Jewish Journal


March 30, 2011

What about innocents who are executed?


I devoted my last column to the Torah’s insistence on taking the life of murderers. I noted that this was the only law in all five books of the Torah; that, unlike every other time the Torah calls for capital punishment, only with regard to murder is the death penalty declared a value; and that God gave this law to Noah, not to the Jews alone, as a fundamental basis of civilization.

No response from my readers — published in The Jewish Journal online or in print — dealt with these issues. I would have respected the responses more if the correspondents had simply said, “The Torah is wrong; I am more moral than the Torah on this issue.”

Instead they dealt with other issues — overwhelmingly with the issue of the possible execution of an innocent person.

Last week’s print edition’s letters column included two responses. I will address those first: Behrouz Seroudi acknowledges that the Torah’s “imperative remains as relevant today as 3,700 years ago.” But he takes issue with my defense of the very position he believes remains relevant today because I acknowledge that an innocent may be executed. But God (or whoever else one thinks wrote the Torah) also understood that an innocent may be executed. The Torah demands that “by man” shall a murderer’s blood be shed. Knowing human nature to be flawed, the Torah understood that an innocent could be put to death. We also know this because the Torah mandates that witnesses who falsely testified that they had seen individual X commit murder shall also be put to death. So the Torah clearly recognized that an innocent man might be put to death.

Mr. Seroudi and others can’t have it both ways. If I am “disingenuous and against the basic values of Judaism” when I argue that even though an innocent may be executed, the death penalty for murder remains morally necessary, then the Torah is similarly disingenuous and against the basic values of Judaism. Presumably it is a lot easier for an observant Jew like Mr. Seroudi to attack me than to attack the Torah. But it is not intellectually honest to do so. Both the Torah and I recognize that an innocent could be put to death.

And talking about “basic values of Judaism,” the Torah, as I clearly noted, gives the basic Jewish value of man being created in the image of God as its first reason for the death penalty. As for wondering if I would “make the same argument if it were [my] own son who was wrongly sentenced to death,” one can turn the argument around and ask Mr. Seroudi if he would make the same argument against the death penalty if one or all of his children were tortured to death. We cannot make social policy based on how we would feel if our child were involved. If we did, we would oppose life imprisonment without parole as well.

Regarding Tom Fleishman’s letter, if I did not have to respond, I would have stopped reading his letter after his first sentence. He must think I and all other readers are idiots not to understand that “I will refrain from calling Dennis Prager a right-wing slimeball” is the same as calling Dennis Prager a right-wing slimeball. So I will refrain from calling Mr. Fleishman a fool and respond to the rest of his letter.

Mr. Fleishman takes issue with my statement that executing innocent people has been rare, if it happened at all, in the last 50 years. In the anti-death penalty community, the number usually given is eight. If that is correct, I believe it is rare, but still too frequent. And whether or not it is accurate, I fully support states establishing DNA testing and/or some other method equally close to foolproof as a way of establishing the guilt of murderers.

But I do not accept the argument that if even one innocent person is executed, we should keep every murderer alive. The argument is neither morally nor intellectually tenable. If one were to adopt that argument, no country could ever go to war. We always know that innocents will die in a war. But we also know that war is sometimes morally necessary. We know that raising or lowering the speed limit will increase or decrease the number of innocent people who die on our highways. According to the School of Public Health at the University of Illinois, Chicago, 12,545 more people died on American highways when the speed limit was increased from 55 to 65 during the period of 1995-2005. Yet, I still support the higher speed limit — because one cannot make any social policy based solely on the question: Will an innocent die?

And given how many people suffer horribly knowing the murderer of their loved one is being fed, sheltered, medically administered to — and, as I pointed out, in the case of Yitzhak Rabin’s murderer, allowed to marry and father a child — I support the far greater good of putting murderers, under strictly defined conditions, to death.

Nor is the death penalty racist, if that means unfair to blacks. It is whites who are executed disproportionately, not blacks. Between 1976 and 2005, 52 percent of all murders were committed by blacks, yet blacks constituted only 34 percent of those executed for murder.

