It was a “hung jury” at a free public forum Temple Emanu-El hosted Dec. 4. The forum explored the death penalty in what event organizer, moderator, and former attorney Bob Schwartz called “the start of a much bigger conversation” he hopes will continue.
The “Forum on the Death Penalty and Judaism: The Tree of Life Synagogue Shootings and Beyond Beyond” included five speakers presenting their perspectives on the death penalty in general, and the Pittsburgh case in particular, to an audience of about 55 people. The panelists were Temple Emanu-El Rabbi Batsheva Appel; veteran Pima County prosecutor and author of “Arbitrary Death: A Prosecutor’s Perspective on the Death Penalty,” Rick Unklesbay; criminal defense attorneys specializing in capital case appeals and trials, Amy Krauss and Dan Cooper; and University of Arizona professor of philosophy Michael Gill.
Federal prosecutors are seeking the death penalty for Robert Bowers, the alleged shooter in the Oct. 27, 2018, Pittsburgh Tree of Life Synagogue killing of 11 congregants. Schwartz noted that two of the three congregations that shared the Tree of Life Synagogue opposed seeking the death penalty in this case and the surviving spouse of a victim asked that the death penalty not be sought. When Schwartz ultimately asked panelists at the end of the two-hour forum, “Assuming Bowers is convicted of the crimes he is charged with, should he be executed?” panelist responses were divided but consistent with the perspectives they shared throughout the evening.
Appel brought biblical insight to see all sides, which she admitted could lead to ambivalence. She noted regarding what seems like an obvious prohibition that the commandments state “thou shalt not murder” rather than thou shalt not kill, although capital punishment is mentioned for some crimes of social and religious natures.
Unklesbay said annual polls continue to show the majority of Americans support the death penalty, although that support is dwindling.
“People don’t really know what’s entailed in prosecuting these cases — the costs, delays, appeals — and over the years, the impact it has on the surviving victims. Over the decades [such cases can take], it doesn’t bring justice to the victims, it just keeps impacting their lives for years so they can never put it behind them. Today there are 3,000, mostly men, on death row, 740 in California alone [104 in Arizona.] Yet the death penalty is rarely ultimately imposed,” he says. He noted that in many states the death penalty is applied more often to people of color.
Krauss said that unlike the Pittsburgh shooting where the guilt is evident, there are many cases where those incarcerated are innocent. “We know with certainty there are people in the system wrongfully convicted. We participate in the system as lawyers to do the best of our ability to ensure a fair and proper trial and that justice is done. It is our job to try to fix the system and make it better,” she said
Krauss and Cooper, both Jewish, said they focus on the defendant, looking beyond the facts of a crime. Krauss said she has difficulty squaring her core Jewish values — compassion, goodness, and mercy — with capital punishment. The one time she witnessed an execution, in 2015, was the only time she was ashamed to be a lawyer, she said. Cooper reflected upon his Jewish upbringing and how it has influenced his opposition to the death penalty.
Gill used a bumper sticker slogan — “why do we kill people to show killing is wrong” — to take capital punishment to the abstract level. “When the government does it, it’s not the same as an individual killing. It’s wrong for the private individual, but it also is wrong for the government. How do we justify punishment?” He described “forward-looking” punishment as a deterrent and “backward-looking” punishment as retributive. “There isn’t any good evidence that the death penalty is more valid than life imprisonment. Punishments have become less severe as civilization has become kinder, less violent. The death penalty may be expressing a value we want to eschew.”
When the Israeli Knesset abolished capital punishment in 1954 — except for a limited range of crimes — Adolf Eichman became the single convict in Israel’s history to be executed, Schwartz told the audience. “Should he have been executed?” Some audience members said, “Eichman deserved it.” Again, the panel was divided. “People feel a visceral reaction but with reflection, may come to a different opinion,” said Gill. “We have the intuitive pull, the sense that this is what justice demands — something equal to set things right.”
“Reasonable minds can differ on capital crimes, abortion or politics. How we think is an evolution of a process,” said Krauss. “It’s about experience and perspective. Being open-minded and engaged in the process is a good thing to do.”
On the ultimate question of whether Bowers should receive the death penalty, Gill deflected. “I’d say no, but my view on this is not firm. I am more on the fence than some others.” Krauss and Cooper agreed he should not. Krauss also questioned how the death penalty can be carried out according to the U.S. Constitution’s eighth amendment, which states that punishments must be fair and cannot be cruel. Prosecutor Unklesbay said, under current law, if Bower is convicted, he should be executed, from the legal point of view.
“Even given his crime was against Jews praying on Shabbat in a synagogue, I prefer life in prison and that the absolute memory of his name attached to that act disappears,” said Appel. “We must remember the victims and his name should be erased.”