The discussions that led up to a state panel’s recommendation to repeal the death penalty were “gut-wrenching,” according to a Hoboken rabbi who took part.

Rabbi Robert Scheinberg of the United Synagogue of Hoboken was one of 13 members of the New Jersey Death Penalty Study Commission, which earlier this month recommended that the state’s death penalty be abolished and replaced with life imprisonment without the possibility of parole.

Sitting on the panel was “among the most challenging intellectual and emotional experiences I have ever had,” said Scheinberg, who agreed to speak with New Jersey Jewish News following the report’s release.

As he explained, “You can’t talk about a topic like this without talking about the most dramatic acts of inhumanity that people can do to each other.”

Scheinberg, along with fellow clergy, prosecuters, defense attorneys, victims’ rights representatives, and the former state senator who sponsored the 1972 law restoring the death penalty in the state, participated in six hearings between June and December. The group completed its report in December and filed it in January.

Scheinberg said that the most “dramatic” and “overwhelming” testimony came from members of victims’ families who favored abolishing the death penalty in New Jersey. He said that they “felt the death penalty process elongated their torment.”

Similarly, he recalled, one person testified that she was relieved the prosecutor did not seek the death penalty for the murderer of her relative. Instead, the convicted murderer was sentenced to life in prison without the possibility for parole.

“She feels that enabled her family to move on and start healing that much earlier,” Scheinberg said. “The crime was removed from the headlines, whereas when someone is on death row, details of the crime continue to be in the newspaper, and the names of the perpetrators become relatively well known.”

Scheinberg was also surprised by evidence showing that the death penalty is not imposed in a racially biased way in New Jersey, since that was the main reason he initially got involved with the issue. “Having seen the statistics showing that murderers of whites are more likely to get the death penalty than murderers of blacks, I expected to see that statistical relationship in New Jersey,” he said. “The defenders [of the death penalty] saw it as a county variance; that is, counties that are more likely to sentence someone to death are white counties. I was initially skeptical but ended up being convinced that there is not systemic racism in New Jersey. It does look like New Jersey is especially careful.”

Among those who testified before the committee was Rabbi Gerald Zelizer of Congregation Neve Shalom in Metuchen. Like Scheinberg, Zelizer is a longstanding opponent of the death penalty. Both were members of the New Jersey Coalition for a Moratorium on the Death Penalty, and Zelizer wrote an opinion piece on the death penalty that appeared in The New York Times in 1997.

Zelizer testified that while the Torah allows capital punishment, rabbinic and talmudic tradition weakened it to the point that it was never applied. “Because most people on the committee knew the biblical principle ‘an eye for an eye,’ I wanted to show them how it had been diminished,” Zelizer said.

He also testified as a citizen, holding the personal opinion that “in general, it is morally improper to execute someone when you have other means of keeping them away from the public.”

Before being selected to sit on the panel, Scheinberg had done some studying and teaching on the death penalty in Jewish law and as a social justice issue. As an opponent of it, he was not surprised by accounts of inmates on death row whose convictions were overturned based on new DNA evidence.

“That shows just how close the state came to the possibility of executing innocent people,” he said.

Similarly, he weighed testimony reflecting the “capriciousness” of the death penalty’s application.

“The crimes committed [by those on death row] are horrifying and terrible, but not necessarily more terrible than crimes committed by various others who are in prison with life sentences,” he said. “There’s no evidence that these are the worst of the worst.”

He was also aware of the evidence that upholding the death penalty is more expensive than abolishing it — even considering sentences of life in prison without parole — “because of the lengthy appeals and legal costs associated with it.”

He described the terms of discussion on the panel as similar to those in traditional Jewish sources. “There’s an effort to ensure appropriate punishment, while there is also an effort only to punish those deserving punishment and that the penalties ought to be applied fairly,” he said.

Scheinberg pointed out that in the talmudic tractate on forms of punishment there is a discussion about how high the bar ought to be for imposing the death penalty.
“It is set very high, so high that executions were very rare,” he said. According to one talmudic opinion, an acceptable rate of execution is one person every seven years; according to another, it is every 70 years.

And yet the Talmud acknowledges the hard choices facing lawmakers. The same tractate, according to Scheinberg’s loose translation, holds, “If we were on the court, we would not execute anybody.” The Talmud includes this reply: “If you had been on the court, there would be many more murders in Israel.”

Eleven of the state panel’s 13 members voted to abolish capital punishment, their report included a dissent by former State Sen. John Russo, who drafted the 35-year-old legislation reinstating the death penalty in New Jersey. The attorney general’s office abstained.

Scheinberg noted, despite his vote, that his sympathies are with those “handful” of families of victims who embraced the death penalty. “I feel for them. They see the existence of the committee and the six-month moratorium on executions and the report as additional delays, additional acts of denial of justice for them. I understand they have an image that the execution will bring closure for them. I feel for them. I think, though, that this is the most just outcome.”

While the panel has been criticized as biased against the death penalty, Scheinberg insisted that it was evenly divided between those who support and oppose the death penalty in principle. However, he noted, “no one has made any claim that the death penalty system is working. Everyone agrees the system is broken. It’s just a question of whose fault that is and whether it is broken beyond repair.”

The last execution in New Jersey was held in 1963; there are currently nine people on death row in the state. Gov. Jon Corzine endorsed the proposal, and there is a six-month moratorium on executions from Jan. 2, the date the 127-page report was filed. If the legislature adopts the panel’s recommendation, New Jersey will become the first state in 35 years to ban the death penalty.