Executing Robert Bowers
A New Reflection On An Old Reflection
With my nearly unequivocal opposition to the death penalty in America, I would likely not have even been eligible to sit on a jury like the one that just voted to sentence Robert Bowers to death for killing 11 worshippers at Tree of Life congregation in Pittsburgh.
I can’t begin to imagine the burden on those jurors - what a terrible choice to have to make and live with.
Despite my own views on the death penalty in general, I can understand why and how they came to their verdict. The NYT also reported that the families of the victims were, themselves, divided as to whether the government should seek the death penalty for Bowers, who claimed schizophrenia, and that he had carried out the shooting “under mental or emotional disturbance.”
I found this snippet poignant:
Jean Clickner and her husband, Jon Pushinksy, kissed as they exited the courthouse following the verdict. The couple are members of the Dor Hadash congregation, one of three that was attacked inside the Tree of Life synagogue. Clickner, a lawyer, said the trial had helped her come to terms with the attack. “You can process it when you have more information,” she said.
Clickner also said that she was against the death penalty in general but did not fault jurors for unanimously voting to sentence Bowers to death. “It’s a very personal decision, so it is what it is, and I am glad to have this part over with,” she said.
It made me think of the trial of Dylann Roof, who was sentenced first to death, and then to life without the possibility of parole for murdering nine people at Emanuel African Methodist Episcopal Church in 2015. At that time, the families of the victims were clearer in their opposition to the death penalty, but prosecutors sought it on the urging of then-governor, now-presidential hopeful Nikki Haley. (Here is a moving article about the two congregations grappling with their respective faith traditions on forgiveness.)
I wrote the following op-ed at that time for The Forward.
Executing Dylann Roof Is Behind The Times - And The Talmud
The jury decision to execute Dylann Roof for the racially motivated shooting of nine unarmed people in a historically black Charleston church may create problems for the state of South Carolina. As recently as last year, SC DOC Director Bryan Stirling did not have the means to prepare a lethal injection cocktail, pending a review of midazolam, a sedative that was the subject of a contentious 2016 Supreme Court case following its role in several painful and prolonged executions. That case, which closely mirrored an 1800 year-old Talmudic discussion, provides an interesting perspective on whether justice would be served by Roof’s execution at all.
In Glossip v. Gross, the petitioners claimed that midazolam, even if properly administered, does not reliably cause unconsciousness before the drugs that actually cause death are injected. In several cases, prisoners regained consciousness during executions and appeared to choke, writhe, and exhibit great pain for extended periods of time, violating the Eighth Amendment's protection against cruel and unusual punishment. In his majority opinion, though, Justice Alito noted that midazolam is currently the only drug available to states wishing to execute prisoners by lethal injection. For Justice Alito the lack of alternative was critical, as he wrote, “because capital punishment is constitutional, there must be a constitutional means of carrying it out.”
In a blistering dissent, Justice Sonia Sotomayor responded that even if capital punishment is constitutional in theory, there are times when there is no way to apply it in practice such that it would not be cruel and unusual. The lack of alternatives does not make what remains any less cruel or unusual, nor does it permit the suspension of the Eighth Amendment.
Justice Sotomayor's argument tracks closely with that of several third-century Talmudic sages as they grappled with the Deuteronomic laws of the Wayward & Rebellious Son (Ben Sorer Umoreh) and the Wayward City (‘Ir HaNidachat). The first case deals with a young man who consistently refuses his parents' discipline and instead engages in gluttony and idleness. His parents take him before the judges of the town, and he is executed. (Deuteronomy 21:18-21) Rabbi Simeon, bothered by the moral implications of the law, explains, “it never happened and never will happen. Why then was this law written? — That you may study it and receive reward.”
The second case deals with an Israelite city that turns to idolatry. In retribution, the inhabitants are to be annihilated, before the city is razed to the ground. (Deuteronomy 13:13-19) Again, the rabbis state that this never actually happened – and, in fact, they interpreted the laws so as to make their application nearly impossible beyond “that you may study it and receive reward.”
One sage, though, Rabbi Yonatan, claimed that these laws actually were applied – and that he himself had visited the grave of a Wayward & Rebellious Son and the ruins of a Wayward City. Like Justice Alito, perhaps Rabbi Yonatan felt that a law on the books must have a practical application. However, Rabbi Yonatan is a minority viewpoint. The overwhelming weight of the rabbinic legal tradition comes down against the notion that these laws were ever carried out, and certainly not by the Talmudic period.
In a similar fashion, despite the many offenses for which the Bible prescribes capital punishment, and the many long discussions of their laws and procedures by the rabbis, the dominant sense in the Talmud is that the death penalty was to sparingly applied – if at all. “A court that puts a man to death once in seven years is called murderous. Rabbi Eleazar ben Azariah says 'Or even once in 70 years’.” (Makkot 1:10)
There is some controversy as to what reward the Talmudic sages thought there might be for studying morally troubling laws that would never be applied to real life situations. Some say that the value is Torah study for its own sake, and the content is actually besides the point. Others explain that the dire consequences of these laws would provide a deterrent by demonstrating their seriousness. However, as Justice Antonin Scalia noted in his concurring opinion, a punishment that is deliberately never applied is no deterrent at all – in fact, it may even further decrease respect for the law.
I believe that the reward is appreciating the motivating spirit of our canonical texts and the ever-sharpened sense of morality with which we read them - what Justice Ginsburg calls their “growth potential.” It is nothing less than inspirational to see troubling laws written into our foundational texts and understanding that they are monuments to different points in our living traditions. The laws governing the owning of slaves, for example, while practical for the sages of the Talmud, have long ago joined the ranks of those that we “study to receive reward.” For me, much of the reward for study is the gratitude for how far we have come, and the renewed sense of purpose and mission as I envision an even more just and ethical future.
Justices Scalia and Alito argued that the death penalty must be essentially constitutional because it is specifically referenced by the Constitution. Despite this, Justices Breyer and Ginsburg countered that, as currently practiced, the death penalty may likely be cruel, unusual, and therefore unconstitutional. The Jewish tradition dealt with similar questions centuries ago and concluded on the side of progress. Dylann Roof was sentenced to death, but, hopefully, the American legal tradition will come around eventually as well.
Avraham Bronstein is Rabbi of The Hampton Synagogue in Westhampton Beach, NY.