The Tree of Life shooting, which left 11 Jewish worshippers dead, has been deemed the most fatal anti-Semitic attack in American history. Federal prosecutors were quick to charge the accused gunman, Robert Bowers, with hate crimes for each fatality.
“And each of these counts is punishable by death,” U.S. Attorney Scott Brady noted at a news conference a day after the shooting. “Know that we will spare no effort or resource in ensuring that the defendant is held fully accountable for his unspeakable and hateful crimes.”
But while the choice to apply the death penalty may be straightforward for prosecutors, in cases like this, capital punishment raises both moral and religious questions.
For example, although Bowers could face execution for targeting Jews, the faith itself urges the penalty be applied only in the rarest cases. Jewish law says two eyewitnesses must show the accused killer acted intentionally by proving the accused received and acknowledged their warnings that the crime would be punishable by death.
“In order for capital punishment to take place, the level of proof would be so high that it would almost never take place,” explained Rabbi Elie Spitz. Spitzs leads Congregation B’nai Israel in Tustin, Calif., and has written about capital punishment.
He said that, even though Jewish scripture allows the death penalty, early rabbis worried it could be abused by the powerful. In addition, he noted that the Jewish state of Israel has carried out only one execution — that of Holocaust architect Adolf Eichmann.
Still, Spitz said execution would be appropriate for the Tree of Life attack.
“Hate crimes of all kinds, whether on race, religion, gender identity, requires a community to state in the strongest terms, ‘This is not who we are. This will have no place,’” he said.
But at a rally to honor the victims of the shooting last week, Pittsburgh native Ruth Berry said the government shouldn’t use death as punishment.
“I believe that that belongs to something a little higher than all of us. I can’t judge,” she said while standing in a cold rain that saturated the lawn at the Downtown rally.
Execution once was a religious ritual meant to help defendants pay for their sins, or to “get right with God,” according to Duquesne University law professor Bruce Ledewitz.
Ledewitz has researched Judaism and the death penalty, and has served as a defense attorney in dozens of capital cases in Pennsylvania. He said that in the modern United States, execution has become a secular practice based on the “abstract morality” that only the most culpable defendants should be sentenced to death.
“The death penalty that we actually have calls upon us to make a moral judgment, which is almost impossible to make — which is, among all the killers, which killers are the most morally reprehensible?”
With this framework, Ledewitz said, juries in the U.S. apply capital punishment in a “completely arbitrary” fashion. He thinks, in a more objective system, every murderer would be executed, or none of them would be.
As it stands, though, juries weighing the death penalty must consider what motivated the accused — a process Ledewitz said could be painful.
“People who call for the death penalty do not understand how hurtful to survivors it is to have to sit through a sentencing hearing in which we have to seem to care about why the defendant did what he did, when really nothing would justify it,” Ledewitz said.
University of Pittsburgh law professor Jules Lobel added there’s little to justify the death penalty itself.
“The state should not be in the business of killing people,” he said. “And they should only be in the business of killing people if it’s in self-defense, if there is an imminent danger to the population.”
A constitutional and human rights attorney, Lobel said the alleged shooter at Tree of Life does not pose such a danger, now that he is in federal custody and likely to die there if convicted.
Even though Lobel was friends with some of the worshippers who were killed at the synagogue, he said society must be humane in punishing the alleged gunman.
As an analogy, Lobel said, he would also “oppose punishing somebody by rape if they raped somebody or punishing somebody by torture if they tortured somebody.”
Rabbi Spitz in California agrees that overusing the death penalty could make society less humane. But he said that crimes like the Tree of Life shooting pose a more immediate threat.
“What’s distinctive about it is the nature of community, the nature of the social fabric, [and] that a mass murder based on hate, or a crime based on hate, is an attack on society itself,” he said.
Ledewitz of Duquesne contends, however, society can better protect itself by expelling such criminals as quickly as possible. If it weren’t for the drawn-out sentencing proceeding and subsequent appeals that often accompany the death penalty, he said, the alleged shooter would be found guilty — and never be heard from again.