Yesterday's torah portion, Emor, includes one of the "life for life" (death penalty for murder) passages. Locally, the trial for the murderer in the attack at Tree of Life in 2018 has just gotten started. We had a small discussion of the death penalty through that lens.
Many of the victims' families wanted the state to accept the murderer's offer to plead guilty in exchange for life in prison. Some family members pressed for the death penalty. I don't know how prosecutors decide these things, but they decided to have a capital trial instead of accepting the plea.
The systems around the death penalty in the US are badly broken in many ways ranging from injustice to impracticality. Through the lens of civil law and current judicial practice, I personally would prefer that they do the closest legal thing to dropping the guy into an oubliette, keeping him out of circulation while denying the opportunity for grandstanding and martyrdom. Through the lens of Jewish law, however, something struck me yesterday.
The rabbis of the mishna and talmud (in tractate Sanhedrin) were uncomfortable with the death penalty the torah calls for, so they nerfed it. It's very hard to qualify for the death penalty under rabbinic law. In addition to the requirements for eyewitnesses (who themselves face the death penalty for perjury), people must have warned the person beforehand that he was about to commit a capital offense, and he needs to acknowledge that warning. How likely is that? I used to wonder if anybody ever actually did that.
"Screw your optics, I'm going in". That's what the murderer posted on a site where he and others had been discussing the "problem" with Jews.
I don't know what else is in the transcript from that site; I haven't seen it. It sounds like people tried to stop him. Along with everything else -- his social-media activity, the obvious premeditation, the eyewitnesses to the murders, the lack of regret afterward -- it kind of sounds like the talmud's requirements might have been met. It's not a slam-dunk under rabbinic law, but if Jewish law rather than US law were governing this case, it strikes me that this could actually be the rare case that would qualify for the death penalty. And I'd be fine with that.
That's not vengeance talking, though this case is also personal to me (friends, not family). I can support the rabbinic rules for capital cases, theoretical as they seem, because of their many protections and focus on being careful. Example: did you know that a unanimous vote for capital conviction is overturned? Because if nobody had doubts, maybe the judges didn't look hard enough for factors in the accused's favor.