Death Penalty

This week, we saw the beginning of the trial of Robert Bowers, accused of killing 11 people at the Tree of Life Synagogue in Pittsburgh, PA. He has tried to plead guilty in order to receive a life sentence in prison, but the prosecution is seeking the death penalty. What do our sources, and our moral aspirations, say about this very difficult case of life and death?

Questions of Life and Death
 
How do we balance moral principles against practical action? In a sense, this is the entire Rabbinic project: translating the ethics and ideals expressed in the Torah into a system of rules and we can actually live by. But it’s really hard to do, especially when the stakes are high, emotions are higher, and everybody’s watching.

Earlier this week began the trial of Robert Bowers, the accused perpetrator of the terrible events at Pittsburgh’s Tree of Life Synagogue. Bowers has attempted to plead guilty for his crimes with the assurance of receiving a sentence of life in prison. The prosecutors, though, are seeking the death penalty.

Now before I go on: If you prefer not to dwell on this topic, this is the time to step into the rotunda until you can hear us begin the Aleinu.
 
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Let’s start by stating the obvious: The Torah supports the death penalty. Maimonides summarized the Torah’s capital offenses, concluding that 18 crimes are punished by stoning, 10 by burning, 6 by strangulation, and 2 by decapitation.[1] These offenses include various forms of: forbidden sexual relations; practices of blasphemy, idolatry, or sorcery; desecration of the Sabbath; rebellion or assault against one’s parents; kidnapping; false prophecy or rebellious leadership; and, of course, murder. While these crimes and their punishments are announced throughout the Torah, the Rabbis meticulously catalogued and explained them, developing a rich system of laws regulating the controlled killing of the heinously guilty.

This regulatory system, though, virtually eliminated the death penalty from Jewish legal practice. Thus for example, Deuteronomy teaches: “A person shall be put to death only on the testimony of two or more witnesses” (Deut. 17:6). On the basis of this, the Talmud rules out even the most logical conjecture as admissible evidence in a capital case. The text states: “Perhaps you saw a person pursuing another into a ruin, and you pursued him and found a sword in his hand, dripping with blood, and the one who was killed was convulsing. If you saw only this, it is as if you saw nothing” (BT Sanhedrin 37b). That is, you can’t say that you really witnessed the crime. Maimonides teaches that the reason for such an extremely high standard for a capital conviction is to prevent the accidental killing of an innocent person convicted by mistake. He writes, “It would be better to acquit 1,000 sinners than [to sustain a system in which] a single innocent person, inevitably, would be killed.”[2]

After all, as we do well to remember, the Mishnah teaches us that “Everyone who destroys a single life, Torah considers them as like someone who has destroyed an entire world. And everyone who sustains a single life, Torah considers them as like someone who has sustained an entire world” (M. Sanhredin 4:5).[3] In fact, the original context for this very teaching is that it is part of a warning given to witnesses about to testify in a capital case! If the witness’s testimony turns out to be somehow false, then the blood of one who has been killed and the blood of all their descendants who will never be born will be on that witness.

About whom is this mishnah concerned? Perhaps it is the accused who, as in Maimonides’s text, may actually be innocent. But perhaps our mishnah is equally concerned with the victim of the crime under investigation. Their life—and death—also demand attention. After all, the mishnah imagines the potential witness deciding it’s just not worth it to testify. Let the accused go guilty no matter the crime in order to avoid the possibility of being wrong. To such an objection the text quotes the Torah: “Anyone who witnesses or sees or knows but does not report shall bear the punishment [of the sinner]” (Lev. 5:1). And as it says in Proverbs: “When the wicked perish, there is song” (11:10).

In other words, this text warns us against the possibility of accidentally executing someone who’s innocent; and the same text also acknowledges that a true murderer has indeed, at least in principle, revoked his right to life. And so we end up back where we started.

Our tradition has always asserted that dire actions deserve dire consequences. The death penalty isn’t about—or at least, isn’t only about—deterrence; and the death penalty also isn’t about revenge. (After all, you could imagine a much more vengeful principle than “a life for a life.”) Rather, according to Deuteronomy, we have a responsibility to “sweep out evil from your midst.”[4] Ours is not a pacifist tradition, so we have always been faced with the difficult task of determining when it is acceptable—or even morally necessary—to kill someone else. War is one arena, self defense is another, and capital punishment is the third. The enactment of the principles is a far more difficult task then discerning the principles themselves.
 
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Rabbi Jeremy Kalmanofsky has written on this theme a beautiful teshuvah, a rabbinic legal opinion.[5] He says in 27 single-spaced pages what I can only summarize here, namely, that the balance of Jewish tradition argues in favor of abolishing the death penalty. I’ll quote him here, and for what it’s worth, I agree with everything he says:
 
We consider the contemporary death penalty a needlessly bloody measure, applied inconsistently and, all too often, wielded against those wrongfully convicted. We believe that in virtually all cases, even the worst murderers should be imprisoned rather than executed. We [believe] … that existing death penalty laws should be abolished and no new ones be enacted. Our religious community would contribute to American moral culture by opposing capital punishment in the name of our reverence for life (p. 2).
 
