Group discusses Jewish law and the death penalty
By Michele Alperin
Special to The Jewish State
"An eye for an eye" is a phrase that, for many, resounds with moral legitimacy and emotional truth. It is in the Torah, and murder is such a crime that many feel the only just punishment for taking a life is to forfeit one's own.
Yet the rabbis of ancient Babylonia, whose discussions comprise the Talmud, had a much more nuanced view. So do many New Jerseyans today, including the police chiefs, retired Supreme Court justice who had upheld capital punishment, and two county prosecutors who had sought it who were part of the New Jersey Death Penalty Study Commission. In January 2006 the New Jersey legislature instituted a moratorium on executions and established the study commission to evaluate the issues. Its report, issued January 2, 2007, recommends abolishing the death penalty and replacing it with life imprisonment without parole.
On June 14 at Beth El Synagogue in East Windsor, a small group listened to several Jews who have been active in the struggle to revoke the death penalty. Retired lawyer Lorry Post of Mt. Laurel lost his daughter, Lisa, 19 years ago when she was murdered by her husband in an Atlanta suburb. Rabbi Robert Scheinberg of the United Synagogue of
Hoboken was appointed by the governor to serve on the commission. Abe Bonowitz is field manager for New Jerseyans
for Alternatives to the Death Penalty (www.njadp.org).
Rabbi Benjamin Kelsen, an attorney and a rabbi of a small "shtibel," drove from Teaneck to attend this meeting.
He wants to become more active on this issue, he said, attributing his interest to his grandfather, an attorney and
politician from Philadelphia who worked with Ted Kennedy, Jimmy Carter, and other Democratic politicians.
"He was a staunch opponent," said Kelsen, "and I absorbed part of that." He is trying to figure out the best
way to introduce the issue to his congregation.
Bonowitz, who opened the program, started his journey
thinking that the death penalty made sense, that "if you kill, you should be killed. I had no idea about the system
and how it fails," he recalled. After he first learned about opposition to the death penalty at an Amnesty
International meeting at Ohio State University, he "set out to prove the anti-death penalty people wrong."
What happened instead was that "in trying to prove them wrong, I found out I was wrong."
The fairness issue
was what first moved Bonowitz toward opposing the death penalty. "Geography, money, and race often have more to do with
the death penalty," he explained, "than the severity of the crime."
Next he learned about the collateral
damage not only to the people who have lost loved ones to violence, but also to people wrongly imprisoned
and their families and even the family members of people executed.
Although at first families of murder
victims believe that somehow the death of the killer will bring them some closure, the lengthy process often changes
their minds. New Jersey law goes out of its way to protect people from being unjustly killed by the state, but as a
result, these families can wait up to 15 or 20 years for a final decision. And, with appeal after appeal, they are
thrust into the limelight over and over again.
Post, who founded Murder Victims' Families for Reconciliation
in 1976, recalled that phone conversation 19 years ago when the detective in Georgia told his wife that their
daughter had been stabbed in the back twice by her husband and was dead. Lisa's husband was sentenced to 20
years for manslaughter, and that got Post started wondering about fairness-why do some people get the death penalty
and this guy only got 20 years?
"Spouses never get the death penalty," he said, explaining that women in
relationships with men, as spouse or as girlfriends, "have never been valued as highly as they should be."
On the other side of the spectrum, law enforcement officials and young children are always valued, he said.
Once the trial was over, Post said, "My life and my marriage had gone down the tubes. I was a zombie, sitting around
waiting to die."
Then someone invited him to be part of an action in support of Pedro Medina, who was about to
be executed by the state of Florida. Medina was eventually executed, in a botched execution during which his head was
set on fire.
After that experience, Post suggested to his wife that they fight the death penalty to honor
the memory of their daughter. The two of them started an organization for victims' family members, which morphed
eventually into today's New Jerseyans for Alternatives to the Death Penalty. At first, Post said, "we thought we
were freaks; we thought everyone who had lost someone was for capital punishment." Now over 50 people who have lost
loved ones to murder are fighting with the Posts against the death penalty.
