By Rabbi Peter J. Rubinstein,
Senior Rabbi of Central Synagogue
Delivered at Riverside Church, January 10, 2000

Good morn­ing. It is real­ly hum­bling to be here on this pul­pit in the pres­ence of col­leagues — min­is­ters of this great church; to be with those who have devot­ed their lives fight­ing for a cause which I deem of ulti­mate impor­tance; and to be with you, the mem­bers of a con­gre­ga­tion which through­out its his­to­ry has some­how always under­stood what needs to be done and some­how man­aged to get it done, and, more impor­tant­ly, has been a light unto the nations, a light to the city, a light to our entire community.

It is with that knowl­edge that I stand humbly before you, as a reli­gious leader of this com­mu­ni­ty who has walked side by side with mem­bers of your cler­gy staff, but also as one who, like you, cares about the sanc­ti­ty of life, about which we will talk today.

During this sea­son in par­tic­u­lar, we who are Jews are espe­cial­ly keen­ly aware of God’s demands as we pre­pare for our High Holidays. It is dur­ing this sea­son that we learn just how demand­ing God can be. We are about to embark upon the cel­e­bra­tion of our new year and on the acknowl­edg­ment of our day of atone­ment, Yom Kippur. These days of reflec­tion and atone­ment are a time of con­fes­sion. And you would think that we should be able to ask God direct­ly for forgiveness.

Yet, God has a demand of us: that we face those we have hurt, that we look into the eyes of those we have wronged, and that we ask for their for­give­ness. Only if we pass that test, only if we can stand before all those to whom we have done wrong, only then can we plead our case before the Divine throne.

“Talk to those you have wronged,” God says. ​“Don’t begin with a prayer to me, with a litany of your sins. Talk to me of holi­ness, but ask your broth­ers and sis­ters whether you have act­ed holy.” ​“Speak to me,” God says, ​“of how you man­aged not to keep the Sabbath. But speak to them about how you have stepped over them when they hud­dled, tired and hun­gry on the street.” ​“Talk to me,” says God, ​“about your prayers. But talk to them about why you haven’t edu­cat­ed their chil­dren. Oh, you can come and speak to me of the mat­ters of rit­u­al absti­nence. But you had bet­ter speak to them of the huge mat­ters of how you sent them to jail when they were not guilty, of how you stole years of their youth from them with unjus­ti­fied pun­ish­ment, of how you — but oh, about this you can’t speak to them any­more, because you have killed them, mur­dered them with heart numb­ing chem­i­cals and sent elec­tric cur­rents through their organs.”

Today gives us the oppor­tu­ni­ty to be aware of our­selves, the civ­i­liza­tion we are build­ing, the world we have inher­it­ed. And it is time to give seri­ous thought to what we have wrought.

We begin with a piece of his­to­ry. Gary Graham had not been a nice guy. He was a dan­ger­ous crim­i­nal who had shot and seri­ous­ly hurt two peo­ple in Houston. But oth­er than one eye­wit­ness who says that she saw his face for a few sec­onds through a car wind­shield from about 30 feet away, noth­ing nails Gary Graham to the mur­der of Bobby Lambert in a super­mar­ket 19 years ago. And though the case had come before thir­ty judges, the two wit­ness­es who said that Graham was not the shoot­er and whom the police had even list­ed on their report were nev­er called to tes­ti­fy. In addi­tion, there was a woe­ful­ly incom­pe­tent tri­al lawyer, the fact that the gun Graham pos­sessed when tak­en into cus­tody was not one used in the mur­der, and that there was no phys­i­cal evi­dence link­ing him to the crime.

This past June 22, in a state­ment on the floor of the United States Senate, Senator Russell Feingold, who has been a staunch advo­cate for abo­li­tion of the death penal­ty, said, ​“Supporters of the death penal­ty, includ­ing Governor Bush, have said there is no con­clu­sive proof that Texas has killed an inno­cent per­son.” I add, as an adden­dum: What nerve to be so cer­tain about any­thing — much less inno­cence or guilt or the cer­tain­ty that some­one has done some­thing deserv­ing of being mur­dered him­self! Senator Feingold went on to say, ​“Apparently, Gary Graham, who had the cour­t­house doors slammed shut on his claim of inno­cence, won’t have a chance to prove that he is inno­cent.” That same evening, Gary Graham was strapped to the exe­cu­tion gur­ney, a nee­dle was insert­ed into his arms, and poi­sons flowed into his veins, end­ing his life.

