Rabbi 360

Earlier this month Washington Governor Jay Inslee issued a moratorium on the use of the death penalty in our state. In his February 11 remarks, the Governor said,

Equal justice under the law is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served. The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred.

Because it was unclear that the death penalty can be applied equally in all cases, said the Governor, it was best to not use it at all. It was a decision he arrived at after much study and deliberation, and I respect this decision. This is a very reasoned argument and one which makes sense.

And I support it, while at the same time in general I support the death penalty.

I think it out of character sometimes, that I support capital punishment. I know many religious groups are in favor of its abolition. I think that I should, since I respect the dignity of human life, see each one of us as made in the image of God, and compassion and justice for my fellow human beings are part of my spiritual motivation.

At the same time, I am a student of political theory, and believe very much in the notion of a person as “political animal” in Aristotle’s term; we as individuals depend on others and create societies and institutions to help secure our interests. Thus we join as individuals into something greater than ourselves—a society governed by norms and rules and laws. Individuals find fulfillment in their society bonds and at the same time are limited by their responsibilities and obligations.

I read the Torah in a similar way—it is the story of a people whose experience of God is in part the drive to create a more perfect society. And infractions against one another—from the minor grievances to murder—are not just crimes against individuals, but they upset the fabric of society and are sins against God.

As the Torah teaches, when the fabric is torn it needs to be mended depending on the severity of crime. And in some cases the punishment for transgression is death. And lest you believe I am a literalist when it comes to reading text—that I support the death penalty just because it is written in the Torah—I believe what the text is teaching is that as an entity greater than the sum of its parts, a state has the right to mete out punishment and even kill one of it citizens if it deems the tear in the fabric to be that great.

Yet while I say “has the right,” what I feel moreso in my heart is, “I am not convinced that a state doesn’t have the right.” In other words, I support it with ambivalence, and am constantly reevaluating my position.

I didn’t always support it, but I remember one case that made me think differently about the death penalty. In May, 2000 two men lured seven employees of a Wendy’s in Queens, New York to the basement, where they bound and shot them at point blank range. Two survived what was supposedly a robbery. The perpetrators were quickly apprehended, and the case indeed became a death penalty case. What was shocking is that it was a clear case of cold blooded murder of these fast food workers with a clear motive and intent and without other mitigating factors like mental illness.

I remember when this happened and how it shifted my thinking—I began to ask myself, are there crimes that are so heinous that they warranted the penalty of death? And not because of justice for the victims or as a form of revenge, but because it is a crime against society? Are there crimes that are so heinous that we must say as a society we will not tolerate it by imposing such a punishment?

I think about this, and just as I think about the Torah in relation to this issue, I also think about the Talmud. For while the death penalty is recorded in the Torah, the rabbis in the Talmud have a different view. While they could not abrogate the death penalty completely—since they viewed the Torah as the word of God they could not overturn that word—they could do everything they could to make it impossible to implement.

In the Talmud the procedures of capital cases are so complex that it is nearly impossible to carry out the death penalty. A capital offense must be witnessed by two people who are not related to each other or the victim. They are questioned individually and their stories have to match exactly. Furthermore the witnesses are to have warned the accused that his crime would be punished by death, and the accused would have had to acknowledge the warning and still carried out the crime. Capital courts consist of at least 23 members, and the witnesses themselves are appointed executioners.

Needless to say, the penalty would not have been meted out lightly, if ever, and as the Talmud says in tractate Makkot, “A Sanhedrin that puts a man to death once in seven years is called destructive. Rabbi Eliezer ben Azariah says: even once in seventy years. Rabbi Akiba and Rabbi Tarfon say: had we been in the Sanhedrin none would ever have been put to death. Rabban Simeon ben Gamaliel says: they would have multiplied shedders of blood in Israel.” The rabbinic view is that in theory the death penalty can be implemented, but in practice it never should.

This is why Governor Inslee’s moratorium is welcome. Like the rabbis of the Talmud, I am not prepared yet to say that the state does not have the right to execute one of its citizens once due process of law is followed. Yet I do agree that due process of law in capital cases in our contemporary society is problematic: It is costly and not applied equally. The disadvantaged are disproportionately tried in capital cases, and innocent people have been found guilty and sentenced to death. With issues of racism and classism present in our communities, we can not guarantee the law in capital cases (or in other cases) is applied equally in all instances. And we should give pause whenever we condone violence—even legally with civic sanction.

So we remember that the most serious crimes are not just crimes against the victims, but against us all. To respond we may reserve the right to execute. But because we are so fallible, because we are prone to make mistakes, because we are limited by our human nature, and because our desire for equality and fairness and life is so strong, let us never exercise that right.