Jewish tradition has always championed the idea that justice is a fundamental necessity. When the Torah commands us, “Justice, justice shall you pursue,” the repetition is to teach that not only we must have just ends, our means to those ends must be equally just.
Our commitment to that core Jewish teaching will be tested on Nov. 6 by our community’s response to Proposition 34, which would replace California’s death penalty with life in prison without parole, save $130 million each year, devote $30 million per year for three years to help solve unsolved murders and rapes, and require those convicted of murder to devote prison earnings to pay restitution to the families of their victims.
During Yom Kippur, congregants at Kehillat Israel had the profound privilege of hearing Franky Carrillo, a remarkable young man who was released from prison after serving 20 years for a murder he didn’t commit. The stark reality of how unjust his fate could have been while we still have the death penalty couldn’t help but send shivers down the spines of the congregation.
Knowing that more than 140 innocent and wrongfully convicted people have been released from prisons in recent years should alone be enough to convince us of the necessity to protect the sanctity of justice and eliminate the death penalty.
Religious leaders, civil-rights advocates, human-rights organizations and others for years have been calling for an end to the death penalty, which has been banned in most democratic nations. But now, death-penalty opponents have been joined by a chorus of unlikely allies, including victims’ rights advocates, prison wardens and law-enforcement officials. Jeanne Woodford, who oversaw executions as warden at San Quentin State Prison, now runs the state’s largest anti-death penalty organization. Former L.A. County District Attorney Gil Garcetti is a leader on the Proposition 34 campaign. Even Don Heller, who wrote the ballot initiative reinstating the death penalty in 1978, now says doing so “was a terrible mistake.”
These leaders cite the risk of executing the innocent, the fact that the death penalty is used predominantly against the poor and people of color, and that the high cost of the death penalty (including trials, special prison housing, constitutionally required appeals, extra security and administrative costs) is far more expensive than permanent incarceration. As proposed by Proposition 34, the funds saved by eliminating the death penalty could instead go to law enforcement, crime prevention and other public safety priorities.
Proposition 34 would convert death sentences into sentences of permanent incarceration, effectively replacing death in the execution chamber with death in prison. It enables the state to still mete out the punishment deserved to the most heinous criminals but in a way that does not run the risk of killing the innocent, wasting money, distorting our criminal-justice system and needlessly bloodying our hands any further.
As responsible citizens, and as Jews responsive to the ethical insights that have shaped our tradition, there are compelling reasons to support Proposition 34. Some may object, however, that the Bible endorses capital punishment. Indeed, capital punishment is prescribed in a number of cases, including for offenses ranging from murder to gathering sticks on Shabbat. But from the earliest times, our rabbis understood that the ultimate judgment — who shall live and who shall die — should not be left in the hands of flawed people capable of error, bias or passion. And unlike other mistakes, no amount of teshuvah can ever undo a wrongful execution.
Therefore, the rabbis enacted numerous obstacles to implementing the death penalty, including the requirement that multiple eyewitnesses must have been present at the time of a murder, warned the offender of the punishment of death and heard him acknowledge the consequences before the murder was committed. So opposed to the death penalty were the rabbis that the Talmud records the following conversation: A Sanhedrin (High Court) that executes a person once in seven years is a murderous one (hovlanit). Rabbi Eleazar ben Azariah said: “Once in seventy years.” Rabbis Tarfon and Akiva said: “If we were members of the Sanhedrin, nobody would ever be put to death.” (Mishnah: Makkot 1:10) Support for the death penalty remained a minority and rejected opinion in Jewish life. This is still the case today — every major Jewish denomination has come out in favor of ending the death penalty or imposing a moratorium on state-run executions.
The rabbis could not have envisioned the cruel and tragic system of state execution that we have today. It is a patchwork system that struggles to find attorneys competent to defend death cases. It costs more than $130 million more per year than life in prison. And, as the Sacramento Bee pointed out in reversing its 155-year-old editorial policy by endorsing Proposition 34, one’s chances of getting the death penalty arbitrarily vary according to what county you live in. And yet even without such a system corrupted by such overwhelming injustice, the rabbis had the wisdom to reject the death penalty. So, although the death penalty remained in Jewish texts, it did not gain acceptance in Jewish communities.
The instincts of those early Jewish leaders seem even wiser now. On Election Day, we would be wise to follow their lead.
Rabbi Steven Carr Reuben is senior rabbi at Kehillat Israel Reconstructionist Congregation in Pacific Palisades. Steve Rohde is a constitutional lawyer and vice chair of Bend the Arc: A Jewish Partnership for Justice.