That was not the first time nor will it be the last in which the mud­dy waters of human and judi­cial judge­ment drown claims of inno­cence and bring death to those who may nev­er have taken life.

I first con­front­ed the nox­ious poten­tial of cap­i­tal pun­ish­ment when I read the sto­ry some years ago of Isidore Zimmerman. He had been sen­tenced to death for the mur­der of a Police Detective upon the tes­ti­mo­ny of a man who was part of a gang that was arrest­ed for the mur­der. All sev­en of the gang were found guilty. 5 were exe­cut­ed in the elec­tric chair. One died of nat­ur­al caus­es. 2 hours before Zimmerman was sched­uled to be elec­tro­cut­ed, his death sen­tence was com­mut­ed to life in prison.

Zimmerman spent the next 24 years in New York state pen­i­ten­tiaries. In 1962, find­ing that a pros­e­cu­tor in the DA’s office had delib­er­ate­ly used per­jured tes­ti­mo­ny and had sup­pressed evi­dence that might have proven his inno­cence, an appeals court over­turned Zimmerman’s con­vic­tion. 21 years lat­er, the State Court of Claims award­ed Zimmerman $1,000,000 for his ordeal, as though they could ever pay him for the years of suffering.

Zimmerman died four months lat­er, hav­ing spent 24 of his 66 years in prison for a crime in which the State final­ly admit­ted he had played no part. The arti­cle about his death is what called my atten­tion to his sto­ry. I believe that he want­ed to die to show that the State could not give him back those years, not even with $1,000,000.

This exam­ple is one among oth­ers where judi­cial mis­car­riages have had hor­ri­fy­ing out­comes. The sta­tis­tics are awful. A recent study under­tak­en by law pro­fes­sor James Liebman and oth­ers at Columbia University reports that 68% of the death sen­tences that fed­er­al and state courts have reviewed in the past two decades have been over­turned. In cas­es sent back for retri­als, 82% of con­vict­ed cap­i­tal defen­dants received new sen­tences oth­er than death, includ­ing 7% who were found not guilty.

I believe that com­mu­ni­ties do have the right to pro­tect them­selves from crime. We have the right to take crim­i­nals off the street, espe­cial­ly for repeat­ed crimes. Punishment needs to fit the crime, and we also expect in this day and age that pun­ish­ment will deter crime. So, we impose fines and incar­cer­ate because we believe that if the law­break­er hurts enough, he or she will not break the law again.

But I am ter­ri­by con­cerned when our soci­ety turns to revenge and takes a crim­i­nal’s life as the pun­ish­ment for wrong­do­ing. Albert Camus described this base instinct and reflex of ours. He said that it goes like this: ​“Whoever has done me harm must suf­fer harm; who­ev­er has put out my eye must lose an eye; who­ev­er has killed must die.” This is a par­tic­u­lar­ly violent emotion.

Yet, we are part of an American cul­ture that hon­ors vengeance — espe­cial­ly in its choice to impose the death penal­ty. The exe­cu­tion cham­bers in our coun­try are hum­ming along. For exam­ple, just this week, Michael Scott is sched­uled to be exe­cut­ed on Tuesday, on Wednesday, Miguel Richardson is sched­uled to die in Texas and George Harris is sched­uled to die in Missouri, and Derek Barnabei’s exe­cu­tion is planned in Virginia for Thursday.

Only China, Iran and Saudi Arabia exe­cute more pris­on­ers than we do. These are hard­ly coun­tries we would want to emu­late or to be grouped with. And we in the United States are lead­ing the world in impos­ing the death penal­ty for juve­nile con­vic­tions. We have also exe­cut­ed 34 peo­ple who have been diag­nosed with men­tal ill­ness or retar­da­tion, includ­ing some indi­vid­u­als who could not even read the state­ments they signed.

James Roach from South Carolina had an IQ below 70. He had Huntington’s Disease which was caus­ing his brain to dete­ri­o­rate. And when the State killed him in 1986, it did so for a crime con­vict­ed when he was only 17 years old.

Our State of New York does­n’t cause me to be proud either. After decades in which the death penal­ty did not exist here, New York in 1995 passed death penal­ty leg­is­la­tion. We inch pre­car­i­ous­ly clos­er to reac­ti­vat­ing exe­cu­tions, with 6 men already on New York’s death row. If we are not vig­i­lant, we could be groom­ing our death cham­ber to act on our behalf.

