A Parshat Shof’tim D’var Torah Against the Death Penalty

This past Shabbat, as we read Parshat Shof’tim – which includes the phrases “Tzedek Tzedek Tirdof – “Justice, justice you shall pursue,” (Deut. 16: 20) and the famous Torah verse “ayin tachat ayin” – an eye for an eye (Deut. 19: 21) – my former synagogue Congregation Beth Israel of Vancouver  invited me to speak about capital punishment. Below is a condensed version of the  D’var Torah I offered on that subject for Shabbat morning services. It includes comments and prayers from Jedidiah Murphy, a Jewish man with dissociative identity disorder who has been my pen pal for years, and who the Lone Star state is scheduled to kill on World Day Against the Death Penalty, which is October 10th for the murder of 79yo Bertie Lee Harmon Cunningham, Z’L. My hope is that it might encourage others to invite individuals like me to their congregation or community – either virtually or in-person – to speak about this vital issue in my capacity as co-founder of “L’chaim! Jews Against the Death Penalty.” I offer to do so without financial charge; rather, only with the spiritual charge that it might invite respectful dialogue about this topic. If this is of interest, please feel free to reach out to me via L’chaim’s partners at https://deathpenaltyaction.org.

L’shalom uL’chaim – for Peace and for Life,

Cantor Michael J. Zoosman, MSM

Board Certified Chaplain –  Neshama: Association of Jewish Chaplains

Co-Founder: L’chaim! Jews Against the Death Penalty

Advisory Committee Member, Death Penalty Action

Shabbat Shalom! Thank you for this sacred opportunity to speak about capital punishment, which is a subject that comes from a profound spiritual place for me. This topic is hard, and it speaks volumes about this congregation that you would agree to have me here to address it. We can indeed agree to disagree, and that is okay. Millenia ago, the Talmud often declared “Teiku!” from the Aramaic “Teikum,” meaning “Let it stand.” We absolutely can have a disagreement l’sheim shamayim – for the sake of heaven. And so, Kol Hakavod – all the honour – to you for bringing me here…

It so happens that just weeks ago the Jewish world witnessed the US federal government concluding one of the most relevant capital cases ever rendered for the American Jewish community. I refer of course to the federal death sentence given to Robert Bowers, the perpetrator of the deadliest antisemitic attack in American history at Pittsburgh’s Tree of Life synagogue, killing 11 martyrs, zichronam livracha – may their memories be for a blessing. 

And it so happens that just as we have begun the repentance-laden month of Elul in the Jewish calendar, the next individual in line right now for execution in Texas, the most prolific American state killer, is Jedidiah Murphy, a Jewish man with dissociative identity disorder who has been my pen pal for years, and who the Lone Star state is scheduled to kill on World Day Against the Death Penalty, which is October 10th for the murder of 79yo Bertie Lee Harmon Cunningham, Z’L. (If you wish to learn how to sign a petition already with well over 200 signatures to help save Jedidiah’s life, please contact me directly, or visit his website at savejedidiahmurphy.org.)

And so: this moment calls for some reflections on Judaism and the death penalty 

Many individuals in non-Jewish circles assume that the Jewish take on the death penalty simply is “ayin tachat ayin” – “an eye for an eye,” which we read in this parsha. Informed Jews, however, are well-aware that Judaism does not hold by the more than thirty offenses cited in the Torah for when capital punishment is warranted. Indeed, one of these offenses is insulting one’s parents; were this in place today, I myself would have been put to death long ago, as would my children. Rabbis and Jewish scholars who are much more well-versed in the Talmud than I have spilled countless volumes of ink on the topic of Judaism and capital punishment. Rabbinic Judaism, while not entirely abolishing the death penalty, provided prodigious safeguards making it nearly impossible to carry out. A main goal of these safeguards was to ensure that no innocent person ever would be put to death. As Moses Maimonides (1135-1204) famously said of capital punishment: “It is better to acquit a thousand guilty persons than to put a single innocent one to death.” 

For individuals who were decidedly not innocent, many Jewish scholars have turned to what is perhaps the most oft-quoted Talmudic passage on the death penalty, which comes from the Mishna, Makkot 7a, where we read the following: 

“A Sanhedrin [Rabbinic court] that affects an execution once in seven years, is branded a destructive tribunal.” (ala hanging court)

Rabbi Eliezer ben Azariah says: once in seventy years. 

Rabbi Tarfon and Rabbi Akiva say: Were we members of a Sanhedrin, no person would ever be put to death.

