This past week’s guilty verdict for the perpetrator of the horrific Pittsburgh Tree of Life synagogue massacre and the prospect of the US government sentencing him to death has led to renewed debate in the Jewish world about capital punishment. The thousands of members of the group I co-founded, “L’chaim! Jews Against the Death Penalty,” vehemently advocate for life in this case, as in every single case -without exception. If one needs reminding as to why 21st-century Judaism must align itself with the 70% of world nations who have abolished the death penalty in law and practice, consider the following facts.
Like many nations, the USA, with its wrongful conviction epidemic, miserably fails to meet the prodigious safeguards outlined in Jewish law to prevent wrongful execution, as encapsulated by Maimonides’ famous standard: “It is better to acquit a thousand guilty persons than to put a single innocent one to death.” (Sefer HaMitzvot, Prohibition 290). The reputable and neutral Death Penalty Information Center (DPIC) concludes that “the death penalty carries the inherent risk of executing an innocent person. Since 1973, at least 190 people who had been wrongly convicted and sentenced to death in the US have been exonerated.” For many others already executed – including some I have known personally – their neshamot/spirits and their loved ones still await posthumous exoneration. Neither is the USA alone. Of the two individuals that the state of Israel has executed, IDF Captain Meir Tobianski was exonerated after the nascent state put him to death on June 30, 1948. That is a 50% failure rate for Israel in its 75-year history. What would Maimonides conclude?
Modern meta-studies cited by DPIC here also have disproven the implied presumption in some rabbinic sources that the death penalty might act as a deterrence to crime, and that its abolition might “multiply the shedders of blood in Israel.” (Makkot, 7a) These studies “show no link between the presence or absence of the death penalty and murder rates.”
The inherent injustice of the continual racist and unfair application of capital punishment also is a slap in the face of the well-known Jewish dictum of “Tzedek, tzedek tirdof”- “Justice, justice shall you pursue. (Deut. 16. 20) As DPIC scathingly reports, in the USA “racial bias against defendants of color and in favor of white victims has a strong effect on who is capitally prosecuted, sentenced to death, and executed.” The death penalty also consistently and unconstitutionally targets those with mental illness and intellectual disability, as well as the indigent. Israel, too, demonstrates the danger of unjust application of the death penalty. The bill now under consideration to augment use of the death penalty would only make it applicable to Palestinians Israeli citizens accused of killing Jewish Israeli citizens, but not in any other case.
Moreover, capital punishment is always cruel and unusual punishment. As I have witnessed directly time and again in my correspondence and conversations with the condemned, it constitutes psychological – and often in the end physical – torture. I have seen it lead a pen pal of mine, who prison authorities ruled sane, to attempt suicide as he counted down his days to death. From my interactions with him and many others, I can personally confirm Albert Camus’ conclusion from his Reflections on the Guillotine: “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.”
For all these reasons, I – who used to support the death penalty before I became a Jewish prison chaplain and my eyes were opened to its horror – now am vehemently opposed to the state-sponsored killing of defenseless prisoners.
But, for Judaism in the 21st-century, there is much more to consider….
For many of the members of “L’chaim! Jews Against the Death Penalty” who like me are direct descendants of Holocaust survivors, the shadow of the Holocaust is inextricably linked to the firm rejection of the death penalty in all cases, even that of the Tree of Life shooter. L’chaim inherits this torch of abolition from many Jewish leaders who vociferously protested against Israel’s only other execution: that of infamous Nazi perpetrator Adolf Eichmann in 1962. These included renowned Hebrew university philosophers Samuel Hugo Bergmann and Nathan Rotenstreich, scholar of Kabbalah Gershom Scholem, and Jewish theologian and philosopher Martin Buber, who called the execution a great “mistake.” Other Holocaust survivors themselves, such as Nobel-prize winning author, Nelly Sachs voiced public opposition to Eichmann’s execution.
None other than Elie Wiesel best articulated L’chaim’s stance when he famously said of capital punishment: “Death is not the answer.” Wiesel made no exception, stating unequivocally 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 do not believe any civilized society should be at the service of death. I don’t think it’s human to become an agent of the angel of death.” This applies for any human being – from Adolph Hitler to the Tree of Life shooter.
Perhaps most damning, L’chaim members will never forget that lethal injection, the most common American form of execution, is a direct Nazi legacy, first implemented in this world by the Third Reich in their infamous Aktion T4 protocol to kill people deemed “unworthy of life.” That program was devised by Dr. Karl Brandt, Hitler’s personal physician. This is indeed the legacy that the US federal government likely would employ in order to put to death the Tree of Life shooter. Various states also continue to utilize gas chambers, and Arizona even has approved the use of Zyklon B, of Auschwitz infamy. No Jewish argument about the death penalty in the 21st century should ignore these facts. Rather, Jews across the world should join our group in chanting: “NEVER AGAIN to state-sponsored murder!”
When L’chaim recently presented its position on this issue at the request of Dor Hadash, one of the three congregations directly targeted in the Tree of Life massacre, I intentionally began the event with the chanting of the Eil Malei Rachamim, the traditional Jewish memorial prayer, for all the victims of that horrific day. This parallels what L’chaim does to start every execution vigil with its partners at Death Penalty Action, beginning each with the same prayer recited for the victims of the person about to be executed, and begging that no more blood be shed in their names. And yet, just as I never would speak for any murder victims or their loved ones, so too would I never deign to do so for the family members of the Tree of Life victims. As a hospital chaplain, I regularly counsel mourners that they should feel permission to experience the full gamut of human emotion while grieving, including rage, and even the desire for vengeance where applicable. Let no one ever judge anyone in such a position. If I myself were to lose a loved one to murder, I could very well find myself desiring — and perhaps even advocating for — the death of my loved one’s killer. Any civilized society has a responsibility to protect and honor all such mourners, while also upholding the most basic human rights upon which this world stands. Fundamental to these, of course, is the right to life itself.
And so, if asked for an opinion on the sentence of the Tree of Life shooter in the wake of his guilty verdict, the members of L’chaim resoundingly offer a plea for life, and a hope that the cycle of violence and killings end. It is quite intentional that the logo for L’chaim features at its center the Eitz Chayim – the Tree of Life. May the branches of that tree extend to all corners of this world bimheirah v’yameinu, soon in our day.
“L’chaim – to 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