Who Lives And Who Dies – Ohio’s Death Penalty: Rabbi Robert Nosanchuk, Kol Nidre Sermon, Sep. 22, 2015

This post on “If Not Now, When?” the interactive blog of Anshe Chesed Fairmount Temple is the sermon from Rabbi Robert Nosanchuk at Kol Nidre Worship in the Congregational service for Anshe Chesed Fairmount Temple, September 22, 2015. We encourage you to share it on social media such as Facebook or Twitter, and with others concerned about the issues it raises. In addition, you are invited to join Rabbi Nosanchuk at a special program on Thursday, October 22 at Fairmount Temple when he will moderate a discussion among many different individuals with up-close-and-personal knowledge of Ohio’s capital punishment system.

I don’t mean this exactly as it sounds… but it doesn’t matter whether you are here tonight. It doesn’t matter whether you are here or on your way home from work, reading the paper, or surfing the internet. It doesn’t matter where you are this tenth of Tishrei. For wherever we are in America, our society is obsessed with justice and judgment. Just listen to the words we ourselves have uttered tonight. On Yom Kippur we speak as defendants in a divine courtroom. Tonight we declare the awesome power of God, dayan ha-emet, the decisor of life and death, “judge and arbiter, counsel and witness…who musters and numbers and considers every soul, setting the bounds of every creature’s life.” (Gates of Repentance, NY: CCAR, 1978, p. 312.)

On Yom Kippur we come into the temple as though it is a court. We rise before the judge and jury and confess, we have been narrow-minded. We have not done our part in acting for justice. And Jewish tradition holds that we must offer these confessions with dread. Our prayers are testimony, sealed by a judge with the power to cut us off from those we love. One meditation says that today “we stand in the dock under oath. And God is the judge, the witness, the plaintiff. We are called out of our daily routine of compromises and half-truths, evasions and hypocrisies and for one brief moment we have the chance to tell the truth…”  (Forms of Prayer, England: Assembly of Rabbis: Reform Synagogues of Great Britain, 1985, p. 265)

And what is our truth this Yom Kippur? The truth is… that as out-of-the-ordinary as all of this courtroom imagery is in our prayer lives, it is a daily part of the culture in which we live.

A story. A justice and judgment story. It takes place in a large midwestern city. A rash of child kidnappings and crimes holds the city on edge. The faces of missing children are placed any place someone might help identify their whereabouts. A young girl is assaulted and killed. During the investigation, intense pressure is placed on the authorities to find her killer. At the same time there is a resident at a psychiatric facility who becomes obsessed with her case. He researches. He listens to any source for even small pieces of information to feed his obsession. Then this mentally deranged man contacts the police, saying he knows who assaulted this young girl. In the course of their interrogation, the young man is deceivingly encouraged to confess to the crimes himself. He is told this will help authorities understand the motive of the real killer. But when he confesses as he is told, the prosecutors have the man indicted and put to trial, using his so-called confession against him! The police say they’ve caught the killer and the city is heartened. Once the man is convicted, the judge turns to him at sentencing and dramatically states that he only wishes the state would allow him the option of the death penalty. The punishment of prison he says, is “inadequate… and the only justifiable sentence,” the judge says, is “termination by extreme constriction.”

A riveting story, right? Like a perfectly suspenseful crime novel. Only it’s not fiction! This story happened when I was in high school. I remember the coverage in Michigan when Eddie Joe Lloyd was convicted in the death of Michelle Jackson. (Detroit Free Press, August 26, 2002 and Lansing State Journal, August 28, 2002)

But what you must understand is that DNA evidence later conclusively proved that Eddie Lloyd was not the killer. His story is not something we can wish away. He spent seventeen years in prison, and had Michigan allowed the death penalty, this wrongfully convicted man would have been sealed in its book of death by now!

