Yesterday we began learning about Homicide in our Criminal Law class at Loyola Law School. Our Criminal Law professor is world famous Laurie Levenson (she is in the news very often). She is an incredible teacher and a very successful practitioner. Studying Criminal Law in her class is a privilege. (Plus, she brings baked goodies for the class and sometimes stops at Schwartz’s Bakery to get some kosher goodies for the two Kosher observant Jews in the class. Pretty nice!)
After learning the building blocks of Criminal Law we began our unit in homicide.
One of the first homicide cases we read was a brutal murder of a 10 year old girl. The defendant offered no defense. He undeniably killed her in a brutal fashion, while intoxicated he took a knife to her, stabbing her about 60 times as he chased her around the house. The court decided that he could not get the death penalty.
Why? The court says that brutality of a murder is not a factor in considering whether a murder is in the 1st degree (incurring the death penalty). First degree murder requires “premeditation” and that is analyzed by looking at 3 factors. 1) planning 2) motive and 3) manner. In this case, the defendant did not plan, had no motive and the manner was not a methodical way of killing. It was random and unnecessary. The court sentenced him to life in prison and he escaped the death penalty.
Many of my co-students found this very difficult to swallow. Here we have a violent, brutal murder who will not get 1st degree murder. Some of my co-students wanted the murderer brutally killed in retribution.
In Jewish Law, murder and some other capital crimes are punishable by a death penalty. How does one “qualify” for the death penalty? A murderer must be warned by two witnesses that his offense will incur the death penalty. He must acknowledge their warning. Then he must commit the murder with 10 seconds. This approach to capital punishment reflects a basic tenet of Judaism.
Judaism is all about moral choices. Therefore, Judaism punishes the murderer who is making a clear, coherent choice. Only with fair warning and a true understanding of one’s actions are the murderer’s actions a clear indication of moral choice to commit murder.
In our Law School case, the fellow did not make a conscious choice. The 3 factors that demonstrate premeditation all demonstrate a choice by the murderer. Planning a murder shows that the murder truly understands what he is doing and is choosing his action of murder. Same for motive and manner. We need to see a conscious choice to take a life for murder to be in the 1st degree.
A drunk man who crazily kills for no reason is not a murderer in the 1st degree. He is a sociopath and must be locked up. But to take his life away via the death penalty requires more than just killing another. It requires a moral choice.
Judaism teaches us that our life is made up of little more than the moral choices we make. Our choices are who we are.