Jewish vs. U.S. law: When is the death penalty just

In late June, the death penalty became a lot more real for many of us. After more than five years of investigation into the 1994 murder of Carol Neulander, prosecutors in Camden County, N.J., formally charged Rabbi Fred J. Neulander with capital murder, presumed to be the first U.S. rabbi who will ever be tried for murder. If convicted of hiring two men to kill his wife, the former spiritual leader of a large Cherry Hill, N.J., congregation could face the death penalty.

The Neulander case can only give more attention to the debate over the morality of the death penalty. But whatever fate awaits Neulander — who, we must remind ourselves, has not yet been convicted of anything and is entitled to a presumption of innocence — arguments over the way capital punishment has been implemented have vaulted to the top of the national agenda. Much-publicized studies about the high rate of death-penalty sentences overturned and the use of DNA testing to exonerate those already found guilty have raised doubts about whether our courts can inflict death with the certainty our consciences require.

Earlier this year, Gov. George Ryan of Illinois, a death-penalty supporter, ordered a moratorium on carrying out the death penalty in that state. He did so because of the large number of cases where incompetence and errors in the Chicago justice system had resulted in capital convictions that were later reversed. Ryan's decision has lent momentum to a movement for a nationwide death-penalty moratorium, a stance supported by many national Jewish organizations that already opposed the death penalty.

As for the Jewish community's response to this question, it must be admitted that many of us are in conflict. Our religious tradition takes the point of view that the death penalty is a legal punishment, but it can only be carried out under highly restricted circumstances. To qualify as a capital crime, murder must be premeditated, and there must be two witnesses or the equivalent, in order to inflict death. Halachic law is structured so as to make such sentences extremely rare, and the standards that the talmudic Sanhedrin would have required for conviction of capital crimes is often lacking in American courts.

But if the death penalty is to survive the assaults it has been subjected to this year, mistakes such as those highlighted by Ryan cannot be tolerated. Corrupt courts, such as those that supposedly predominate in Chicago, undermine faith in any sentence, let alone a sentence of death. States where poor criminal defendants do not have access to competent legal defenders, as many have alleged is the case in death-penalty-crazy Texas, similarly have less credibility when they claim — as George W. Bush has done — that no innocent persons are ever executed.

But nor do I accept the Mumia Abu-Jamal thesis, given credence by many liberals, that the criminal-justice system is hopelessly racist. Where there is any reasonable — as opposed to ideological — doubt about the way justice is carried out in the United States, then we dare not take a chance of executing an innocent person. Sir William Blackstone's axiom in "Commentaries," the 18th-century legal classic, suggests that "it is better that 10 guilty persons escape than one innocent person suffer," and this view remains compelling.

Yet, the bottom line to this discussion doesn't really revolve around reasonable doubt or DNA. Indeed, advanced scientific evidence makes it more likely, not less, that we can be sure many death sentences are not errors. What this debate is really about is whether or not we think it is right, or just, for the state to take the life of a person convicted of murder. Many of us simply believe it is immoral for the state to take a life, even the life of person who has carried out a depraved and premeditated murder. I respect that point of view, but I cannot share it.

In contrast to those who believe the death penalty undermines our respect for life, it must be pointed out that a society that prevents itself from adequately punishing murder is not a just one. No crime is a greater threat to the fabric of society than murder. We must respect the lives of the victims, not just the murderers. Ours is a country where 500,000 murders were committed between 1973 and 1997. In that time, only 432 murderers were put to death, and then only after long, drawn-out appeals. That is not a statistic that shows America to be a nation where indiscriminate executions take place.

Whether it is a deterrent to murder or not, I would assert that our tradition informs us that there are instances when no penalty other than death is appropriate. Those who honestly believe that Jewish tradition and morality compel them to oppose the death penalty under all circumstances need to answer a few questions honestly.

Would you still oppose the death penalty if a loved one were raped and murdered? How sanguine would you be about life imprisonment as opposed to death if your loved one were killed by a released killer? Are you prepared to be a future victim of one of those 10 guilty persons whom Blackstone would have us set free? Do you believe war criminals who heartlessly murder thousands do not deserve death? Are you prepared to say Adolf Eichmann should not have been hanged by Israel?

If murderers of thousands or millions deserve death, why is a person who wantonly takes a single life — a murder, which our tradition teaches us is the same as the death of thousands — more worthy of mercy than a mass killer? In the end, the death-penalty question must be resolved by our sense of justice. If we are not prepared to inflict it — under even the most stringent system of laws and checks against errors — then I wonder whether we truly have such a sense at all.

Jonathan S. Tobin portrait
Jonathan S. Tobin

Jonathan S. Tobin is opinion editor of JNS.org and a contributing writer at National Review.