I wrote this piece in 2015, on the two-year anniversary of the Boston Marathon terror attacks, which, as you’ll see in the essay, struck very close to home. With Friday’s Supreme Court announcement reinstating Tsarnaev’s death sentence, I returned to it and I’m re-posting here. I think it still holds up, and I’d be glad to hear your responses.
April 19, 2015
As we approach the anniversary of the Boston Marathon terrorist attacks, I’m thinking back to where I was at that fateful time.
After watching the early runners go past our home earlier in the morning, we set about our errands for the day. Most important was buying a suit for my son, who was becoming Bar Mitzvah in two months’ time. That’s where we were—in the suit store—when word started to spread: “There was a bomb at the finish line.” Suddenly, the all the strangers in the store—customers and employees, adults and kids—were weirdly bound together as a community, straining to get details as they came through in real time, as happens once in a thankfully rare while when the world’s news are so powerful or so local that it makes everyone stop in their tracks.
The recent guilty verdict and the impending sentencing of Tsarnaev, as well as tomorrow’s Marathon, spark these memories and also prompt the question of whether this terrorist deserves the death penalty.
Opposition to capital punishment is one issue where consistent liberals sometimes waver. Despite the well-known facts that the death penalty is not an effective deterrent, and despite the fact that it costs the state exorbitant amounts of money, many people find they cannot harbor any mercy for perpetrators of the most vicious crimes. And anti-death penalty advocates simply must understand that and take those feelings into account.
I remember being a freshman in college during the Dukakis-Bush presidential debates in the fall of 1988, when the Bush camp was effectively painting Gov. Dukakis as a wimp. At one of the debates, Dukakis, an opponent of state executions, was asked how he would feel if it his wife had been raped and murdered. (Nice question.) Dukakis hemmed and hawed, and many pundits agreed that he lost the debate and showed he was out of touch with the American mainstream.
I remember even then, in my dorm room, jumping up and down and saying “Let me answer that question!” The answer should have been: Of course I’d want him dead! Of course, of course—a thousand times over! But: There’s a reason why in our judicial system, and any fair judicial system, the victims of crimes don’t get to determine the sentences of the convicted. That’s because victims naturally (and humanly) want more than justice; they want vengeance. And vengeance often runs counter to a society that strives to be marked by justice.
So where is Judaism on the death penalty? At first blush, the Torah seems to endorse capital punishment. There are many crimes—not just murder—in which the plain reading of the Torah calls for the criminal to be put to death. (The Shabbat violator is put to death. So are witches. And incorrigible children!) The Talmud, in tractate Sanhedrin, describes the four different methods of execution that the Torah endorses: stoning, burning, being slain by a sword, and strangling. (Never, it is important to point out, did ancient Israel employ crucifixion.)
However, if you really want to know what’s Jewish about a certain idea, you can’t just quote verses from the Torah. You have to look at the history of how that concept got interpreted and filtered in Jewish sources throughout the ages. The Torah, for instance, says that an incorrigible son must be put to death (Deuteronomy 21:18-21). The Talmud, however, wrings this notion dry. The law of the incorrigible son (ben sorer u’moreh) remains on the books; the Torah, after all, is G-d’s law, but its interpretation is given to human beings. And the Sages proceed to define the set of circumstances in which a person might fit the punishable category of “incorrigible” so tightly, so narrowly, that they can triumphantly declare that no such verdict “ever happened or ever will happen;” it is one of the laws that was simply given to us for the Mitzvah of studying it and learning from it (Sanhedrin 71a). They read the law out of existence!
In my understanding, they do the same thing with the death penalty. First, we must acknowledge that Talmudic law is religious, not civil, law—and thus, no Jewish religious court has executed anybody for anything in 2,000 years, since the days of sacrifices when the Temple stood (Sanhedrin 41a). Furthermore, there are many crimes, such as violating Shabbat, for which the Torah may ostensibly permit the death penalty, but the Rabbis forbid it—saying, if G-d wants to execute, let G-d be the one who sheds the blood! (There’s a great midrash in Pesikta d’Rav Kahana 11:19 where Rabbi Yehoshua ben Korcha tells his colleague, a would-be executioner, that rather than kill a killer, “You should flee to the end of the world and let the Owner of the garden come and weed out His Own thorns!”)
Most telling of all is a conversation that is recorded in the Mishna (Makkot 1:10):
A court that puts one person to death in 7 years is called a murderous one.
Rabbi Elazar ben Azariah says: Even once in 70 years!
Rabbi Tarfon and Rabbi Akiva say: If we had been in the Sanhedrin, no death sentence ever would have been passed! To which Rabban Shimon ben Gamliel objected, saying: If so, you would have multiplied the number of murderers in Israel.
A serious passage – it shows that even in the days of these sages (about 1900 years ago), the death penalty was controversial. These aren’t incidental; each of them, especially Rabbi Akiva, is a dominant figure in Jewish history. And Rabbi Akiva himself, that great sage and political revolutionary, found that a human court could never raise itself to the threshold that justifies putting a defendant to death.
There are many reasons to oppose the death penalty. I agree with those who say that eliminating state executions puts us on the side of civilization. The death penalty cheapens and coarsens our entire society, and puts us on the wrong side of history, in the company with the likes of Iran, Iraq, Somalia, and Syria. It is demonstrably racist and classist. And The Innocence Project has shown us, time and time again, that we get it wrong—and I concur that it is better to let 99 guilty men to go free than to kill one innocent man.
I suppose the most Jewishly authentic policy (Rabbi Akiva’s policy) might be: have the death penalty on the books, but never use it. But that ideal might be too subtle and nuanced for our times; instead, let’s do away with its archaic barbarism completely. Let Tsarnaev live—with all his infamy and disgrace.