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Should the Tree of Life shooter get the death penalty?

A new podcast: Should murderers be executed? For the Jews of Pittsburgh, the question is personal.

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It was the fifteen worst minutes in American Jewish history.

It happened on October 27, 2018. It was a Shabbat morning. A gunman, Robert Bowers, entered the Tree of Life -Or L’Simcha Congregation in Pittsburgh, Pennsylvania — in the heart of the historically Jewish Squirrel Hill neighborhood. Bowers opened fire on the worshipers, and by the time his attack was over, eleven worshipers were killed, and six were wounded.

Over the years, I have spent much time in Pittsburgh, teaching and lecturing. I have what I can only call an urban crush on the city. That is especially true of Squirrel Hill, which is one of the last true “shtetls” in America, a village that was the model for Fred Rogers’ “neighborhood of make believe,” a place where everyone knew and cared for each other, and a place where Jews came, settled, and mostly stayed, no matter what their level of affluence.

Prior to that Shabbat morning service, by my own calculation — there had been eight fatalities due to antisemitic violence in American history.

The shooting in Pittsburgh almost doubled that number.

Other acts of violence — the shooting at Chabad in Poway, California; the shooting at the kosher grocery store in Jersey City, New Jersey; the machete murder of the rabbi in Monsey, New York to follow.

The Tree of Life shooting was a trauma in American Jewish history. As jury selection continues for the trial of Robert Bowers, the scab has been torn off that wound, and the Jews of Pittsburgh experience that trauma anew.

The big question: If found guilty, should Bowers get the death penalty?

That is the subject of this podcast with Marshall Dayan — attorney, law professor, and an activist against capital punishment.

Marshall has been actively involved in the anti-death penalty movement since 1981, and has represented those charged with or convicted of capital crimes since 1986.

He has served as Chair of the Board of the National Coalition to Abolish the Death Penalty; as President of the North Carolina-based People of Faith Against the Death Penalty, and as Vice Chair of the Commission on Social Action for Reform Judaism.

I have spent many years struggling with the issue of capital punishment, and you will hear that struggle in the conversation.

Biblical Judaism was fairly positive about capital punishment. That was because those laws were written at a time when the ancient Israelites had sovereignty.

But, in rabbinic times, the attitude towards capital punishment shifted — largely because the Romans were now in power, and the Jews were their hapless victims. Think: Jesus of Nazareth on the cross; “the ten martyrs of the Roman kingdom,” whose tragic stories will tell and lift up on the afternoon of Yom Kippur.

How ambivalent were the sages? Consider this classic text from the Mishnah, in the tractate Makkot, which is all about capital punishment:

A Sanhedrin that would execute somebody once in seven years would be considered destructive.

Rabbi Elazar Ben Azariah says: “Once in seventy years.”

Rabbi Tarfon and Rabbi Akiva said: “If we were on the Sanhedrin, nobody would have ever been executed.”

Rabban Shim’on Ben Gamliel said: “They too would have increased violence in Israel.”

A Sanhedrin (Jewish court) should (almost) never execute someone.

In fact, the state of Israel has lived that text. The State has only executed one person — in seventy plus five years! — and that was Adolph Eichmann, the architect of the Final Solution. (And even then, there were Jewish intellectuals, including Martin Buber, who protested the death sentence).

Or, this one — even more famous — from Mishnah, Sanhedrin. It reminds us that a capital case is very different from a civil case, because if a mistake is made in a civil case, then you can simply give the money back. With a capital case … no.

Know that capital cases are not like monetary ones. In monetary cases, (a false witness) can return the money and achieve atonement. But in capital cases, his blood and the blood of all his future offspring hang upon you until the end of time. For thus we find in regard to Cain, who killed his brother, “The bloods of your brother scream out!” – the verse does not say blood of your brother, but bloods of your brother, because it was his blood and also the blood of his future offspring (screaming out)! [Another explanation of the verse: for his blood was splattered over the trees and rocks (i.e. there was more than one pool of blood).] 

It was for this reason that man was first created as one person (viz. Adam), to teach you that anyone who destroys a life is considered by Scripture to have destroyed an entire world; any any who saves a life is as if he saved an entire world.”

No doubt, you have heard that last part — about the utter sanctity of human life.

But. you probably didn’t know that it comes from a context in which the text is telling us that the life of an accused murderer is also precious.

It’s all about the possibility that the court would convict an innocent person, and sentence that person to death. And, in fact, as Marshall will tell us, there have been a shockingly large number of such cases.

But, what about this case — where there is no doubt that Robert Bowers really pulled the trigger?

A hate crime?

One of the worst mass killings in a hate crime in American history?

On a visceral level, even if you think that the death penalty should be extremely rare, isn’t this precisely the kind of case that screams out for it?

Listen to the podcast. You might change your mind.

As for me, I am still struggling — and that is what these conversations are all about.

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