USHMM shooter may get death

The USHMM shooter may get the death penaly, according the the Washington Post (via).

The six-page indictment says that von Brunn "willfully, deliberately, maliciously, and with premeditation" shot Johns. Von Brunn was charged in the indictment with first-degree murder and related hate crime and gun violations.

Von Brunn could face life in prison if convicted on the charges, but four counts in the indictment make him eligible for the death penalty if the Justice Department and prosecutors choose to seek it, federal prosecutors said.

Certainly, the crime he's accused of is accurately described by the charges that make him eligible for death. And I think Jewish law would say he deserves death. But I cannot tolerate the death penalty. Or, for that matter, harsh, punitive justice. I hope -- and this hope is grounded in compassion for the shooter, not in some belief that rotting in jail is a greater punishment -- that he isn't put to death.

Despite having grown up apart from the Jewish community, I think this view ultimately does come from my Jewish background. That doesn't mean I look at Jewish law in a religious way, but it surely informed my mother and ancestors as they tried to instill values in their children. So let me explain, though I'm no Talmudic scholar, what Judaism says about the death penalty, at least as well as I can.

This is one of the many differences between Christianity and Judaism. When I've spoken to Christian supporters of the death penalty, they often point to the Old Testament phrase, "an eye for an eye." I say "Old Testament" because that's what it is for them, though the Old Testament to me is a doppelganger to the the Hebrew Bible, the Tanakh or Torah. The tendency in other Abrahamic religions to see Judaism as familiar is based as much on ignorance as on shared scripture, and this particular phrase has had a prominent role in that problematic history. There are many times I've come across the phrase where it suggests that Judaism is barbaric and archaic or that Jews are a vengeful people. And it's no coincidence that in looking for facts to flesh out my understanding here, my web searches have brought up a great many hate sites.

Judaism doesn't understand that phrase to mean the same things Christianity understands it to mean. For Jews, the phrase is to be read as "in no circumstance may more than an eye be taken in exchange for an eye," and it is already understood that the assailant will pay damages to the assailed. What the phrase really deals with is the problem of "whose eye?" If a photographer puts out the eye of a grave-digger (the examples comes from this lengthy discussion), their eyes aren't equally valuable to them. The grave-digger's eye is valuable, as are all eyes, but the photographer's eye is his livelihood and identity. So more thought is needed to find a resolution.

What Rabbi Eliezer meant was that "an eye for an eye" must be taken literally in the sense that the amount determined as the monetary damage must be based on the eye of the assailant. If the victim was a photographer and the assailant a grave-digger, we determine the value of an eye based on the assailant. Even though the photographer's eye is more valuable, the assailant only pays his "eye" for the eye he damaged.

But explaining that is a diversion. More importantly, the passage is completely irrelevant to a case such as this. Crimes such as murder are dealt with separately. Technically, Jewish law allows for the death penalty. And a crime such as this certainly meets the criteria of Jewish law. But Jewish law as I understand it also says we should look for every reason not to put anyone to death, no matter how much they might deserve it.

Although Jewish law does say such a crime deserves the death penalty, Jewish law also says that a court should be tolerant. Rabbis discuss the death penalty in the Talmud. They first note that the death penalty was to be meted out by the religious courts that no longer existed, and so there was a question if the death penalty could ever again be applied. Then one says, if he had been on the court that once existed, he'd have found so many reasons not to execute people that the court wouldn't have put anyone to death more than once every seven years. Another Rabbi tops him by saying seventy years.

"A Sanhedrin that puts one person to death once in seven years is called destructive. Rabbi Eliezer ben Azariah says: Or even once in seventy years. Rabbi Tarfon and Rabbi Akiba say: Had we been the Sanhedrin, none would ever have been put to death." Mishnah Makkot, 1:10 (2nd Century, C.E.)

And so any court that orders capital punishment more than once every seventy years is tyrannical.

In modern day Israel, since the establishment of the state, with it's history a bit short of 70 years, only one person has been sentenced to death. That person was Adolph Eichmann. The USHMM shooter, as awful as he is, was no Eichmann. And, as awful as he is, like all awful people, his failings surely come from a place of pain and torment. I hope for him that he can find peace.