Finally, I will respond to some of the arguments of Stephen F. Rohde, president of the Progressive Jewish Alliance, published in this week’s paper and shared with me in advance of publication.

Mr. Rohde begins by stating, “In a civilized society, we should not kill to show that killing is wrong.”

This is a truly meaningless statement.

First, it is simply wrong. We kill in order to show that murder is wrong. As an attorney who has represented a man on California’s death row, it is inconceivable that Mr. Rohde does not know the huge moral and legal difference between killing and murder. Nevertheless he uses this anti-death penalty cliché. Too bad. We do indeed show that murder is wrong by killing murderers. It is the single best way to do so. Punishment is society’s way of demonstrating what the society thinks about any given crime. As I wrote, if a Bernie Madoff and a child murderer both get prison for life, that means that we deem murder and monetary fraud as equally evil.

Second, we show that kidnapping is wrong by kidnapping kidnappers. We show that taking money away from people (stealing) is wrong by taking money away from people (fines).

Mr. Rohde then notes that Americans increasingly oppose the death penalty. He cites a Field Poll. I am unmoved. I will cite the most respected pollster, Gallup, whose 2009 Crime Survey finds that “65 percent of Americans continue to support the use of the death penalty for persons convicted of murder.”

In any event, why does Mr. Rohde cite a poll? It is either morally right or morally wrong to keep a Charles Manson or a Timothy McVeigh alive. Polls are irrelevant.

Mr. Rohde then cites other offenses of the Torah for which it prescribed the death penalty. I dealt with that in my article and will again herein. First, the Torah offers the death penalty for murder as a universal moral law; all the other laws were only applicable to Jews in Israel. Second, only the death penalty for murder is a value — because man is created in God’s image — not just a law.

Mr. Rohde writes that like Israel’s founders — who, I wrote, took their anti-capital punishment stance from the Enlightenment rather than from the Torah — “most Americans, including the [Founding Fathers] who wrote the Declaration of Independence and the Constitution, also derive their values from European Enlightenment.” Actually, every Founding Father would have said that while he certainly did take values from the Enlightenment, the Bible was the primary source of America’s values. One example: The Liberty Bell has one inscription on it — a verse from the Torah. Nothing from the Enlightenment. That Mr. Rohde does not know the religious basis of America’s founding is not his fault, however. He, like just about everyone reading this column, may have learned a false story about America’s founding values at their secular high school and university.

Mr. Rohde writes, “Prager engages in the utter speculation that ‘more innocents die with no capital punishment than with it.’ ” Utter speculation? According to the U.S. Department of Justice, as of 2003 (the latest year I could find data for), the number of murders committed by prisoners in state prisons was 4.0 per 100,000. With roughly 1.4 million inmates in state prisons, about 56 innocents a year are murdered by prisoners. I am not even including federal prisons. That is hundreds of times more innocents murdered than a possible nine executed since 1980.

Yet, despite that, Mr. Rohde argues, “If we consider life without parole the natural alternative to the death penalty, the risk to innocent people is negligible.” That is neither true, as shown by the statistics just cited, nor logical: If a prisoner knows that no matter how he acts in prison, no matter how many he murders, he can never be put to death, what is to stop him from murdering in prison? And if Mr. Rohde and other progressives answer “solitary confinement,” I can only say, as a series of searing articles in The New York Review of Books convinced me, solitary confinement is torture, one that drives its victims out of their minds. Why progressives advocate torture as opposed to capital punishment is something they need to explain.

Mr. Rohde concludes with this statement: “As between Wiesel and the value of life and Prager and the value of death, I choose life.” The allusion there is to Elie Wiesel’s condemnation of Israel for executing Adolf Eichmann. I wonder how representative of Holocaust victims and survivors the properly esteemed Elie Wiesel is in this matter. But in any event, it is cute but irresponsible to juxtapose Wiesel and life with Prager and death. The juxtaposition is with the Torah and its assertion that only by shedding the blood of murderers is the principle of man’s being created in God’s image upheld and those who think that the Torah is wrong.

Dennis Prager’s nationally syndicated radio talk show is heard in Los Angeles on KRLA (AM 870) 9 a.m. to noon. His latest project is the Internet-based Prager University (prageru.com).

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