Lessons from the Jewish Experience about Capital Punishment in the United States

Marshall Dayan

The Bible clearly provides for the use of the death penalty for various crimes in certain circumstances. As early as the chapter on Noah, the Bible says that “whoever sheds the blood of man, by man shall his blood be shed, for God made man in his image.” (Gen. 9:6) Similarly, in Leviticus it is written: “If a man kills any human being, he shall be put to death.” (Lev. 24:17) In the book of Numbers, a distinction is made between intentional and unintentional killings. Unintentional killings resulted in the killer being allowed to flee to a city of refuge, but intentional killings clearly required the death penalty. (Num. 35) Additionally, two witnesses were required to convict a person of a crime under Hebraic law. (Deut. 17:6). Nevertheless, the rabbis had a deep ambivalence regarding the infliction of the death penalty. Three concepts in Jewish theology may explain this: (1) the sanctity of human life; (2) the individual responsibility that each human being has for himself and the Universe; and, (3) the use of metaphor for moral lessons. The writings of both ancient and contemporary Jewish scholars reflect the same depth of commitment to these values.

The Biblical commandment to “love your neighbor as yourself” illustrates all three of these interrelated concepts. Perhaps that is why Rabbi Akiba said that this one passage is the great principle of the Torah. In discussing this passage, the twentieth-century philosopher Martin Buber (in Ten Rungs: Hasidic Sayings) taught that we are of a Divine creation that binds us together as a community that is at the same time comprised of individuals and of components of a Universe.

Love your neighbor as something which you yourself are. For all souls are one. Each is a spark from the original soul, and this soul is inherent in all souls, just as your soul is inherent in all the members of your body. It may come to pass that your hand will make a mistake and strike you. But would you then take a stick and chastise your hand because it lacked understanding, and so increase your pain? It is the same if your neighbor, who is of one soul with you, wrongs you because of his lack of understanding. If you punish him, you only hurt yourself.

…Don't you know that the primordial soul came out of the essence of God, and that every human soul is a part of God? And will you have no mercy on man, when you see that one of his holy sparks has been lost in a maze and is almost stifled?

…We should also pray for the wicked among the peoples of the world; we should love them too. As long as we do not pray in this way, as long as we do not love in this way, the Messiah will not come.

Buber's conception that the Universe cannot be healed unless all of its components are healed, that we are a single organism and if we punish the organism we punish ourselves, is a traditional Jewish view. By casting one's own hand (and therefore a part of a larger organism) as the criminal, he shows us that the entire society will be hurt by the violence done to the criminal. Hence, “love your neighbor as yourself” must be understood to mean not only that we are to love our neighbor as much as we love ourselves, but also that we are to love our neighbor as ourselves because we are one with our neighbor; a unity.

While Buber's position proves too much in a discussion about the death penalty -- it is as applicable to any punishment as it is to the death penalty -- the death penalty, being the most irrevocable and harshest punishment, causes the most irrevocable and harshest injury to the whole of society which imposes it on one of its own. It is also true that if a hand is gangrenous, we amputate, but only as a last resort. Only love, not more violence, has the power to heal the lack of understanding of G-d's Universe that produces violent crimes like homicide.

Moreover, Judaism recognizes that our thoughts may be impure and our actions sometimes sinful. G-d's gift of the mitzvoth (literally, the commandments, but whose connotation is “good deeds”), however, provides every human being with the opportunity to sanctify his own life and the world around him. By doing so, life is endowed with ultimate preciousness. As Rabbi Abraham Joshua Heschel wrote in The Insecurity of Freedom,

the ultimate concern of the Jew is not personal salvation but universal redemption. Redemption is not an event that will take place all at once at the 'end of days' but a process that goes on all the time. Man's good deeds are single acts in the long drama of redemption, and every deed counts. One must live as if the redemption of all men depended on the devotion of one's own life. Thus life, every life, we regard as an immense opportunity to enhance the good that God has placed in his creation. And the vision of a world free of hatred and war, of a world filled with the understanding for God as the ocean is filled with water, the certainty of ultimate redemption must continue to inspire our thought and action.