Prior to the Governor of Illinois’imposition ear­li­er this year of a mora­to­ri­um on exe­cu­tions, an equal num­ber of men there had been exon­er­at­ed as had been exe­cut­ed since the reim­po­si­tion of cap­i­tal pun­ish­ment there in the 1970’s. Prior to the impo­si­tion of that mora­to­ri­um, an edi­to­r­i­al had apt­ly com­ment­ed, ​“The exon­er­a­tions are not a sign that the sys­tem is work­ing. The inno­cence of many death-row pris­on­ers was dis­cov­ered only because out­siders went to great time and expense to inves­ti­gate when the courts would not.”

Only sheer luck saved the life of Walter McMillian, who was released from Alabama’s death row after hav­ing spent 6 years there on the basis of per­jured tes­ti­mo­ny and with­held evi­dence. After lis­ten­ing to a tape of a key wit­ness against McMillian, a vol­un­teer lawyer hap­pened to flip the tape to see if there was any­thing on the oth­er side. He then heard the very same wit­ness com­plain that he had been pres­sured to frame McMillian.

A sys­tem that requires col­lege stu­dents to pro­vide jus­tice as a class project — as has hap­pened more than once at Northwestern University — can­not be called func­tion­al. A sys­tem that holds the bal­ance of a man’s life in the flip­ping of a tape can­not be called reasonable.

How many inno­cent peo­ple are we going to have put to death on our behalf because there is no one left to cham­pi­on their cause, because their time and mon­ey has run out? We know that the death penal­ty is going to kill inno­cent men and women.

We also know that the death penal­ty is not an effec­tive deter­rent. A mem­ber of my con­gre­ga­tion, Ron Tabak, has demon­strat­ed that empir­i­cal stud­ies dis­prove most of the pop­u­lar argu­ments by pro­po­nents of the death penal­ty, includ­ing the propo­si­tion that it will deter crime.

And above all the death penal­ty is unfair and unjust. It is downright discriminatory.

When Supreme Court Justice Harry Blackmun spoke at Central Synagogue in 1993, he con­fid­ed to me with a great deal of per­son­al pain that he, in his posi­tion as a Supreme Court Justice, had come to know that more than a few inno­cent peo­ple have been exe­cut­ed in this coun­try. Justice Blackmun ear­ly in his tenure on the Supreme Court had shame­less­ly vot­ed to uphold the death penal­ty. But in 1994, he offi­cial­ly went on record revers­ing him­self. In a dis­sent, he wrote:

“From this day for­ward, I no longer shall tin­ker with the machin­ery of death‑I feel moral­ly and intel­lec­tu­al­ly oblig­at­ed sim­ply to con­cede that the death penal­ty exper­i­ment has failed. It is vir­tu­al­ly self-evi­dent to me now, that no com­bi­na­tion of pro­ce­dur­al rules or sub­stan­tive reg­u­la­tions ever can save the death penal­ty from its inher­ent constitutional deficiencies.”

Justice Blackmun knew and told me that cap­i­tal pun­ish­ment is racial­ly dis­crim­i­na­to­ry, incon­sis­tent­ly applied, and fraught with con­sti­tu­tion­al dan­ger. The skin col­ors of the vic­tim and the per­pe­tra­tor, the accused’s finan­cial resources or lack there­of, the loca­tion of the tri­al, the iden­ti­ty of the judge, and the exper­tise or lack there­of of the lawyers are all capri­cious mat­ters that deter­mine whether the accused will live or die.

But I want to leave to the lawyers those con­sti­tu­tion­al argu­ments and the sala­mi approach to the law in which lawyers appro­pri­ate­ly chip away at the laws that are send­ing peo­ple to their deaths.

For me, what is impor­tant is that we are sit­ting togeth­er in a sanc­tu­ary. In the spir­it of this place, I pro­claim that cap­i­tal pun­ish­ment is absolute­ly anti­thet­i­cal to the very foun­da­tion and prin­ci­ples of religious faith.

The ​“eye for an eye” argu­ment that is used vocif­er­ous­ly by death penal­ty pro­po­nents — some, sad­ly, my own col­leagues * in an effort to gar­ner sup­port from Biblical law does not fit with what we believe. Before we use the ​“eye for an eye” argu­ment to sup­port the mod­ern death penal­ty, we had bet­ter be espe­cial­ly cau­tious and had bet­ter start read­ing our Bible. I warn you that if we begin to lit­er­al­ly apply the laws of the Bible — in which the death penal­ty is also called for those who are adul­ter­ers, those who are blas­phe­mers, those who don’t keep the Sabbath, and those chil­dren who might be rebel­lious — we would dec­i­mate our society.

