Why this Chanukkah should make us anti-death penalty advocates & abolitionists
Tags: Death Penalty, Racial Justice, Judaism, Abolition, Hanukkah

The irony of Chanukkah this year is that as we kindle lights anew each night, the Trump administration is extinguishing lights in an unprecedented federal killing spree.

Excerpts from “Trump Begins The End of His Presidency With String of Rare Federal Executions” (Vanity Fair, Dec. 11, 2020) and “The high rate of executions during Trump’s last weeks in office, explained” (Vox, Dec. 11, 2020)

Both started last Thursday- I lit the first night candle within hours of Brandon Bernard being executed by lethal injection at 9:27pm.

Bernard was executed for a crime committed by a group of teens in which the prosecutor said he was less responsible than any of his codefendants, including two who served 20 years and are now home from prison; after the prosecutor and majority of jurors on his case changed their legal opinions and said he should not be executed; after being imprisoned for the past 20 years and never being disciplined for a single violation of prison rules; after spending the last 17 years alone in his cell 23 hours a day; and after spending his time reading and writing, crocheting blankets/scarves/hats, practicing the guitar, taking college courses, helping at-risk teenagers avoid criminal paths, and maintaining the mentality that: “I don’t have to be stagnant because I’m in here, I can always improve on myself. Maybe not as much as people in the world can, but still, there’s an opportunity to improve myself that I have to take for those out in the world that believe in me and for myself.”

Now, I understand that many people haven’t had to personally confront injustice and, having not chosen to then intentionally explore it, are able to still maintain a worldview that things are fundamentally fair. Their insulated positionality protects them and helps them proverbially sleep at night with the belief that things are overall as simple as “the police are good,” “prisons contain only bad people,” and “only the worst of the worst criminals get the death penalty.”

This in turn might lead them to scoff at advocacy and compassion on behalf of prisoners, and especially those on death row. Or even point to specific prisoners set to be executed during this time and say things like, “Really, Abby? Look at what this person did, they deserve to die!” or “What about justice for the victims? Don’t you care about that?”

To which I would say that focusing on specific individuals makes you susceptible to your own confirmation bias that in turn prevents the application of a systemic analysis.

That the Bible specifically tells us, over and over again, to provide for the widow, orphan, and stranger as archetypal reminders that we have a moral mandate to care for people even — and especially — when it’s hard to do so and might not come easily or naturally.

That justice isn’t synonymous with punishment even though we collectively insist it is by refusing to imagine something better, and that punishment isn’t synonymous with healing — for either victim or offender — even though we collectively expect it to be by failing to provide anything better.

That the prison industrial complex (PIC) that metes out the death penalty, driven by power and profit, is faulty, discriminatory, racially skewed, and highly untrustworthy. As Bryan Stevenson of the Equal Justice Initiative explains, “We have a system of justice that treats you better if you’re rich and guilty than if you’re poor and innocent,” “Wealth–not culpability–shapes outcomes,” “You’re dramatically more likely to get the death penalty if the victim is white than if the victim is Black; and if the defendant is Black and the victim is white,” and that “for every nine people we’ve executed in this country, one innocent person has been proved innocent [which is] a shocking rate of error.”

“The death penalty is not about whether people deserve to die for the crimes they commit. The real question of capital punishment in this country is, Do we deserve to kill?” — Bryan Stevenson

That deterrence theory, the idea that the death penalty prevents crime from happening, has been rigorously studied and decisively disproven so there is actually no public safety benefit.

That our Jewish tradition is against the death penalty, utilizes the four capital punishments discussed in Jewish law (סקילה, stoning / שריפה, burning / הרג, beheading / חנק, strangulation) more in principle to denote the severity of a sin than in practice to be applied, and has such stringent standards of proof and requirements for evidence that it was nearly impossible for the Sanhedrin, the Jewish court tribunal, to ever actually sentence someone to death. For example, two witnesses had to see the defendant and each other, both witnesses had to give explicit warnings to the defendant that their actions would constitute a capital offense, this warning needed to be administered just seconds before the actual crime was committed, and the defendant needed to have responded to the warnings that they understood, were going to do it anyways, and then proceed with their criminal actions.

That even these profound legal safeguards proved insufficient and the technical ability to administer the death penalty was rescinded after the destruction of the Second Temple. As Orthodox Rabbi Aryeh Kapaln writes in Handbook of Jewish: Volume II: “The system of judicial punishments could become brutal and barbaric unless administered in an atmosphere of the highest morality and piety. When these standards declined among the Jewish people, the Sanhedrin … voluntarily abolished this system of penalties.”

Excerpt from “On Capital Punishment” by Adam Kirsch, Tablet Magazine, Sept. 11, 2017.

That the Gemara in Tractate Sanhedrin presents any punishment as a direct disgrace to God because humans are said to be created in God’s image, and in Tractate Makkot it is directly stated:

Makkot 1:10

“A Sanhedrin that executes once in seven years, is called murderous. Rabbi Eliezer ben Azariah says: once in seventy years. Rabbi Tarfon and Rabbi Akiva say: Had we been members of a Sanhedrin, no person would ever be put to death. Rabban Shimon ben Gamaliel say: If so, they would have multiplied the murderers in Israel.”

That within our current system it’s ultimately a choice between who we’re more alright with “falling through the cracks”: Would we rather have the death penalty in order to be able to punish some truly horrible people knowing that many innocent people will also be executed, or abolish the death penalty so no innocent people will be executed but then have some truly horrible people escape execution but still get life imprisonment? I side with prominent 12th-century Jewish legal scholar Maimonides who maintained that, “It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.”

And finally, that Chanukkah itself teaches us this lesson.

How to light the Chanukkah candles is one of the oldest rabbinic legal arguments. Rabbi Shammai advocated that we light in descending order, starting with eight candles on the first night and decreasing the count. But Rabbi Hillel proposed lighting the candles in ascending order, starting with one candle on the first night and increasing the count. The law was ultimately decided according to Rabbi Hillel due to the important legal principle of “דְּמַעֲלִין בַּקֹּדֶשׁ וְאֵין מוֹרִידִין” / “We go up in matters of holiness and not down.”

I think that just like we cannot decrease the light of the candles, so too must we refrain from decreasing — let alone extinguishing — the most important light of all: the human soul.

And so, on this Chanukkah, I invite all of us to consider what it would mean for us to be like the candles in following the path of ascension in our own lives and in creating a society that enables people to still rise, no matter how low someone may feel and no matter what mistakes someone may have made.

Because the truth is that it would require changing a lot more than the death penalty. The entire PIC effectively extinguishes the lives of so many it either unjustly imprisons or immorally condemns as irredeemable. In this way, the issue actually isn’t solely the federal killing spree that started last Thursday on the first night of Chanukkah when Brandon Bernard was executed, but the entire PIC that is informed by our country’s long history of slavery, segregation, discriminatory policing, for-profit prison systems, and white supremacy.

And so, on this Chanukkah, I hope you’ll join me in two meaningful actions.

The first is calling or writing your representative and urging them to co-sponsor H.R. 4052, a bill introduced by Rep. Ayanna Pressley which seeks to prohibit the death penalty at the federal level and require resentencing to those currently on death row.

And second, to kindle the lights each night with the kavanah, the intention, that it be a political act of protest against the death penalty and in affirmation of the value of life; against our society’s fear-based preference for carceral punishment and in affirmation of restorative justice and community healing; and, ultimately, against our PIC and in affirmation of abolition.

כן יהי רצון/ May it be God’s will. במהרה בימינו / Speedily in our days. אמן / Amen. סֶלָה‎/ Selah.