Notable personages are exercising a visceral reaction to the gruesome ax and knife murders of Jews in Elad, Israel. They allege the accused gang members are Hamas-inspired terrorists. Calls for the death penalty have filled the media.
It was an inhuman and vile means of attack. Specifically, murderers designed to scare and shake Jews emotionally, punish Israel and call attention to their cause.
Re-instituting the death penalty is a wrongheaded reaction. It is a poor recommendation for Israel as a light unto the nations. Death by hanging, shooting or gassing will tear away the soul of the country.
Should we torture terrorists to death? Make their families watch? Broadcast government taking of life on TikTok and post before and after pictures on Instagram? Where does the appetite for revenge end? Are minors subject to the same revenge as adults? Are Arabs going to be the only ones to die in the hangman’s hand?
Cain did not die for killing Abel and that was an act reviled by man and God. The death penalty, some argue, will short circuit good-hearted government ministers from releasing bad people from captivity. Lopsided prisoner-captive exchanges will no longer be necessary. Israel will have no one with blood on their hands to release.
Proponents of capital punishment assume the people in custody are guilty. Why? The judicial system is flawed. Soldiers are free to neutralize attackers rather than capture them and hold them for trial.
The Prison Service recently stated that Israel is holding 579 Palestinians in administrative detention. The government holds them in administrative detention based on secret evidence. These captives do not enjoy regular access to an attorney and their captivity is renewable every six months. Israelis charge that the system is abusive and denies them due process. And this is the system advocates of capital punishment want to employ.
Will judges order the military to carry out the death penalty? Will Israel create another civilian bureaucratic office for carrying out the decision of who shall live, die, how and when? Can we rely on confessions and what Israel calls special interrogations to decide? The line between the prevention of further terror attacks and criminal punishment is already thin and moves like chimes in the wind.
In 1999, the Supreme Court ruled special interrogation methods that violate human dignity make confessions inadmissible at trial. Judges and defense lawyers have repeatedly accused security agencies of lax standards. They cross the line between necessary acts and improper ones that violate human dignity. Most recently, defense counsel, parents and friends of the Jews accused in the Duma arson attack claim coercion exceeding the bounds of humane acceptability were used to elicit confessions.
The fact is confessions are worthless if extracted by torture. Read about the late US senator John McCain who endured five years of torture. To rely on confessions to justify the death penalty is obscene.
Let me share with you a personal experience. Governor George Ryan totally sidelined the death penalty in Illinois. I was a legislative lieutenant in child advocacy in Illinois and Massachusetts. The agency for which I served as executive director helped remove children sent to adult prisons to serve their time, some for murder, kidnapping, rape and parricide. In January 2000, Ryan instituted a moratorium on state executions because the death penalty carries the inherent risk of executing innocent men and women.
Law enforcement exonerated post-mortem over 200 people put to death. 21 of them in Illinois. More than half are men and women of color. Innocence in America is an endangered species when the death penalty looms for minorities. Israelis are going to have to ask themselves, do we put Jews to death?
What will happen to Jews accused of murder on a crime spree? Will prosecutors seek the death penalty for uxoricide, mariticide, filicide, assisted suicide or honor killings? Who defines an act of terror? Will they seek the death penalty when a soldier shoots and kills a wounded, disarmed Arab laying on the ground?
Perhaps, it is in the attack’s gruesomeness that defines the goalposts? Death by ax is cruel and unusual even for terrorists and mass murderers. But, as gruesome as an ax attack is, it is not worse than a stabbing in the back or shooting a victim.
Historically, governments have upheld a policy of death to spies. After all, spying can cause mass murder. And who defines which motives for killers are terror or something else? Is the woman who calls for the death of the current prime minister and his family a terrorist or just a member of the loyal opposition? A police officer is on trial for allegedly shooting and killing a special needs man. The officer can face capital punishment if the court considers the family outrage.
Jews enforced capital punishment as a legal and desirable method of punishment and revenge until 1948. Death by the government’s hand is a biblical injunction. The rules of evidence when rabbis rule according to Jewish law, however, are so strict that they effectively prevent capital punishment. The fear was not to kill an innocent, though seemingly guilty, person. In modern Israel, the death penalty contradicts the right to life essential to defining Israel’s Basic Law: Human Dignity and Freedom.
Popular sentiment for capital punishment rising in response to heinous murders. But, is the punishment worth the cost? No party has made it part of its campaign platform.
The government carries out targeted assassinations against enemies of Israel and the Jewish people. They are part and parcel of foreign policy by other nations, too. That should be enough for Israelis, for now. But even in the ax murders’ case, the trail back to the Hamas helmsperson is not crystal clear. Military authorities are not so sure and some are expressing uncertainty about where the breadcrumbs lead.
Maybe I am a goody-two-shoes. We suffered the loss of a child, so we are no strangers to the pain. I admit to harboring fanciful whims of revenge against antisemites, murderers, kidnappers, child abusers and my own past enemies. But a nation that has the death penalty, aside from the moral erosion, gives it a power that is fearsome.
Life and death lie in the hands of judges and politicians in office because they run good political campaigns or are members of the right political party. It is not by accident or the hand of fate that the color of a defendant and victim’s skin determines who receives the death penalty in America – or who will receive it in Israel.
The vaunted National Academy of Sciences claims for every eight executions, they have exonerated one person on death row. 4% on death row are probably innocent. That is too high a price for the Jewish people to pay to satisfy an understandable lust for revenge.
The writer is a business consultant, public speaker and writer. He has served in the administrations of US governors.