There are political ideas that never truly disappear. They just wait for the right moment, for trauma, for a particularly sensitive or anxious public mood, and then they sprout again like stubborn weeds in the middle of a paved path. The death penalty for ‘terrorists’ is exactly that kind of idea. It is always there, hanging in the air, resurfacing whenever extremist politicians sense, or in our case help create, division, anxiety, or a collapse of security.
In short, whenever there is a problem in one of the areas they themselves are responsible for. And in Israel, a land flowing with milk and hard times, there is no shortage of such hours of crisis.
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National Security Minister Itamar Ben-Gvir and Finance Minister Bezalel Smotrich
(Photo: Amit Shabi)
But the current moment is especially troubling. And I am not speaking only about patently irresponsible and overtly undemocratic statements, like that of the finance minister, who said there is no obstacle to executing Jews as well, so long as it is for treason and not, God forbid, terrorism of the ‘right kind.’
We have already grown used to a reality in which the offense does not determine the punishment, but the identity of the offender does. A reality in which the government ignores every basic principle of modern law and stubbornly refuses to take responsibility for its failures.
The problem is that this time we are talking about entire security systems, like the National Security Ministry and the Shin Bet, repeating like a mantra one word only: deterrence. Because despite the intuitive pull of harsh and irreversible punishment, there is not a single thing that supports it.
No evidence the death penalty deters
Sociologists, criminologists and psychologists have been studying this for five decades. Hundreds of comparisons and thousands of data points from around the world have not produced even one piece of evidence that the death penalty deters more than a long prison sentence, at least not in any case where facts matter more than populism.
Countries with the death penalty, such as Iran, the United States and Japan, do not experience fewer murders. Countries without it, such as those in Europe, Canada and Australia, do not suffer more. Even within the United States, there is no difference in murder rates between states that carry out executions and those that do not.
What do we find? The more tense, divided and violent a country is, the more people believe the death penalty is the solution. Not because it works, but because it feels good. It is a particularly effective strategy in an election year.
Because emotion wants power. But research separates feelings from facts, two things that have become parallel tracks in today’s reality. And then come the people who are supposed to know better.
What is astonishing is not that Bezalel Smotrich or Itamar Ben-Gvir support the death penalty. I am pretty sure it was even part of their election platform. What is astonishing is that official bodies too, the National Security Ministry and the Shin Bet, entrusted with our security, are relying on feelings instead of data. As if they were talkback comments, not official documents.
No data, no facts
In the explanatory notes to the bill placed on the Knesset table and passed its first reading, it says, ‘Experience shows that a sentence of life imprisonment for murder does not deter terrorists.’ Therefore, ‘it is proposed to determine that the penalty for terrorists who commit murder will be death. This punishment will deter and thus prevent additional acts of terror.’
No data, no facts. The feelings of people with an agenda, speaking in the name of a science they did not bother to examine. And this is not a reckless statement aimed at the base. This is how law is made in Israel, on feelings instead of facts.
And afterward, they accuse the High Court of selective enforcement, or wonder why our security reality in recent years resembles a Netflix episode about the world’s most dangerous prisons, even though this is the most right-wing and ‘security-minded’ government in our history.
The second absurdity: the law applies to everyone, including Jews
Hand on heart, how many of those supporting the law have actually read all its details? Because contrary to the common belief, the law cannot distinguish on the basis of nationality, even if it tries.
The proposed amendment says that anyone who intentionally or with indifference causes the death of an Israeli citizen out of racism or hostility toward a public, and with the aim of harming the State of Israel and the rebirth of the Jewish people in its land, shall be sentenced to death. And only death.
Not only are Jews murdered, but also Arab terrorists commit terror. So if a Jew murders a Palestinian on nationalist grounds, legally he can be brought to face the death penalty.
Of course, perhaps here we really do not need to let facts bother us too much. It is not likely the state would implement the law in this way. Especially when we are constantly told there is no such thing as ‘Jewish terror,’ including by some who were convicted of it in the past. And how do you execute someone for something that does not exist?
This contradiction lets us pretend the law deters ‘enemies’ outside, but does not apply to violent extremists within. And when that is the case, the law is not deterrent, equal or moral. It is simply a political tool.
What the death penalty is good for
‘To err is human, to forgive divine,’ Alexander Pope wrote. And as we all know, errors happen, even in convictions that led to death sentences. It happened in every country that used such a penalty long enough. These are not isolated cases. In the United States alone, 195 people sentenced to death were exonerated before execution, thanks to appeals and new evidence.
You can dismiss that as a drop in the ocean, a negligible price compared with the ‘fake deterrence.’ But even if that were true, it runs against the principle of ‘whoever saves one life in Israel.’ Not exactly strength, at least in Jewish terms.
Because the second clause of the amendment says a military court can impose the death penalty by a simple majority, unlike the unanimous requirement set in law today. And if that is not enough, once the military court hands down a death sentence, there is no possibility of appeal. For efficiency’s sake, of course. It is like saying that once there is a conviction, you should pull out a gun and shoot the convicted person.
And what if we were wrong? To err is human. But to prevent in advance any chance to correct such a fateful mistake is diabolical.
What does deter?
Interestingly, public officials responsible for our security, those who appeared before cameras after every attack to blame previous governments, manage with great skill to evade responsibility time and again. They focus on what soothes, not on what actually deters. The messages are the same, only the people in charge have changed.
Prof. Guy HochmanPhoto: Gavriel BaharliaBut research and practice agree. Deterrence is achieved through uniform and equal enforcement, through a rapid response to every incident, whether a trickle or a flood, a balloon or a missile. It is achieved by improving intelligence and strengthening law enforcement agencies, not by attacking them and weakening their hand.
The death penalty seems appealing because it offers solace for a troubled soul. It restores faith in a just world. So why not exploit that for political gain instead of treating the disease, to ‘eliminate’ it, with plenty of ‘strength’ and an illusion of security?
But the death penalty does not deter. It does not save lives. It is irreversible. And above all, it is another proof that here, feelings, not facts, run the state. And the price, as usual, is paid by all of us.
The writer is an expert in behavioral economics and decision-making, and a faculty member at the Baruch Ivcher School of Psychology at Reichman University