In Israel, the Boston Bomber Could Hope to Walk Free in 20 Years

Even a hawk like PM Benjamin Netanyahu seems to believe that instituting the death penalty for terrorist acts would be a mistake.

Allison Kaplan Sommer
Allison Kaplan Sommer
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Despite efforts by rightist lawmakers to institute the death penalty for terrorists, such a development seems unlikely. Illustration by Amos Biderman
Allison Kaplan Sommer
Allison Kaplan Sommer

Israelis often defensively explain their country’s military policies by emphasizing the fact that Israel is located in a dangerous neighborhood, threatened with terrorism from all sides. Therefore, it can’t afford leniency and must be tougher and more aggressive for purposes of deterrence. They say that the rules in the Middle East are very different than those in the Midwest.

The interior of the execution chamber in the U.S. Penitentiary in Terre Haute, Indiana.Credit: AP

But the legal arena is different - even when it comes to terrorism. There is no way that someone like Dzhokhar Tsarnaev, the Boston Marathon bomber, would possibly be facing a sentence of death by lethal injection in Israel. Nor would Oklahoma City bomber Timothy McVeigh have been executed for his role in the horrific attack on the Alfred P. Murrah Federal Building, which killed 168 people. In Israel, none of the more than 3,000 U.S. prisoners on death row, including convicted terrorists, would have to contemplate their lives being taken at the hands of the state.

Even a hawk like Prime Minister Benjamin Netanyahu seems to believe that the situation should stay this way. He made this clear this week by firmly opposing a political push to institute the death penalty on terrorists who kill. The bill was introduced by MK Sharon Gal, a member of the Yisrael Beitenu party for whom the slogan “Death to Terrorists” was an unrelenting theme in their 2015 election campaign. Gal has been promoting his legislation with an aggressive Facebook campaign in order to enlist popular support to pressure politicians, encouraging Israelis to post their photos holding a sign saying “I support the death penalty for terrorists.”  

It has been an effective strategy. Netanyahu had to deal with a majority of ministers in his heavily right-wing government, including members of his own Likud Party. saying that they would support the bill when it was scheduled to be brought Sunday before the Ministerial Committee for Legislation - the body that serves as gatekeeper between bills and their consideration in the Knesset. Netanyahu took a clear stand - he forbid the Likud ministers to support it - and has done his best to squelch the debate by creating a committee to discuss it - postponing its consideration before the ministerial committee.

Famously, only one person has ever been sentenced to death and executed in Israel - Nazi Adolf Eichmann in 1962 for his crimes against humanity and the Jewish people during the Holocaust. The statute that resulted in his execution is still on the books - applying the death penalty to Holocaust war criminals, those who perpetrate genocide, and those convicted of committing treason in wartime. Even after Yigal Amir’s murder of Prime Minister Yitzhak Rabin, he was never seriously considered as a candidate for capital punishment.

Israel’s hesitation to execute terrorists is embedded in its history. While pre-state British laws permitted its use, capital punishment was essentially abolished in 1954, with the rare exceptions for genocide and wartime treason. Periodically, when particularly horrific terror attacks take place, support for resurrecting it has briefly resurfaced, most recently in 2011, when there was public pressure to impose it and the military court considered doing so when the Fogel family was brutally slaughtered in their home in the West Bank settlement of Itamar. In the end, however, Israel stuck to tradition and instead imposed multiple life sentences.

But overall, there has been general consensus, both in the legal establishment and political leadership, that a life sentence is the proper sentence for murder, even in the case of terrorists, and public debate of the issue has been rare. It is generally accepted that it is not an effective deterrent against terrorism - particularly now in the era of martyrdom -  and there are fears that if terrorists sit on death row, it may encourage kidnapping of Israelis in hopes of exchanging them for prisoners to an even greater extent than it does now.  

The arguments by those who advocate reviving execution of convicted terrorists are two-fold. The most common claim is that is that with no fear of execution, terrorists can murder with the hope that at some point, the perpetrators will be released in exchange for a kidnapped Israeli, or the remains of an Israeli fallen soldier. The death penalty would literally kill that home.

Moreover, life sentences handed out to terrorists have often been commuted in the past to sentences ranging from 15 to 45 years in prison. Jewish terrorists who have killed were shown particular leniency. In 1988, Chaim Herzog drastically reduced the sentences of three members of the Jewish Underground terrorist group who had been sentenced to life in prison for a 1983 assault at Hebron University in which three Palestinians students were killed and 33 were wounded.

But not only Jews have benefitted from the practice. In 2012, President Shimon Peres commuted the life sentences of seven Israeli Arabs convicted of terrorist crimes, reducing their sentences from life to between 30-45 years in prison.

So while it is ironic to think that a killer like Tsarnaev, who would still face a bleak future if he had committed his offenses in Israel, would have more cause for hope and less to fear than he current has sitting on death row in the United States, it is true. At least for now.