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The Death Penalty in Jewish Teachings

October 4, 2012
The death penalty is one of the most controversial issues that divide our country today since people hold deeply felt views that are anchored in powerful religious and moral convictions and evoke intense emotions.

Recently, the debate has been focused on two major challenges:

The danger of executing the innocent, highlighted by the significant number of exonerations throughout the country. One hundred and forty people have been released from death row as a result of exoneration since 1976.

The possibility that the specific method of execution by lethal injection may cause severe pain and, thus, constitute “cruel and unusual punishment” forbidden by our Constitution. 

The Jewish community in the United States is also deeply divided on the death penalty.

With a larger portion of the community opposing capital punishment than any other religious or ethnic group, the Jewish community, nevertheless, is estimated to be closely split among those supporting and opposing death penalty.

This resource is an educational tool to engage you in the debate about the death penalty from a Jewish perspective.

This resource represents and explicates the central Jewish texts that address the issue and attempts to represent fairly the Jewish teachings on both sides of the issue.

Jewish teachings on the death penalty underwent major shifts between the Biblical period and the post-Biblical rabbinic period and in subsequent historical periods.

We will focus here on core texts that provide a useful foundation for the discussion. 

The Death Penalty in the Torah

The Torah mandates capital punishment for a host of offenses against humans and God: murder, blasphemy, vilifying and physical violence against one’s parents; kidnapping and selling a person into slavery; adultery and adulterous rape and other sexual transgressions; public violation of the Shabbat; etc. 

Perpetrators of these and other crimes are doomed to die but, in most cases, at the hand of God rather than by execution carried out by humans. The Torah even goes as far as to say that the parents of an incorrigible delinquent child may have him put to death by stoning by the whole community. Yet, at the same time, the Torah teaches the sanctity of every individual life and commands us to protect life: “And you shall choose life…” (Deut. 30:19). Rabbinic teachings amplify this with the statement: “Whosoever preserves one life in Israel is as if he has preserved the whole world” (Babylonian Talmud: Sanhedrin 37a).

The first homicide, the murder of Abel by Cain, is portrayed as an outrage against God and the earth on which the blood was spilled: “Your brother’s blood cries out to me from the soil” (Genesis 4:10). Cain’s evasive response to God, who demanded to know where his brother is, “Am I my brother’s keeper?” is transformed by rabbinic teachings into an affirmation: Yes, we are our brothers’ keepers. The idea is further supported by the admonition: “You shall not stand over the blood of your fellow man” (Leviticus 19:16). Later on in the Torah, the gravity of communal responsibility for life is vividly described in the elaborate ritual and professions of innocence offered by a community’s elders when a dead body is found within the community’s geographic boundaries: “And all the elders of the town, the one close to the corpse, shall wash their hands over the broken-necked heifer in the wadi, and they shall bear witness and say ‘Our hands did not shed this blood, and our eyes did not see’” (Deut. 21:6-7).

The Torah not only mandates capital punishment for a list of grievous offences but requires that the judicial system established by humans mete out such a punishment for murder:

“Whoever sheds human blood, by humans his blood shall be shed” (Genesis 9:6). The Torah’s requirement here is an innovation in ancient Near Eastern law, aimed at creating an equitable legal system in which all are equal before the law. This requirement corrects the common practice (enshrined in the Code of Hammurabi) that allowed a wealthy person to pay a ransom for a life he had taken, while a poor person paid with his own life. “And you shall not take ransom for the life of a murderer who is guilty {and thus liable} to die, for he is doomed to die: (Numbers 35:31). So insistent is the Torah on punishing a murderer with execution that the Torah abrogates the “safe haven” normally provided to a fleeing criminal who is holding on to the altar: “And should a man scheme against his fellow man to kill him by cunning, from My altar you should take him to die” (Exodus 21:14). This requirement stands, of course, in contrast to the safe haven provided in the “Cities of Refuge” (arei miklat) for a person who committed involuntary manslaughter (Numbers 35:6-15). 