In the Jewish tra­di­tion, the Rabbinic author­i­ties used tex­tu­al devices to pre­vent the death penal­ty. The Rabbis inter­pret­ed the Torah using God’s aver­sion to mur­der as a basic prin­ci­ple. And they referred to Torah texts which explic­it­ly for­bid capital punishment.

The statute of an ​“eye for an eye” was inter­pret­ed to mean, at its very most, the ​“worth of an eye” for an eye. We have no record­ed his­to­ry, in Jewish tra­di­tion, of putting out eyes, of ampu­tat­ing hands, or of knock­ing out teeth. Criminals cer­tain­ly need­ed to pay for wrong­do­ing, but not with the muti­la­tion of their bod­ies or with their lives. The eye for an eye leg­is­la­tion remained con­cep­tu­al and was used only in its interpreted form.

The leg­is­la­tion that was used and needs to be used is one of the Commandments that stands before us every­day of our lives: ​“You shall not murder.”

Our fore­bears believed that only God has the right to take life. Not you, not me.

I believe we must abol­ish the death penal­ty. We can­not become murderers.

I can­not even imag­ine what it would be like to send 2000 volts through three elec­trodes attached to the head by a tight­ly fit­ting cap and strapped to a per­son­’s ankles. I dare not imag­ine the gassing of a human being or hang­ing a per­son or the loud sounds of a per­son­’s lungs being emp­tied of air by lethal injec­tion before the poi­son stops the heart. I do not want the State to do this on my behalf.

Taking a per­son­’s life by plan, by cal­cu­la­tion, in cold blood is noth­ing short of mur­der — no mat­ter how its pro­po­nents want to make it seem different.

Capital pun­ish­ment is an igno­ble, irrev­o­ca­ble act of revenge. Once some­one has been exe­cut­ed, you can’t go back. You can’t ask for for­give­ness. You can’t say you are sor­ry and make it all better.

When Samuel Pisar, one of the youngest sur­vivors of the Nazi death camps, wrote his mem­oirs, he recount­ed an occa­sion in which he first respond­ed to a fel­low stu­den­t’s prac­ti­cal joke with punch­es and rage but then caught him­self. He was mor­ti­fied. ​“Fool,” he said to him­self, ​“what have you done? — Have those Nazis suc­ceed­ed after all? You have got to learn some self-con­trol. You have got to lock up the hood­lum in you and throw away the key.” My friends, each of us per­son­al­ly — and all of us as a com­mu­ni­ty * must lock up the hood­lum in us and throw away the key.

I wor­ry about what I would do if any per­son harmed those whom I love. No doubt, I would want an attack­er to feel pain. And let it be that mur­der­ers spend their entire lives in prison, fac­ing the real­i­ty of their broken lives.

But we are respon­si­ble for how we pun­ish. We are respon­si­ble for what we do. At our best, we should be pun­ish­ing to edu­cate and to improve and to redeem, and should even let out of prison those who have recre­at­ed their lives.

Isn’t that what God is ask­ing us to do: to atone, to turn our lives around? Can’t peo­ple do that, and can’t we let them do that?

We can pun­ish to deter, to pro­tect. But we should not pun­ish to take revenge. It makes us mur­der­ers. It dimin­ish­es us. It begets violence.

Revenge turns us into thugs. We have no right, no rea­son, to take life.

God implores us, ​“You shall be holy because I the Lord your God am holy.” Reaching beyond our human reflex­es and grasp­ing for divine decen­cy is no easy mat­ter. But, then again, strug­gling to be holy is prob­a­bly why God put us here in the first place — here in this church, here in my syn­a­gogue, here in this creation.

Sadly, it is absolute­ly impos­si­ble to seek atone­ment from those we have put to death. They are gone! But we can enmesh expi­a­tion in our com­mit­ment to action, to remove cap­i­tal pun­ish­ment from the menu of judicial responses.

So let us stand up force­ful­ly for the pro­tec­tion of life. Let us be war­riors in defense of all life. Let us take our places in defend­ing our­selves against forces of dark­ness. Let there be no blood on our hands, as there will be if some­one else who acts on our behalf throws the switch or inserts the nee­dle in the vein. Let it not be that life be tak­en for you or for me.

God needs us to build this world, not to destroy this world. God pleads with us to heal this world, not to harm this world.

These, my friends, are the mis­sions before us. I pray that we will be wor­thy of God’s trust in our good­ness. For in the end, our good­ness is the tool that God has giv­en us to help com­plete this creation.

Amen.