Here in Ohio, he could easily have been killed. Here the death penalty is no idle threat. In our state, as conflicted as many of us are, since the restoration of capital punishment 17 years ago, we have carried out 53 executions. The last execution, nearly 21 months ago in Columbus, was a disaster. It took nearly a 1/2 hour as a gasping, snorting, suffering, tortured Dennis McGuire died by a lethal injection administered with questionable constitutionality. The state has since named new 2016 dates to put our current death row inmates on a table, and on our behalf, inject them with the same cocktail they did McGuire, provided they can beg or borrow enough of the drugs from reluctant pharmaceutical providers who want no part in suffocating people to death.

It’s ugly. And believe me, I know the instinct for retribution. We all do. We might personally want to kill the person who killed a person dear to us. But should the justice system really rely on our rage to determine its measure for the rule of law? Is that what justice is supposed to look like?

Not long ago at a gathering in Columbus, I asked these questions to one of our country’s closest observers of the execution system, Sister Helen Prejean. The two of us were part of a rally meant to call attention to how executions are carried out in Ohio. When I explained to Sister Helen how Judaism recoils from frequent use of capital punishment, she challenged me to raise my voice, just as I had in previous communities, and just as rabbis have going back to the era of the Talmud. That is my purpose tonight and in the coming weeks. I want to spotlight this difficult issue and how Judaism responds to it. This is apropos on Yom Kippur, a day that like no other, we reflect on the power we have to choose life and blessing over death and curse.

I want you to realize. For me, this is not a hypothetical issue. During my first pulpit, I had a rare experience.  My last day as a Baltimore rabbi was spent taking part in a congregant’s funeral who had, the night before, been put to death by the state. Seventeen years earlier he had, in a drug-induced rage, committed horrific assaults and murders. It didn’t matter how clean or penitent or well-behaved he was, Steven Oken was going to be incarcerated for the rest of his life, a fate his mom and dad and sister accepted. But for the previous two years, the state had instituted a moratorium on capital punishment until it could respond to a study that had shown, among other concerns, serious questions on geographic disparity, state’s attorneys acting on pubic pressure, and racial bias in terms of both victim and perpetrator of crimes.

Unfortunately, the minute a new Governor was elected, without any response to the data, he lifted the moratorium and set a day in early June of 2004 to kill Steven in retribution for his crimes. I was aghast and remain so, because one of the aspects of our system that is supposed to mitigate against unfairness is that governors have discretionary power to assure the justice system works properly before signing a death warrant. It troubles me to see an issue this grave tossed around by leaders wishing to project a strong image in electoral politics. I wonder- how can governors in death penalty states not see what is in front of their eyes? There are issues of proper representation, and concerns of fairness in how juries are instructed. There are issues with the morality of experimenting with the death-inducing drug cocktail currently in use in Ohio.

Yet you hardly have to look this close to be troubled! For by and large in our state and across our nation, the inmates on death row are there because they committed capital crimes against white victims. This is true even though the vast majority of capital crime victims are committed against people of color.  How horribly damning is this valuing of black lives vs. white lives. We need leaders who acknowledge that they see this hard truth, and have the courage to change it.

Tonight is Kol Nidre, a day we seek atonement for commitments we have not fulfilled. But tonight, September 22, 2015 is also the anniversary of an important day in our history when a national leader of ours showed the courage to change a broken and immoral system. One hundred fifty three years ago today, President Lincoln freed black Americans from slavery. It’s been more than a century and a half!  Yet particularly in the context of the death penalty, I would say emphatically that the emancipation Lincoln called for continues to need proclamation.

-Our emancipation needs proclamation now more than ever, as we often use the brutality present in our society as a permission slip to excuse brutality on the part of the state. We hear our neighbors say that people in our cities bring violence on themselves. But how often do we raise our voices to advocate for something other than violent tactics in response?

-Our emancipation needs proclamation because of how little we pay attention to the days and dates our authorities schedule to kill someone in our name.

-And our emancipation needs proclamation because our history has taught us what to do when we see a signs of despair and brokenness, unfairness, racism and inequality.

