Rethinking the death penalty

How does the Torah view the ultimate punishment?

Ray Jefferson Cromartie is set to be executed in my home state of Georgia in just under three days as of the writing of this article. He’s the next man up in America’s prolonged history of judicial application of capital punishment. Ray Cromartie continues to proclaim his innocence in the 1994 killing of Richard Slyz, a 50-year-old store clerk who was shot in the process of a robbery which Cromartie admits to participating in. Yet, according to Cromartie’s telling, it was his co-defendant, Corey Clark, who ultimately pulled the trigger of the gun that killed Mr. Slyz.
Cromartie’s requests for the state to re-examine key pieces of evidence using modern DNA testing have since been rejected, something the deceased victim’s daughter finds unconscionable. “My father’s death was senseless,” Elizabeth Legettte writes in a letter. “Executing another man would also be senseless, especially if he may not have shot my father.” By the time this article is published, Cromartie will likely have been put to death by lethal injection.
“To err is human,” wrote the English poet Alexander Pope. And so it is that even the finest of human court systems will, at least on occasion, condemn the innocent and exonerate the guilty. Such is the burden of maintaining law and order. But how much erring is simply too much for society to accept? This is a question of the utmost poignancy when considering the death penalty, a punitive measure with irreversable consequences.
According to the National Academy of Sciences, at least 4.1% of those languishing on death row are innocent. Is that a number we simply cannot accept? Or, do the purported societal macro-benefits of carrying the death penalty on the books outweigh the heavy costs that these innocents are to bear?
If that were not enough to provoke renewed discussion on the continued application of the death penalty, the problems with America’s utilization of the death penalty run much much deeper. According to the Equal Justice Initiative’s website, “Prominent researchers have documented a pattern of discrimination in the application of the death penalty based on the race of the victim, race of the defendant, or both, in nearly every state that uses capital punishment.”
Then there is the issue of the role that poverty plays. Again the Equal Justice Initiative: “Whether a defendant will be sentenced to death typically depends more on the quality of his legal team than any other factor,” and the poor receive court-appointed lawyers who are typically overworked, underpaid and often ill-equipped to argue cases of such magnitude. As Anthony Ray Hinton, an innocent man who sat on death row for almost three decades, describes it, “It’s called capital punishment because if you don’t have the capital you get the punishment.” Add to this the approximately 10% of “death rowers” with documented cases of mental illness (something which calls into question the apropriateness of handing out the death penalty), and the seemingly arbitrary nature of when the death penalty is applied, and you have a veritable cocktail of systematic judicial disfunction.
Almost all western democracies have abondoned the death penalty, with the Council of Europe going so far as making the abolition of the death penalty a prerequisite for membership. What’s of particular interest to me, though, is their particular rationale in abandoning this ancient method of retributive justice. According to an official website for the European Union, the death penalty should be abolished for, among other things, being “inhumane, degrading and unnecessary.” Similar abolitionists, like the American Civil Liberties Union, argue that “Opposing the death penalty does not indicate a lack of sympathy for murder victims. On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral.”
In this regard, the Torah unequivocally diverges in thought.
Regardles of the frequency of its application, the punishment of the death penalty for murder was one of the very first God-given commands to mankind: “Whoever sheds the blood of man through man shall his blood be shed, for in the image of God He made man” (Beresheet 9:6). When we dissect the verse, we see that the very rationale for the application of the death penalty for murder is precisely due to man’s special place in creation, a being created in the image of God! It is the very sanctity of man and of human life itself that warrants the meting out of such a harsh punishment. For it is the punishment which alerts man to the severity of any given action, and insofar as murder is concerned, any underpunishment of the crime only serves to diminish the heinousnous of the crime and to cheapen the dignity of man and life itself. According to the Torah, it is indeed the absence of the death penalty in societal penal codes that is, to quote the European Union’s terminology, “inhumane” and “degrading.”
In Part II of this article we will examine how often the death penalty was actually applied during Jewish judicial history and ask how the Torah might advise a modern country in its potential formation and application of the death penalty.

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