Shiva is over. The seven-day mourning period is tradition in the Jewish community. And while many will continue to grieve over the heinous murder of 11 of their own at the Tree of Life synagogue, the focus is now allowed to shift toward the pursuit of justice.
The legal system is moving forward with 44 counts against Robert Bowers, the 46-year-old from Baldwin Borough accused of perpetrating the most deadly crime against Jews in the history of America. Bowers pleaded not guilty on Thursday and requested a jury trial.
The hate crimes Bowers is accused of can carry the death penalty, a sentence that would ultimately have to be approved by U.S. Attorney General Jeff Sessions.
But all of the major Jewish denominations in the United States oppose the death penalty in the United States, either in principle or because of how unfairly they say it is being carried out.
There is a strong belief in the Jewish tradition that every life is sacred, which makes some Jews leery of using the death penalty in most cases. Every denomination has called out the often discriminatory way that the death penalty has been applied to black convicts and to cases when people have been put to death and later found to be innocent.
But the massacre at the Tree of Life synagogue could put Jewish principles to the test. Jewish scholars say there is Biblical support for implementing the death penalty in principle but there is a wide variety of opinions about how or whether it can be fairly applied. Some individual rabbis and congregations support the death penalty, at least in some cases, even when their denomination is officially opposed.
This case could open up a renewed debate in the Jewish community about the death penalty, which has been largely unified in opposition to it in recent years.
“This is one of those rare cases where even opponents of capital punishment and even those who have valid concerns about its implementation, they might find that their concerns are allayed,” said Sam Levine, a professor and the director of the Jewish Law Institute at the Touro Law Center.
The Jewish tradition
Jewish law is in many ways like American law, according to Levine, who has written a book comparing the two legal systems. They both derive their authority from original texts: the Torah for Jews, and the Constitution for Americans.
So just like the Supreme Court interprets the Constitution, Jewish scholars interpret the meaning of the Torah when it’s not obvious. For instance, the Torah says not to light a fire on the Sabbath. For some Jews, that means they cannot turn on light bulbs or use any electricity on the Sabbath. Others think that interpretation is too literal.
Although the God of the Torah (what Christians call the Old Testament) is sometimes referred to as a vengeful God and capital punishment is mentioned frequently, Jews are actually the least likely to support the death penalty of any major religious group in the United States, according to polling by Gallup between 2001 and 2016. About half support the death penalty.
But the religious basis for this support isn’t clear. By the time the major source of Jewish law was written down in the Talmud, capital punishment was no longer being practiced. And there is no historical record of how frequently Jews in ancient Israel carried it out, Levine said. So all scholars have to go by is the Talmud’s theoretical discussions.
Two of the most famous statements from the Talmud suggest that a Jewish court should use the death penalty infrequently: about once every seven years, according to one voice. But according to another, even using it once every 70 years may be too much.
Jewish law specifies strict standards for evidence in death penalty cases that go beyond what American law requires: The crime has to have been witnessed by at least two people. And there also need to be two people who warn the criminal before he acts.
In addition, the procedures of Jewish trials would be more strict. Judges are supposed to interrogate witnesses about every discrepancy even if the discrepancy doesn’t seem that relevant, Levine said. And if the judges can’t resolve even these small discrepancies, the death penalty isn’t supposed to be administered, Levine said.
Because the requirements on the front end are so tough, Levine said, the death penalty in the Jewish system suffers less ongoing doubt about the justness of the verdict, like in the American system. Appeals in a death penalty case in the United States can drag on for decades and even then innocent men have sometimes been put to death. In 2017, more than 2,800 people were on death row in the United States but fewer than 25, or less than 1 percent, were executed.
Even though Jewish tradition makes it difficult to justify capital punishment, the case in Pittsburgh may be one in which many Jews want to see whether the burdensome standard could be met. “Sometimes the exception proves the rule,” he said.
Israel and the death penalty
The modern state of Israel has almost never invoked the death penalty. Israeli criminal law is more based on British law than on Jewish law, Levine said, but Jewish religious and cultural traditions influence how infrequently it has been applied.
The only time the death penalty has been carried out in Israel was in 1962 with Adolf Eichmann, one of the main organizers of the Nazi Holocaust.
But the crime at the Tree of Life synagogue isn’t like Eichmann’s crime, even if Bowers carried it out with a similar intent, said Rabbi Stewart Vogel, the vice president of the Rabbinical Assembly, a conservative Jewish organization based in New York. “I would be troubled by any analogy to the Holocaust or to any act of genocide,” he said.
Part of the reason for the hesitancy to carry out capital punishment is a famous Talmudic quote: “Whoever destroys a single life is considered by Scripture to have destroyed the whole world, and whoever saves a single life is considered by Scripture to have saved the whole world.”