Tzedek, tzedek tirdof! says the text of Torah. Justice, justice you shall pursue! (Deuteronomy 16:20)  With the idea that the justice system itself must be an exemplar of discernment, as Jews emerged as a religious community capital punishment became at odds with our vision of tzedek. The Mishna stated that a court causing an execution once in seven years was an cruel court. A later tradition amended the number to apply it to a court that kills once in seventy years. Finally, Rabbis Tarfon and Akiba said: “Were we members of the court, no person would ever be put to death.” (Mishna Makkot 1:10)

Familiarity with these teachings was likely part of the inspiration for the work that Jewish American Barry Scheck, a law professor at the Cardozo School of Law of Yeshiva University, has undertaken in recent years. Mr. Scheck helped to found The Innocence Project to be sure that courts were not allowing capriciousness, cruelty and revenge guide the determination of death sentences. Scheck wanted, at the very least, to be sure that forensic DNA testing would be used to affirm proper verdicts and overturn wrongful convictions for those on death row or incarcerated elsewhere in the system.  For as he looked closely at capital cases, the more disturbed he was to see “tremendous arbitrariness” in the pursuit of the death penalty.

Arbitrariness. Race as a factor. Wrongful convictions. On this day of atonement, I ask you how can we not do something in response? How can we not strengthen safeguards against executing those who got to death row under the heat of public pressure or with inadequate representation? How can we respond to the disparity between those with resources to pursue appeals and those without, or those executed for killing white citizens rather than black? And finally, how can we continue to ask penal authorities to administer a method of execution that may in fact torturously choke an inmate to death?

You can see I am clearly troubled by these issues. But I would stop short tonight of telling you how to believe, whether you agree with the great caution in our Jewish texts, or not?  But I beg of you, come to terms with your views. Do you support the death penalty? Would you support its abolishment?  Perhaps you’d favor a moratorium on executions?  This is a moment in history when communicating your views to our Ohio leaders could make a big difference! For given the tremendous challenges facing the justice system, even if we can’t agree about the moral basis of the death penalty, most of us in our society can agree that it has drifted away from the purpose for which it was intended.

As early as the 18th century, death penalty advocates spoke of 3 purposes for this punishment. The 1st was deterrence, the 2nd retribution or revenge and the 3rd purpose was penitence. (Stuart Banner, The Death Penalty: An American History)

Penitence? Yes penitence! Did you realize that repentance before death was once considered “indispensable” to the death penalty? It is why we still call our prisons “penitentiaries” even though we no longer think of them as sites of penitence. Or as I would put it, although we still believe in penitence, we have no faith our system can achieve it. That is why our authorities no longer invite clergy to executions. Neither do we perform them in public, as we once did, first having a clergyman speak before hanging prison inmates in a staged drama before a crowd. We apparently thought that observing the death of a person in public would deter future criminality among witnesses. Now such rituals have been shunned for they are hard to carry out, AND we no longer buy the idea that seeing an execution is a deterrent. Instead we execute people behind the shroud of state facilities. For the idea to us that criminals consider the possibility of death before committing crimes is just plain implausible!​

So with penitence and deterrence struck down, all that’s left to justify the death penalty is revenge. And let’s face it. Societal revenge IS the most persuasive force encouraging us to retain the status quo. For each of us honestly knows in our hearts the instinct for retribution. We’ve all felt it. We’ve contemplated revenge if someone threatened to hurt a member of our family. We’ve thought of it when observing soldiers being attacked or in harms way. Certainly we can relate to the idea that victims of crimes ought to be avenged after their deaths.

For this reason, many believe that the families of the victims deserve to have their thirst for revenge quenched by an execution in response to a capital crime. Surely many victim families do feel the only proper response to their loved one’s death is the death of their killer. And who could help but empathize? We can imagine the rage we would feel if God forbid we stood in their shoes. But just as there are many victim families who advocate for the death penalty, there ARE others who have chosen to promote reconciliation and healing instead.

