Jewish lawyer fights death penalty daily

Marshall Dayan had a love for Pittsburgh before ever setting foot in the city.
Dayan’s love for the Steelers began when he was just 13 and living in Macon, Ga. However, when he became the assistant public defender in the Capital Habeas Unit of the Federal Public Defenders office for the western district of Pennsylvania, he got his chance to come to Pittsburgh.
“Coming to Pittsburgh was like coming to mecca,” Dayan said. “It had never been our home, but it was almost like this is where we were meant to be.”
While he roots for the Steelers every Sunday during football season, Dayan’s real job is far more serious. He fights for the abolishment of the death penalty, and represents inmates who are currently on death row.
Dayan first got involved with capital punishment when he was a junior at the University of Georgia. It was then that Georgia was scheduled to carry out the first execution in the state in nearly 20 years. Dayan made the 50-mile drive from Athens, Ga., to Atlanta to participate in the vigil for the inmate.
“I remember thinking that if the state wants to take this person’s life, in a democratic republic, all of us are the state,” he said. “I would be responsible for this man’s life.”
Dayan attended the vigil in the church and had his realization.
“As I heard about his case and the death penalty in general, I thought about what I learned in religious school back in Macon. God created human beings to complete the creation. Every human being, no matter what they have done — good or bad — has something they can contribute. I found myself sitting in the back pew of that church, nauseous and upset that the state would voluntarily put someone’s blood on my hands.”
Already pursuing a degree in political science, and having an avid interest in government, Dayan decided in that Atlanta church to become a lawyer and help death row inmates.
“I decided that night, spring of 1980, I would go to law school,” he said. “That nauseous feeling went away when I decided I could go to school and become a lawyer and do whatever I could to help people on death row, and get some of that blood off my hands. By the end of that night, I knew what I was going to do with my life.”
He began practicing law in Washington, D.C., and eventually moved to Raleigh, N.C.
In May 2006, Dayan joined the national staff of the American Civil Liberties Union Capital Punishment Project as the state strategies coordinator. He was in charge of leading public education and was the national advocacy person for the ACLU on the issue of capital punishment. However, he wanted to get back into practicing law. Dayan found the federal public defenders job in Pittsburgh and moved here in May 2007.
Since he began practicing as a capital punishment lawyer, Dayan has been involved in some 75 cases, including six here in Pittsburgh. Of those 75 cases, he has seen three of his clients executed by the government. Dayan’s views make it difficult when he losses a case.
“I have to feel like I didn’t do my job,” he said. “Even though I know I did everything I could possibly do, you feel like your job is to save your client’s life. When you don’t do that, you feel like you failed.”
While he hasn’t won all of his cases, when he does save an inmate from death row, Dayan describes the feeling as “extraordinary.”
Dayan’s views against the death penalty have only strengthened since he began practicing law and being a part of capital punishment trials firsthand.
“I have not seen a case where there weren’t so significant errors at the capital trial that the death sentence should be affirmed,” he said.
Against the death penalty for many reasons, Dayan believes there are many more steps that should be taken before the death penalty is brought up.
“If you are going to have a death penalty, it ought to be reserved for people where you have tried something short of the death penalty but it hasn’t worked,” he said.
When given the example of Oklahoma City bomber Timothy McVeigh, who was executed June 11, 2001, Dayan believes that case should have been handled differently.
“He (McVeigh) had no criminal record,” Dayan explained. “How do we know that the death penalty did what we wanted to do? Why do you use the biggest and most expensive and most difficult tool when it hasn’t been proven that a less expensive tool might work?”
But Dayan doesn’t believe these criminals should be freed.
“You don’t hammer a little nail with a giant hammer. You don’t let him go, you incarcerate him — for life — whatever. If you are going to have a death penalty it should never be the first arrow out of the quiver.”
For those that say keeping a prisoner alive in prison is more expensive than the death penalty, Dayan strongly disagrees.
“Every study that has been done, the death penalty is way more expensive than life without parole,” he said. “Capital cases from cost to finish cost $2.5 million more than a noncapital case according to the latest study I found.”
A member of Adat Shalom, Dayan has studied what the Torah and Talmud say about the death penalty and has spoken to congregations across the country on the topic. Being involved in Jewish affairs is extremely important to Dayan,
He is on the Council of the Ohio/Kentucky/Allegheny Office of the Anti-Defamation League of B’nai B’rith, the board of directors of the Pittsburgh Area Jewish Committee, which recently passed a resolution opposing capital punishment, and the legal committee of the western Pennsylvania chapter of the ACLU.
“The Torah does call for capital punishment,” he said. “It starts in Genesis with the end of the flood and God creates the rainbow.”
“Whoever sheds the blood of man, by man shall his blood be shed.”
The second example can be found in Numbers 35.
“Only upon the testimony of witnesses, shall the death penalty be imposed.”
While the death penalty is in the Torah, Dayan said that the rules for enforcing it make it almost impossible to ever execute a criminal.
Dayan said that if two witnesses tell the assailant that he is illegally committing murder and he still commits murder, only then would he be eligible for execution.
“That’s the evidence the rabbis in the Talmud require,” he said. “The Torah and Talmud have a tremendous amount to say about it (capital punishment), but make it almost impossible to carry it out.”
Many Jewish organizations, religious and not, have passed resolutions to abolish the death penalty. The Rabbinical Assembly called for the abolition of the death penalty in 1996. The Reform movement called for it in 1959 and again in 1998. The Jewish Council on Public Affairs, made up of all major Jewish organizations, passed a resolution for a moratorium on the death penalty in 2001.
“Even modern American Judaism recognizes there are so many problems with the administration of the death penalty in the United States,” he said.