Hence, each person's life has sanctity imbued by G-d and a part in the Universal redemption we seek. Therefore, we as humans cannot extinguish that sanctity by taking life, thereby robbing that person of the opportunity to partake in a Universal redemption.

The third component of “love thy neighbor as thyself” is its reminder of the importance of metaphor as a moral lesson. The overarching metaphor of Jewish experience was slavery in Egypt. Because Jews were slaves in Egypt, we learned not only the pain of slavery for ourselves, but for others. We therefore were commanded not to enslave others and to struggle against anyone's enslavement. Exodus 23:9 says, “You shall not oppress a stranger for you know the feelings of the stranger, having yourselves been strangers in the land of Egypt.” As Cynthia Ozick noted in her essay, Metaphor and Memory, ancient Jewish civilization was unique in requiring equal treatment under law for citizen and stranger alike. Leviticus 24:22 says, “You shall have one standard for stranger and citizen alike.” The Jewish experience of being victimized by the death penalty as a tool of anti-Semitism should make us particularly cautious of the penalty, given its historical use in a racially discriminatory manner in this country.

These theological principles are manifested in Jewish law regarding imposition of the death penalty. Formal abolition of the death penalty was not an acceptable alternative under Jewish law because it is premised on the Bible's text. Nevertheless, the rabbis, though not unanimous, had severe misgivings about the use of the death penalty. This tension was reflected and resolved in creative ways in the rabbinical development of the law surrounding application of capital punishment during the Talmudic period (roughly from the 3rd century B.C.E. through the 3rd century C.E.). In the most famous Talmudic passage related to the death penalty, Mishnah Makkot 1:10, one rabbi posited that any court which sentenced to death one man in seven years would be considered a bloodthirsty court. Rabbi Eleazar ben Azariah replied that the same would apply if even one man in seventy years were put to death. Ultimately, Rabbis Akiba and Tarfon indicated that had they sat in the Sanhedrin, no man would ever have been put to death. Rabban Simeon ben Gamaliel, expressing a minority view, disagreed on the basis that the death penalty could deter the killing of innocent people.

Based on their disinclination toward the death penalty premised on the strong teaching of “love thy neighbor as thyself,” but nevertheless forced to retain it in law, the rabbis developed procedural devices designed to protect against its use. Among the safeguards created by the rabbis is the requirement that two eyewitnesses to the offense testify, that these two eyewitnesses see one another and see the offense from the same vantage point, and that they warn the accused that he is about to commit a capital offense prior to the killing. One purpose of this requirement was to provide direct evidence of premeditation; surely anyone who is warned by two eyewitnesses that he is about to commit a capital crime has premeditated and deliberated on the crime before its commission. Another purpose was simply to narrow the class of persons for whom death was an eligible punishment. Additionally, the rabbis prohibited the admission of circumstantial evidence against an accused. They also prohibited the appointment of hard-hearted men as jurors in a capital case, and required the dismissal of the case upon discovery of any material discrepancy in the testimony of the witnesses. Even if the defendant was convicted, there was a provision for stay of execution if any witness came forward with evidence tending to exculpate the condemned man, including the condemned man himself declaring that he could prove his innocence. While there are numerous discussions about capital crimes in the tractate Sanhedrin, it is questionable whether capital punishment was ever carried out while Israel was an independent state prior to Roman rule. ...

