Thou shall not kill

There is a fascinating debate about capital punishment in the Mishna [Makkot 1:10]. Rabbi Azariah says that a Sanhedrin [a Court] that executes once in seventy years should be called bloodthirsty. Two learned and pious Rabbis (Akiba and Tarfon) point out that, had they been members of the Sanhedrin, none would ever be put to death — not even one in seventy years. But then Rabban Shimon ben Gamliel says -and perhaps concludes the debate- that the leniency of his colleagues would have “created more murderers”.

This Rabban Shimon ben Gamliel is the same saying we read in Pirkei Avot 1:18: “Civilisation is preserved by three things, truth, justice and peace”. Which seems lovely (and it is). But if you put it together with the saying against leniency, you have to conclude that the death penalty was a legitimate tool to keep “justice and peace”, for Rabban Shimon ben Gamliel. The same reasoning has often been upheld in support of the death penalty: examples must be set to warn against committing homicides.

In principle, Jewish Law does not oppose the death penalty. Nine times -in Deuteronomy- the Torah warns, “You shall uproot the evil in your midst”. The Rabbis explain that “uproot evil” means “to uproot the evil-doer”. They endorse capital punishment.

But the Jewish legal tradition has also put several conditions around this endorsement. There is almost a ban on circumstantial evidence that may lead to capital punishment. Suppose you see someone armed with a knife chasing a person into a cave. And later, you see that person standing above the other man’s corpse, holding a blood-stained knife… even then, we cannot condemn the death penalty because no one has seen the actual killing. [TB Sanhedrin 37b]. No conjecture is allowed when you are dealing with the death penalty!

Another concern of the Rabbis and the commentators is equality; several times Rambam and others warn against the arbitrary decision and state that “the Law of the King must apply to all the people, and not be aimed to a single individual alone” [Mishne Torah, Gezelah va’Avedah, 5:14]

Is today the case? Let’s see how things go in the USA. Afro-Americans are less than 15% of the USA population, yet more than 40% of those on death row are Black. Also, those who murder whites are more likely to be sentenced to death than those who murder Blacks or members of other minorities. These data do not exactly scream equality in the American system. Tell it to those idiots who believe that the “Jews run America”. The American judicial system is clearly not equal or Jewish.

And then there is the argument we have seen n the Rabbinic discussion against leniency. The effectiveness. A court that is too lenient -they say- a that does not punish murderers with death is guilty of increasing the number of murderers. We have heard this argument many times; as I said, it was Rabban Shimon ben Gamliell’s reasoning.

But is it true? What is the most effective deterrent? The death penalty or the perspective of decades in prison? There is no agreement among social scientists, criminologists, sociologists and the like on this topic. That is because human behaviour is not predictable.

Rabban Shimon ben Gamliel was undoubtedly very wise, but we cannot test his theories about deterrence. We must stick to the Biblical belief that murder is an offence not only to the victims and their families but also to God. Because every human being is created Betzelem Elohim in the image of God, deserving the same dignity and respect we owe to God.

This is true for all the victims of homicide and for all those who have been murdered and killed. But it is valid for the murderer too. The murderer, also, has been created in the image of God. The murderer, also, is a human being -as difficult and repulsive as we can find this idea.

In this moment, none of us, I am sure, is happy to entertain the idea that the antisemite criminal who, in October 2018, murdered eleven people in Pittsburgh, Pennsylvania, is a human being created in the image of God. How can be an image of God a criminal who, on a Saturday morning, heads to a place where there are Jews to kill most possible because we host refugees, which is a crime in his perverted mind (perverted, one must say, by exposure to social media)?

Last week, the criminal was sentenced to death at the end of the trial. And now the public opinion is very divided.

The anger and the fury are understandable. The Pittsburgh antisemitic attack will be remembered for its cruelty. Because it marks the end of a dream upon which American Jewry has built the image and self-confidence we are familiar with. The idea that antisemitism in the Golden Medyne is not a severe problem, as it is elsewhere — Continental Europe, especially.

The American ideal of society is a melting pot of different religions, ethnicities, and identities, all deserving equality and safety, all treated equally, so that we Jews could live safe as ever before n the previous 2000 years. It’s increasingly hard to share such faith in the American model, and after the Pittsburgh shooting, perhaps impossible. We, Reform Jews in America, are the majority. We share faith in such an ideal: and maybe we have not reflected enough on the Pittsburgh shooting. But that’s for another sermon.

We must react to the Pittsburgh shooting with the inherited wisdom of our Tradition, law, and values — as much as I don’t like the word. Although Jewish law admits the death penalty, it places severe conditions and restrictions around it. We have to ask what are the chances that the execution of an antisemite criminal can persuade other followers of the same perversion to change their minds. And the answer is: we don’t know.

There is, instead, the chance that these people will look at that criminal as their hero and make themselves available for other crimes, attacks, and murders. While if he spends the rest of his life in prison, he will probably be forgotten or become a pathetic caricature, like Charlie Manson, shouting for decades that the end was near. And the end never came.

I am not an American citizen. I love the American ideals of freedom (which every Friday night makes me the target of the fury of my revolutionary elder son). I am not even a member of the Pittsburgh synagogue, and I have lost no friend or relative in that tragedy. But I am a Rabbi, and my job is to make the Jewish tradition relevant; for this reason, looking at Jewish texts and tradition, I say out loud that the death penalty is wrong and ineffective.

Even the life of an antisemite murderer must be spared. His death won’t bring back anyone. His life in prison may work as a teaching. He is a murderer. We should not be like him. Because we are Jews.

[Support Hands Off Cain, the alliance against the death penalty, affiliated to the Transnational Radical Party]