Thursday, August 3, 2023

In This Moment: Pittsburgh Verdict: Is the Death Penalty Warranted? The Broken Covenant and Shattered Democracies


In This Moment

Shabbat Shalom

As I return from my summer hiatus, my pending ascent to emeritus status has increased my attentiveness to the passage of time and the fragility of life. That was brought home with the tragic passing last week of my clergy colleague and friend, Rev Tommie JacksonRev Jackson had been a vivid presence in Stamford since 1997. I last saw him at an MLK program this past winter and as always, he was the first to greet everyone with a smile and a good word. When several years ago I was wrongly accused of bigotry, it was Jackson who rose to my defense in the Advocate, saying, "He does not have a vicious or bigoted bone in his body." He and a number of other clergy signed a letter attesting to those words - proving to me once again that true friendship transcends all religious boundaries.

The circumstances of his death are too tragic to contemplate here, challenging the notion of a merciful God. I can only echo the line from Archibald MacLeish's play J.B., based on the Book of Job. J.B. and Sarah, his wife, are struggling to understand their suffering and go on living. Sarah says to J.B.:

Blow on the coal of the heart.

The candles in churches are out.

The stars have gone out in the sky.

Blow on the coal of the heart

And we’ll see by and by.


The Pittsburgh Verdict:

Is the Death Penalty Warranted?

(Click for pdf of this front page)

The perpetrator of the Tree of Life massacre was sentenced to death yesterday. I've never felt it an authentic Jewish option to offer forgiveness to a mass murderer, but in my 2018 article, Should Jews Turn the Other Cheek, I wrote that revenge is a dish best served warm - with warmth directed toward the community.

For the Jews of Pittsburgh, the best revenge against the particular hatred espoused by white supremacists has not been to turn the other cheek, but to build stronger bridges to other targeted communities, like African Americans and Muslims, who have shown such love in the wake of the attack.

I've never been a fan of capital punishment. My overall take on the death penalty reflects traditional Jewish views, which I summarize below:

The Torah mandates the death penalty for 36 offenses, ranging from murder to kidnapping, adultery to incest, certain forms of rape, idolatrous worship and public incitement to apostasy, from disrespecting parents to desecrating the Sabbath. But the rabbinic sages effectively abolished the death penalty centuries later. Mishnah Sanhedrin 4:5 stresses the importance of presenting completely accurate testimony in capital cases, for any mistakes or falsehoods could result in the shedding of innocent blood. If any perjury were to cause an execution, "the blood of the accused and his unborn offspring stain the perjurer forever."

In Talmudic times, capital cases required a 23-judge court, while only three judges sat for non-capital cases. Two or more eyewitnesses were required to testify to the defendant's guilt, and their hands would, "be the first against him to put him to death" (Deuteronomy 17:6-7). In a capital case, a one-vote majority could acquit a defendant, but could not convict. Furthermore, if there was a mere one-vote majority or if any judge was undecided, additional judges were added in pairs until the majority ruled against conviction, or until one judge in favor of conviction was persuaded to err on the side of innocence (Mishnah Sanhedrin 5:5).

In practice, the death penalty became almost impossible to implement, though over the centuries there has been a diversity of opinion on the matter. Maimonides claims that murderers should not be executed if there was a question about how the trial was conducted. But if the trial was conducted properly there is no restriction, even if it means that one thousand murderers are executed in a single day. Rabbi Moshe Feinsteicounters that the purpose of assigning the death penalty to so many crimes in the Torah is to educate people about the severity of the offenses, rather than to end the lives of the offenders. That practice has continued to this day in modern Israel, where not even terrorists with blood on their hands are executed. Only those convicted of crimes against humanity (i.e. Adolf Eichmann) have been executed.

The question before us is this: While one can never compare any individual attack to the Holocaust and any single killer to Eichmann, the Tree of Life massacre was the deadliest act of antisemitism ever seen on these shores. If ever the death penalty were warranted, this would be the time. But Israel has seen far more deadly terror attacks and has nonetheless clung to the traditional Jewish view that human beings, who are all fallible, should never put themselves in the position of playing God. We cherish life so much that we are loathe to take one, even one that deserves to be taken, unless it is absolutely necessary, such as in self defense or wartime. But, on the other hand, is this in fact a war that we are fighting right now, against radical Christian nationalism?

