This week, lawmakers in Virginia gave final approval to legislation that would abolish the death penalty in their state. Gov. Ralph Northam’s expected signature would make Virginia the 23rd state to end capital punishment, the first Southern state to do so and a notable one given its vigorous history of the practice.
This welcome news comes less than six weeks after the Trump administration ended a brutal spree, reviving the long-dormant federal death penalty long enough to execute 13 people, some of whom had significant issues with trauma and mental illness, and against the wishes of some victims’ families.
The time is now for a significant national reckoning with the death penalty.
My own religious tradition — Judaism — has had a long and nuanced conversation around this matter. This is particularly relevant given that some Christian groups use my sacred texts to make the case for maintaining capital punishment, citing “Old Testament” practices (FYI: We actually prefer the language of “Hebrew Bible”) while being totally ignorant of how we actually interpreted and applied those verses.
While it’s true that capital punishment was discussed in the Mishnah — the cornerstone Rabbinic text, the origins of which date at least to the Second Temple, and the foundation on which the rest of my tradition has been built — the bar was set almost impossibly high. Capital cases were required to be heard by courts of 23 judges, each of unimpeachable moral character and significant intellectual attainment. These judges disallowed the use of testimony from plea bargains and circumstantial evidence. Cases with death on the line required two witnesses, each also of unimpeachable reputation, who must have warned the accused not to commit the act moments before they committed their crimes — within the time it would take to speak a short phrase, lest too much time pass and the warning be forgotten.
If and when those witnesses came forward, they were given reality checks about the potential consequences for the accused and ample opportunity to back out in the event that they might have thought to offer false testimony. The Mishnah teaches that one of the judges must remind witnesses that capital cases and monetary cases are different, both in terms of the stakes and the possible outcomes. And then the judge is instructed to tell them:
In capital cases, the blood of [the victim] and all their future offspring hang upon you until the end of time. … It was for this reason that human was first created as one person [Adam, in the book of Genesis], to teach you that anyone who destroys a life is considered by Scripture to have destroyed an entire world; and anyone who saves a life is as if he saved an entire world.
This statement about saving and destroying lives is well-known, quoted, as it has been, in the 1993 film “Schindler’s List” and echoed in the Quran. Here, we see that its original context is about not only remembering the irreplaceable humanity of the accused, no matter how horrific the crime, but also the potential holiness of any future generations they may yet produce.
All of these criteria lead one to wonder whether any capital cases were ever adjudicated at all. In other contexts, the Mishnah was certainly not above interpreting the Torah’s verses in such narrow, limiting, specific ways that punishments laid out in its passages could never truly be carried out.
But regardless, the bar the rabbis set for sober restraint when meting out death has not been remotely met by our contemporary criminal justice system. The racism inherent in the application of capital punishment has been well-documented and continues today. As California Gov. Gavin Newsom argued late last year, the death penalty’s application in the United States is “rooted in the legacy of slavery, racial terror and subjugation” in the ways it has been “disproportionately applied, first, to enslaved Africans and African Americans, and, later, to free Black people.”
The process is riddled with errors and injustices; for every nine people executed, one person on death row is exonerated, leading us to wonder how many more would have been had thorough investigations been performed. Chillingly, 79 percent of homicide exonerations were due to police or prosecutorial misconduct. People are not safe in the hands of this system. We will never know how many innocent people were condemned to death — each their own sacred, irreplaceable world.
People who acted out of trauma and illness, out of oppressive conditions and fear, out of places of profound brokenness — even in the committing of great harm — do not deserve to be killed by the state.
More to the point, even those who are guilty are sacred and irreplaceable. Many of those condemned had done profound repentance work and tried to repair the harm they had caused to the best of their capacity. Many more might have, if given the chance. And even if they did not, taking their lives would not restore their victims, nor fix anything that has been broken.
People who acted out of trauma and illness, out of oppressive conditions and fear, out of places of profound brokenness — even in the committing of great harm — do not deserve to be killed by the state.
We can hold people accountable without demanding their annihilation.
Elsewhere in the text, the Mishnah revisits the question: “A Great Court 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 Great Court, no person would ever be put to death.’”
The death penalty is barbaric, as Virginia’s leaders have come to realize.
A state should never have that power, and the U.S. has long proven why.
The U.S. is a secular country, and the separation of church and state is of critical importance. But I believe that Rabbi Tarfon and Rabbi Akiva — two of the greatest sages of my tradition — can remind us that what has been is not what must be and that we can each use our own power to say no to what should not ever be.
Abolish the death penalty.
