Is Josh Shapiro’s Rejection of the Death Penalty in Line with Jewish Law?

Josh Shapiro (Courtesy of Commonwealth Media Services)

About two weeks ago, on the Sabbath that began on Feb. 17 and ended on Feb. 18, religious Jews read Parshat Mishpatim. The Torah portion lays out God’s “Covenant Code,” or a series of laws outlining just punishments for serious crimes. Many times over, God makes one detail clear.

The death penalty is just.

It is just against “one who strikes a man so that he dies,” against one who “deliberately plots against his friend to slay him” and against “one who strikes his father or his mother,” among other types of offenders.

“If there is a fatality, you shall give a life for a life,” the text reads. “An eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, a bruise for a bruise.”

Pennsylvania Gov. Josh Shapiro, a religious Jew who uses his faith as part of his political identity, is rejecting that principle. On Feb. 16 at the Mosaic Community Church in West Philadelphia, the longtime Montgomery County resident announced that he would not sign any execution warrants during his term. He also called on the Pennsylvania General Assembly to abolish the death penalty.

“This is a fundamental statement of morality. Of what’s right and wrong,” he told the church audience.

But it was not a fundamental statement of Jewish law, according to a couple of local Orthodox rabbis. Rabbi Isaac Leizerowski of Congregation Beth Midrash HaRav B’Nai Jacob in Philadelphia and Rabbi Yonah Gross of Congregation Beth Hamedrosh in Wynnewood both argued that the Torah supports the death penalty.

Leizerowski explained that, in the Torah, the death penalty is not a punishment for a sin. It is “an atonement on the soul of the sinner.” Citing Rabbi Moshe Feinstein, a foremost scholar of Jewish law in the 20th century, Gross said that capital punishment helps us recognize “how stringent the prohibition is” on killing someone. The death penalty is just, according to Gross. But to impose it is “an indictment of the generation in some ways more than the perpetrator,” he said. The generation was “not strong enough in setting up the guardrails that would keep anybody from violating that prohibition.”

“It’s the sign of a civilization in decay,” he said.

Capital punishment was perhaps never more justified than in the case of the Pittsburgh synagogue shooter in 2018. Even Shapiro, then the state’s attorney general, believed so at the time, he said in his Feb. 16 speech. As the governor put it, the shooter killed 11 praying Jews at the Tree of Life synagogue complex, the deadliest act of antisemitism in American history. Yet it was the family members of those victims who convinced Shapiro that the killer did not deserve the death penalty.

“That moved me,” the governor said, although many family members have since said that they support the death penalty.

But in that case, it probably would have been a just punishment. As Jews, Gross explained, we assume that “the Torah is eternal.” Therefore, if you have to indict the generation by using capital punishment, you do. He said he is uncomfortable with removing it entirely.

But while it may have been just under Jewish law to put the Pittsburgh shooter to death, that is not always the case. A Pittsburgh Post-Gazette article applauding the governor’s decision mentioned that 10 Pennsylvania death row prisoners and 185 death row prisoners nationwide have been exonerated since 1973. If even one of them had faced the death penalty, it would have been a moral failing beyond that of letting a killer stay alive, according to Leizerowski, citing the great Jewish philosopher Maimonides.

“Better that 1,000 murderers be set free than one innocent man be put to death. And that is our approach to this,” the rabbi said. “Only with the greatest judicious eye would we use the death penalty.”

“The system is fallible, and the outcome is irreversible,” Shapiro said during his speech.

It is also not the job of a politician to consider capital punishment from the perspective of Jewish law, according to Leizerowski. The United States is a secular society that does not view the death penalty as a matter of redeeming the soul, he explained. Therefore, it is only Shapiro’s job to think of it from a practical perspective.

“When Josh Shapiro speaks of abolishing the death penalty, then we have to see, is the death penalty indeed a deterrent which in some way would benefit society in lessening crime?” Leizerowski asked.

The charges that alleged Tree of Life shooter Robert G. Bowers faces are federal and outside of Shapiro’s jurisdiction, meaning the death penalty is still on the table in the trial slated to start in April. ■


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