Rabbinic law and custom regarding the legal requirements necessary to ensure that there is not a “hanging court” included no less than two witnesses of the actual capital crime and that the perpetrator be warned just before he or she was about to carry out the criminal action that this action would warrant the death penalty if they went through with it. I personally know of no instance where these standards have been met. 

Still, rabbinic text did leave room for capital punishment. The very next line in the Mishna quoted above is from Rabban Shimon ben Gamliel, who said that if a Sanhendrin only had one execution every seventy years then that court would serve to “increase murderers among the Jewish people.” In other words, the death penalty according to Rabbi Shimon ben Gamliel would lose its deterrent value, as all potential murderers would know that no one is ever executed. What Rabban Shimon ben Gamliel, of blessed memory, could not have known thousands of years ago is that modern social science studies have demonstrated that the idea of any deterrence effect of the death penalty is a fallacy. With this false obstacle to the rabbinic view removed, the next logical step in Jewish thought on this matter is full abolition. 

This week’s Torah portion’s other famous charge of “tzedek, tzedek tirdof,” – “Justice, justice you shall pursue,” should lead any Jew to say “abolition, abolition, you shall pursue.” Why? The death penalty is synonymous with injustice. In the US, it is applied in a racist and socio-economically unjust manner, as it is used much more often when the victims are White. In Israel, the current proposed bill to expand the death penalty for terrorist acts would do so only for non-Jewish terrorists. The death penalty in both Israel and the USA also puts to death individuals with viable innocence claims. In Israel, Meir Tobianski, an officer in the IDF, was executed in 1948 as a traitor on circumstantial evidence. He was the first individual executed by the State of Israel. A year after the execution, he was exonerated of all charges. In the USA, since the resumption of executions in 1973, at least 190 men and women sentenced to death have been exonerated. Other individuals who I shall go to my grave believing were innocent of their crimes have indeed been put to death in the States. Lest one think that these executions do not affect those far away, a Vancouver resident Bethany Bourgeois – who is in attendance at this service right now – is the child of Alfred Bourgeois, whom I believe to have been innocent and whom the US federal government executed on December 11, 2020, the second night of Hanukkah that year. (Please see Justice for Alfred Bourgeois for more information.) For all these reasons and more, Jewish former US Supreme Court Justice Ruth Bader Ginsburg, Z’L, famously said: “If I were queen, there would be no death penalty.” 

Since 2020, L’chaim’s members and I have been in touch with all individuals with active execution warrants in the USA, as well as all Jewish men and women on American death rows. This includes my longtime pen pal Jedidiah Murphy, the Jewish man with dissociative identity disorder I mentioned above set for execution on World Day Against the Death Penalty. 

I informed Jedidiah about my speaking here today and he sent me these words to share with the congregation:

“I have spent 8300 days in segregation and during that time I’ve sought to do the most that I could to help others and in the end..myself. I sought out Hashem and he helped me get to where I am today. I have been loved throughout my time and it is that love that helped me collect back some of the broken pieces I lost long ago. People misunderstand this [dissociative identity] disorder and I understand why. But it has been the bane I have fought since I was young and now that I have a grip on it, instead of the opposite, the state wants to kill me. I live to serve and my wish is to tell my story, as painful and tragic as it is, so that my repentance is not just in the way I walked or talked..but in what I did to lead people away from the places that led me here. To live as an example to those who wish to change and also to show the pain this crime carries to everyone involved. I wake up to my crime daily and I’ve never gone a day without sincere remorse for the hurt I’ve caused. So I don’t seek LIFE for some out..I seek it to pay back for what I’ve done. It won’t be life as a free man,but as a man in prison..a man who has changed and wishes to show everyone the power of G-d…I wish you the best on your trip and please tell them all that I appreciate anything they do for people like me. Be Blessed..Shalom, Jedidiah Isaac Murphy”

To kill Jedidiah on October 10th, Texas will use the most common American form of execution, which is lethal injection. Lethal injection was first implemented in this world by the Nazis as part of the Aktion T4 protocol used to kill people deemed “unworthy of life.” That protocol was first devised by Dr. Karl Brandt, the personal physician of Adolf Hiter. Every use of lethal injection carries on this direct Nazi legacy. This is the method by which the federal government likely also will put to death the Tree of Life shooter, though other killing methods indeed exist. Various states also employ gas chambers to put their inmates to death, with Arizona even offering Zyklon B, as used in Auschwitz. 

The members of L’chaim who, like myself, are direct scions of Holocaust survivors know very well that the death penalty is not the same as the unparalleled conflagration that was the Shoah. L’havdil. And yet, members also know viscerally the dangers of giving a government the power to kill those it incarcerates. Holocaust survivor and human rights activist Elie Wiesel articulated this most prophetically when he famously said in a 1988 interview: “With every cell of my being and with every fiber of my memory I oppose the death penalty in all forms…I don’t think it’s human to become an agent of the angel of death.”  He later added of capital punishment: “death should never be the answer in a civilized society.”

