The reaction to the decision of the U.S. Department of Justice to pursue the death penalty for Robert Bowers from the Jewish community was entirely predictable. The man who stands accused of perpetrating the massacre at the Tree of Life*Or L’Simcha Synagogue in October 2018 committed the worst act of anti-Semitic violence in U.S. history. But for most American Jews, capital punishment is wrong, no matter how egregious the crime or, as in the case of Bowers, even when there’s not a shadow of a doubt about his guilt.
So it was not surprising that two of the three congregations that use the Tree of Life building for worship services said that they had asked Attorney General William Barr not to ask for the death penalty when Bowers goes to trial for the murder of 11 Jewish worshippers who were shot dead when he burst into Shabbat-morning services and opened fire.
But while there are some who argue that Pittsburgh’s Jews will be traumatized all over again by the request, as well as point to a long Jewish tradition of viewing such a punishment with distaste, Barr’s willingness to seek the ultimate punishment for Bowers is not mistaken. In doing so, the government is sending a powerful message that there are some crimes that are so grave and do so much damage to society that death for the murderer is the only possible choice compatible with the nation’s sense of justice.
Backing for the death penalty among Americans has waned in the last 25 years. In 1994, 80 percent told pollsters from Gallup that they were in favor of capital punishment. But by the time of the Pittsburgh shooting in October 2018, that figure had declined to 56 percent, even though supporters still remained in the majority, with opponents totaling 43 percent.
Among the overwhelmingly liberal American Jewish community, such numbers are reversed. In a 2014 poll conducted by the Public Religion Research Institute, Jews opposed the death penalty by a 57 percent to 33 percent margin—a higher rate of opposition than any other religious group listed in the survey. That poll also showed that those who regularly attended religious services of any kind were more likely to oppose the death penalty.
The two main reasons for the decline in support for the death penalty among Americans are the chances of a judicial mistake that could lead to an innocent person being executed, coupled with the history of its application, in which race has been shown to be a determining factor in deciding who was given such a sentence.
The use of previously unavailable DNA evidence has led to the exonerations of many of those convicted of murder on the basis of unreliable eyewitness testimony. It’s also true that African-Americans and other ethnic minorities have been far more likely to be given the death sentence than white Americans convicted of similar crimes.
Over and above those considerations, strong arguments can be made claiming that executions will not deter murderers, especially those motivated by hate, such as those involved in anti-Semitic crimes. Others assert that a society that seeks revenge for murder is lowering itself to the level of the criminal, rather than setting a more elevated standard of conduct. Indeed, the United States remains one of the few democracies that still carries out regular executions.
It’s also true that while Jewish religious law condones the death penalty, support for its application is extremely rare.
In the 71 years during which the modern State of Israel has existed, only two people have been executed. One was a military officer convicted of treason during the War of Independence who was subsequently exonerated after his death. The other was Nazi war criminal Adolph Eichmann, who was hanged in 1962.
The Torah demands the death penalty for a wide variety of offenses for both murder and actions that are no longer considered crimes, such as ritual violations, homosexuality and even children who disobey their parents.
Yet it also put into places restrictions on its enforcement that made it rare, such as the requirement that two witnesses were needed to secure a conviction. The Talmud also goes into great detail about the difficulties that should be put into place for the death penalty to be considered. One was that if the Sanhedrin court were unanimous in its verdict, the accused would be acquitted because such a decision was, by definition, untrustworthy. A well-known passage in the Mishnah says a court that would execute a person once every seven years would be considered bloodthirsty. But the Talmud notes the dissent of one rabbi who said that the definition was actually one every 70 years.
Contemporary opponents also argue that life in prison without the possibility of parole is a worse fate.
There are some crimes, however, for which death is the only appropriate answer from a society that cares about justice and the rule of law. That is especially true when questions about both the guilt of the accused and the possibility that race may influence the decision are not applicable, as is the case with what happened in Pittsburgh on Oct. 27, 2018.
Even if the death penalty doesn’t deter future killers, violence in the form of mass murder, extreme hate and depraved indifference to life cry out for more than just the usual platitudes about preserving the lives of even the worst criminals.
Allowing persons who have been convicted of the most terrible crimes imaginable to live out their days denies closure to victims and their families. It also treats the taking of innocent life with a lack of seriousness that undermines the foundation of civilized societies.
The death penalty should only be applied in rare cases when there is no doubt about guilt and in which the egregious nature of the crime is such that tolerating the continued life of the criminal is unimaginable. As is the case with Eichmann—or an Adolf Hitler or any other person with so much blood on their hands—life in prison, however awful, is not a proportionate or just response to some crimes. As much as we may understand the desire to avoid the taking of any life, the Department of Justice’s request seeking death for Bowers is the right thing to do.
Jonathan S. Tobin is editor in chief of JNS—Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.