Ben-Gvir’s Death Penalty Bill Would Legislate Torture in Israel

If Israeli lawmakers sign the death penalty bill that National Security Minister Itamar Ben-Gvir is proposing, they will be enshrining Israel with the international pariah status not only of executioner, but also – by definition – of torturer. This week, Ben-Gvir publicly called for the execution of imprisoned Palestinian leader Marwan Barghouti during a meeting of his Otzma Yehudit party at the Knesset. Speaking at the meeting, Ben Gvir said Barghouti “should be taken out” and endorsed capital punishment. He argued that Israel should “learn something from the United States,” specifically “the death penalty for terrorists.” A lesson that Ben G’vir himself might learn from the United States is the fact that executions – without exception – constitute torture. They often result in physical torture, and always in psychological torture for individuals counting down to their execution day. There is no humane way to execute human beings against their will.

The death penalty is in direct violation of Article 5 of the Universal Declaration of Human Rights, which states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The international community has begun to acknowledge the veracity of this torture in recent years. In a 2012 United Nations press release, Special Rapporteur Juan E. Mendez identified a “death row phenomenon,” which he defined as “a combination of circumstances that produces severe mental trauma and physical suffering among prisoners serving death sentences, including uncertainty and anxiety created by the threat of death and other circumstances surrounding execution, prolonged solitary confinement, poor prison conditions and lack of educational or recreational activities.”

Sari Bashi, Executive Director of the Public Committee Against Torture in Israel (PCATI), poignantly testified in the Knesset against the inevitable torturous effects of Israel’s proposed death penalty bill. PCATI’s public statement on the legislation stipulates:

“The Israeli Knesset is racing to legislate the death penalty, a draconian punishment that violates the right to life, inflicts physical pain and psychological suffering, and gravely violates the right to due process and to live free from torture. Of course, those suspected of involvement in attacking innocent people should be held to account. But the death penalty should never be on the table, even in extreme cases like the October 7 massacre…Knesset members – especially the opposition members who supported the bill – should come to their senses and do everything in their power to defeat this proposal and others like it.”

Predictably, Ben-Gvir responded to Bashi’s Knesset testimony just as he does to similar voices of reason:  by ignoring these facts. Instead, he repeatedly screamed at Bashi, whom he branded a “Hamas supporter” for holding such an enlightened view.

Much is regularly reported – as it should be – about the reality of the physical suffering that inevitably occurs when putting a human being to death, particularly with botched and failed executions. The mental trauma that always accompanies any execution is considered much less often, but it is just as horrific. Telling a human being the date and time on which she or he is to be put to death is a level of inhumanity and torture without comparison in this world. French philosopher and novelist Albert Camus (1913-1960), who witnessed executions firsthand, confirmed this in his 1957 book Reflections on the Guillotine, writing:

“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? For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.”

The thousands of members of  “L’chaim! Jews Against the Death Penalty” (of which this author is a co-founder) can corroborate this unimpeachable truth. In the five years since L’chaim’s founding in 2020, its members have corresponded and communicated with just about all of the over 100 human beings – Jewish and non-Jewish – executed on American shores. L’chaim members reach out to those condemned to die when they receive their execution warrants and often exchange regular messages via phone, letter, and computer until their death date, and at times even in their final hours. Many of these individuals detailed the horror of counting down their final day to L’chaim pen pals like me. Collectively, their messages to members reflect the abject psychological torture that any society condones by exacting this vengeful punishment.

One such individual in South Carolina, who previously had been cleared as sane enough for execution by his medical staff –  and who indeed had no known history of mental illness – attempted a violent suicide as he faced the imminent prospect of his execution. For this very reason, Texas – the most prolific American executioner – has set up the barbaric system of an isolated, continuously-monitored suicide vigil for individuals, who consequently wallow away their final days on the aptly-named “Death Watch.”

The same state of Texas put to death L’chaim’s longtime Jewish pen pal, Jedidiah Murphy, whose psychological torture throughout the process was evident for all to see. Jedidiah had been in direct communication with me for years by writing and phone. A product of a failed foster system and living with dissociative identity disorder, Jedidiah still never made excuses for taking the life of 80-year-old Bertie Lee Harmon Cunningham, of blessed memory. He had demonstrated to me and to others, like his lawyer Alan Dershowitz, sincere teshuvah (”repentance”) for his reprehensible and indefensible crime.