To this blood-thin-red-line, there are no exceptions. For Wiesel, Martin Buber, Gershom Scholem, Holocaust survivor Nelly Sachs and other Jewish human rights activists in the wake of the Shoah, this included staunch opposition to Israel’s execution of Nazi perpetrator Adolph Eichmann, which Buber called a “great mistake.” For the thousands of members of L’chaim! who carry this torch, the mistake applies as well to Robert Bowers. 

In his Reflections on the Guillotine, Albert Camus concluded: “But what then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared?” From my personal experience in communicating daily over email, letters and phone with condemned men and women counting down their final months, weeks, days and hours, I can attest to this psychological torture. In this way, the death penalty condemns the society that enacts it infinitely more than the human beings it condemns to death. Canada released this decades ago, when it initially abolished the death penalty in 1976 (and full in 1998). The west African nation of Ghana was the latest country to join Canada as an abolitionist nation just weeks ago during the Tree of Life capital trial. I pray that one day the United States will join Ghana, Canada and the more than 70% of world nations who stand united against the consummate human rights violation that is capital punishment.

Pittsburgh’s native son and death penalty abolitionist Mr. Fred Rogers famously said of capital punishment “it just sends a horribly wrong message to children,” The Tree of Life shooter indeed should be held accountable to the fullest extent of the law. The problem is: the law is wrong. The decision to kill Robert Bowers perpetuates the cycle of violence. It leaves the door open to the man-made Angel of Death – a door which allowed the United States in the very same week as the ruling to execute a severely mentally ill prisoner in Missouri that Tuesday and a prisoner “volunteer” for state-assisted suicide in Florida that Thursday. This is hardly the Talmudic ideal of once in 70 years. The USA was joined that week by Iran, Singapore, Bangladesh, Kuwait, and China. This is the company the USA keeps. America – and human civilization – must do better. Keeping open the Pandora’s box of the death penalty can lead to what the world now sees with the execution of political protestors in Iran, the recent “kill the gays” law passed in Uganda that allows for execution of homosexual sex crimes, and the calls for the death penalty for abortion, which at least four American states have proposed since the overturning of Roe vs. Wade.

Let there be no doubt: those immediately impacted by the Tree of Life shooting – including surviving family members – have been divided in their  attitudes about the death penalty for the shooter. On a congregational level, two of the three targeted synagogues within the Tree of Life building have asked the federal government not to pursue the death penalty. This includes Dor Hadash, which hosted leaders in L’chaim and me for a program earlier this year to help their community mobilise to abolish the death penalty. Still, quite understandably, most immediate family members advocated for death for the shooter. Far be it from me or anyone to judge them for how they feel. As a hospital chaplain, I regularly counsel mourners that when grieving, they should be allowed to feel the full gamut of human emotion, including rage, and even the desire for vengeance where applicable. Any civilised society has a responsibility to protect and honour all mourners and victims, while simultaneously upholding the most fundamental human rights upon which the world stands. Most basic to these, according to the UN’s Universal Declaration of Human Rights, is the right to life. 

I pray that Americans and Jews everywhere honor the victims of Pittsburgh’s Tree of Life – Eitz Chaim in Hebrew, like the logo of our group L’chaim – by reaffirming the sanctity of life. Instead of more killing, may they follow the example of the inspiring Jewish community of Pittsburgh. Earlier in the week before the verdict of death, in what was but the latest example of that community’s unflagging proverbial steel resolve, it hosted a life-affirming parade to celebrate the dedication of a new Torah – known also as an Eitz Chaim  – in loving memory of Joyce Fienberg, Z’L, one of the eleven Tree of Life martyrs, and her late husband Dr. Steven Fienberg, Z’L. That sacred community once again has brought new life to the exhortation that has motivated Jewish people for millennia: “Am Yisrael Chai”- “The People of Israel Live!” 

With the kavanah/intention that their spirits forever LIVE as we honour them by a recommitment to life itself, I conclude with that a prayer for the eleven martyrs of the Pittsburgh Tree of Life synagogue shooting who were murdered on October 27, 2018:

Zichronam Livracha – may their beloved memories be for an everlasting blessing.

May their neshamot/spirits be loving guides for us all.

May their loved ones be comforted among all the mourners of Zion and Jerusalem from a grief the likes of which most human beings like me never could begin to fathom.

And may the killings end.

Am yisrael chai!

Shabbat Shalom…