My gut says that capital punishment is not the best outcome here - and with all the appeals to come, it may not be the ultimate outcome. But if this verdict can give a small bit of comfort to the families of the victims, which it has, it may not be the worst one either. And if in the end the perpetrator is given a lease on life by Pennsylvania's Jewish governor, there will be some poetic justice to it. But the main goal here is not to be poetic. It is justice, minus the poetry, that we pursue.

One thing is certain. Hate can never be an insanity defense. If there is insanity at play here, antisemitism is an ideological insanity of the far right and left (and much more lethal from the right at present), a religious insanity of radical (and non normative) Christians, Muslims and others who claim to be religious but really aren't, and a social insanity of those who employ stereotypic antisemitic tropes OR TOLERATE THEIR USE BY OTHERS, even in casual conversation.

Antisemitism is perhaps the world's first social disease. It is insanity. But someone who murders with such abandon can never be allowed to get off with that plea.

Antisemitism is insane...but it has, to our infinite dismay, also become normal.


So, What'd I Miss???

It's been a pretty crazy month, with tens of thousands of Israelis marching 40 miles from Tel Aviv to Jerusalem in protest, with thousands of fish washing up dead on the scalding shores of the Gulf Coast during the world's hottest month ever, and with unprecedented challenges to democracy, here and in Israel. On the day after the Knesset passed its first slice of the Judicial Coup, the Hebrew newspapers featured an all-black front page with the caption, "A Dark Day for Democracy in Israel." Then, on Tisha B'Av, Yediot ran a photo of thousands mourning at the Kotel with the headline, "No Way Out," and indeed, the path back from the precipice of illiberal democracy is a tortuous and treacherous one. It's a path Israel must now take. I believe they can succeed, as we have here (to this point). But we American Jews need to help them do that. And that means uniting behind a strong and unequivocal message. The lies will not work anymore.

The Broken Covenant

Healing Shattered Democracies

In this week's portion of Ekev, Moses reviews the misadventures of the Israelites in the wilderness, including the unfortunate shattering of the tablets of the Law as result of the Golden Calf incident. He notes (Deut. 10:2) that the tablets eventually find their way into the Ark of the Covenant, but it's not clear whether it's just the new, refashioned tablets that are put there, or whether the broken ones are included too.

The Talmudic sages weigh in (Bava Batra 14b):

The verses state: “At that time the Lord said to me: Hew for yourself two tablets of stone like the first…and I will write on the tablets the words that were on the first tablets, which you broke, and you shall put them in the Ark” (Deuteronomy 10:1–2). 

This teaches that both the second set of tablets and the broken pieces of the first set of tablets were placed in the Ark.

That image of the broken tablets standing alongside the new ones is a helpful visualization for these traumatic times. The Ten Commandments are our people's Constitution, Bill of Rights and Declaration of Independence, all rolled into one. And yet they were smashed, by Moses, no less, when the people went off the rails, which nearly led to their destruction.

One might ask whether it was intended from the start for the ark to include these two sets of tablets: one expressing the Heavenly Law, perfect and pure, and the other representing the sullied, shattered hopes and promises of what happens when perfect, abstract law collides with real life, with an easily misled humanity, and with Israel's flawed, beloved leader, Moses. Things break and sometimes broken things should not be left behind. If ever Judaism had a visual to remind us that no one is above the law, not even Moses, it is this image of the shattered tablets that Moses himself broke, alongside the perfect set that was copied from the first.

Not even Moses is above the law.

The message around the world this week is that no leader should be allowed to go unchecked and unbalanced. Checks and balances are the key to any functional form of democratic governance.

The best reaction to the most recent indictment against Donald Trump (have there been two or three since I was away?) was provided by none other than Mike Pence, who tweeted:

Today’s indictment serves as an important reminder: anyone who puts himself over the Constitution should never be President of the United States… Our country is more important than one man. Our constitution is more important than any one man’s career…

Perhaps those gallows built for Pence should be reconstructed outside the Capitol as a permanent memorial, much as the shattered mementos of ancient Israel's greatest transgression remained for all to see (at least if you were a high priest or Indiana Jones) in the ark. Seriously, there needs to be a January 6 museum, asap, just as it needs to become a national day of mourning and reflection. But for now, the gallows will do.

