Column: Tripwires in the Tree of Life Synagogue Trial…Or Will That Be Multiple Trials?

It was a paradoxical week for American Jews, as much as it was historic.

The sentencing of Tree of Life synagogue killer Robert Bowers raises disturbing questions about antisemitism’s link to mental illness, the deterrence value of the death penalty and the value of hate-crime laws.

What does Bowers’ mental state have to do with his hatred of Jews? Will the death penalty deter mass murders? Will the sentence be blocked by politics? Should he die because of what he thinks? Should all minority groups get the same satisfaction?

Declaring to police that “all these Jews need to die,” Bowers was arrested inside the Tree of Life synagogue in Pittsburgh on Oct. 27, 2018, after murdering 11 congregants and wounding six others, including four police officers. He committed the ghastliest act against Jews in American history while armed with an AR-15 and three handguns.

The 50-year-old truck driver was sentenced to death by a jury in federal court last week, and a federal judge followed up last Thursday by formally issuing the death sentence. Bowers apparently received this sentence because he targeted Jews.

The Department of Justice accused Bowers of violating the civil rights of the victims as part of the tragedy. Civil rights charges authorize the prospect of increasing the level of punishment beyond the penalties for the act itself.

Defense lawyers grappled over how to convince the jury to sentence Bowers to life imprisonment instead of giving him a death sentence.

Bowers’ attorneys argued that trauma from childhood experiences, mental illness and hostility toward Jews led to the massacre. Elisa Long, a federal public defender representing Bowers, said that in the months preceding the rampage he had “spent a tremendous amount of time alone on the internet absorbing all kinds of vile and extremist content,” as she was quoted in The New York Times.

Oh really? Right-wing social media must have suddenly nudged him to discover that Jews helped immigrants to thrive in America so they could replace the white race. Funny, but don’t most American Jews look white?

We can only guess as to why Bowers picked Jews to gun down while worshiping in a shul – what they thought was their safe space. Probably Bowers, of nearby Baldwin, Pa., was engulfed amid antisemitism all his life. Hatred toward Jews could have been a natural element of his environment and so it would not be much a leap for Bowers to blame Jews for his current woes.

Now that DOJ achieved a death penalty verdict, we can monitor whether it will deter further shootings of Jews and other minority groups. That could happen, but future developments could easily sabotage any benefits derived from the death penalty.

If Bowers appeals the sentence, he can remain alive for years. It is his right to appeal, but the long delay will devalue the deterrent advantages.

President Biden and Pennsylvania Gov. Joshua Shapiro oppose the death penalty. Biden campaigned on a pledge to end the federal death penalty, but has not followed through with it, according to The New York Daily News. Attorney General Merrick Garland issued a moratorium on federal executions after Biden took office.

Shapiro has said that he will not sign any death warrants.

Their stance is subject to change once they leave office.

There is a possibility of another death sentence if the Allegheny County District Attorney’s office prosecutes Bowers on 36 state charges, including 11 counts of murder. The D.A.’s office has not yet decided.

While federal prosecutors in Pittsburgh sought the death sentence, their counterparts in El Paso, Texas, did not when they prosecuted Patrick Crusius, 24, for murdering 23 people at a Walmart store in 2019. They accepted a plea agreement for life imprisonment, but prosecutors in Pittsburgh turned down a plea deal and they moved ahead for a death sentence.

Crusius allegedly told investigators that he sought to kill as many Mexicans as possible in the heavily Hispanic city after driving more than 650 miles west from the Dallas suburb of Allen, according to ABC News. He pleaded guilty last February to dozens of federal hate crimes and firearms charges, and in early July a federal judge handed down 90 consecutive life sentences for him to serve.

The natural question that comes to mind would be why the DOJ pursued a death sentence in one case and not the other. Some observers might wonder if it was favoritism for one group over the other. I do not believe that. Maybe the El Paso team believed they lacked a strong enough case.

The process has the feel of double jeopardy, in that a person cannot be tried twice for the same crimes. It is allowed in these kinds of cases because the DOJ is prosecuting suspects on federal charges. However, the mission is ostensibly the same, and the outcome could be the same. Are two trials necessary?

In El Paso, local investigators are seeking the death penalty, which survivors and victims’ family members are hoping for. The District Attorney’s office in Allegheny County said they plan to meet with family members of the victims before deciding on whether to bring this to trial. They are likely mindful that another trial which duplicates the first could be painful for the Jewish community, and Bowers already faces the worst possible sentence.

That Bowers was driven by religious hatred was among aggravating factors before the Pittsburgh jury sentenced him to death. If the jury was influenced by this factor, they added the harsher punishment for what he was thinking, not only the act itself.

Bowers’ beliefs are disgusting, but punishing any suspect for that reason is a slippery slope. Extremists can rightly argue that this step violates their freedom of expression. Who knows where this could lead? Conversely, Jews in Nazi Germany were murdered for who they were, considering that they did nothing wrong.

How are these considerations crucial to the outcome? Presumably, a jury can only choose between life imprisonment and the death penalty. Proponents of the death penalty will only be satisfied if someone like Bowers is sentenced to death for the crime itself. Others will be disappointed if they cannot confine his punishment to a life sentence.

Let us concentrate on straightforward court cases and prevention of mass murders.