Judaism is one of the earliest participants in the debate, since capital punishment is mandated by the Torah for a number of specified offences. But in time the rabbinic sages surrounded capital cases with so many strict procedural rules as to make a death penalty virtually impossible.
In a famous Mishnaic passage (Makkot 1:10), there is a vigorous exchange between the proponents and the opponents of capital punishment; one side says that a court which sentences a person to death is bloodthirsty, whilst the other argues that without the death penalty, “murderers would proliferate in Israel”.
Not that the abolitionists would let the accused off scot-free; there was provision for incarceration with the result that the criminal would die in prison. So the options were execution and imprisonment. The purpose of both was a combination of punishment and deterrence. A fearfulness was attached to both options; it was taken for granted that even criminals valued their lives and nobody would relish suffering either prospect – a quick death by execution or a slow death by imprisonment.
The Amrozi case, however, puts us in a bind. A smiling mass murderer who looks forward to his fate is a new phenomenon. Apparently feeling neither remorse nor trepidation, he would not regard either option, execution or imprisonment, as a punishment: nor would his ilk be warned against serious criminality by his fate – if he is executed they would presumably regard him as a martyr and if he is imprisoned they would deem him a hero.
So what do we do?
We cannot abdicate (though we do not live in Indonesia, the moral problem transcends all boundaries). We have to do something for the victims of Bali, those who died, those who survived, and the families and friends of both. We cannot be dogmatic and say there can never be a time when capital punishment is justified, nor can we say it should be applied routinely. It must remain on the universal statute book if the situation seems to require it. In this case the crime was so horrific that a death penalty cannot be ruled out.
How about the fact that Amrozi appears unfazed?
We are not morally obligated to tailor our view to his trademark smile, nor to try to interpret what the smile may or may not mean. We have an objective responsibility – to deal with a horrific crime. We are also not morally obligated to tailor our view to those (hopefully relatively few) who would turn him into a martyr or hero. Here too we have an objective duty – to attach fearfulness to the penalty so that the vast majority of human beings, who do still value their lives, will take Amrozi’s fate to heart.
Life imprisonment would be unlikely to have the same effect; apart from the financial cost and the possibility that one day he might be released, it might mean that after a while Amrozi’s name would be forgotten and what happened to him would no longer frighten others.
(This article first appeared in OzTorah in 2002 following the Bali bombings in which 202 people were killed, including many Australians.)