Since receiving his execution warrant months before his death date, Jedidiah endured an agonizing wait as he was isolated in the solitary confinement of Death Watch. In the final weeks before Jedidiah’s killing, the calculations of his remaining time took on renewed vigor, as he awaited word to find out if the Texas Board of Pardons and Paroles deigned to heed the call of the civilized world and recommend him to the governor for clemency. After learning that the board rejected this appeal, Jedidiah endured extended mortal terror and uncertainty yet again in the final days and hours leading to his execution as he waited to hear from the courts if his killing would proceed. Jedidiah did, in fact, receive a stay from one such court in the days preceding his scheduled lethal injection. And yet, even then, Texas persisted with its death protocol as if the killing would still take place, assuming that the Supreme Court would vacate this legal hold and that the state would carry out this killing, which indeed it did.

All of this transpired against the backdrop of World Day Against the Death Penalty, whose 21st annual observance fell on the very same day as Jedidiah’s state killing – October 10th, 2023. That year’s theme was“torture.” As Jedidiah’s fate illuminates, the death penalty is indeed inherently psychological torture, just as it is so often physical torture. States that engage with this killing machine leave their would-be execution victims in a legal limbo between life and death – a horrific halfway point to the grave that is enough to drive even the most mentally stable person to madness. It is an example of barbarism beyond the scope of anything that should be allowed in the civilized world.

The members of L’chaim have outlined, ad nauseam, multiple other reasons why Ben-Gvir’s death penalty bill is, by definition, an abomination.  L’chaim recently delineated these points in a Hanukkah post enumerating in detail the “8 Reasons to Vote Against the Death Penalty this Hanukkah.” Those explanations include the fact that the death penalty will increase – not decrease – terrorist attacks by creating more shaheeds (martyrs), risks executing the innocent, does not bring “deterrence,” is racist in its application, violates the human right to life, and – from Adolph Hitler to Trump to Ben-Gvir – is used as a political tool, particularly for election campaigns. L’chaim also illustrated how Jewish tradition makes the death penalty virtually impossible, and how many execution methods are direct Nazi legacies, including firing squad, gassing, and lethal injection.

Of capital punishment, the renowned death penalty abolitionist, human rights activist, Nobel laureate author, and Holocaust survivor Elie Wiesel famously said that “Death Should Never be the Answer in a Civilized Society.” Over 70% of nations have realized this and abolished the death penalty in law or practice. It is time for Israel to pass this perennial barometer for civilized humanity and join the majority of nations on this crucial issue. Ben-Gvir’s bill does precisely the opposite by opening the Pandora’s Box of state-sponsored killings, lowering Israel’s status in the world to place it on par with serial-executing states like Iran and Saudi Arabia, and giving fodder to antisemites everywhere who horrifically preach that Judaism is a “death cult.” As it has helped achieve for Iran, the death penalty would give Israel a pariah status in the collective consciousness, posing a recipe for disaster for the Jewish state and the safety of Jews across the world. Israelis of good conscience cannot let this happen on their watch, nor can any Jew across the globe.

The climax of the torture and killing of Jedidiah Smith transpired just as the horrors of October 7th, 2023, were coming to light. Despite what he was enduring, Jedidiah offered prayerful support for Israelis and Jews across the world in light of that mass murder. His words below reflect not only the torture that he endured as a result of the medieval execution process, but also his own innocent family members and loved ones:

“Hello, this is just a short update that I wanted to send everyone that is praying and pulling for me and my loved ones. This back-and-forth is challenging because you go from a gut punch to hope to maybe. The torture of this punishment is not what will happen to me, but what I see happening to my wife and family. They won’t make me suffer for what happened 23 years ago by giving me the rest of my life to think about it and everything life in prison brings… but they make my loved ones suffer instead. This is what I don’t understand. Hopefully and G!d willing I will have this stay STAND. If not, then we all have to accept that this was his will and not ours. I have been blessed and I thank all of you for your prayers and love along the way. To the people who are in Israel and have family there…may peace come to you all and I grieve along with you for the lives lost and the pain war brings to everyone. Thank you to you all and please stay positive regardless. Be blessed…Shalom, Jedidiah”

Just as Jedidiah prayed for Israel in his final hours after October 7th, 2023, so too do I firmly believe that he would now pray that the Jewish world acts to ensure that Israel rejects Ben-Gvir’s proposed legislation. As someone in whom he confided over the years, I do not doubt that Jedidiah – like all state-sponsored murder victims before and after him, both guilty and innocent – would call upon all reasonable hearts and minds in the Knesset and throughout Israel to abolish the death penalty from Haaretz, once and for all.

Cantor Michael J. Zoosman, MSM, BCC

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

Advisory Committee Member: Death Penalty Action