Lessons From the Jewish Experience

Today, under Israeli law, though the death penalty remains a legally authorized punishment, it is circumscribed for terrorists and war criminals, and has only once been imposed and carried out -- that in the case of Adolph Eichmann. Interestingly, the assassin of Prime Minister Yitzchak Rabin was not charged capitally. The assassination of Rabin probably could have qualified under one or the other of these categories, but the death penalty is simply not a part of that culture, and not employed except in the rarest of cases. Whereas in the United States the Supreme Court, as in the Frank and Herrera cases, the court often employs procedural rules to refrain from reaching the merits of cases, in the Israeli Supreme Court, the reverse is the rule: when life is at stake, as in a capital case, all procedural rules are bent in favor of the accused. This doctrine was recently reaffirmed in the case of John Demjanjuk. Though there was overwhelming evidence that Demjanjuk was a Nazi guard who participated in taking numerous concentration camp victims to their deaths, because there was evidence making it questionable whether Demjanjuk was actually Ivan the Terrible, which formed the basis of his prosecution, the Israeli Supreme Court overturned his conviction. The Israeli Supreme Court was clear that it bent procedural rules to allow Demjanjuk to prove his innocence because it was a capital case. The contrast between the Israeli Supreme Court's decision in Demjanjuks and the United States Supreme Court's decision in Herrera is, if not shameful, then stark, to say the least. ...

At a time when the death penalty was more popular than ever before, a rural South Carolina jury chose life over death for a mother [Susan Smith] who killed her two children. This apparent paradox can be explained in two ways. First, Susan Smith was able to express her remorse for killing her children in a manner acceptable to her community. The circumstances of her life led the community to see her as mentally troubled, perhaps even seriously mentally ill at the time she killed her children. Second, she was never viewed as separated from her community. Perhaps because of the revelations of her being sexually exploited, perhaps because she had been known as such a sweet and decent person before this episode, perhaps because the clergy of the community had so early on preached forgiveness and redemption, Susan Smith, in spite of her crime, remained a part of the community of Union, South Carolina.

It is this notion, that no matter how heinous the crime, the criminal remains part of our community, the community of the children of God, that is a prerequisite to the abolition of the death penalty. Forgiveness and redemption for the criminal is not inconsistent with caring for the grieving survivors of the victim or victims. Both surviving victims and the offender are part of the community at large, and both are deeply troubled; both need the love of the community for a true healing to take place. Ultimately, the offender must come to understand the pain that he caused, and to help heal the surviving victims. Seminal work with victim/offender mediation and conflict resolution processes suggests that this is an important means for achieving long-term solace for both parties.

I was asked recently to address a group of very politically conservative law students who attended a small, private, Southern Baptist law school about the death penalty. I concluded that I had to find some common ground, some shared values, in order to have any opportunity at all to begin to persuade my audience toward my view of the death penalty. That common ground was, surprisingly, the Hebrew Bible. I focused on the Prophetic emphasis on repentance: “And if a wicked person turns back from the wickedness that he practiced and does what is just and right, such a person shall save his life. Because he took heed and turned back from all the transgressions that he committed, he shall live; he shall not die.” (Ezekiel 18:27-28. See also Ezekiel 33:11, “It is not my desire that the wicked man shall die, but that the wicked turn from their evil ways and live.”) After discussing these Biblical passages from the Prophets, I told them a story of repentance.

I had a client, David Lawson, whom the State of North Carolina executed in the gas chamber last June 1994. Before David died, he had made an honest repentance. He had killed a man during a break-in of the man's house in 1981, and as well had almost killed the man's father. When he got to prison, he was diagnosed and treated with medication for severe depression. ... David's trial attorney never investigated David's [troubled] background or history. When David told him that he would rather receive the death sentence than a life sentence if he were convicted of first-degree murder, David's trial lawyer accepted that as David's wish. The only witness presented by the defense during David's penalty phase hearing was David himself, who told the jury, “If you think I done it, gas me.” The jury obliged.

