On May 13, the New York Times published a story about discrimination in jury selection in death cases that was shocking, but not surprising. The story recounted longstanding efforts by prosecutors in Alameda County, California, to prevent people from serving as jurors in death penalty cases based on their race, gender, and religion.
Last month, a federal judge ordered an inquiry into those allegations. As the Times explains, “The inquiry, which may involve as many as 35 cases from as far back as 1977, is just getting underway. But the district attorney’s office says it has already found evidence that the discriminatory practice was widespread for decades and involved numerous prosecutors.”
The Times article highlighted and paid particular attention to the systematic exclusion of Jewish people from death penalty juries.
Evidence from Alameda County suggests that during jury selection in one 1990s case, the prosecution left handwritten notes about prospective jurors—including whether they were Jewish. One note said, “I liked him better than any other Jew, but no way. Must kick.”
Another called a prospective juror, “Banker. Jew?” It continued, “Nice guy—thoughtful but never a strong DP leader—Jewish background.”
In addition, the Times reports that in 2005, “John R. Quatman, a former prosecutor in the district attorney’s office, gave a sworn declaration that ‘it was standard practice to exclude Jewish jurors in death cases.’”
An Alameda County trial judge advised Quatman “to make sure that no Jewish jurors were selected. ‘He said I could not have a Jew on the jury and asked me if I was aware that when Adolf Eichmann was apprehended after World War II, there was a major controversy in Israel over whether he should be executed….’ Mr. Quatman added that the judge said, ‘no Jew would vote to send a defendant to the gas chamber.’”
That kind of stereotyping and prejudice has no place in America’s justice system, let alone in cases involving capital punishment. But is it true that “no Jew” would vote for a death sentence?
Let’s consider the evidence.
A look at the Old Testament and the Torah, the compilation of the first five books of the Hebrew Bible, would not support the conclusion that Jews must oppose the death penalty. Indeed, the Old Testament mentions 36 different capital crimes.
The Torah prescribes death as a punishment for offenses, including such things as “violating the Sabbath, worshiping idols and cursing God; sexual sins, including incest, adultery, anal sex between men and bestiality; and various criminal acts, including murder, kidnapping and giving false testimony in a capital case.”
It calls for “death by stoning in the case of a ‘wayward son’ who does not heed his parents’ discipline.”
Deuteronomy 21:18-21 says:
If a man have a stubborn and rebellious son, which will not obey the voice of his father, or the voice of his mother, and that, when they have chastened him, will not hearken unto them: Then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place; And they shall say unto the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton, and a drunkard. And all the men of his city shall stone with him with stones, that he die: so shalt thou put evil away from among you; and all Israel shall hear, and fear.
As to methods of execution mandated in the Bible and Torah, stoning is the most common. But burning, decapitation, and strangulation are also allowed particularly for severe offenses.
However, Jewish “law-in-action” was quite different.
As former federal district judge Jack B. Weinstein once explained, “The biblical capital penalty was so hedged with procedural restrictions that execution, as the Jewish law developed, became next to impossible.”
Weinstein says that ancient rabbis labeled executions “murderous.” “Limitation on capital punishment,” Weinstein continues, “was accomplished by meticulous application of rules governing admissibility and sufficiency of evidence.”
For example, rabbis interpreting the Torah said that capital cases “required a 23-judge court, while only three judges sat for non-capital cases…. Two or more eyewitnesses were required to testify to the defendant’s guilt, bearing in mind that it was their hands that would, be the first against him to put him to death…. In a capital case, a one-vote majority could acquit a defendant, but could not convict. Furthermore, if there was a mere one-vote majority or if any judge was undecided, additional judges were added in pairs until the majority ruled against conviction, or until one judge in favor of conviction was persuaded to err on the side of innocence….”
Even where capital punishment survived such hurdles, ancient rabbis insisted “that death be quick, relatively painless and not mutilating.”
And because of their history, Jews would seem to have a special reason to be wary of capital punishment. As Judge Weinstein observes, “Jews have been “burned at the stake by Catholics, hacked to death by the Cossacks and gassed by the Nazis.”
In this country, the Central Conference of American Rabbis and the Union of Reform Judaism came out against the death penalty in 1959. Twenty years later, the Central Conference said that “both in concept and in practice, Jewish tradition found capital punishment repugnant,” and there is no persuasive evidence “that capital punishment serves as a deterrent to crime.”
Public opinion surveys have documented division among American Jews in their views about the death penalty. One study conducted a decade ago found that 33% of Jewish respondents favored the death penalty, while 58% favored a life sentence without the possibility of parole (LWOP) for people convicted of murder.
Jewish support for capital punishment was lower than among any other religious group except for Black Protestants, Hispanic Protestants, and Hispanic Catholics.
In 2016, a Gallup Poll found Jews to be less supportive of capital punishment than Protestants, Catholics, Mormons, or people with no religious affiliation, although 54% still believed it to be “morally acceptable.”
Today Jewish people continue to argue about the compatibility of capital punishment and Jewish values, with some Jews even opposing it after the 2018 mass murder at the Tree of Life Synagogue in Pittsburgh, Pennsylvania.
But whatever their differences, Jewish people and other Americans should be able to agree on two things. First, what happened in Alameda County is typical of the prejudices that course through America’s death penalty system.
And second, it is just another example of why ending capital punishment is long overdue.
