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.”