For example, Pat Clark of the Southern Poverty Law Center was sent to visit an African American woman whose son had been lynched by a Klan group. Now you must understand the purpose of the visit was to ask the mother not to pursue the death penalty. In preparing for her visit, surely Clark must have considered the great number of African Americans on death row, and the unlikelihood of white victims’ families being asked to forgive. Certainly she must have braced herself for a tense conversation. But as she talked with the mother, she found the woman’s rage had not subsided, but her heart was guided by mercy.  The mother did not press for the death penalty. While clearly she wanted for those killers to suffer, she chose life- life in prison, as the punishment to pray for the judge to order. “Her reason was powerful and simple. She said she never wanted another mother to experience the agony she had in losing a child.”

I know. I know that such a story speaks of a generosity of heart that seems too grand. It goes against the idea that capital punishment actually brings about peace of mind. But at the end, no matter how they die, nothing can ever bring our loved ones back, not the death of a killer nor the killer’s eye for our loved one’s eye. For some, there is temporary relief. But in the end the specter of a loved one’s death often haunts them. And the mother whom Pat Clark met with, while furious with God, surely acted in God’s own image. Judaism holds that God holds two distinct qualities- midat ha-din, the quality of severe judgment, and midat ha-rachamim, the quality of mercy. It shares with us the words God prays when struggling with these qualities.

What does God pray? As a means to understand this teaching, you might imagine you have committed an awful crime. You have made a despicable choice worthy of fury. On Yom Kippur, God might be angry enough to cut you off from your loved ones forever. But in a voice just above whisper, God prays instead: “May it be My will that mercy conquer My anger, that I deal with compassion toward My children, that I go beyond the call of duty in relation to them.” (Talmud Berachot 3a)

My mercy, my anger, my compassion, my children. God shares fears we can relate to on Yom Kippur. In the heat of the moment, rage guides our actions. But with time to examine from where our rage is born, rachamim, compassion guides us back to an approach to life or death matters that is balanced. This moment in history holds the potential to be a time of rachamim.

In our own state, there are 11 executions scheduled in 2016. The next will be Thursday, January 21, just a few days after our annual remembrance at temple of the life of Dr. Martin Luther King. What do you think? Should Ohio take another life for the sake of exacting our vengeance? You may have never thought about it. It is more convenient to put it out of our minds. But I challenge you, between now and January, study this issue and discern your view on its morality and legality.

On Saturday morning, October 17, as part of a clergy series, I will teach a Shabbat morning Torah study, on the question of whether Judaism promotes violence and vengeance. That morning the Torah portion includes the verse from Genesis 9 that seems to promise vengeance when blood is shed In addition to discussing commentaries on that verse, I will also share with you the teachings from the Talmud cautioning courts when and if to inflict the death penalty.

On Thursday evening, October 22, as part of our lifelong learning program, I will host a unique gathering of individuals personally acquainted with Ohio’s practice of capital punishment. Among them are our member Marge Koosed, professor emeritus at University of Akron school of law, Kevin Werner, a state-wide leader in calling out the challenges in the execution system, and Ronnie and Wiley Bridgeman two brothers from here on the East Side of Cleveland, who were sentenced to death in 1975 when Ronnie was only 17 years old. The two brothers were only recently exonerated after the single witness admitted his testimony was a lie. What happened to the Bridgeman brothers is exactly why our faith taught that no life should be taken without multiple eyewitnesses accounting for the facts. I want you to meet them!

For an issue this serious, an inquiry is warranted. We should be talking with jurists and officers of the court. For the state is not a nameless, faceless entity. You and I are the state. You and I can proclaim emancipation anew. You and I can say that there is no justice when authorities react to public wrath more than certainty of guilt. There is no justice when race, ethnicity or economic status play a role in determining who is charged. And there is no justice when our system is inconsistent, arbitrary, and sentences to death those who are later found not guilty!

On this Yom Kippur, let us search our hearts and make judgments on this divided issue for ourselves. Where to place our rage and despair, our conscience and mercy? Let this Day of Atonement help us know how to hold all those emotions in a way that makes sense to victims families, in a way that is fair to those who are incarcerated, and in a way that is worthy of a nation dedicated to the betterment of human ideals. Keyn Y’hi Ratzon, may this be God’s desire.