Criminal Justice & Death Penalty Policy Center

Death Penalty

Death is different.

The taking of a life is radically different from any other sort of punishment because it is final and irreversible.

The death penalty in the United States today raises questions that are both urgent and timeless:

  • Is the death penalty moral?
  • Is the death penalty constitutional?
  • What crimes, if any, merit the death penalty?
  • Which criminals, if any, deserve the death penalty?
  • Who decides matters of life and death?
  • What procedural safeguards are adequate and sufficient to assure that the death penalty is fairly and equitably applied, or is it even possible to find safeguards that are adequate and sufficient?
  • Whatever our views on the death penalty in abstract theory, can the death penalty be applied fairly and accurately in practice?
  • Indeed, is the death penalty today being applied fairly and accurately?
  • Is there anything about the actual system of applying the death penalty in America today that ensures that only those people who deserve the death penalty for only those crimes that merit the death penalty get executed?
  • And, if anyone is going to be put to death, what method of execution should be used?
  • Who should carry out the execution?
  • Who should witness the execution?

These questions, and others, are raised in our state and federal legislatures, where death penalty statutes and laws are enacted and repealed. These questions are raised in the offices of our state and federal executives, where prosecutors decide who will be prosecuted under the death penalty statutes and governors and presidents decide which convicted death row inmates will be pardoned or have their sentences commuted. And, these questions are raised in our state and federal courts, where the statutes and laws themselves are reviewed and the fates of individual human beings are determined at trials and in appellate and post-conviction proceedings. The death penalty has been described as one of the matters of highest priority to the entire American Jewish community.

Since 1959, the Central Conference of American Rabbis and the Union of American Hebrew Congregations have formally opposed the death penalty. In 1996, the Rabbinic Assembly of the Conservative movement adopted a resolution opposing the adoption of any new death penalty laws and urging the abolition of existing death penalty laws. In 1999, a report of the National Jewish/Catholic Consultation, co-sponsored by the National Council of Synagogues and the Bishops’ Committee for Ecumenical and interreligious Affairs of the National Conference of Catholic Bishops, concluded that the Jewish and Catholic communities should work together, and within their own communities, toward ending the death penalty.

In 2000, the Union of Orthodox Congregations of America endorsed support for a nationwide moratorium on executions pending a comprehensive review of how the death penalty is administered in American courts. Because of these concerns, and in order to promote thoughtful and meaningful social action and policy consistent the mission of this organization, JSPAN has initiated a Policy Center to examine current issues involving the death penalty and propose public policies and positions.


 JSPAN Policy     

It is the position of the Jewish Social Policy Action Network to oppose the death penalty as it is currently applied in the United States and to press for the immediate abolition of capital punishment. It is the further position of JSPAN that, to the extent that capital punishment remains in effect at all, the death penalty must be applied in the most restricted manner possible, in the narrowest of circumstances, with such substantive and procedural safeguards as are adequate and sufficient to assure to the fullest extent possible that the death penalty is applied in the most accurate, fair, and equitable manner as human frailty will allow. In all matters concerning capital punishment, it is the position of JSPAN that all doubt must be resolved in favor of mercy and life and against the harsh and irreversible penalty of death. Our position is compelled by our mission. For some of us, our position is compelled by a moral imperative, our belief that the death penalty is immoral and constitutes an unconstitutional cruel and unusual punishment that is at odds with our best traditions, fosters a culture of violence, and teaches our children the wrongheaded lesson that the way to settle scores is through violence, even to the point of taking a human life. For even those of us who do not oppose the death penalty in all circumstances on these grounds, our position is nonetheless compelled by the reality that the death penalty is not applied in a manner that is guaranteed to be accurate, fair, and equitable. In the words of Senator United States Senator Russell Feingold:

The fact that our society relies on killing as punishment is disturbing enough. Even more disturbing, however, is the fact that the States’ and the Federal Government’s use of the death penalty is often not consistent with the principles of due process, fairness and justice.

As Professor David L. Gregory of the St. John’s University School of Law explained:

“The death penalty as applied is perniciously arbitrary and capricious to an extraordinarily high degree. It is contingent upon geography, upon the defendant’s financial resources, upon race and class, and upon all the vagaries of fallible justice systems and human nature. . . . Perhaps worst of all, the innocent may be murdered by the state. . . [T]he death penalty is an utter failure, and a constitutional disgrace.”