David's transformation following his prison diagnosis and treatment was remarkable. He began to realize the enormity of his crime, that he had taken the life of another human being, robbed a wife of her husband, robbed children of their father, robbed a family and a community of their loved one and friend. In every interview, he immediately and forthrightly acknowledged the wrongfulness of his actions, and expressed remorse to the family he had so injured. In an attempt to give the remainder of his life some meaning, he sought, through interviews with media representatives, to inform the community of his illness, not as an excuse for his crime, but in an effort to warn others who did not know they too were suffering from depression to seek help in order to help those unknowing, depressed individuals and in order to prevent any further unnecessary loss of life. As his execution date approached, he became more and more anxious to spread this message. Finally, he asked me, as his attorney, to contact Phil Donahue, and to explain that he wanted his execution to be public. In this way, he surmised, even more media representatives would be interested in interviewing him, and while they came to talk about why he wanted his execution televised, he could talk about his illness and his concern for others who were, as he had been, ill and undiagnosed.

When David was executed, he tried to fight against death with all his might. He took short breaths of the lethal gas, which caused physical reactions such as kicking against the restraints, discoloration of his head, drooling, etc. Yet after every breath he gathered himself, shouted, “I am human,” and prepared again for the next gasp. According to state records, his execution commenced at 2:01 a.m. and concluded at 2:18 a.m. Given that the state requires a five-minute flat line on the EKG, David took thirteen minutes to kill.

Cain is not punished by death for killing his brother Abel, but rather is punished by wandering and frustration. Abraham does not kill his son Isaac, but rather sees the humanity in him and hears his God tell him not to touch a hair on the boy's head. Joseph is victimized by his brothers, almost killed, and certainly left to die a slave, but he ultimately reconciles with his brothers rather than exacting vengeance. Finally, Moses, who kills an Egyptian taskmaster who is beating a Hebrew slave, is forbidden to enter the Promised Land. All of these examples, in one way or another, show us that violence and killing are unacceptable solutions to our problems.

Sometimes anger blinds us to the humanity of the Other. When someone has committed a vile act, we wish to disavow it. We label him “animal,” as Other, as non-human. We desire to separate him from the community, from the family of mankind. This is what leads to the death penalty. It is a reaction easy enough to understand, but one to which we must not succumb. We must remember that it is the action we hate, not the actor. A story from Talmud is illustrative.

It is told that some robbers in the neighborhood of Rabbi Meir were causing him trouble. He prayed that they would die. Beruriah, his wife, said to him, 'How do you make such a prayer? Do not pray that the lives of the sinners cease, but rather that their sins should be no more. For if their sins cease there will be no more wicked men. Pray for them that they should repent.' He did so and they did repent. (Mishnah Berakhot 10a.)

Today, American Jewish groups tend to oppose capital punishment in the United States, both on moral grounds and/or because of problems of administration. In 1996, the Rabbinical Assembly, the Conservative Jewish rabbinate, called for abolition of the death penalty. In 1999, the Union of American Hebrew Congregations, the Reform Jewish movement, reiterated its call for abolition and, pending abolition, called for a moratorium on the death penalty because of racism, classism and arbitrariness in its administration. The American Jewish Congress and the American Jewish Committee opposed the 1996 Anti-Terrorism and Effective Death Penalty Act because of the gutting of federal habeas corpus provisions, and the Jewish Council for Public Affairs, a broad-based group with Reform, Conservative and Orthodox membership, resolved to call for a moratorium on the death penalty based on flaws in its administration in February, 2000.

Jewish law, history, and ethics all counsel that Jews have a deep skepticism of the death penalty for at least three reasons: one, because it denies the possibility of redemption to which the Prophets spoke; two, because of the possibility of mistake to which the Bible and the rabbis spoke in requiring two eyewitnesses to prove premeditation; and, three, because of the possibility of abuse in application, as was experienced in the Diaspora. All three of these reasons are relevant to the American experience with capital punishment, not only historically, but presently as well.

Marshall Dayan is a state official for the National Coalition to Abolish the Death Penalty, and is a lawyer in North Carolina.

Reprinted with permission of the author.