‘Lay Not Thy Hand’: The Death Penalty Post-Pittsburgh
If We Are Complicit, How Can We Impose the Ultimate Punishment?
If We Are Complicit, How Can We Impose the Ultimate Punishment?
Federal authorities are seeking the death penalty for Robert Bowers, the shooter who assassinated 11 in a Pittsburgh synagogue Saturday. To many, this will seem right and just. “An eye for an eye,” they will say, citing Exodus, or point to Genesis — “A man who spills human blood, his own blood shall be spilled by man because God made man in His own Image.”
This argument is understandable. Emotions are raw, and the desire for retribution, that the state should even the score is only natural.
That doesn’t mean this emotional argument should win the day. I am an agnostic Jew, meaning I have serious doubts about both God and religion, but I am a Jew and I cannot but view the world through the lens of Judaism’s focus on justice and humanity, on the sense of becoming that all of us possess. “The essence” of humankind, writes Abraham Joshua Herschel in Man Is Not Alone: A Philosophy of Religion, “is not what he is, but in what he is able to be” (209).
What Bowers is charged with doing — and what Dylann Roof did and Gregory Bush is charged with doing — stretches the imagination. The kind of deep-seated hatred, fanned by the political flames of a new nationalist, proto-fascist movement that very much includes the president of the United States, strains the conscience. But, as Martin Buber said at the time of Adolph Eichmann’s sentencing in Israel for his crimes against humanity, “there is no possible punishment to fit (Eichmann’s) crime, where the imagination cannot envisage a suitable penalty.”
Jewish law on the death penalty apparently is inconclusive. My Jewish Learning writes that the question remains under debate. It points to a “famous Mishnah passage (that) states that a religious court that executed someone once in 70 years was considered destructive,” adding that the “gap between principle and practice is often cited as evidence that Judaism is deeply uncomfortable with capital punishment, so much so that the rabbis of the Talmud erected significant legal bulwarks to make it exceedingly rare.”
And yet, others take a different approach. My Jewish Learning reminds us there are many rabbis, including Maimonides, who “argue the Torah’s explicit judgment that certain crimes merit a sentence of death is irrefutable proof that capital punishment is consistent with Jewish tradition.”
Jewish public opinion, My Jewish Learning adds, has been trending away from support, though I hesitate to rely on opinion polls to make an ethical case.
I’m uncomfortable with simply relying on the Torah’s proscriptions — because they are outdated and contradictory, because they are the work of multiple authors sometimes working at cross purposes, and because their interpretation by later scholars raises questions about how we should balance these competing attitudes.
If, as many scholars point out, the Talmud as the key text, then the “forest of barriers to actually using the death penalty that in practical terms (made it) almost impossible to punish anyone by death” cannot be lightly dismissed. The focus, they say, was to be on “Judaism’s general respect for the sanctity of human life” and the “commandment ‘Thou shalt not kill,’” which the rabbis applied not only to individuals but the state.
This is consistent with the penalty imposed on Cain after he commits fratricide, striking his brother Abel dead. Rather than sentence Cain to death, God casts him out into the wilderness and forbids others from killing the killer. Even Cain’s life was valuable, even if only as a cautionary tale, even if that life was to be robbed of much meaning. (As I said, one probably could cite a number of other passages that imply otherwise.)
The Midrash Tanhuma, according to My Jewish Learning, takes this argument a step farther. “Cain,” it says, “is ultimately flawed, but human, and therefore his accusation becomes, in essence, the collective human voice, crying out to God to ask why evil is allowed in the world.”
God, therefore, is complicit, and his response when God asks of Abel’s whereabouts after Abel is struck dead by his brother — “Am I my brother’s keeper?” — was Cain’s way of reminding God “of God’s own role in the further downfall of humankind.”
If God is complicit, then, even God cannot impose the ultimate penalty, and instead chooses to cast Cain out.
This, I think, mirrors Buber’s opposition to capital punishment — even for someone like Adolph Eichmann. We are complicit, by allowing this underlying hatred and the systems that support it to exist.
Samir Chopra, a philosophy professor at Brooklyn College, writes that Buber viewed the death penalty as outside the province of men. He points to a response Buber made to Time magazine’s quoting of him quoting Rabbi Mendel of Kotsk — “What the Torah teaches us is this: none but God can command us to destroy a man” — that the “sequel to these words was even more significant: ‘And if the very smallest angel comes after the command has been given and cautions us: Lay not thy hand upon…, we should obey him.’”
Chopra links Buber’s stance to the rabbi’s “reading of the Scriptures” — and that “the Commandment, ‘Thou Shalt not Kill’ applied to the state just as much as it did to the individual.” This echoes Albert Camus’ opposition to the death penalty, which the French philosopher viewed as premeditated murder that ultimate endorsed violence. Chopra quotes Buber: “I do not accept the state’s right to take the life of any man,” and, “as far as it depends on us, we should not kill, neither as individuals nor as a society.”
That included Eichmann. Hannah Arendt, in Eichmann in Jerusalem, questions Buber’s stance, especially his pronouncement that an execution would “expiate the guilt felt by many young persons in Germany.” She questions this argument, asking how Buber did not see “how spurious these much publicized guilt feelings necessarily are,” while pointing out that the youth with whom he is concerned “are not staggering under the burden of the past” and are instead “trying to escape from the pressure of very present and actual problems into a cheap sentimentality” (251 in my older edition).
I’m not sure this is a fair to Buber. Arendt’s description of Germany in the early 1960s could apply to our own experience of history, to the way we constantly rewrite historical moments to fit them into our broad American narrative of freedom and opportunity. Slavery, Jim Crow, virulent anti-Semitism and nativism — all are subsumed in this broader narrative and erased, replaced with the myth of unblemished past greatness pushed not only by Donald Trump but politicians of both parties.
Bowers, in this narrative, is an exception. Roof is an exception. Bush is an exception. Their hatred and violence are unrepresentative, can be cured by elimination, by purging them from the body of the nation. We can then get on with the mission of love and unity. This is “cheap sentimentality,” to borrow from Arendt, a feel-good narrative that ignores the nation’s actual history, which is steeped in violence, hatred, and exclusion that remain central to our experience today.
Executing Bowers will do nothing to change this DNA; rather, it likely will do nothing more than further the false narrative that allows us to claim exceptionalism among other nations while maintaining the systems that enforce economic and racial inequality.