Shortly after 6:00 this morning, the State of Missouri killed Joseph Franklin. A white supremacist trying to start a race war, Franklin was blamed for nearly two dozen killings between 1977 and 1980. He was on death row for the 1977 murder of Gerald Gordon outside the Brith Sholom Kneseth Israel synagogue in St. Louis. Gordon was among a couple hundred guests leaving a Bar Mitzvah, and was killed in front of his wife and three children.
This case is challenging, because I consider myself an anti-capital-punishment absolutist. While I would certainly agree that some people "deserve" of die, I don't believe that such the government should be in the business of executing criminals. It doesn't matter how heinous the crime. We can all point to cases, like this one, where there is little doubt about guilt.
A few years ago, I prepared a "Dvar Torah" (literally, a word of Torah, really a short talk about the themes of the weekly Torah portion). The portion was Ma'asei, which included some interesting perspectives on the death penalty and even addressed the human desire for revenge. Below are some excerpts from that D'var Torah:
On July 1st, the state of Texas executed Michael Perry. It was the 30th execution this year in the United States. Last year, 52 people were executed in this country. Only China, Iran, Iraq and Saudi Arabia used the death penalty more often. Some supporters of the death penalty turn to the Hebrew Bible, our Torah, with its many references to such punishment, to find religious – and thus, moral – support for their position. After all, our scripture includes the death penalty not only for murder but also for idol worship, disrespecting parents and not observing Shabbat, among other transgressions.
But as we learn in Parsha Ma’asei – the second of this Shabbat’s double portion – and from the rabbis of the Talmud , it’s not that simple.
In a 1988 debate between Presidential candidates Michael Dukakis and George H.W. Bush, the moderator asked Dukakis: “If your wife were assaulted and murdered, would you favor an irrevocable death penalty for the killer.” Many believe that Dukakis’s answer – an emotionless explanation of why he opposed the death penalty - was a significant factor leading to his defeat.
This is because when we discuss the death penalty, the debate frequently becomes personal, and our position on the issue is often based on our answer to a question like that posed to Gov. Dukakis 22 years ago. But this week’s Torah portion warns against letting our emotions control our behavior in these situations.
Numbers 35:6 begins the explanation of the six “refuge cities” that G-d commands Moses to have the people establish in the Land of Israel. These are to be “places to which the murderer can flee” to find refuge from the “blood avenger.” While the Torah seems concerned mainly with so-called “accidental” killing – what we would call “manslaughter” today – there is language suggesting these cities would also be places where any accused murderer could find refuge until a trial is completed. The idea of protecting a killer from an avenger is strong evidence that G-d wants us to control our instinct for revenge. Society must have rules in place to protect accused criminals from acts of revenge.
This same section also teaches that once the trial is over, or once someone accused of “manslaughter” leaves a refuge city, it is the avenger who will carry out the punishment. So G-d understands that as human beings we need the closure such an act will provide – even if it is at some level an act of revenge. But this can happen only after a fair trial, with the accused protected from revenge until then. Justice can lead to closure through an act that is partially vengeful - but vengeance cannot lead to justice.
But the limitations on imposition of the death penalty are even more severe in the next section of our Torah portion and in the Talmud. In Numbers 35:30, G-d says to Moses, “If anyone kills a human being, the murderer shall be put to death on the basis of eyewitness testimony. However, a single eyewitness may not testify against a person where the death penalty is involved.”
The rabbis understand this to mean that there must be at least two eyewitnesses if the accused could be subject to the death penalty. In the Talmud they take this even further, allowing the death penalty only if the criminal was warned beforehand that the crime could be punishable by death, and that the criminal had accepted that warning. Even a confession would not be sufficient evidence to impose the death penalty, lacking this other evidence.
With such a high standard, it seems clear that the intent of the rabbis was to make it virtually impossible to impose this most severe punishment. This debate is recorded in Mishnah Makkot – “A Sanhedrin that puts a man to death once in seven years is called destructive. Rabbi Eliezer ben Azariah says: even once in seventy years. Rabbi Akiba and Rabbi Tarfon say: had we been in the Sanhedrin none would ever have been put to death. " In modern Israel today, the death penalty is illegal except in cases of genocide, war crimes, crimes against humanity, crimes against the Jewish people, and treason in wartime.
Despite what I wrote several years ago, this case still caused me to question my position on capital punishment. Then I realized that until yesterday, when a Federal judge granted a stay of execution (later lifted by the US Supreme Court), I didn't know anything about Joseph Franklin. That's probably as it should have been. A common - and justified - complaint in such cases is that the criminal gets too much attention and the victims seem to be forgotten. I had to use the Google machine to find out more about this case, and while some articles mentioned the names of several of Franklin's victims, I learned more about his life than the lives of his victims.
This execution has brought a murderer attention that many of us would agree he should not receive. If he had just been left to spend the rest of his life in jail most of us would never had heard of Joseph Franklin. Despite the challenge of this case, I still believe what I wrote in my D'var Torah. I continue to oppose the death penalty.
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