Scheinberg shared his
experience working with the commission as a representative of New Jersey's religious communities, calling it "one
of most challenging things I've ever done."
He described a powerful and dramatic moment, in the first of
the six public hearings, when Larry Peterson, exonerated after 20 years in prison, came to the mike.
Charged and convicted for a rape and murder he did not commit in September 1987, he was sentenced to life plus
20 years. Peterson first sought a DNA test in 1994, but was not actually tested until 2003, with results reported
in 2005 proving that neither the hair, skin, saliva, or semen from the scene belonged to him. On May 26, 2006,
the prosecution finally dropped all charges against him.
"They took 20 years of my life," said Peterson, and
he added, "If you take a life, you can't correct the wrong."
Scheinberg then reviewed some Jewish
teachings he finds applicable to the issue of the death penalty. The first he quoted was Pirke Avot 4:10,
which deals with humility and human fallibility: "[Rabbi Ishmael] used to say, 'Judge not alone, for none may
judge alone save One [that is, God].'" The implication, he said, is that human judges can make mistakes, and
the death penalty allows for no mistakes.
On the other hand, the death penalty is prescribed all over the
Torah, for murder, adultery, violating the Sabbath, cursing parents, and being a rebellious adolescent.
"You might think Jewish tradition was in favor of the death penalty," said Scheinberg, "unless you
look at the motivations for capital punishment."
Deuteronomy 19:20, for example, pretty much says that
the goal is to deter future crime: "And those who remain shall hear, and fear, and shall henceforth commit
no more any such evil among you."
Another motivation is simply retribution: "he who kills a man,
he shall be put to death," according to Leviticus 24.
"Society must communicate," said
Scheinberg, "that some things are so abominable they can't be tolerated, and the community's
responsibility is to rid itself of such things."
"The death penalty in the Torah is
a means to an end, not an end in itself," Scheinberg said.
The discussions of the commission were
not easy. Five of the thirteen members had a close family member who had been a murder victim. Thinking they would
never achieve consensus, Scheinberg was pleased at the end when 11 of the 13 commission members signed the document;
one abstained for political reasons, and one was against.
Together the group listened to a variety of testimony.
People exonerated after convictions served as "a reminder that every legal system is fallible." Academics presented a
range of studies, with divergent ways of analyzing data, which were not able to prove conclusively that there was any deterrent effect. Others testified to the variable application of the death penalty. Sometimes perpetrators of the most heinous crimes were only given life imprisonment, while others were sentenced to death. In New Jersey, said Scheinberg, it is primarily geography that is determinative; courts in central and south Jersey, especially Burlington County, are more likely to give a death penalty sentence.
What moved even the strongest law and order advocates was testimony by the families of murder victims. Although some supported the death penalty, they were in the minority.
"Many were originally in favor," said Scheinberg, "but once they were involved in the process, they felt the death penalty compounded their pain."
They also heard evidence refuting another argument in favor of the death penalty, that it is not fair for taxpayers to have to support murderers for the rest of their lives. It turns out that capital punishment, with its automatic appeals and high legal costs, is more expensive than life imprisonment.
Another issue, which touches on both fairness and cost, is that in many states indigent people are not fairly represented. Luckily this is not a problem in New Jersey, which has one of best public defender systems in the country and therefore one of the most expensive.
The commission members weighed the expense of capital punishment and the suffering of families and came up with an eighth recommendation: to use the funds saved for services to murder victims' families.
Considering all the evidence, the commission has recommended replacing capital punishment with life imprisonment without parole. The final disposition of the commission's report is up to the New Jersey legislature. A bill, New Jersey S171, has passed the Senate Judiciary Committee and has bipartisan co-sponsorship in both houses. Bonowitz is confident that the commission report will speak for itself when the bills come up for a vote. He guesses that much of the opposition has and will come from "people who haven't read the report." 