From: hillel@cbnewsf.cb.att.com (hillel.e.markowitz)
Subject: Re: Death Penalty & Jewish Law
Organization: AT&T Federal Systems
Date: Thu, 30 Jul 1992 17:17:55 GMT

... continuing from a previous answer that got interrupted.

In article <1992Jul30.022827.27594@wixer.cactus.org> lazarus@wixer.cactus.org (Michael Lax) writes:
>lazarus@wixer.cactus.org responds to 
>  > hillel@cbnewsf.cb.att.com (hillel.e.markowitz), Jul 28 1992   
>  >    10:32 CDT responding to
>       >> lazarus@wixer.cactus.org (sorry, don't remember the date)

>.... [deleted to save space & continue from previous post]

>
>>This is not a matter of vengeance, it is a matter of punishment.
>
>Ad absurdium...

No, I am being precise here.  There is a distinct difference in the
terms punishment and vengeance.  This is true no matter what
sentence is being used.  For example, I can argue that the
differing lengths of sentences to various criminals (by race,
Jonathan Pollard vs Walker, etc) mean that we should abolish
imprisonment as a punishment.

Any sentence used as vengeance is wrong.  All sentences should be
punishment.
(The argument that some punishments are wrong in any case, such as
torture is a different issue).


... [ deleted to save space]

>
>I meant that the ritual of killing people costs twice as much as
>life imprisonment.  This does _NOT_ mean endless appeals, but
>rather only the first appeal.  Costs of investigation, jury
>selection, prosecution, etc., are all many times more expensive in
>a case where the state is trying to kill someone.  And while Mr.
>Markowitz claims we need to make sure we're "doing it right," many
>people think we're already spending too much money.  The Supreme
>Court seems to feel that even when a death sentence is arrived at
>in clearly unfair circumstances it should still be carried out. 
>Most people - not all, granted - that support the death penalty
>want to spend less money and make it even less fair than it already
>is.
>
Again the above paragraph is an argument that the implementation of
the death penalty is flawed and this is indeed an arguable point.
However, it does not argue that the death penalty in and of itself
is wrong.  THe two points need to be addressed separately and care
must be taken not to intermingle them
.

Construct the thought experiment of a murderer who commits the
crime, the evidence is absolutely clear, (perhaps the Jewish Aidus
Vehasraah - the witnesses warn him, state the penalty, he says I
will do it anyway, and does it in front of them), the trial is
absolutely fair and impartial, the verdict is handed down strictly
from the facts (and not as vengeance).  Is the death penalty wrong
because it is wrong or are you saying that we cannot implement it
correctly in our system and therefore should be abolished.

>
>>The implementation of a penalty is not an argument against the
>>penalty.  If the results are racially skewed thaen perhaps we
>>should apply it *more* to all the criminals convicted of capital
>>crimes, not less.
>
>Let's kill even more people?  Interesting thought, but how do you

What I was saying was that if murderers should get the death
penalty. and certain groups of murderers are getting off improperly
then we should insure that they do not get off.  (We in this case
is the societal we and does not address the argument of how).  The
point is again, what is the argument, the implementation or the
very fact of a death sentence for a crime.

>intend to accomplish this gruesome task?  "We" do not sentence
>people to death - prosecutors and district attorneys do.  A lot of
>them are from racist communities who don't care about racial
>fairness.  And we are not just talking about the "implementation of
>a penalty," we are taking about killing people.  I feel that
>killing people that are not an IMMEDIATE and DIRECT threat is
>abominable.  Would you suggest we return to torturing people? 
>Surely we could ensure that such torture was meted out fairly to
>all?  Certain acts are so brutal that no matter how much we try to
>de-brutalize it we are unsuccessful.
>

Since you equate the killing of a human being *under all
circumstances* with torture, then your arguments from the actual
implementation are just tactics to abolish the death penalty under
all circumstances.  It sounds as if you would object that if
(please accept the ridiculous example for the sake of the point)
once the person was convicted, Hashem would hit him with a bolt of
lightning if he were guilty and miss him if the jury were wrong
(the ultimate appeal), you would still object to the death penalty.

