Who Shall Live & Who Shall Die – The
Death Penalty in Jewish Law
On Wednesday the Nebraska
Legislature voted 32-15 to repeal the death penalty, a move that would replace lethal
injection with life imprisonment. Over the past few weeks many have claimed
that God, and by extension the Bible, gives society the ability to put to death
those who have committed crimes so egregious that prison is simply not enough.
Those who read the Tanakh, the Hebrew Bible, know that the Capital Punishment
can be found in multiple places. There are roughly 36 crimes for which the
penalty is death, from idolatry to witchcraft, murder to desecrating the
sabbath. Clearly then the Jew who follows the Bible must be in favor of the
capital punishment.
And here in lies the problem…that
most people stop here! The question of capital punishment in Jewish law is
anything but black and white. To start with, none of us observe Judaism through
a strict interpretation of ONLY the BIBLE? Perhaps you do not realize it
but the Judaism you and I practice is a rabbinic Judaism, not biblical. The
Judaism that we practice today honors the same God as our biblical ancestors
but the means of showing that love is entirely different.
While the Bible may be the first
word on any one issue…it is not the last. Whether you are Reform, Orthodox or
Conservative…the Bible is only the beginning of the conversation.
By far the most referenced rabbinic
text on the capital punishment comes from the Mishnah in Makkot 1:10.
“A Sanhedrin that
executes once in seven years is called bloodthirsty. R. Elazar b. Azariah said:
even once in 70 years. R. Akiba and R. Tarfon said: had we been in the
Sanhedrin, none would ever have been put to death. Rabban Shimon ben Gamaliel
said: then these sages would have created more murderers in Israel.”
Interestingly enough Rabbi Akiva
and Rabbi Tarfon give the last word to their colleague Rabban Shimon ben
Gamaliel. Ben Gamliel states that Akiva and Tarfon were careful not to enact
the death penalty, because if they had “then these sages would have created
more murderers in Israel”. We will come back to this Mishnah in a bit. The
judicial system of the time was built around the Sanhedrin, the rabbis of the
great assembly, these twenty-three or more rabbis were some of the most
knowledgeable, well-intentioned, God fearing individuals. For a capital case to
even be brought before the Sanhedrin it had to meet a number of procedural
requirements. First, there had to be two
witnesses, these two witnesses could not be related to each other or the
accused, they have to acknowledge before the court that they saw each other
while the offense was taking place, and they needed to have told the accused he
was doing something wrong. The witnesses were told that if their testimony,
should be in error it would hold the weight of murder and they would be the
executioners. While the stringencies on the witnesses was extreme, so too was
the definition of guilty. A verdict could not be 12 to 11, it would need to be
13-11, it was more than a simply majority. Yet, if all 23 judges arrived at a “unanimous
verdict of guilty, the person was let go. This was so, because if no judge
could find anything exculpatory about the accused, it was believed that there must
be something wrong with the court.”[1]
All of this made the conviction of a capital case extremely rare.
Maimonides, the preeminent Jewish
philosopher, physician and sage, who lived during the 12th said the
following in Sefer HaMitzvot in the Mishneh Torah:
“The realm of the
possible is very broad. Had the Torah permitted deciding capital cases based
even on a conjecture so likely that it seems absolutely certain, like the
example we mentioned [about the person chasing another with a sword], in the
next case we would decide based on a conjecture just a little less likely, and
in the next, a conjecture less likely still, until we would sometimes execute
people based on nothing more than the judge’s imagination and opinion. Thus the
Exalted One shut this door, and demanded that we not punish except when
witnesses can testify without doubt or conjecture that they are absolutely
certain the defendant did this deed. Inevitably, when we do not convict based
even on very strong conjecture, we will sometimes acquit the guilty; while when
we do convict by conjecture sometimes we will execute the innocent. But it would be better to acquit 1,000
criminals than to kill a single innocent one.”[Sefer HaMitzvot,
Prohibition ].290[2]
No one can deny that the Torah
speaks of capital punishment but it is clear that our sages were uncomfortable
with it. In his paper Participating in the American Death Penalty Rabbi
Jeremy Kalmanofsky asks the question of whether Jews may participate in capital
criminal cases in the United States. In his paper he points out that “talmudic
lore [b. Avodah Zarah 8b] records that 40 years before the Temple was
destroyed, the Sanhedrin ceased to try capital cases, since society had
collapsed into such chaos it would have had to impose too many death penalties.
