Thursday, February 11, 2010

Killing Bad People

In ancient times, our sages developed specific methods for interpreting the text of the Torah. Some of these sound quite cogent even today—their technique of supposing that details regarding the same topic that are mentioned in two different chapters can be used to shed light on each other, for example—but others seem significantly more far-fetched. And of this latter category surely the most simple example would be the humble hekesh, the interpretive technique that supposes that topics unrelated other than by appearing in adjacent sections of Scripture can be brought to bear in eliciting each other’s deepest meaning. It seems, to say the least, an improbable avenue of productive interpretation! And yet for all it sounds unlikely as a sound way to allow God to speak to us from between the lines of the biblical text, I find that there is a modern version of hekesh that repeatedly has allowed me to feel, also just a bit improbably, that the subtle juxtaposition of events in my life is not without meaning…and that the mere happenstance of two unrelated activities devolving upon me simultaneously can occasionally seem fraught with meaning.

I’ve written about this here before, most recently when I described the odd experience I had of seeing Quentin Tarantino’s movie, Inglourious Basterds, while I was in the middle of Hans Falluda’s great novel, No Man Dies Alone. But it had happened to me before. And it just happened again to me earlier this week again as I saw a program on television the same evening I was gathering material for the topic I want to broach with you today. Is that how God speaks to us today, by prompting us to turn the radio or the TV on at a certain moment when the hour is precisely right for us not just to hear, but really to hear, what the announcer is saying at that specific moment, or by guiding us to open a book or to go out to the movies on some specific evening when we are truly ready to hear what’s about to be said to us? Who knows? I’m still a bit dubious about the reasonableness of hekesh in interpreting ancient texts. But in real life…who knows if God doesn’t speak to us through the juxtaposition of events? How cool would that be? And it does feel as though it keeps happening to me!

And now I come to the topic I actually do wish to write about today: the reasonableness of killing bad people. When the topic of capital punishment comes up, I generally feel a certain deep ambivalence clouding my vision. On the one hand, the same biblical text that presents the prohibition of murder as one of the cardinal laws on which a just society must rest also appears to have no qualms about endorsing the idea of some crimes being so horrific that society’s only appropriate response is the execution of their perpetrators. That much seems clear…but then there is also the other side of the coin to consider. And there’s a lot written on that other side to take into account. For one thing, the list of capital crimes includes sins for which no reasonable person would today want to punish the wrongdoer with death. (The biblical text that ordains the execution of the fellow caught gathering sticks on Shabbat comes to mind.) For another, the halachah as it evolved eventually placed so many restrictions on the practice of executing criminals that it would not be exaggerated to say that the practice was outlawed by the law itself if not de jure, then certainly de facto. (To give only one example, to qualify a defendant for execution not only do witnesses have to come forward to testify that the accused committed the crime in question, but also that he or she was specifically warned that the act about to be undertaken carries the death penalty and then that the accused formally indicated awareness of that fact by actually saying so aloud. And how many times can we suppose that actually happened?) And finally there is the work of the Innocence Project to consider, a project undertaken in 1992 by lawyers at the Benjamin Cardozo Law School that to date has proven categorically that 250 individuals found guilty in court, including seventeen who were sentenced to death, were in fact innocent. So there’s also the question to consider of whether the fallibility of the system itself should render unreasonable the death penalty regardless of whether it would be reasonable if the system were infallible. (You can read more about the Innocence Project at and I encourage you to do so. It’s powerful reading, inspiring and upsetting at the same time but more than worth every citizen’s time to consider.)

I’ve been reading lately about the case of our co-religionist Martin Grossman, who is scheduled to be executed in Florida next Tuesday evening. The details of Grossman’s case are not in doubt. When he was nineteen years old in 1984, he and a friend got high and went off into the backwoods of Pinellas County to shoot a stolen handgun. When they were discovered by Florida wildlife officer Margaret Parks, herself only twenty-six years old at the time, Grossman begged her not to report the incident. (Grossman had previously been arrested and convicted of burglary and was on probation at the time. Both being in Pinellas County and possessing a weapon, even not a stolen one, would have been considered serious violations and he would undoubtedly have been sent back to jail.) A struggle ensued when Officer Parks tried to radio for help and it was in the course of that struggle that Grossman was able to seize her gun and shoot her in the back of the head, killing her instantly. None of this appears to be in doubt. But even so there are questions to consider. Should people be put to death for murders that were clearly not premeditated? Does it matter than he was a mere teenager when he committed the crime? Should the fact that the murderer was high on self-administered illegal drugs be considered a mitigating factor or does that detail make him even more responsible for his crime by having personally rendered himself so clearly out of control? Does it matter that the rabbi who regularly visits him in prison, a certain Rabbi Menachem Katz of the Aleph Institute (a Chabad-based outreach effort to Jewish men and women in prison) reports that he is fully remorseful and that he even received permission from the warden of his prison to put on tefillin during the rabbi’s last visit? All of these issues trouble me when I try to think clearly about sending this particular murderer to his death. And yet, I also ask myself, what of Margaret Parks’ family? Surely they would be reasonable in feeling that commuting Grossman’s sentence would somehow imply that his life is more valuable than hers, that it would be unfair and unjust for him to qualify for a new lease on life while she must remain dead merely because he, unlike her, isn’t dead yet.

