Does Religion Justify the Murder of Troy Davis? [Updated]

Update: After the U.S. Supreme Court rejected a stay of execution, Troy Davis was given a lethal injection by the state of Georgia and declared dead at 11:08 p.m. est – ed.

Later today, all of us will become complicit in state-sanctioned murder, yet again, of someone who may very well be innocent. Ironically for some of us, this murder comes during the Jewish season of repentance, a time at which the possibility of amending the record, of righting one’s wrongs, is a central theme. But of course, there is no amending the record once Troy Davis is dead.

The various hangmen in Georgia have not cited Scripture as justification for killing Troy Davis, who probably did not commit the murder of which he was convicted. But they may as well have. American moral values are largely derived from religious values, and those values come from the Bible. Or do they? Did not Jesus Christ effectively abolish the death penalty by requiring that those who cast stones be innocent themselves? (John 8:7) And did not the rabbis of the Talmud contemporaneously state that a Sanhedrin who puts to death one person every 7 years is to be considered “bloody”? (Mishna Makkot 1:10, BT Mak. 7a)

In fact, the ambivalence of our religious traditions regarding capital punishment addresses exactly why the Troy Davis execution is such an outrage.

On the one hand, certain crimes deserve death. Whatever we make of the Bible’s list (which includes violating the sabbath and committing adultery), there are indeed acts so heinous that the blood of the victim seems to cry out from the earth. (Gen. 4:10)

On the other hand, we human beings can hardly ever be sure of ourselves. We are fallible—no more so than in the case of “eyewitness” testimony, as devastatingly catalogued in a recent Slate article about the Davis case. And death is irreversible.

Jewish and Christian religious traditions capture both sides of this ambivalence. On the one hand, they contain litanies of colorful forms of execution (chiefly stoning, burning, strangling, and hanging) for a wide variety of crimes. In some ideal world (i.e., the world in which God is the judge) these punishments might indeed be meted out. Yet on the other hand, both traditions relentlessly undermine their own idealizations.

“If the one says that his sandals were black, and the other, that they were white, the evidence is not certain,” says the Talmud in Sanhedrin 41a. Each detail, even absurdly irrelevant ones, must be absolutely corroborated for the death penalty to be justified. And that is in the case of murder. When the rabbis could not abide by crimes specified in the Torah, they made them completely unenforceable (cf. the “stubborn and rebellious son,” liable for death in the Torah but called by the Talmud a case that “will never happen” in Sanhedrin 71a) and decreed that the mere study of the laws, rather than their implementation, is God’s demand. (Ibid.)

So too Jesus’ better-known statement in the Gospel of John. That statement is not so much a rejection of rabbinic law (as it is usually interpreted) as it is a clever deployment of it. Jesus knows that witnesses must meet certain criteria to have their testimony heard, and while he may be expanding those criteria, his response to the Pharisees is primarily to remind them of their own law. Once again, in an ideal world, perhaps the guilty deserve death. But none of us is infallible, and because we cannot ‘amend the record’ once someone has been executed, we can never repent of our mistakes.

Because religiously, it is impossible to conceive of a misdeed from which repentance is impossible, it is impossible to conceive of a just execution.

It almost goes without saying that the evidence in the Troy Davis case falls far short of these standards. Seven of nine witnesses have recanted. One of the remaining two is the man Davis’s lawyers say is the real killer. The police didn’t follow proper procedure to ensure witnesses would objectively ID the perpetrator. By the time Davis was put in a lineup, they had already papered the neighborhood with his picture. They staged a weird reenactment of the crime which forced a single narrative upon the conflicting witness testimony. Davis may be innocent or he may be guilty, but on the basis of this evidence, we’ll never know the answer.

And yet, as I write these words, he has only hours to live.

How, then, has our secular law drifted so far to the Right of our religious teachings? Can we trace the points in our history at which the traditions of mob justice, lynchings, and unrighteous indignation eclipsed those of mercy, forgiveness, and the recognition of human fallibility?

I don’t think we can, because the (d)evolution has never been linear. The forces of stern judgment and those of mercy have always been with us, competing within our very hearts. Indeed, in the Kabbalah, the Jewish esoteric and mystical tradition, they are seen as striving within the very mind of God. It would be easy to lay the blame on a few evil people in the Georgia judicial system. But as Thich Nhat Hanh has lately reminded us, we all have that same capacity for evil. That which I condemn, is also within me.

And our religious traditions. There are bloody, vindictive religious traditions (as today’s not-so-new atheists insist on reminding us), and there are those which soften the human tendency toward vengeance and violence. Religion does not have the answer, because it has all the answers, the right and the wrong. Religion is less a glossary of terms (justice means this, righteousness that) than a grammar, a framework for moral reasoning. It is a language in which to think—not a guarantor of thinking correctly.

Choices of religion-or-not, this-religion-or-that, are thus almost irrelevant. What matters is not denomination but disposition. Do you feel pangs of guilt today, as we helplessly watch a state murder someone? Does your conscience, religious or secular, feel outrage? And does your heart cry? These, not dogma, creed, purity or piety, are the signs that your soul is awake.

Even if you are too late to save Mr. Davis.

JayMichaelson&ltjay@nehirim.orggt'

Dr. Jay Michaelson [@jaymichaelson] is Associate Editor of Religion Dispatches and the author of five books, most recently "Evolving Dharma: Meditation, Buddhism, and the Next Generation of Enlightenment" (North Atlantic, 2013). He holds a J.D. from Yale and a Ph.D. in Jewish Thought from Hebrew University of Jerusalem.