And in Israel as Bibl Netanyahu aims to destroy Israeli democracy slice by slice, placing himself above the judiciary, above the media, even above the military - whose leadership he refused to see when they came to warn him prior to the vote - and above the entire nation, we need to meet his lies head-on. We have to understand why it is that Israel stands on such a precipice right now. See below an instructive, real-time rebuttal to one of Netanyahu's desperate interviews on American TV by Israeli politician Stav Shaffir.

And here's another well-done primer on the current situation, a video by actress and good will ambassador Noa Tishbi.

And below you will find the Top Ten Reasons why President Biden should not invite PM Netanyahu to the White House anytime soon.

Heed these words from Daniel Gordis, who is hardly a flaming progressive. He is one of the most noteworthy conservative Zionist voices, who has often supported Netanyahu and his party. His recent Substack posting is entitled: Many American Jews desperately want to help. What can they do?

Please read the whole post. But here's what I most want you to see.

This is a broken, hurting, frightened country. Does that not sit well with some American Jews? I don’t know, but that doesn’t make it less true. Is that what one simply has to tell Congress for them to support us? There, too, I’m no expert, and I don’t know.

But here’s what I do know. Israel is changing right in front of our eyes, and though we have always “sold” Israel to Congress by stressing our shared values, those shared values are disappearing, slipping through our fingers like water in the cups of our hands.

What legislation is being proposed just this week?

  • Splitting the role of the Attorney General, so she will not be able to prevent the charges against Netanyahu from essentially being dismissed
  • A law permanently exempting Haredi men from military service
  • A law that would make it legal for the public to contribute to Bibi’s defense fund
  • A law that would allow Aryeh Deri, twice convicted of fraud and who has served jail time in the past, to fill any position in the government, which the court has blocked in the past
  • Death penalty for terrorists (as of now, it has been applied only to Eichmann)
  • A law that would permit exiling the families of terrorists
  • A law that would stipulate jail time for inappropriate dress at the Kotel
  • A law mandating extended jail sentence for those who block roads
  • A law breaking up the Bar Association (which elected a leader whom Netanyahu opposed)
  • There’s lots more, but you get the idea.

Shared values? For those of us who make our lives here, what’s happening here is not a PR challenge, it’s a deep fracture in the center of our souls. We’re not thinking about anything else. We’re not sleeping. And if we do fall asleep, we dream about everything falling apart. Ask people here.

Especially now, it would be nice not to be alone. The first step towards that would be to have those who love us and who want to support us let us know that they know exactly how fragile and how dangerous things have become.

Anything else is simply not true—and perhaps even worse, leaves us feeling abandoned when what we need is precisely the opposite.

Gordis neglected to include pending legislation that will subvert the independent media. Bibi is obediently following the formula of Hungary, Poland and Turkey before him. It's too kind to call it "illiberal." It's like calling murder a "splash of blood." Timothy Snyder laid it all out in his now-classic book, "On Tyranny." Read the 20 lessons on how to fight "illiberal" autocracy. Israel's brave citizens, a majority of whom oppose judicial reform, have provided a masterclass this year. Someday, God willing, the world will thank them for creating a Waze-like roadmap to freedom. But only if we from the diaspora heed their cry for help.

Israel is a "broken country." Since I last wrote to you, an enormous breach has occurred. Disregard the yea-sayers. This is a legitimate crisis, which will likely get worse. I heard a podcast last week where Thomas Friedman cried. That doesn't happen too often.

And even Michael Oren, the right wing former ambassador (and like Friedman and Gordis, a former Harold Hoffman speaker) fears civil war - especially after being disgusted by this selfie taken just after the reasonableness vote.

Oren writes:

My sole consolation lay in the belief that, at the end of the day, we are all still Israelis, still part of one people with a shared destiny and a memory of our painful past. We all remembered Tisha B’Av. Then came that selfie. Instead of displaying humility, instead of addressing the demonstrators and saying, “Though we fervidly disagree, we both acted out of love for our country, and that love must always bind us,” the coalition members rejoiced. Rather than recalling the Jews who killed Jews inside Jerusalem while the Romans surrounded it — and the déjà vu of Israelis battling Israelis while Iran encircles us with missiles and nuclear arms — the government exulted in victory.

