Living in the Death Penalty Capital

Sermon given May 7, 1999, by Rabbi Samuel M. Stahl

Let me, at the outset, pose the obvious question whenever the issue of the death penalty arises. If, God forbid, one of my daughters were murdered, would I want the murderer to be executed? My answer would be, “Yes, absolutely!” My initial response, I am certain, would be an urge to take revenge against the killer. It’s a normal human reaction. Yet, I do not think that I should act on that base desire, because I believe that the death penalty is wrong.

Last month, a national conference to organize the religious community against the death penalty was held in San Antonio. The reason that San Antonio was chosen is troubling. Last year, at the previous conference, the presiding officer asked delegates from around the country to name the states that they represented. When the representatives from Texas were identified, they were hissed and booed, because we Texans live in the death penalty capital of the nation. More criminals are executed here each year than in any other state of the Union. Following that incident, the Texas delegation invited those who were assembled at that gathering to Texas this year to bear witness in the state where the cry against the death penalty must be heard the loudest. That cry is being heard in many sectors throughout America.

Our American Jewish organizations generally oppose capital punishment. Both the Central Conference of American Rabbis and the Rabbinical Assembly of America, representing the Reform and the Conservative rabbinates, respectively, have issued strong condemnations against capital punishment. So has the Union of American Hebrew Congregations, parent body of almost 900 Reform congregations in the United States and Canada, whose president, Rabbi Eric Yoffie, will be our guest speaker next Friday. The Union has gone so far as to call capital punishment a “stain upon civilization and our religious conscience.” These Jewish religious bodies have solid Jewish precedents upon which to base their fierce opposition.

We must admit quite frankly that in the five books of Moses, the Torah prescribes the death penalty for thirty-six different offenses. Among them are rape, idol worship, and even flagrant disrespect of parents. Murder definitely was a capital crime in those days. The book of Exodus tells us that “He who fatally strikes a person shall be put to death,” (21:12) and the books of Genesis and Leviticus restate that view.

But, in reality, approximately ninety-five percent of the Judaism that we embrace and practice today is not explicitly found in the Bible. Modern Judaism is the product of what the Rabbis of later generations have said about the Bible. The Rabbis hedged the prescriptions for the death penalty in the Bible with so many conditions that it became almost impossible to execute anyone. In essence, the rabbis abolished capital punishment.

They invented some ingenuous legal maneuvers to avoid imposing the death penalty. They ruled that the testimony at the trial had to come from two eye witnesses at the crime scene. Both of these eye witnesses had to have warned the accused in advance that the punishment for the crime that he or she was about to commit was death. Also, the defendant had to have acknowledged explicitly that he or she understood the consequences of what he or she was about to perform.

Judges also had to operate under strict rules. They could change their verdict from a conviction to an acquittal but they were not allowed to do the reverse. Furthermore, the judge had to preside over a trial that took place during the day and a verdict of not guilty could be reached that same night. However, by contrast, a guilty verdict could not be issued or finally reached until the next day, to prevent any rash judgments that might cause the defendant to be put to death.

Thus, because of their reverence for life and their revulsion at the death penalty, the Rabbis who interpreted the Bible found ways to make capital punishment nearly null and void. In fact, the Rabbis observed that a Sanhedrin that causes one execution in seven years is branded as murderous. Rabbi Eleazar ben Azaria said, “Once in seventy years.” Rabbi Tarfon and Rabbi Akiva went even further to assert that, were they members of a Sanhedrin, no one would ever be put to death. At this point, Rabbi Shimon ben Gamliel commented that if Rabbis Tarfon and Akiva’s will were carried out, murders in Israel would multiply.

Rabbi Shimon ben Gamliel, like so many proponents of the death penalty today, believed that capital punishment is a deterrent to murder. Such a position is indefensible. I have seen no proof that our murder rate in Texas has significantly declined since the death penalty was introduced here. In fact, in England, during the Middle Ages, pickpockets were executed in a public hanging. Large crowds, in their thirst for revenge, would gather to watch this spectacle in the courtyards. Yet, these spectators were the favorite targets for pickpockets, who were not deterred by the hanging to do their stealing.

Most murderers do not even consider the consequences of their acts. The majority of murders are committed impulsively. The assailants rarely ponder the possibility that their crime may lead to the death penalty. During an overheated argument, a lover may kill his friend, or an armed robber, entering a store or bank, may murder a clerk because of panic.

There are other flaws in the argument for the death penalty. It is unfair in its application. Someone wisely observed that capital punishment means that those without capital get the punishment. The chief victims of the death penalty generally come from the poor minority communities. Rich and influential Caucasians can obtain good defense attorneys and avoid it. Significantly more blacks than whites are executed for the same crimes. A killer of a white victim is much more likely to be sentenced to death than the killer of a black victim. Thus, the death penalty stands as a sign of our prejudice against certain racial and economic groups.

Some argue that the death penalty is economically more efficient. Why pay to keep murderers alive in prison for life when those costs can be saved by executing them? Actually, the death penalty is more, not less, expensive than life imprisonment. Capital trials take much longer when the death penalty is involved. The appeals process is more complicated. Security on death row is very costly. Thus, capital punishment is not fiscally wise.

One of the more serious problems with the death penalty is that it brutalizes those who clamor for it. It feeds on our desire for revenge. Actually, capital punishment fuels our climate of violence. It does not reduce or heal our hostilities. It enables us to give vent to our aggressions and poisons our society.

Even more serious is the fact that the death penalty is irrevocable and irreversible. Once the judgment made to execute a criminal is carried out, nothing can correct the mistake. Sometimes, innocent people are put to death by the state.

At this point, we must ask ourselves: What is our ultimate objective: to end crime or to get rid of criminals? I believe our task is to cleanse the world of crime, not the people who commit it. In fact, some murderers, like Nathan Leopold, can be eventually rehabilitated and become productive citizens. Leopold was the son of a millionaire box manufacturer in Chicago. Together with his lover, Richard Loeb, he decided to commit the perfect crime by murdering Bobby Franks in 1924. Leopold, Loeb, and Franks all came from prominent German Jewish families on Chicago’s South Side.

Because he was defended by Clarence Darrow, Leopold escaped the death penalty and was sentenced to life imprisonment, even though many wanted him hanged. After his conviction, Leopold became a remorseful prisoner. While incarcerated, he mastered twenty-eight languages. He taught other prisoners. He volunteered for malaria testing. He reformed the Joliet prison’s library and educational system and worked in the prison hospital.After his parole from prison in 1958, he went to Puerto Rico, where he studied birds, taught mathematics at the University of Puerto Rico, and worked as an X-ray technician in a hospital operated by the Church of the Brethren. As one commentator writes about the positive outcome of the life of Nathan Leopold, who was spared the death penalty: “One cannot read the story of Nathan Leopold’s life without a mixture of sadness for his great tragedy, caused as it was by an uncommon young love and admiration, for fifty years worth of effort devoted to expiation for his crime. Neither can one know the story of Nathan Leopold and still believe that the public, in its loud demands for (his) hanging in 1924, had God on their side.”

I do not believe that those who demand the death penalty have God on their side. I do believe, however, that those Rabbis of our tradition, who legally undermined the death penalty, took a position closer to the authentic will of God. Amen.

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