(Or let the lightning strike be triggered by the warden pulling the
switch but keep Hashem making it miss).

>
>>>Jew forget the last time the death penalty was used against us?
>
>>Just because murderers called themselves legal and what they were
>>doing as the death penalty does not mean that we cannot apply the
>>penalty correctly.  It is as if we said that because the Soviets
>>locked innocent people up in the Gulag or abused the psychiatric
>>hospital system we should not lock up criminals or maintain mental
>>health facilities.  Any system is subject to abuse.  the correct
>>response is to try to eliminate the abuses, not discard the
>>system.
>
>This response is almost amusing.  We can kill better?  Our reasons

What do you mean by better?  You are trying to make it sound as
technically "better" or more efficient.  This is not the case.

>for killing citizens are somehow more pristine?  Yet we kill many
>of the same people that the Nazis killed:  the severely mentally
>ill and mentally retarded, the poor and illiterate, those in our
>society considered "undesirable."  Psychiatry's main purpose is to
>help people; the death penalty's only objective is to kill people. 
>I don't see why a "system" with this objective should not be
>discarded.
>

The point I was making was that in the S.U. psychiatry's purpose
was not to help people it was to lock them up for the "crime" of
resisting the state.  Just because we think our movtives are more
"pristine" should we still commit the crime of locking someone up
against his will?  A mentally ill murderer is still a murderer.
I would argue that anyone who murders in cold blood is by
definition mentally ill.  I would still accept the death penalty
for him.

>
>>The debate in the Mishna and the Gemoroh is not on whether or not
>>the death penalty is correct but on whether or not it is being
>>applied correctly.  No one doubts that the death penalty is the
>>correct punishment for certain crimes.
>
>Obviously _SOME_ people (or am I - and others that oppose state
>killing, including a few of the sages - not people?) doubt that

Read the comment again, I said in the Mishnah and the Gemoroh.  I
would not consider either of us in that stature.  If someone of the
stature of Rav Moshe Feinstein Z"L, Rabbi Soloveitchik, the
Lubavitcher Rebbe, Rav Shach, Rav Ovadiah Yosef ,,, spoke on 
this issue, then it would be something to consider from a halachic
viewpoint.

>government killing is an appropriate response to individual
>killing.  And while some debated the death penalty's implementation
>in certain cases, others argued it should be banned outright - for
>any crime.

If you are speaking of Rabbi Akivah who said that if he were on the
Sanhedrin noone would have been executed, even he did not say that
the death penalty was wrong, again it is a matter of
implementation.  In any case the conclusion was not like Rabbi
Akiva, and was that had he done that he would have "increased
bloodshed in Yisroel".

>
>The death penalty is a ritual of DEATH.  No matter how much you try
>and shroud it as morally righteous, killing is killing. 

The point is that yes it is killing, yes we don't like it, yes we
try to avoid it.  BUT under the specific circumstances and cases
given in the Torah it may be the correct response of society to
certain actions.


>Governments have given all sorts of "good" reasons to kill
>citizens.  "They deserve it" is the most frequent excuse - whether
>"they" be criminals, political prisoners, journalists, or Jews. 

"Governments don't kill people, people kill people".  In any case
to argue this is to say that because governments have been headed
by Stalin, Hitler, Mao, all governments should be abolished and
there should be total anarchy.

>While I may have been mislead all my life about what it means to be
>Jewish by my loving parents and religous instructors, it is this
>"misleading," in great part, which instilled in me a sense for life
>and fairness which is the basis for my opposition to state killing. 

A desire for life cannot be allowed to overpower a desire for
fairness.  The Torah commands that you shall not look whether a
person is*rich or poor* in a cour5t case.  What does this mean?
The wording is such that it means you are not allowed to judge the
poor person more leniently because you feel sorry for him.  It is
jus as wrong as taking a bribe from the rich person in order to let
him off.  Similarly, you cannot judge a rich person more harshly in
order to show that he can't get away with it.  The total opposition
to the death penalty seems to me on this order.

>Many people, not just Mr. Markowitz, have all but suggested that I
>cannot be Jewish and oppose the death penalty.  I would like to

I have never said this.  The Jewish people have always been
rachamim bnei rachamim (merciful children of merciful parents).
Our forfather Abraham is considered the standard of chesed
(kindness).  But we must also not allow chesed to interfere with
tzedek (justice - righteousness).