However, as Rabbi Kalmanofsky notes, Jewish law does not forbid capital punishment; as we have seen, sometimes it requires it. And as citizens of a country whose laws we obey, if one’s state practices capital punishment, one should abide by those laws. Kalmanofsky writes, “Objection to the death penalty is not halakhic grounds to refuse to participate as judge, prosecutor, juror, police or witness in capital trials” (p. 27).
 
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Which brings us to the case of Robert Bowers. Knowing that his life is on the line, Robert Bowers has sought to plead guilty to murdering 11 people at the Tree of Life Synagogue in hopes of avoiding execution. Indeed, his defense attorney has already admitted that Bowers is guilty; in her opening statement, she affirmed, “He shot every person he saw.”[6] The current trial is meant to determine whether Bowers committed certain federal crimes (such as “hate crimes resulting in death”) that bear the penalty of death.

It seems to me that if there were ever a case where Jewish law would condone or even insist upon capital punishment, this would be it. There is no doubt whatsoever that Robert Bowers is guilty of murder, and if it can be said, of an exceptionally heinous series of murders. Some family members of the slain have called for Bowers to be sent to prison; others, though, want to see him killed.[7] Can it be said that Robert Bowers’ life is equal in weight to the entire universe; and if so, can it be also be weighed favorably against the lives of the eleven people he killed? In my mind, these are difficult questions to answer.

Cantor Michael Zoosman is the founder of L’chaim! Jews Against the Death Penalty. Some of you may have heard his moving and thought-provoking presentation during our pandemic-era Zoom classes. He is a compassionate, thoughtful, and nuanced thinker and writer, and his moral position is unwavering and clear: Though L’chaim honors the lives of the victims of terrible crimes, they remain consistently “against capital punishment in every single instance,” including in the case of Robert Bowers.[8] Cantor Zoosman acknowledges one Rabbinic teaching that if we abolished the death penalty, we “would also multiply shedders of blood in Israel” (M. Makkot 1:10). But, he counters, “Civilized humanity knows that the only ‘shedding of blood’ that would be ‘multiplied’ by state-sponsored murder is our own when we continue the cycle of violence.”[9] We might understand Cantor Zoosman to be saying that maybe Robert Bowers deserves to die, but no one on earth has the right to kill him. The question of capital punishment is bigger than any single case and, even in these harrowing circumstances, opposition to state-sponsored killing must be absolute.

I agree that in an ideal world, America would abolish capital punishment. The death penalty should absolutely be off the table. But our tradition provides separate reasoning for non-ideal situations, and given the fact that the death penalty is a legal possibility, is this not the precise sort of case for which our tradition would insist on it?

I wish I had better answers; but sometimes, we can go only so far only as to raise important questions. So that’s where I remain: mired in questions yet hopeful for eventual resolution.

I pray that in cases such as this one, that we remain guided by our foundational principles such as respect for life and honor for Torah. I pray as well that discourse and dialogue on such difficult topics remains respectful, motivated by curiosity and not conquest. And ultimately, in this moment, I pray for comfort and relief for the communities shattered by violence five years ago and for too many families across the country whose grappling with questions of life and death is not theoretical at all.
 
May peace be our due, and may peace come to all who mourn.


[1] Mishneh Torah Sanhedrin, 15:10-13. Maimonides uses the term הַנֶּהֱרָגִין to refer to those liable for decapitation. Elsewhere, he refers to this punishment as סַיִף, “putting to the sword.” M. Sanhedrin 7:3 explains that מִצְוַת הַנֶּהֱרָגִים is to “cut off his head with a sword” (הָיוּ מַתִּיזִין אֶת רֹאשׁוֹ בְסַיִף).

[2] ולזכות אלף חוטאים יותר טוב ונכסף מהרוג זכאי אחד יום אחד (Sefer HaMitzvot, Prohibition 290).

[3] M. Sanhedrin 4:5 says נֶפֶשׁ אַחַת מִיִּשְׂרָאֵל. The word מִיִּשְׂרָאֵל seems to be a late insertion; it is not found in earlier handwritten manuscripts.

[4] See especially Deut. 19:19-21 and 21:6-9. See also Deut. 22:22-29, where adultery is punished by death (“in order to sweet out evil from your midst”) but rape is not.

[5] I am indebted to Rabbi Kalmanofsky’s careful research on this topic, much of which has informed my own writing and thinking. “Participating in the American Death Penalty” is available online: https://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/2011-2020/cjls-onesh-mavet.pdf.

[6] https://www.post-gazette.com/news/crime-courts/2023/05/31/pittsburgh-synagogue-shooting-trial-tree-of-life-robert-bowers/stories/202304180084

[7] https://jewishchronicle.timesofisrael.com/family-of-pittsburgh-synagogue-shooting-victims-supports-pursuing-death-penalty-against-accused-gunman/

[8] https://triblive.com/opinion/michael-zoosman-the-tree-of-life-and-a-plea-for-life/

[9] Ibid.