Why I Find the Death Penalty Problematic

I live in Tennessee. After quite a long hiatus Tennessee has started executing people on Death Row. I’m not opposed to the death penalty, but I am opposed to implementing the death penalty. In this I am very Jewish.

Judaism rests on a two-fold revelation both given to Moses on Mount Sinai: the Written Torah (The Pentateuch) and the Oral Torah (the Talmud). The latter contains many laws and teachings not found in the Written Torah as well as nuanced ways of understanding what is found in the Written Torah.

In the Written Torah lots of “sins” carry the death penalty including murder, idolatry, violating the Sabbath, anal sex between men (though anal sex between men and women is permitted—ya gotta love the Bible), and seriously pissing off your parents (see Deuteronomy 18:21 if you doubt me). With the exception of the latter, I find the death penalty very problematic. I’m not alone.

The Talmud says any court that executes even one person in seven years is considered murderous and out of control. Rabbi Eliezer ben Azariah said the number should be one in seventy years not seven. Rabbis Tarfon and Akiva said that if they were on a court no one would be executed, though Rabban Shimon ben Gamaliel, the president of the court, muttered in response: “Then Tarfon and Akiva would allow murderers to multiply in the land” (Mishna, Makkot 1:10).

This isn’t just ancient history. Rabbi Jonathan Perlman and a number of his congregants at the Tree of Life synagogue in Pittsburgh sided with Rabbis Tarfon and Akiva in opposing the death penalty for the white supremacist who murdered eleven Shabbat worshippers there last October.

My own take is this: I think there are certain crimes that so violate the values of the United States that nothing less than the death penalty does them justice. I’m thinking of things like mass murder rather than anal sex, adolescent snark, or violating the emoluments clause of the U.S. Constitution. But seeking the death penalty and securing the death penalty should not obligate us to implement the death penalty. Yes, sentence mass murderers to death, but then reduce their sentence to life in prison without parole. This I believe would satisfy our need to affirm that there are some behaviors so heinous as to be beyond the pale of civilization, and yet allow us to affirm our moral superiority by sparing the life of even the most wicked among us.

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