Philosophically speaking, the chassidim speak of the traits of the fathers

Avraham - Chesed - kindness - He had Yitzchak but also Yishmael
Yitzchak - Gevurah - strength - He had Yaakov but also Eisav
Yaakov - Emes - truth - he merited that all his children got the Torah

>know how these people feel I should change my concern for life? 
>Should I stop caring?  Should I ignore the facts?  Should I only

Of course not.  But I am trying to say that the attitude that life
is the highest virtue.  That noone should be killed under *any*
circumstances is just as wrong as the attitude that the government
(or any group) is justified in killing anyone that does not fit
in.

>care about how governments and religions should express their
>distaste for individual killing by implementing government killing? 
>And would they consider Ellie Weizel, who also strongly opposes the
>death penalty, to be as unJewish as me?
>

Again, I do not know what Mr. Wiezel's arguments are.  If they are
that it is applied improperly, that innocent people are killed,
that the Government cannot be trusted with the power.  THen I would
say fine, that is a valid argument and can be discussed.  It is
only when one says that it is wrong in all circumstances (which
implies that the Torah is wrong when it mandates the death penalty)
that I say that the argument leads to invalid conclusions.

>
>>The Gemoroh states that he who is kind when he is supposed to be
>>cruel will be cruel when he is supposed to be kind.  Shaul left
>>Agag alive which led to Haman.  He was punished for this by losing
>>the kingdom.
>
>So we should base executions on the fact that _maybe_ the person we
>execute instead of imprison will destroy the world based on one
>tractate in the Gemoroh (of which you have most likely only
>represented one argument), as well as brand as morally
>reprehensible those that do not wish to kill?  I am also trying to

You are missing the point.  A medrash makes a point indirectly and
the closest English term is a parable.  What it is saying is that
there are times when one must appear to be cruel.  Only the Master
of All *knows* what is really cruel and what is really kind (as in
the phrase tough love).  G-d had commanded the death of Agag.
Shaul's sin was that he put himself above G-d.

>figure out how Agag led to Haman.  I believe somebody mentioned
>Haman was his progeny, but I am not certain.  If _this_ is the

The point is not that Haman was Aga's descendent or Mordechai was
Shaul's brother's (?) descendent. The point is that by ignoring
G-d's direct command, he committed a sin which had incalculable
consequences.

BTW, Shaul couldn't bring himself to kill Agag so he locked him
up.  That night a maid came to Agag and got pregnant.  THe next day
the prophet Shmuel, the quintessence of the Torah in that
generation, killed Agag himself.  Not because he wanted to, not
because it was a "good" thing to do, not because Agag was any less
of a human being.  He forced himself to do it because G-d had given
a direct command and that was what was required at that moment.

>case, perhaps we should require sterilization of any "questionable"
>elements in society, trying to identify them when they're still

Please note that in the case of Yishmael we are taught not to do
anything like this.  When Yishmael was dying in the desert, the
angels came to G-d and said shouldn't you let him die because he
will commit serious crimes if he lives.  The Torah uses the
language that G-d saww the lad "asher hu sham" which can be
expressed "as he was there [then]".  Since he had not yet committed
the crimes, he was judged on what he was then and was saved.

>children.  I have heard over and over that we should not get rid of
>state killing just because innocent people are tortured and die or
>because it's blatantly racist.  These same folk now hold up Agag as
>"the" reason we should not just have the death penalty, but support
>it!  Pardon me while I check the definition of "hypocrite" :->.
>

When the death penalty is implemented in a racist manner, unjustly,
cruelly, or on innocent people, then object and object strongly.
But if it is administered justly, to people who deserve it (perhaps
like Jeffrey Daumer), then we have to remember the law of the
Torah, "Even from My altar take him".

>lazarus@wixer.cactus.org
>Michael Lax

_______________________________________________________________
| Hillel Markowitz        |    Im ain ani li mi li             |
| H_Markowitz@att.com     |    Veahavta Leraiecha Kamocha      |
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