The under-girding principle of capital punishment is, of course, “A life for a life, an eye for an eye, a tooth for a tooth…” (Exodus 21: 23-24), one of the most quoted Biblical passages (which, many people may be surprised to find out, actually appears in the Torah only four times). This principle established in the context of Biblical law the foundation of parity, or proportionality, between crime and punishment. At the same time, this principle was based on the assumption of the right of the victim and his or her family to vengeance: “The blood avenger shall put the murderer to death, when he comes upon him he shall put him to death” (Numbers 35:19).

As we shall see, the general system of “eye for eye” is superseded in the rabbinical period by a framework of financial penalties: “Eye for eye {is} money” (Babylonian Talmud: Baba Kama: 83b). But opinions among the rabbis are divided as to whether this system of punishment and compensation applies to the taking of life itself.

Biblical law balances the substantial list of offenses punishable by death with a requirement that two witnesses attest to the crime:

“Whosoever strikes down a person, by {testimony of} witnesses shall the murderer be killed, and a single witness shall not testify against a person to die” (Numbers 35:30). This measure institutes a kind of “due process,” requiring two independent witnesses to ensure against false accusations.

The Death Penalty in Rabbinic Teachings

Deliberations during the rabbinic period are marked by grave reservations about the Torah’s mandates for capital punishment. The rabbis required highly exacting conditions for the circumstances under which the offense took place and for standards for accepting testimony about it. The rabbis thus placed practically insurmountable obstacles to applying the death penalty. They describe the questioning of witnesses by rabbis sitting in judgment at the trial of a murderer:

“They would examine them with seven searching queries: In what seven-year period {did it take place}? In what year? In what month? On which day of the month? On what day of the week? At what hour? And, at what place? Did you know him?...” (Babylonian Talmud: Sanhedrin 40a) 

These questions, and many others further enumerated in the passage, were aimed at establishing the precision and reliability of the witnesses’ testimony. The many questions regarding date and time were not easy to answer for ordinary people in ancient times, people who were often illiterate and had no time-keeping devices or calendars. The witnesses also had to be in total agreement about the details of the murder, including the weapon used, the murderers’ clothing, footwear, etc. (Ibid, 40b). Otherwise, their testimony was thrown out of court.

But much more onerous, the rabbis required the court to establish that the crime was committed with the perpetrator duly warned and aware of its gravity and the consequences of capital punishment. The judges’ cross-examination of the witnesses included the following questions: 

“Did you warn him?... Did he accept the warning? Did he admit his liability to death? Did he commit the murder within the time needed for an utterance {to remain in effect}” (Ibid, 40b).

The perpetrator had to be warned by witnesses that he was about to commit a crime punishable by death. He had to verbally acknowledge the warning and state his full intention to commit the crime despite their warning, and then follow through by killing his victim within a short amount of time so he could not possibly claim that he had “forgotten the warning.” Otherwise, he may have been found guilty but not at the degree that is punishable by death.

Clearly, the rabbis placed inordinate obstacles in the way of a court that planned to convict and punish someone for a capital crime. The rabbis were essentially intent on making capital punishment unenforceable. In another passage, they expressed their reservations about capital punishment in a more direct manner: 

A Sanhedrin {High Court} that executes a person once in seven years is a murderous one (hovlanit – literally ‘destructive’ or ‘injurious’). Rabbi Eleazar ben Azariah said: ‘Once in seventy years.’ Rabbis Tarfon and Akiva said, ‘If we were members of a Sanhedrin, nobody would ever be put to death.’ Rabbi Simeon ben Gamliel dissented: [If so, you] would [thus] multiply shedders of blood in Israel.” (Mishnah Makkot 1:10)

The prevailing view (an opening statement without specific attribution to a given rabbi is the typical way the Mishnah cites the majority opinion) opposed the implementation of the death penalty except in rare cases. Once in seven years was considered excessive. Some, such as Rabbi Eleazar ben Azariah, set the acceptable frequency much higher, holding that an execution once in seventy years is excessive, while others, notably the preeminent rabbinical figures Rabbi Akiva and Rabbi Tarfon, stated that they personally would never impose the death penalty. Rabbi Simeon ben Gamliel objected that a total moratorium on capital punishment would increase the numbers of murderers in the community. As is customary in the rabbinic discussions, this minority dissenting opinion is preserved. Although it is rejected as a legal ruling, it is cited perhaps to serve as a cautionary note, reflecting a commonly held belief even today – that capital punishment is a deterrent to crime.

