There are some hot-button issues that can destroy friendships — abortion, gun control, immigration, to name just a toxic few.
There are other issues that are just as important, just as emotional, and that seesaw just as precariously on the knife edge dividing justice and mercy, but for some reason allow people to discuss and disagree without thinking that people on the other side are inhuman brutes.
For some hard-to-pinpoint reason, the death penalty seems to be in that second category. Reasonable people can disagree civilly — and in fact reasonable people at times break with the consistency of their own political positions as they take their own stands.
On May 9, Rabbi Joseph Prouser’s Moral Literacy series will tackle the question of the death penalty, asking such questions as who is bad enough to deserve it, who is good enough to impose it, and what does Jewish law and tradition say about it.
Rabbi Prouser, who heads the Conservative Temple Emanuel of North Jersey in Franklin Lakes, is a registered Republican and describes himself as “pretty conservative. But I really break with conservative thinking on this issue. I am absolutely opposed to capital punishment.”
It is not a live issue in New Jersey, he conceded. Capital punishment has not been legal here on the state level since 2007, although it still is possible in federal cases. No one has been executed in New Jersey since 1963. But it is both legal and not infrequent in other parts of the country.
And, of course, “this debate is an area that shows that Jewish tradition has an important voice to contribute to the moral discussion,” he said. “Jewish tradition has evolved in a way that should be heard by everyone. We have an important perspective to share with other Americans in this debate, but it’s not being heard, because Jews instinctively keep these debates internal, so it becomes just a Jewish debate.
“We are reluctant to have a public voice on the big questions, although we have well developed and evolved things to say. Our voice generally isn’t heard by the American public because we don’t raise it. Jewish morality has been an internal Jewish issue, and we haven’t felt authorized to impose our perspective on the broader public.”
His own view, which “I have held my entire adult life, has been shaped by Jewish sacred texts and Jewish tradition,” he said. “The Torah certainly prescribes capital punishment for all sorts of things, from Sabbath violations to high crimes, but the rabbis so dramatically limited our ability to impose capital punishment that they rendered it virtually nonexistent.” Citing the talmudic idea that a Sanhedrin — the Jewish court of that period — that oversaw one execution in seven years (or others say, in 70 years) was a “bloody Sanhedrin,” “the rabbis understood that the kind of perfect moral perspective that is required to take human life is not accessible to us,” Rabbi Prouser said. “It is ideologically presumptuous to take human life when there are other options available. Doing so in the heat of combat is different, and even targeted assassinations of people plotting a terrorist attack is different, but when you have someone who already is imprisoned, you have options. There is no immediate compelling moral need to take their lives.”
Then, he added, there always is the chance that when you sentence someone to death, you’ll get it wrong. “Israel has sentenced two criminals to death,” he said. One was Adolf Eichmann, the absolutely and horrifically guilty Nazi mass murderer whom Israel tried and executed in 1962. The other was John Demjanjuk, nicknamed Ivan the Terrible, who was convicted of being a Nazi guard and mass murderer at Treblinka. But the Israeli Supreme Court overturned the lower court’s verdict, saying that there wasn’t enough evidence proving Demjanjuk was Ivan. He was released. “So even Israel got it wrong 50 percent of the time,” Rabbi Prouser said. “And I’m not sure that Texas” — which executes more prisoners than any other state — “uses the same methods in correcting misguided decisions.
“I say this while acknowledging that some crimes are terrible, and I have no problem with locking people away for life. I’m not sure that’s more merciful than capital punishment. I just think it’s more defensible because it’s reversible. It’s an expression of theological humility. We can’t be sure we’re right.”
Rabbi Prouser’s panel is still being formed, but the three speakers he’s gathered so far have interesting takes on the subject.
Rabbi Jeremy Kalmanofsky of Congregation Ansche Chesed on Manhattan’s Upper West Side is a member of the Conservative movement’s Committee on Jewish Law and Standards. In 2013, he wrote a teshuva — a response to a question about halacha, or Jewish law — on capital punishment. The question was about whether it is halachically acceptable for a Jew to participate in the American legal system in a capital case, whether as a prosecutor, a judge, a juror, or a witness.
The short answer is yes.
