Anti- capital punishment demonstration

Death Penalty for the Tree of Life Massacre?

              On August 2nd a federal Jury recommended the death sentence for Robert Bowers, perpetrator of the 2018 massacre at the Tree of Life synagogue in Pittsburg. Many survivors and victims’ families supported him receiving the death penalty, while others were in favor of life in prison. You can read CBS news coverage here.

              The Jewish tradition has conflicting views on capital punishment. On the one hand, the Torah commands it numerous times. For example, Bamidbar 25:31 states, “You shall not accept any atonement payment from a murder, since he is wicked and deserves death- rather he must surely die.’ And it continues two verses later by saying, “You shall not defile the land you are in, because blood defiles the land and the land can only accept atonement for blood spilled upon it with the blood of its spiller.”

              Nevertheless, the Rabbis were hesitant to actually carry it out. The Talmud enacts numerous hurdles to a capital conviction by imposing nearly impossible conditions on the testimony needed to convict a defendant in a capital case. The Mishnah (Makot 1:10) also states:

              A Sanhedrin (Jewish court) that carries out an execution once every seven years is called a killer court. Rabbi Elazar ben Azarya says once every seventy years. Rabbi Tarfon and Rabbi Akiva said that if they had been on the court no one would be executed at all. Rabbi Shimon ben Gamliel says that they too are causing more bloodshed in Israel (by not letting the death penalty be a deterrent to murder.)


A Human rights perspective

In human rights law there is currently a prominent movement towards doing away with capital punishment. For example, in 2007 the United Nations General Assembly passed a resolution calling for global abolition of the death penalty, and it has continued to do so every other year with the votes in favor slowly growing each time (Read news coverage from Amnesty).

The office of the United Nations High Commissioner on Human Rights states clearly, “The use of the death penalty is not consistent with the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment. There is growing consensus for universal abolition of the death penalty (see here).” Protocol 6 to the European Convention on Human Rights explicitly abolishes capital punishment, meaning that it has been done away with completely in Europe (read it here).

In the United States rules about capital punishment vary by state, with a little over half having a death penalty. Execution numbers are still fairly low, however, with 18 total in 2022. You can see more details about this from the Death Penalty Information Center here. The federal government, which is the jurisdiction in which Bowers was sentenced, does still have a death penalty. But in 2021 Attorney General Merrick Garland issued a moratorium on carrying it out (read news coverage here.) The last federal executions in the U.S. were in January 2021, in the last days of the Trump administration.

Why the discomfort?

From a human rights perspective, why the hesitation, or often outright refusal to carry out the death penalty? After all, as the Torah says, killing a murderer seems like straightforward justice. And how should the growing human rights movement against the death penalty color our feelings towards the Tree of Life shooter?

              A main argument against the death penalty is that sometimes the justice system makes mistakes. There have been numerous instances of a defendant being sentenced to death and then many years later have their conviction overturned. Usually this is because of newly discovered DNA evidence or a key witness recanting their testimony. The argument is that since courts are prone to making mistaken convictions it’s wrong to carry out an irreversible punishment such as putting someone to death.

              But in the case of Robert Bowers, the Tree of Life shooter, this doesn’t seem to apply. Bowers did plead not guilty at trial, but only because prosecutors refused to offer a plea deal that would shield him from a death sentence. He was arrested weapon in hand at the scene of the crime, and at trial he did not contest any of the evidence against him. So there does not appear to be any doubt that he is the one who carried out the murders.

              A second argument against the death penalty is that there is racial bias in how it is applied. This can be at trial, when questions such as whether a defendant was being threatened and acting in self defense or not can be tainted by the race of the victim or the defendant. It can also be at sentencing, where race of the defendant may influence prosecutors’ determination whether to seek the death penalty or not. The Death Penalty Information Center has a fact sheet that gives statistics about this here.

              With regard to Bowers, however, it’s hard to see how race plays a role. There is no question that he acted with unprovoked aggression, and the horrific nature of his crime explains clearly why prosecutors are seeking that he be put to death.

Death Penalty Objections that do apply to bowers

              But other objections to the death penalty do still resonate here. One problem with the death penalty is that it requires the government to come up with a legal and humane way of carrying it out. The electric chair, gas chambers, and firing squads have all fallen into disfavor for being gruesome and perhaps also dangerous to those in attendance. Lethal injection has now become the most common method of execution, but there are difficulties with that too. In spite of its promise of being painless, it has been reported to cause waterboarding like suffering. Drug companies often don’t want their products associated with capital punishment so refuse to supply the needed materials. Medical professionals also frequently refuse to participate, leaving the government unable to find qualified personnel to administer the injection correctly. For this reason lethal injection is said to be the most frequently botched of all manner of executions. You can see more reporting about this from the Equal Justice Initiative and the Death Penalty Information Center. In order to execute Bowers the government will have to overcome this problem.

              A more fundamental argument against executions is to ask what purpose they are supposed to serve. If the goal is to deter crime, there is no evidence that executing Bowers as opposed to having him spend the rest of his life in jail will deter other potential mass shooters. If the goal is simply revenge- to avenge the spilled blood by spilling the blood of the killer in the language of the Bible- there is a basic question as to whether this is the right thing for government to do. This in fact is the heart of the human rights argument against capital punishment- that taking a life outside of self-defense is a violation of human rights values that can never be justified. Just like all human rights, it applies to everyone, even the most heinous of criminals.

So what about Bowers’ sentence?

              A very reasonable position is that the death penalty should be used sparingly, only for the most horrific crimes when the identity of the perpetrator is not in doubt. That way we won’t be too vulnerable to bias in the justice system, and we strike a balance between the government seeming violent and vengeful on the one hand but also not indifferent to horrible atrocities committed against its citizens on the other. This is similar to the Talmudic view that the death penalty is on the books but only carried out once every decade or once every generation. So to say that we oppose the death penalty in general but Bowers is an exception certainly makes sense.

              However, we can also respect those who say that capital punishment should never be carried out, even in such an extreme case as Bowers’. This echoes the statement of Rabbi Tarfon and Rabbi Akiva who say that if they were on the court there would never be an execution.

              According to most news reports, survivors of the shooting, victims’ families, and the wider Pittsburg Jewish community hold a mixture of positions. Some believe that anything other than putting Bowers to death means a lack of justice. But others disagree. One of the congregations that was having services at Tree of Life at the time of the shooting said that not executing Bowers would honor the memory of one of their members, whom Bowers killed. They say that individual was steadfast in his blanket opposition to the death penalty and would not want to be the reason it is carried out. You can see news coverage of these divisions from CNN here.

              For now Bowers remains in prison. Due to additional required legal procedures and the current moratorium, his execution, if it happens, will be far in the future. Let’s hope debate about this issue does not detract from healing Pittsburg’s Jewish community, along with combating hate and gun violence. That should be our focus, not the specifics of what will be done to Robert Bowers.

Photo by Maria Oswalt on Unsplash

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