Biden’s commutation message: Some lives are worth more than others

On the morning of Dec. 23, I awoke to discover the news that President Joe Biden had commuted the death sentences of 37 of the 40 people on federal death row. In his statement, the president said, “I am more convinced than ever that we must stop the use of the death penalty at the federal level. In good conscience, I cannot stand back and let a new administration resume executions that I halted.”

I was ecstatic. I have been actively working against capital punishment for 40 years. As a college junior, I decided to go to law school to become a capital defender after attending a vigil for the first scheduled execution in Georgia in nearly 20 years, and found it impossible to reconcile the death penalty with our obligation as human beings created b’tselem Elokim, to partner with Hashem in completing the Creation.

Many of us across the country have sought these commutations for a long time. It was glorious news. And then it dawned on me that the president did not do what his statement said he was doing. The president’s commutation order did not include three people: the man convicted of the Boston Marathon bombing; the man convicted of the murders at Mother Emanuel AME Church in Charleston, South Carolina; and the man convicted of the massacre of 11 Jewish worshipers in the Tree of Life building in Pittsburgh, my home town.

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I came to Pittsburgh in 2007 and have been active in our community since then. I was in synagogue at Adat Shalom congregation that Shabbat morning, Oct. 27, 2018, and I, too, was traumatized by the assault on our community. I have clear memories of that awful morning. As soon as services were concluded, I went to a blood bank to donate blood, but was turned away with about two dozen others, told that there had been so many donations in the Pittsburgh area that morning that they had more blood than could be used or stored. By 2:30 that Shabbat afternoon, I’d received a phone call asking whether I attended any of the three congregations that were assaulted in the Tree of Life building, because I was an assistant federal defender in the Capital Habeas Unit of the Federal Public Defender’s Office, the office that represented the Tree of Life shooter, and he was asking to speak to a lawyer. My office was seeking to determine whether there was a conflict of interest in the office. I saw and see the case as a “Hineni” moment for our community — an opportunity to stand against more death in the wake of the horrific attack on the holy souls who were taken from us and on the others who faced the threat of death on that Shabbat Vayera.

I was not and am not alone. There are some people in each of the three congregations that were attacked who oppose capital prosecution. In fact, Congregation Dor Hadash, as well as the rabbi of New Light — two of the three congregations that were attacked — wrote letters to then-Attorney General William Barr in 2019 asking him not to prosecute the case capitally, but to accept the shooter’s offer to plead guilty to all charges in exchange for sentences of life without possibility of parole.

After a change in presidential administrations, other letters were sent to Attorney General Merrick Garland with the same request. There is virtually no one in our community who does not have neighbors, friends, and perhaps even family members who oppose capital punishment, who did not want the outcome of the trial to result in death sentences and who view President’s Biden’s exemptions from his commutation order as
bittersweet.

This should not be surprising. While there are members of our community who continue to seek execution of the shooter, and who communicated their desire to the White House, our community is not monolithic on this issue. As with many issues, we are a diverse community.

In Mishnah Sanhedrin 4.5, which discusses capital punishment, the rabbis note that all of us come from a single progenitor, Adam, so that no one can say that his or her lineage is greater than anyone else’s. Every life has inestimable value. By exempting three people from his commutation order, I believe that President Biden sent an unintentional message that some lives have more value than others. PJC

Marshall Dayan is a retired attorney and president of Adat Shalom congregation.