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Lawyer La​ys Out Judaism's Take on Capital Punishment

April 26, 2007 By:
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The Torah seems practically awash in capital punishment.

Biblical passages call for the death penalty in cases where adultery, rape, murder -- even, believe it or not, idolatrous worship and parental disrespect -- have taken place.

But according to lawyer Marshall Dayan -- who spoke before a handful of congregants at Congregation Beth Am Israel on the evening of April 18, and then again the following night at Germantown Jewish Centre -- such references do not necessarily mean that the Jewish tradition endorses a system of capital punishment.

In fact, the ancient rabbis went to extreme lengths to avoid carrying out the death sentence, explained Dayan, who coordinates the American Civil Liberties Union's capital-punishment project.

They designed "myriad, myriad, myriad procedural safeguards" so that it would be "virtually impossible to ever convict someone of a capital offense," emphasized the speaker.

Among these safeguards, Dayan cited a law that reserves state executions only for intentional homicides.

In unintentional crimes, the killer was permitted to take refuge in one of six cities around the Jordan River, noted the speaker.

The ancient Hebrews also required fool-proof evidence against the accused: They mandated that two individuals testify not only to witnessing the crime, but also to the fact that they warned the perpetrator of any potential penalties for his or her offense beforehand.

"You can see how the Torah starts to mitigate or ameliorate the harshness of the death penalty," said Dayan.

The attorney also noted that the architects of these laws were motivated by several factors. For one, rabbis of the period understood -- from personal experience, of course -- the harshness of an unfair and discriminatory legal system: After all, they lived under the Romans.

The rabbis also relied on Jewish concepts, such as teshuvah -- repentance, or the idea that the sinner will change his or her ways -- to justify their protection of human life.

Even further, believing in God helped the rabbis argue that the onus for determining life and death matters belonged to a higher power.

"They were confident Hashem would punish those men that [the state] couldn't find a way to," explained Dayan.

"I mean, I probably wouldn't argue if Hashem hands down the death sentence," he continued, and then, grinning, added, "although maybe, you know, you never know. In our tradition, we argue a lot."

'The Blood of Another'

Dayan said he first became interested in the subject during his junior year at the University of Georgia, when he heard that the state was going to carry out its first execution in 20 years.

"My first thought was, 'I am the state, and if the state's going to carry this out, that means me. How do I feel about the blood of another human being's life being on my hands?' "

Not too good, Dayan decided.

After driving 50 miles to Atlanta the night before the execution, the student found himself "weeping uncontrollably" at the image of taking a human life.

"I thought, 'Hashem created us to be God's partners in completing the creation' " of the universe, so " 'how can we waste any resources -- any human resources -- in that sacred pact?' "

Dayan said he revisited that question in 1994, when a client named David Lawson was executed. Though Lawson was convicted of manslaughter in 1981, the speaker said that his client became a different person after being diagnosed with and receiving treatment for bipolar disorder.

As Dayan conveyed, "Over the years that I knew him, he kept trying to do some good for the evil that he'd done."

That, in part, explains why the lawyer found Lawson's execution so chilling.

"He kept screaming, 'I am human,' until he got red in the face," recalled Dayan, who said he had a nervous breakdown after witnessing the 13-minute ordeal.

Since then, Dayan has defended other death-row inmates, but mentioned that he's never actually "had the pleasure" of defending an innocent person.

"I have, however, represented human beings," he insisted. And "human beings have no business being murdered" by the state.

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