The late United States Supreme Court Justice John Harlan warned of the difficulty of creating a system that even in theory would support the accurate, fair, and equitable administration of the death penalty:

To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.

After a career in which he supported decisions upholding the death penalty, in his retirement the late United States Supreme Court Justice Lewis Powell came to regret the position he had taken on the bench. Not much later, also after many years of supporting the death penalty, but while still sitting on the Court, the late United States Supreme Court Justice Harry Blackmun came to the same forcefully articulated and compelling conclusion that he could no longer support the death penalty:

From this day forward, I no longer shall tinker with the machinery of death. For more than twenty years I have endeavored -- indeed, I have struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.

In the words of former Senator Russ Feingold:

“Those who favor the death penalty should be pressed to explain why fallible human beings should presume to use the power of the state to extinguish the life of a fellow human being on our collective behalf. Those who oppose the death penalty should demand that explanation adamantly, and at every turn.”

Like Russ Feingold, “[We] want to be clear. [We] believe murderers and other violent offenders should be severely punished. [We are] not seeking to open the prison doors and let murderers come rushing out into our communities. [We] don’t want to free them.” But, for these reasons and reasons stated more articulately and in greater length in a wide array of sources and authorities, it is the position of the Jewish Social Policy Action Network to oppose the death penalty as it is currently applied in the United States and to press for the immediate abolition of capital punishment.

 Experts      

Three accomplished experts in the field have advised us in the past on Death Penalty issues:

Ronald Ronald J. TabakJ. Tabak, currently co-chair of the Death Penalty Committee of the American Bar Association's Section of Individual Rights and Responsibilities, spearheaded the successful effort to get the ABA to call for a moratorium on executions until various due process concerns are resolved. He is special counsel to Skadden, Arps, Slate, Meagher & Flom, L.L.P. in New York, where he co-ordinates the pro bono practice of the firm. Mr. Tabak has chaired the Committee on Civil Rights of the Association of the Bar of the City of New York and is the recipient of a many prestigious awards for his contribution to social justice, racial equality, and human rights and for his contribution to the delivery of criminal defense and pro bono services. He is a graduate of Yale University (B.A. 1971) and Harvard University School of Law (J.D. 1974).


Marshall L. DayanMarshall L. Dayan, author of a number of scholarly articles on the subject of the death penalty, is the recipient of prestigious awards for his efforts to abolish the death penalty, including the Lifetime Achievement Award from the National Coalition to Abolish the Death Penalty. In 1986-1987 he was in the private practice of law in Washington, D.C., where his practice included pro bono death penalty post-conviction litigation, and thereafter was a trial lawyer and appellate advocate for the Office of the Appellate Defender in Durham, North Carolina, where he represented indigent death row inmates and other defendants in capital cases. Formerly the State Strategies Coordinator for the national ACLU's Capital Punishment Project, Marshall is currently employed as a Federal Defender in Pittsburgh. He is a graduate of the University of Georgia (B.A. 1984) and Antioch School of Law (J.D. 1986).


Ellen BerkowitzEllen Berkowitz, recipient of the Liberty Award from the Pennsylvania Association of Criminal Defense Attorneys, represented death-sentenced clients in federal habeas corpus and related state court proceedings for the Defender Association of Philadelphia in its Capital Habeas Unit from 1999 to 2003. Prior to that she provided representation to defendants in capital cases as a staff attorney of the Center for Legal Education, Advocacy & Defense Assistance. Currently she is assistant counsel and legislative consultant to City Councilman David Cohen in Philadelphia. She is a graduate of Bryn Mawr College (B.A. 1983), Indiana University (M.A. 1987), and Northeastern University School of Law (J.D. 1996).

 Internet Resources      

Our experts recommend:

Positions of Jewish Organizations

Additional Resources:

Pennsylvania

Join the Policy Center
     

If you have an interest in serving on the Death Penalty Policy Center or have ideas for the Death Penalty Policy Center to consider, please send an email to jspan@jspan.org.

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