The rabbis also take great care to ensure an impeccable court for death penalty hearings. The Sanhedrin required for such cases is to consist of 23 members, all distinguished scholars who are exemplary in their ethical behavior, known for kindness and humility, and not driven by greed or amplifying their own ego. A person who is childless and has not experienced the pangs and anxieties of raising a child, or is so old he is thought to have forgotten these, is disqualified. The members of the court are to sit in three semicircles and watch each other throughout the proceedings to make sure all are attentive and alert. Any error or uncertainty that might lead to conviction must be corrected, while an inaccuracy in testimony that supports the perpetrator’s innocence can be allowed to stand once heard in the court (Mishnah Sanhedrin, Chapter 4).

All of these procedural requirements and standards are the forerunner of the fundamental principles of due process and equal protection under the law upon which the American constitutional system is based. It is from these early Jewish teachings and practices that we derive the warning that “Death is Different,” that the system cannot impose the greatest punishment unless every aspect of the rule of law has been strictly adhered to. “They warn the witnesses in capital cases (dinei nefashot): Beware that capital cases are not like cases of damages, where the perpetrator pays damages and is then exonerated, but in this case his life and the life of his children to all eternity hangs in the balance, as we find in the case of Cain killing his brother it is said ‘the bloods of your brother call out’ (Genesis 4:10) – not ‘the blood of your brother’ but ‘the bloods’ (in the plural) for it is his blood and his progeny’s blood” (Babylonian Sanhedrin, 37a).

The Question of Methods of Execution

Recent discussion in American courts, including the United States Supreme Court, has focused on a narrower question regarding the specific method of execution, namely, the legality of lethal injections.

Lethal injection opponents argue that there is reason to believe that the three-drug cocktail used may cause excruciating pain, which is undetected because the person being executed is paralyzed and his or her suffering is, thus, concealed from the witnesses. The rabbis of the Talmud discussed a related issue that sheds light on this current question. This discussion occurs in the context of a question about the execution of a pregnant woman.

“When a {pregnant} woman is about to be executed, one does not wait for her until she gives birth; but if she has already sat on the birth stool, one waits for her until she gives birth…Rav Judah said in the name of Samuel: If a woman is about to be executed one strikes her against her belly so that the child might die first, to avoid her being disgraced.” (Babylonian Talmud: Arakhin 7a-b)

This discussion (most probably a theoretical one as there is great doubt among historians that Jewish courts meted out capital punishment during the rabbinic period) seems cruel and inhumane, but it is actually based on compassion. The rabbis rushed to execute the pregnant woman and ruled against waiting till she gave birth in order to keep her from suffering. Their view is that making the condemned woman await her execution until she has delivered the baby (possibly months) is a form of “inui hadin” – causing suffering in the course of meting out judgment (see Tosafot ibid). In discussing execution, the Talmud teaches: “Rav Nachman said in the name Rabbah bar Avuha: Read ‘Love your neighbor as yourself’ to mean choose for him (a convict about to be executed) a pleasant death (mitah yafah – i.e. swift, painless and dignified)” (Sanhedrin 45a). In other words, waiting for her own execution would cause the woman excruciating emotional pain. Such additional suffering – beyond the stipulation of the punishment – is considered a form of torture and is prohibited.

The rabbis’ further ruling that the woman’s belly should be struck in order to kill the fetus before the execution seems gruesome and bizarre, but is justified by the idea of a right to a “dignified death”. The disgrace of giving birth while being executed (they probably imagine a public hanging) would be emotionally tortuous. The rabbis are willing to put aside the potential life of the fetus to save the woman from disgrace (the fetus’s life is only a potential life for, in utero, the fetus is considered a mere body part – “its mother’s thigh”). This argument would suggest that the rabbis would certainly oppose intentionally inflicting physical pain, as has recently been argued may occur during the lethal injection process.

