by Michal Lando
December 13, 2007
Jerusalem Post

New Jersey is on its way to becoming the first state to repeal the death penalty since 1976, when the US Supreme Court reinstated capital punishment, and Jews are using tradition to weigh in on the process.

On Monday, a bill to replace the death penalty with life in prison with no parole was approved by the New Jersey Senate, largely seen as the greatest obstacle to repeal. State legislators expect the Democrat-controlled General Assembly, which votes Thursday, to approve the measure as well, almost guaranteeing an end to the death penalty in the state’s judicial system.

The vote is the result of a commission charged in 2006 by the New Jersey legislature with studying all aspects of the death penalty as currently administered in the state. The New Jersey Death Penalty Study Commission, which looked at deterrence, accuracy and financial costs among a number of other death penalty-related issues, found that the system was ineffective and recommended that it be replaced with life in prison without the possibility of parole.

Leading up to the vote, several Jewish efforts were under way in support of the repeal.

Rabbis from across New Jersey wrote to the members of the State Senate and Assembly urging them to follow the commission’s recommendations.

“The Jewish ethical tradition guides me to oppose New Jersey’s death penalty, which is unnecessary and poses an unacceptable risk of executing someone innocent,” said Rabbi Robert Scheinberg, a member of the commission and a signer of the letter to the legislature. “I’m heartened by how much support the process in New Jersey has gotten from Jewish communal leadership.”

Jewish law allows for the death penalty, but sets numerous conditions that must be met before an execution can be allowed to go forward. The standards are so strict that executions under Jewish law were rare.

Since 1959, the Reform Movement and the Union of American Hebrew Congregations have officially opposed the death penalty. In 1996, the Rabbinic Assembly of the Conservative Movement approved a resolution opposing the adoption of any new death penalty laws and urging the abolition of existing laws. And in 2000, the Union of Orthodox Congregations of America endorsed a call for a nationwide moratorium on executions pending a comprehensive review of how the penalty is administered in American courts.

In the letter to the legislature, which was signed by 50 rabbis from across the denominations, the signers wrote that “Jewish law guides us to take unprecedented steps to prevent the execution of an innocent person.”

“The Talmud teaches that “a doubt in capital charges should always be for the benefit of the accused” (Baba Batra 50b, Sanhedrin 79a). The Torah’s injunction “You shall have one law, for the native and the stranger alike” (Leviticus 24:22) commands that criminal penalties be applied fairly, not capriciously,” the rabbis wrote.

The letter concluded by urging the lawmakers to enact the New Jersey Death Penalty Study Commission’s call to change the death penalty to life without parole, and to use the funds saved to provide services to murder victims’ family members.

“I’m not opposed to the death penalty in principle, but have felt for a long time that I don’t have confidence in our courts to carry it out,” Scheinberg said. “I think a lot of people who have spent time to think seriously about it and study it, whether on the right or left of the political spectrum, come to simply see it as problematic.”

Though legislatures around the country have tried to repeal the death penalty, none have succeeded. This year, bills to repeal capital punishment failed in Nebraska, Montana, Maryland and New Mexico. Some states, such as New York, have succeeded in doing so through the courts or through governor-imposed moratoriums.

But repealing the death penalty through the legislature holds more weight. In terms of assessing a consensus on capital punishment, action by state legislatures serves as valid indicators of popular will.

Capital punishment in the US is determined state by state, at the local legislative level. Currently, 37 of the 50 states have a death penalty. Since the reinstatement of the death penalty in 1976, there have been 1,099 executions in the United States. There were 53 executions in 2006. The country’s last execution was in September in Texas. Since then, executions have been delayed pending a US Supreme Court decision on whether execution by lethal injection violates the constitutional ban on cruel and unusual punishment.

Many hope that a repeal in the New Jersey legislature will lead other states to follow suit.

Eight men are currently on death row in New Jersey, though no one has been executed in the state since 1963 and the process for carrying out an execution was declared unconstitutional by a state appeals court in 2004.

“It is symbolic more than anything else, but there are practical aspects [to a repeal],” said Rachel Barkow, a law professor at New York University. “By abolishing it, you take it off the table as something to threaten with, and you get rid of the expense of a capital trial.”

Kenneth Fox, vice president of the Jewish Social Policy Action Network, which lobbied on behalf of the New Jersey legislation, said it was consistent with the “overwhelming” position of Jews.

“As different states go along, they will come to the same conclusion,” said Fox. “More and more, when people put emotions aside and look at the facts, they will see it is not worth it to us as a society because of what it costs in financial, spiritual and moral ways.”