There are more than a few good Jewish reasons to vote against the coming death penalty advisory referendum, and Leon Cohen did a fine job enumerating them in his column “Dying for Justice?” in last week’s Chronicle.
No matter if one supports or opposes the death penalty, Judaism raises some important questions about the process by which we adjudicate capital cases.
Judaism places ultimate value on human life. According to the Torah, we arrive to G-d’s world with three intrinsic dignities:
• Born of the first human being, each of us is an entire world in potential; our capacity to touch the future makes each of us infinitely valuable.
• Sharing common parents, Adam and Eve, and thus a common lineage, each of us is co-equal with one another, unable to claim superiority.
• Created in the divine image, we are molded by a common template; yet we emerge utterly unique, so much so, even identical twins have different fingerprints.
These three human dignities — that we are each of infinite value, co-equal with others, and unique — form the bedrock of Jewish ethics. When any one of these human dignities is imperiled, life itself is devalued, and our Creator is diminished.
Murder obliterates all three human dignities. Capital punishment also ends a human life, and it claims to do so in the pursuit of justice. But how can it possibly be just?
The process of adjudication is mediated by human beings who, despite their best intentions, are not immune from caprice and error.
DNA evidence, today hailed as incontrovertible, is far from foolproof. Lab technicians make mistakes; at times, evidence is manipulated. And even a flawless test testifies only to presence, not intent. The execution of an innocent person still remains a real risk.
The book “Capital Punishment: The Inevitability of Caprice and Mistake” by Charles L. Black, Jr., of Yale Law School, makes clear that mistakes can and do occur.
He writes: “…the system by which we choose those who are to die, as penalty for crime, is so mistake-prone and so saturated with standardless and arbitrary ‘discretion’ that it cannot decently be used for this most terrible of choices.”
Some argue that the Supreme Court provides for adherence to the constitutional requirement of equality “as much as possible,” but that some inequality is unavoidable as a practical matter.
In contrast, Jewish law teaches that when human justice cannot be certain, judgment is best left to G-d. An example is the Torah’s teaching regarding the Sota, the wife suspected of adultery (Numbers 5:11-31).
If a trial cannot take place for lack of witnesses, the Torah prescribes an unusual ritual. A priest writes G-d’s name on parchment, and then rinses off the ink in water, which is combined with earth and given to the woman to drink. If she is innocent, nothing happens. If she is guilty, then “her thigh shall sag”(perhaps a reference to ensuing infertility).
What is the ritual all about? It provides a change of venue, removing the matter from a human court to G-d’s court. Doing so enables the couple to move on.
No matter whether one believes capital punishment is “right” or “wrong,” Judaism asserts that if we cannot insure a flawless procedure to adjudicate the accused, we best leave such judgment to G-d.
Rabbi David B. Cohen is spiritual leader of Congregation Sinai.
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