Although “the United States is the only country in the world with a significant Jewish population that has the death penalty” — leaving aside Israel’s special circumstances — “the question is not if we’d prefer that it not be there, but if the policies are so bad that you have to resist them and refuse to cooperate.”
Because of the directive that unless there is a compelling reason to disagree with it, “dina d’malkhuta dina” — the law of the land is the law of the land, and because “every state has to create order, and that always involved criminal justice, there is no prima facie reason to refuse to participate in this.
“This is a contested question, and in democracies the people get to decide contested questions,” Rabbi Kalmanofsky said. “It’s a bad policy, and they should change it, and there are all sorts of reasons why it should be changed — not the least of them is the not inconsiderable number of false convictions — but it would not be correct to say that the canons of Jewish law mandate not cooperating with the state on it.”
Rabbi Simon Rosenbach, who heads Congregation Ahavas Sholom in Newark, also is a lawyer and a former assistant prosecutor in Middlesex County.
New Jersey’s death penalty was struck down in 1972 and revived in 1982, the result of political machinations (and the source of many good stories best told elsewhere).
In 1982, Rabbi Rosenbach, who was (and is) against the death penalty, found himself arguing for it in court, in charge of death penalty litigation, motions, and appeals. “This was a new adventure,” he said. “The defense attorneys made every challenge that had already been rejected in the U.S. Supreme Court because maybe it would be accepted by New Jersey courts.”
There was “a very narrowing set of factual surrounding circumstances” that kept all but the most egregious criminals from being eligible for the death penalty, Rabbi Rosenbach said. “If you killed a law enforcement officer, or if you kill for hire, or if you hire someone as a killer. If you killed someone in a barroom brawl, you probably weren’t getting the death penalty, but if you hired someone to kill your wife, or if you were the hired killer, you would be eligible.”
Next, in the penalty phase, aggravating factors would have to outweigh mitigating factors for capital punishment to be imposed. And of course all this took time. By 2007, when capital punishment again was stopped, no one had been executed in New Jersey. (Or at least “not by the criminal justice system,” Rabbi Rosenbach said. “Maybe by fellow inmates in jail.”)
Although Rabbi Rosenbach was opposed to the death penalty, “I thought it was not something that reasonable minds could not differ about. It is an individual person’s moral judgment, but it doesn’t mean that society as a whole is morally bankrupt for executing it.”
Like Rabbi Prouser and Rabbi Kalmanofsky, Rabbi Rosenbach talked about the real possibility of mistakes, and the irrevocability of the punishment. Although it wasn’t true in New Jersey, where a full web of safeguards were in place, that’s not so true in other parts of the country, where many people are executed, some of them wrongly. “A lot of institutions, like the Innocence Project, show us that we make mistakes a whole lot of times,” he said.
Moreover, “it’s against Jewish law to commit suicide, even in the case of terminal illness, because it’s not your body. You might inhabit the body, but it’s not yours. It’s God’s. So who are we to execute someone? It’s not his body. It’s God’s.”
Plus, he said, it is expensive to prosecute capital cases. On the other hand, “It’s crass and immoral” to argue that we should execute people because it’s cheaper than keeping them alive, he said.
David Feldman, an Essex County assistant prosecutor, defines himself as Rabbi Prouser’s mirror image. “I tend to be pretty liberal on most issues,” he said. “But having spent as much time in the court system as I have, I know that there are some people who are not redeemable, and some acts that are so heinous, that to me there is a place for capital punishment.
“Everyone has to come to terms with their own moral compass,” he added.
Yes, mistakes happen, he said, but despite what we hear, they are rare. The thought of “putting an innocent person in jail keeps me up at night.
“The second I get wind that I might have the wrong person, I do everything possible, I explore every avenue, to find out the truth.”
That’s a position that the prosecutors he knows share, he added. “Our motto is to do justice. To seek justice. It is not to get convictions. It is to protect the community. We have to get both those things right.
“And if we convict someone who did not do the offense, we are not getting the person who did do it.” These, he said, are strong safeguards against mistakes, although, he added, he knows that some mistakes are inevitable, and that is a terrible truth. “There is nothing you can say to a person who has lost someone wrongly to the death penalty,” he added.
“I am sure that there are people who would find my position morally repugnant,” Mr. Feldman said. “It is a deeply personal, deeply emotional topic, and there is no one right answer to it.”