Last April, my home state of Connecticut became the 17th state to eliminate the death penalty in future prosecutions, the fifth in the past five years. Nationally, the tide appears to be turning away from the death penalty as even some death penalty supporters are beginning to be troubled at the extent to which human error has claimed innocent life. Since 1973, 138 prisoners sentenced to death were later exonerated. And those are only the mistakes that were caught in time. We have no idea how many were not.
It was an aptly timed move, as the Connecticut legislature cast its vote during Passover, a holiday commemorating the prime biblical example of capital punishment on a national scale. But the Destroyer of Exodus fame was not a human judge, jury or executioner, and therein lies the core Jewish belief that such punishment is best left in divine hands.
Judaism has much to teach on that score, and some of those lessons could help bridge the gap between social conservatives and liberals. The current American election campaign is being waged primarily on economic issues, but those core matters of life, death and faith, abortion, birth control, euthanasia and capital punishment, are never far from the surface. It is only a matter of time before they re-emerge, as recently happened with the spat with Catholic bishops over family planning coverage and the health care law.
Since the days of the Bible, Jews have always been reluctant to impose the death penalty. The Torah mandates the death penalty for 36 offenses, ranging from murder to kidnapping, adultery, incest, rape, idolatry, apostasy, disrespecting parents and desecrating the Sabbath. But during the rabbinic period, the sages effectively abolished capital punishment, understanding that while most convicted murderers may indeed be guilty, if only one innocent person is hanged by the state, all citizens of that state are guilty of murder. We can quibble about God’s role in the tenth plague, but there is no denying that Judaism is sending a clear message about human fallibility. If we kill someone innocent, we’ve committed the ultimate crime. And human judges, precisely because they are not God, will make mistakes.
Rabbi Moshe Feinstein asserts that the Torah promotes capital punishment for so many crimes in order to educate people about the severity of the offenses, rather than to end the lives of the offenders. That practice has continued to this day in modern Israel, where not even terrorists with blood on their hands are put to death. Only those convicted of crimes against humanity (i.e. Adolf Eichmann) have been executed. But otherwise, we always need to err on the side of life. Judaism is, in the truest sense of the term, “pro-life.”
One staunchly pro-life Connecticut legislator, Republican T.R. Rowe, a Catholic, crossed party lines to support the repeal, seeing it as consistent with the “culture of life” he seeks to promote. He challenged that those who protect the “worst of the worst” should also protect the ones who are most innocent of all: those not yet born. It is a challenge that both liberals and conservatives need to take seriously.
In this polarized political climate, one legislator’s crossing of the aisle is nearly as noteworthy – and miraculous – as the crossing of the Red Sea. Rowe is to be commended for pushing us to step out from behind political and denominational barricades to seek a church-state dialogue that aims to protect innocent life while also safeguarding our precious liberties.
We can find that in the Jewish approach. Judaism always seeks to defend the imperiled, even to the point of allowing the desecration of the Sabbath when it can save a life. But the threat must be immediate, not potential or theoretical.
Even were capital punishment proven to deter potential murderers – and that is not the case – the prospect of potentially saving a life in the future is trumped by the very real possibility that an innocent life, that of the wrongly accused prisoner, might be taken now. A culture of life suggests that the death penalty either be repealed or, if remaining on the books, rarely be implemented.
But what of abortion? Here too, for Judaism, the immediate trumps the theoretical. The sages did not advocate abortion on demand. They just simply made it clear that when the choice is between saving a real human life, in this case the mother, or a potential human being, the unborn child, the real takes precedence over the potential. The prevailing Jewish view is that a fetus is not a fully realized human being until it is born. Since it is not human at conception or while in utero, a culture of life would imply, from a Jewish perspective, that the focus be on the life of the mother. For many rabbis, that concept extends to less immediate but still perilous threats to her physical and mental health. As long as the fetus remains in her body, it is the mother’s life that matters most.
It is possible for our society to promote a culture of life regarding both capital punishment and even abortion, but only when there is first a culture of dialogue and consensus building. Rep. Rowe has courageously demonstrated that such potential exists, even in this polarized environment. Religious groups can set an example by engaging in vigorous interfaith dialogue rather than latching onto one political party or another and attempting to impose their own parochial vision on the state. Where there is first consensus building, religious values can inform public policy-making.
There is a broad consensus that the state must protect innocent human life. No government should be guilty of allowing an innocent human being to die. It’s a good place for a respectful dialogue to begin, one where religious groups can be active participants, as voices of conscience and wisdom, promoting reasoned argument rather than partisanship. But the state should not attempt to define conclusively when human life begins, since there is no consensus on that issue. That is a matter between pastor and congregant, a question of personal conscience rather than public law.
A culture that reveres life is a worthy goal. To get there, we must first cultivate a culture of dialogue.