For Rabbi Danny Nevins, the dean of the Rabbinical School at the Jewish Theological Seminary in New York, this means there is no justification for needlessly taking a life, even the shooter’s.
“It is true that the shooter said, ‘All Jews must die,’ and the shooter had a genocidal aspiration, I guess,” Nevins said. “And yet, as long as I think we can convict this person of life in prison for a mass murder, I think that would be the best we can hope for. I don’t even want to call it justice. Justice would be bringing the dead back to life.”
For Vogel, this means that the only situation where taking a life is justified is to save another life. Vogel said it may be justifiable in a hostage situation to use capital punishment as a warning to deter kidnappers from taking the lives of their hostages.
But many Jewish communities have decided that, in practice, the death penalty doesn’t serve as a deterrent in the United States, like it does for Vogel’s hypothetical kidnappers.
Israel doesn’t use the death penalty even when there is genocidal intent. Israeli hospitals will treat wounded terrorists who have murdered Jews with the express intent of eliminating the Jewish people, and they have not executed them even when the evidence is overwhelming.
Yet some conservative politicians in Israel are now calling for the death penalty against terrorists who have entered their country with the intent to kill Jews, the same reason Bowers entered Tree of Life in Pittsburgh.
Jewish Law in America
Typically, Jewish law defers to the legal system where Jews reside. For example, Jewish law requires Jews to pay taxes while residing in the United States. And, in principle, Jewish law would also defer to the legal system on the death penalty if the system was administered fairly, Levine said.
Were the court to decide to sentence Bowers to death, Levine said, “it’s fair to say that Jewish law would be reluctant to say, ‘Don’t do it.”
But there is a special provision in American law that may provide a place for Jewish beliefs in Bowers’ trial. The American legal system allows judges and juries to hear statements from victims or their families before sentencing. In this case, many of those statements would come from Jewish family and friends.
Jewish law, by contrast, doesn’t consider victim statements relevant. “Jewish law is considered to be a divine command,” Levine said. “And because it’s divine, God’s will is more significant in this type of case than any one individual family member having an opinion on what should happen.”
The Jewish community though doesn’t speak with one voice: The victims in the Pittsburgh shooting came from two conservative Jewish congregations and one Reconstructionist congregation, a spin-off of from the conservative Jewish tradition. And the pain of the tragedy has extended beyond conservative Jews, and each Jewish community may have a different perspective on what the appropriate penalty should be.
“While the victims were members of a particular congregation, in many ways it was an attack on the entire Jewish community and our entire civilized society,” said Rabbi Mark Dratch, the executive vice president of the Rabbinical Council of America, a body for Orthodox Jewish rabbis.
In one of the most similar hate-crime cases in recent years, Dylann Roof was convicted of killing nine black people at a church in Charleston. Some of the victims’ family members said they forgave him, and others said he should burn in hell. The court sentenced Roof to death.
Orthodox Jews tend to be more politically conservative and more supportive of the death penalty, Dratch said, although the denomination’s official position is to support a moratorium on capital punishment until the system can be administered more fairly.
If prosecutors can show that Bowers doesn’t face any systemic bias, such as racial bias, Dratch said orthodox Jews may be willing to make an exception.
“While we are very concerned about the systemic problems, that doesn’t necessarily prevent the imposition of the death penalty in specific cases, certainly where those systemic issues do not seem to be an issue,” Dratch said.
One extra consideration in the sentencing, Dratch said, will be creating a sense of safety from religious persecution. “The justice system has played a very strong role in assuring a sense of security and belonging for minority religious communities, and we have an obligation as a society to make sure that continues,” he said.
Vogel, a leader of national conservative jews, the same denomination as the three congregations at Tree of LIfe, said he needed more time to think about whether, if convicted, he would want Bowers sentenced to death.
“Emotionally, would I want to apply [the death penalty] for this horrific act? Of course, I would,” he said. “When I think about how despicable the act is, absolutely I would want to. But judicial philosophy has to abide my principles and when you are applying them to a system, you have to be careful.”
For Nevins, the dean of a conservative Jewish seminary, the American legal system can make decisions separate from the Jewish legal tradition to protect public safety. But he doesn’t believe the Jewish concept of the sanctity of life would allow a secular government to make that call.
“So the question is: What are we doing? Sending a moral message that [Bowers'] life doesn’t have value anymore?” Nevins said. “I don’t think that’s the place of a government to decide.”
Jewish law includes the concept of forgiveness, Levine said, but it’s not a legal concept. The person sentenced to execution is encouraged to repent for their own absolution. “So that the execution will serve as a form of expiation for their sin.”
Oliver Morrison is PublicSource’s environment and health reporter. He can be reached at firstname.lastname@example.org or on Twitter @ORMorrison.