn’t feel evenly applied so there are a lot more African American men proportionally on death row than other people.”
“In this country, it’s barbaric, it’s uneven,” she continued. “We haven’t even gotten it down. Mistakes are made where people haven’t died right away. These are barbaric, horrible deaths.”
“The fact that most of the states have cut back on it, there’s obviously a lot of struggling that people go through whether they have the right to go through with taking someone’s life,” said Perman.
The Death Penalty Information Center reports that 29 states, the federal government and the U.S. military authorize the death penalty, while 20 states and the District of Columbia do not.
For Henry, the fact that federal and state entities permit capital punishment is absurd.
“If murder is wrong then murder is wrong,” she said.
“I just don’t think as a community the kinds of things we should be supporting are the killing of people by our government,” echoed Markiz.
“I am generally not in favor of it,” said Perman, though she did mention the caveat of pursuing justice after genocide. “I remember my parents during the Eichmann trial discussing what should be done to him, whether he should be tortured or gassed and I didn’t quite understand what was going on,” she said. “I just remember the conversations at the dinner table.”
With certain scenarios, when the discussion transitions from theoretical to actual, opinions may change, noted Gorban, especially given that Judaism offers no starkly clear answer. “The traditional Jewish position is not consistent with the advocates of the death penalty the way that is presently envisioned,” said Langer, “but also not consistent with those who believe it should be entirely abolished.”
Even so, said Markiz, “I just don’t think we should be killing people. I think I understand the desire for retribution, but I think that’s coming from a place of pain and not a place of justice, and justice is the most important piece in that.” PJC
Adam Reinherz can be reached at firstname.lastname@example.org.