Gordis analyzed the evolving couin this mid-July posting:

In April, Justice Minister Yariv Levin admitted that elements of his plan would have “ended democracy” because it would essentially give the coalition unfettered power. What Levin never explained was how a proposal that he worked on for decades could have been launched with such a fundamental flaw. He was either lying, and knew the dangers of his proposal, or didn’t care to check.
Either way, Levin’s admission, with the country already seething, confirmed the suspicions of many that this had never been about fine-tuning the judiciary. It was, many were convinced, a project much more nefarious.
...Why does Netanyahu’s weakness matter? Because the void has been filled by petty agents of resentment and contempt. Whatever animates Levin and Rothman, it is not the preservation of the fragile weave that Israel has always been. If it were, they would have softened long ago. Whether their hatred of Israel’s system of government stems from what some see as the Supreme Court’s failures during the 2005 Disengagement from Gaza (a period when Rothman, Levin, Smotrich and Ben-Gvir all came of political age) or something else, it is hard to say.
But their determination to rip Israel’s democracy apart was on plain display this week. Everyone knew that pushing ahead with changes to the “reasonability clause” would unleash mass protests, but they proceeded anyway.
They have no interest in a proposal by group of leading thinkers to create a new Constituent Assembly, like that mentioned in the Declaration of Independence. The Assembly would tackle the judicial issue outside the toxic setting that the Knesset has become, but the government is ignoring the idea, for toxicity has become their calling card. They wanted the protests—and perhaps blood in the streets as well, to prove that the protesters are “anarchists.”
Rothman et al. subjected Attorney General Gali Baharav-Miara to scandalous, vicious abuse in the Knesset this week. She weathered it with class and spine, as she has all the scorn heaped on her in recent months, but it was clear—the government may be getting ready to fire her. Unlike Gallant’s firing, axing the attorney-general would be an unmasked assault on democracy, and they know it.
...Israeli army reservists’ refusal to serve is the ultimate indication that Israel’s social contract is in tatters. First it was reserve pilots who refused to train or fly missions. Then it was Flotilla 13 reservists, Israel’s “Navy Seals. Then, earlier this week, 300 IDF cyberwarfare reservists declared that they would not volunteer for duty if the overhaul advanced, forcing Defense Minister Gallant to warn fellow ministers that the army would “not be able to withstand” key reserve members quitting service.
Those who critique the reservists’ refusal to serve argue that they made a commitment, that duty demands that they fulfill it. The soldiers, in turn, say that they made a commitment to a democracy. If it is not Jewish or not democratic, then Israel is not the country to which they pledged their loyalty, for which many said they would risk their lives.

Think about those shattered tablets in the ark, that dangling noose at the Capitol and let's add this image of the Israeli flag that appeared in The Jewish Chronicle, Britain's largest Jewish newspaper.

Netanyahu has broken Israel. The stock market is falling, the economy is spiraling and nearly a third of Israelis have thought about leaving. Fortunately, the Supreme Court still has a say in the matter and all 15 justices will be hearing the "reasonable" case just before Rosh Hashanah. What happens on the streets after that may not be so reasonable, but for the Jewish people, the New Year will bring a reckoning befitting the season of soul searching.

Moses would not have blown up his country for the sake of his ego, He did not risk blood on the streets or an unthinkable brain drain to remain out of jail . He accepted his lot and the nation's collective sin, and had to bear witness to the fruits of his anger every time he saw those shattered tablets inside the ark.

As for Trump, just read the indictment. Reasonable people will understand the danger that he continues to present to our democracy. As Tom Nichols wrote in the Atlantic "To support Trump is to support sedition and violence, and we must be willing to speak this truth not only to power but to our fellow citizen."

There are times when "bothsidesism" and "whataboutism" might be tolerated. Not now. There are times when rabbis and other Jewish leaders should be expected to stay silent. Not now. These are not normal times, in Israel, in America and everywhere where people cherish freedom.

It is a time to take a cold, hard look at those shattered tablets, that hangman's noose and that broken Star of David and speak the truth.

Today's Israeli Front Pages

Yediot Achronot

Ha'aretz (English)

Jerusalem Post

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