The Jewish Precedent for a Moral Death Penalty

While having the death penalty on the books has merit as a moral statement, actually imposing it seems to be quite to the contrary.
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Year-end figures show that executions are down 12 percent nationally, from a total of 52 in 2009 to 46 in 2010. This continues a trend dating back to the year 2000 when 85 people were executed under the death penalty laws of the states in which they resided. As Illinois approaches an important vote on its own death penalty statute, there is an opportunity for all of us to consider how to contribute to this national trend.

As it happens, the Illinois debate is very close to my heart because I was born and raised in Chicago's northern suburbs and returned from years abroad in order to attend the University of Chicago on the city's South Side. However long I may be away from the city, I still feel as though I am coming home as soon as I walk off a flight and walk through O'Hare Airport. So when Illinois wrestles with an issue as complex and important as the death penalty, as it is right now with SB 3539, I pay very close attention. We all should, because quite literally, lives hang in the balance.

I oppose the death penalty on both humanitarian and spiritual grounds. But I freely admit that when any religious leader makes a statement like that, I get nervous. I get nervous not only because of the complexity of faith informing our public policy positions, but because arguments based on what Moses, Jesus, Muhammad or any other faith founder would do are dicey at best. While those who make such arguments are loathe to admit it, what their faith founder teaches and what they want public policy to be are almost always identical to each other.

Too often, we religious leaders simply seek a sacred imprimatur for our deepest desires. And that is why, as the debate about the death penalty unfolds across the state, we are sure to see both proponents and opponents thumping their respective scriptures, all with equal conviction. Hardly helpful even to those who appreciate that religious wisdom informs the thinking of many people on this issue. There is however, embedded in Jewish tradition, an approach to the death penalty which would help us address this issue.

The Hebrew Bible is filled with transgressions for which death is the prescribed penalty. There is only one instance, however, 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.

Could it be that this is precisely the position which many of us feel but for which the current debate leaves insufficient room? Could it be that we need death penalty opponents ready to declare that there really are crimes for which people deserve to die, i.e., acts so heinous that we cannot imagine any other legitimate response?

Could it be that we need supporters of the death penalty to admit that while there are criminals who deserve to die, implementing that appropriate response is not worth the risk? From a legal perspective, execution demands that we ignore the possibility of human error, and the general principle which holds that we would rather see 10 guilty people go free than one innocent person punished. If we cannot uphold that commitment, our entire legal system is at risk.

From the ancient rabbis' spiritual perspective, implementing the death penalty precluded any measure of mercy to balance whatever concept of justice might demand executing a criminal. And just as any system of mercy that ignores the demands of justice is not truly merciful, any system of justice which leaves no room for mercy is no system of justice at all.

Even more interestingly, 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.

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