Is the Death Penalty an Ethical Option According to Jewish Values?

In the past couple weeks there have been a couple of high profile death penalty decisions in our country. These rulings were not handed down by a judge or jury, but by a former presidential candidate and a cable news talking head.

Former Arkansas Gov. Mike Huckabee was caught on video at a book signing in California earlier this month saying that the person that leaked the documents to WikiLeaks should be executed. "Whoever in our government leaked that information is guilty of treason," Huckabee said. "I think anything less than execution is too kind a penalty." Newt Gingrich even suggested that WikiLeak's founder Julian Assange deserves to be hunted and executed Sunday by calling him an "enemy combatant."

Political commentator Tucker Carlson, filling in for Fox News host Sean Hannity this past Tuesday, told a news panel that he believes football player Michael Vick, who was given a second chance after being convicted on dog fighting charges, deserves to die for his crimes. The panel had been discussing President Barack Obama's praise of the Philadelphia Eagles for giving Vick a second chance to start at quarterback. Apparently, Tucker Carlson disagrees with Obama because not only does he disagree with giving Vick a second chance, he believes he deserves the death penalty. He said, "Michael Vick killed dogs... And I think, personally, he should've been executed for that."

Admittedly, for many years I never gave much thought to the death penalty. Yes, it is a very serious and divisive topic, but it was not one of the hot button issues of most concern to me. The first time I researched the topic was in 2003 when I took a group of Jewish teens to Washington D.C. for the Panim program and I had to prepare them to debate the moral issues of capital punishment.

I had a cursory understanding of the basic ethical issues and knew the textual sources from the Torah about capital punishment, but it was not a core issue for me. In 2007, I led a family mission to Israel and the abolishment of capital punishment was the bailiwick of one of the adult participants. Before we left for Israel, someone told me that Abe Bonowitz was an abolishionist. I thought, "He's against slavery? Aren't we all?" But it turns out that there is a vast and strong death penalty abolishionist movement in this country. And as you can imagine, they weren't very fond of President George W. Bush's views on capital punishment.

The more I listened to Bonowitz's views on capital punishment, the more I was convinced that it cannot possibly be an ethical option for punishment in the 21st century. I'm not sure if Huckabee or Carlson were really serious about executing the Wikileaks source or Michael Vick or if they were speaking in hyperbole like most politicians and political commentators do today. However, it piqued my interest in the ethical issues of capital punishment and my teacher's thoughtful commentary on the subject came at the perfect time.

Rabbi Brad Hirschfield of Clal published "The Jewish Precedent for a Moral Death Penalty" on his Beliefnet blog and on The Huffington Post. He wrote,

The rabbis teach that a unanimous court cannot impose the death penalty. Contrary to the law in Illinois and the safety we seek in unanimity, Jewish tradition teaches that the only court absolutely prohibited from carrying out a death sentence is the one most of us assume should -- i.e., one in which all judges agree that it's the right thing to do.

The rabbis accept that there may be times when it has to happen, but they cannot accept that any decision so momentous and complex should be seen the same way by everybody. If that happens, the rabbis tell us, we must be missing something and therefore cannot execute the offender.

Some of that thinking is what created the lengthy and hugely expensive process demanded by a system which still entertains the death penalty even if it rarely imposes it. That system would end with passage of SB 3539, making the world a better place by redirecting funds earmarked for death penalty litigation to murder victims' families and enhanced law enforcement.

Ultimately, Jewish tradition values the idea of the death penalty as a moral statement, but hates its imposition on ethical grounds. Interestingly, that is where it seems many Americans stand when it comes to the issue as well. Perhaps now is the time to go back to the future when it comes to thinking about the death penalty.

The past president of my synagogue, Harold Gurewitz, is an experienced and well respected criminal defense attorney here in Michigan. This summer in a highly publicized federal death penalty case he successfully kept his client, Timothy O'Reilly, from being executed (Michigan banned capital punishment in the 1800s, but a death sentence is still possible for certain federal crimes.). Gurewitz spoke to our congregation about his experiences in the months-long trial. He explained that capital punishment in Jewish law requires the prosecutors to advocate for the taking of another life. The evidence offered to support the penalty – as distinguished from the decision of guilt– proved lingering or residual doubts about the defendant’s personal role in the specific acts causing death. It required the judge and/or jury to engage in a very personal decision-making process and to individually agree that another human being should be put to death.

When considering capital punishment in the Torah, it must be viewed in its historical context, Gurewitz explained. There are fundamental values in Jewish sources, the Bible and commentaries that provide meaningful references for how we should view capital punishment today.

While the Torah lists numerous transgressions for which the death penalty is prescribed, Hirschfield points out that there is only actually "one instance in the Five Books of Moses in which someone is executed by the court. In fact, later rabbinic tradition teaches that if the death penalty is imposed once in 70 years, the court which imposes it is called a terrorist court. While having the death penalty on the books has merit as a moral statement, actually imposing it seems to be quite to the contrary."

Stoning, pushing the convict off a ledge to a stone floor, burning, strangulation, and decapitation are all forms of capital punishment in the Torah and Talmud. However, these were intended to represent an advancement over the cruelty and lack of restraint in earlier times and by other cultures. Gurewitz said that, "According to an Amicus brief submitted to the Supreme Court of the United States by a prominent lawyer, Nathan Lewin, supporting an argument against the use of electrocution as capital punishment in Florida should be banned as a violation of the 8th Amendment prohibition of cruel and unusual punishment, these practices exemplified respect for 'human dignity' in the means by which the penalty was to be carried out and restraint in its use."

Judge Jack B. Weinstein, a United States District Court Judge for the Eastern District of New York, spoke at Temple Emanuel of Great Neck in New York. He noted that "Conditions change. Our view of what is required of a humane and caring people should change with the times. What was required and permitted in biblical times is not necessarily what decent people should approve of today. The argument that “ the Torah says it, therefore its is right for us: is no excuse for unnecessary cruelty and inhumanity. We can and should reject capital punishment."

Gurewitz quoted Judge Weinstein, but explained that what the judge did not explicitly mention was that when we focus on the “values” that obviously informed the “humane practices” of capital punishment, they support the view that it should not be practiced at all.

In Israel, capital punishment is only used for genocide, war crimes, crimes against humanity, crimes against the Jewish people and treason in wartime. The only execution in Israel has been Nazi war criminal Adolph Eichmann by hanging.

Capital punishment is as nuanced and complex as an ethical issue can be. Perhaps that is why Mike Huckabee's and Tucker Carlson's rhetoric calling for execution makes headlines. There might have been a time generations ago when capital punishment was accepted, however, in today's world it is clearly not an ethical option for punishment.