According to this view, there has been no official, judicial execution within
the Torah legal system since the early 1st century CE.”[3]
It is safe to assume that there
were cases where the guilt of an individual in a capital case was known beyond
a reasonable and was let go due to a technicality. One witness not two, the
witnesses were related, one had a speech impediment…etc. Surely guilty people
were let go, but as Maimonides said, “better to acquit 1,000 criminals than
to kill a single innocent one.” And in this case the accused, while still
guilty, were sentenced to life in prison…not death.
Not unlike any other group of
religious people in the history of the world, the rabbis of the Talmud were
caught between two moral absolutes. First that we must value human life above
all else and second that we are to fear God and live by a certain set of laws.
What happens when someone violates God laws and the punishment we are told is
to end a life? It seems clear that the rabbis sought to follow the Bible and as
such there were crimes that were punishable by death, yet the threshold to
convict with the punishment being death was almost impossible.
So what do we do today?
For your own reading I would take a
look at the remarks from both Rabbi Ben Zion Bokser of the Conservative
Movement as well as the great Rabbi Ahron Soloveichik speaking on behalf of the
OU. Even our Orthodox brethren agree that the death penalty, as the Bible
understood it, is not acceptable today.
I mentioned earlier that we would
come back to the very first text I referenced, that being Makkot 1:10.
“A Sanhedrin that
executes once in seven years is called bloodthirsty. R. Elazar b. Azariah said:
even once in 70 years. R. Akiba and R. Tarfon said: had we been in the
Sanhedrin, none would ever have been put to death. Rabban Shimon ben Gamaliel
said: then these sages would have created more murderers in Israel.”
Another way to read Shimon ben Gamliel
is that BY NOT putting to death those that committed capital crimes WE ARE
CREATING MORE MURDERS…that the death penalty serves as a deterrent. While this
may have been a fear in the time of the rabbis, today there is empirical
evidence suggesting that the death penalty is not in any way shape or form a
deterrent for most if not all crimes. This is in large part due to the fact
that most crimes are crimes of passion, crimes committed with no regard for the
consequences of their actions. In addition, the rationale criminal would
realize that based on the number of appeals that he or she is granted by the
court the odds are that the individual would likely die in jail, rather than
being killed. As such, if the death penalty ever was a deterrent, its effectiveness
has been washed away.
Second only to saying that the
Death Penalty is a deterrent are those who use the “eye for an eye” argument.
Rabbi Peter J. Rubinstein who is now
the Rabbi Emeritus at Central Synagogue in NY, a large prominent reform
synagogue in Manhattan said that:
“The “eye for
an eye” argument that is used vociferously by death penalty proponents … in
an effort to garner support from Biblical law does not fit with what we
believe. Before we use the “eye for an eye” argument to support the modern
death penalty, we had better be especially cautious and had better start
reading our Bible. I warn you that if we begin to literally apply the laws of
the Bible – in which the death penalty is also called for those who are
adulterers, those who are blasphemers, those who don’t keep the Sabbath, and
those children who might be rebellious – we would decimate our society.”[4]
While more pointed and meaningful,
Rabbi Rubenstein is saying “be careful what you wish you for”, a literal
interpretation of the bible would hurt more people than it helps. To those who say,
“if someone killed a member of my family, or a friend, I would want that person
put to death. My response to you is … so
would I…. BUT VENGEANCE ISN’T JEWISH.
We sit on Rosh Hashanah and Yom
Kippur and ask “who will live and who will die”. We ask those questions of God,
not of ourselves. Our state is tackling an issue for which our tradition has
much to say. This is not a time to be silent, nor a time to be apathetic.
Let us come together to realize
that our job is to protect life, not to destroy it…to continue to perfect the
world God created, not to harm it.
Shabbat Shalom
[1]
http://en.wikipedia.org/wiki/Capital_and_corporal_punishment_in_Judaism
[2]
http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/2011-2020/cjls-onesh-mavet.pdf
[3] http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/2011-2020/cjls-onesh-mavet.pdf
[4]
http://www.deathpenaltyinfo.org/challenge-holiness-sermon-death-penalty