And now we get to my hekesh. I was thinking about this—and reading the exceptionally interesting comments Grossman’s story has elicited from a certain segment of the Jewish world at the Yeshivah World News site at —when I found myself watching a very interesting program on the Public Broadcasting Service website about the Allied bombing raids on Nazi Germany. (You can see the program on-line at It’s a very good documentary, one in the extremely well done American Experience series that I am pleased to recommend to you. But it does not make for easy or simple viewing because it focuses on the moral issue of bombing as much as on the military ones, thus inviting viewers to decide how they feel about the larger effort not solely in terms of its tactical effectiveness.

Readers of mine cannot doubt that in my opinion nothing that led to the Allied victory deserves to be labeled, especially after-the-fact, as immoral. The documentary does not allow you to dismiss the issue by mouthing slogans or relying on priorly formulated theories, however. Instead, you are obliged to back up your certainty about the morality of the bombing raids over Hamburg, Berlin, Dresden and many other target cities by looking at footage displaying the mountains of corpses those raids left behind. Was it morally justified to kill civilians, including children, merely because they belonged to a rogue nation that had collectively undertaken to commit the greatest crimes against humanity imaginable? Even Abraham, after all, stopped when he got to the possibility of there being ten righteous people in Sodom! What if there had been eight or seven? Is the lesson there that as the level of depravity a nation embraces becomes the greater, the right of the individual citizen not to pay for the crimes of the larger polity diminishes? Does the eradication of evil justify the taking of human life? Clearly, our tradition endorses that idea unequivocally! And if the unavoidable nature of collateral damage—as anyone, even we who suffered so indescribably at the hands of the Nazis, should surely be able to label the deaths of babies—is not enough to make it unreasonable to do whatever it takes to defeat evil no matter what, then how can we question the decisions made by the Allied leaders to do just that regardless of what they surely must have understood that such an all-out effort was inevitably going to entail?

And then, having watching the documentary in its entirety, I returned to my writing desk to ponder the fate of Martin Grossman. The State of Florida is poised to take his life in just a few days. Are they being just or vicious, reasonable or vindictive, fair or inhumane? I would possibly have considered the issue in different terms had I not paused in my work to watch that documentary, but in its wake it now seems to me that the criterion for executing a criminal in our country, or in any country, should be whether that act of taking that specific human life can reasonably be said to help effect the eradication of evil from our midst. To answer that question, obviously, requires being able to define “evil” and not just to refer to it vaguely. Are all murders by definition evil acts? Does it matter if the murderer is a drugged-out teenager only vaguely aware of his actions? Or if the murderer’s subsequent remorse is so total that his subsequent execution will not eradicate evil because the evil that prompted his crime itself no longer exists after having been already eradicated not by a lethal injection but by the murderer’s absolute repentance for his deed? Leaving aside the question of who would ever be qualified to make such a decision regarding the purity of another’s teshuvah, would the absence of evil in the heart of the murderer render his execution immoral? These are the questions I find myself asking as I contemplate the imminent death of Martin Grossman.

It seems to me that as we continue to debate the death penalty issue in our country, the specific contribution of our Jewish community can and should be to force the issue to be discussed not solely in terms of how effectively the death penalty can or does serve as a deterrent to future crime, but whether the act of taking a human life in any given case can be reasonably and fairly described as a step toward the eradication of evil in the world. By focusing the issue in that specific direction, we will be helping our society to move forward in the establishment of a criminal justice system that has the betterment of the world and not merely the punishment of criminals at its moral core. Nor does saying that mean that criminals should not be punished, merely that the act of taking a human life is a matter of such ultimate moral gravity that it should only be undertaken when it serves society positively and not merely by punishing a bad person or by preventing him or her from doing more bad things (which result could be just as effectively achieved with permanent incarceration). And that’s where I am in my thinking on the matter after being obliged by an unexpected hekesh to consider the matter as it plays out on the level of the individual in light of the larger questions that swirl around the same issue when discussed in terms of warfare between nations.

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