The Question of Teshuva (Remorse and Repentance) 

An additional issue pertaining to the death penalty is, of course, its finality. Executing a criminal precludes the possibility of genuine repentance, teshuva, which is considered among the highest values in Jewish teachings.

“In the place where the repentant (ba’alei teshuva) stand, even the wholly righteous cannot stand” (Babylonian Talmud, Berakhot 34b). No matter how grave the offense or however long after it was committed, the possibility of true remorse and return to the ethical path is always present. The repentant holds such an esteemed place precisely because he or she has experienced wickedness and committed a crime, and has extricated himself out of the depths of a great moral pit: “He receives a great reward because he has tasted the taste of sin and yet separated himself from it and has conquered his evil inclination” (Maimonides; Mishneh Torah, Hilkhot Teshuva 7:4).

The Death Penalty in Medieval Times

In the Middle Ages, the general rule prevailed that the Jewish community did not implement the death penalty. Maimonides (1135-1204) affirms the validity of the death penalty in cases of murder (as opposed to other capital cases) and holds that technicalities should not be employed to undermine the death penalty completely (Mishneh Torah: Hilkhot Sanhedrin, Chapter 14). Nevertheless, when describing the practices in his homeland of Spain and his adopted community in Egypt, he states that “there was rarely an instance when the evidence met the prescribed legal standard: (Mishneh Torah, Book of Judges, Sanhedrin, Chapter XII). He elaborates: 

“There is an established procedure which we follow in practice, whereby a person who is guilty of a crime punishable by death is, instead, excommunicated and whipped, and never given the opportunity for pardon. The reason is that today we no longer carry out the death penalty.” (Commentary on the Mishnah; Hulin, Chapter 1)

His overall sentiment echoes the Talmudic rabbis’ extreme caution:

“It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.” Jewish communities were generally not granted the authority to carry out executions by the rulers of their host societies.  Perpetrators of capital crimes were generally turned over to non-Jewish courts. However, even in cases when the Jewish community did have the authority to execute (Medieval Spain, for example), it seems that executions were rarely carried out.  It is possible that a few cases of executions of traitors (malshinim – literally “informers”) referred to in the legal literature were carried out in extremely rare circumstances.

“In all the lands of my acquaintance, the death penalty is not practiced {by the Jewish community} except here in Spain. When I arrived here I was most surprised that this {capital punishment} was done without a Sanhedrin. I was told that it was by way of a royal dispensation {given to the Jewish community} and it was accepted by the Jewish courts in order to save lives that would have been lost were they {the criminals} to be handed over to the Gentile courts. And while I permitted them to maintain this practice, I never agreed with their taking of life in such a fashion.” (Rabbi Asher ben Yehiel. The “Rosh” 1250-1327; France, Germany, Spain)

Rabbi Asher ben Yehiel is suggesting that the Jewish community in Spain embraced the authority granted by the Spanish rulers to execute the community’s own guilty members precisely in order to contravene it. The goal was to protect members of the Jewish community, criminals though they may be, from executions by the non-Jewish courts. Thus, while Spanish Jews had the authority to execute, they seemed to wield it precisely in order to not impose the death penalty on fellow Jews.

The Death Penalty in Modern Times

In modern times, the Jewish community in the Diaspora did not have the authority to impose the death penalty or rule in any other criminal cases, for that matter. In Israel, soon after the establishment of the state, the rabbinical authorities (the Ashkenazi and Sephardic chief rabbis) officially opposed the possibility of the state imposition of the death penalty, and it was formally abolished in 1954 with exceptions made for Nazis convicted of “crimes of genocide” and “treason committed in time of warfare.” Adolph Eichmann was executed in 1961 under the “crimes of genocide” clause (not without public controversy) and was the only person every executed in Israel. 

In the United States, many Jewish groups have taken public positions opposing the death penalty.

The Union of Orthodox Jewish Congregations of America (www.ou.org – the nation’s largest Orthodox Jewish umbrella organization) passed a resolution in 2000 in support of the efforts to impose a nationwide moratorium on executions of death row inmates while a comprehensive review of how the death penalty is administered in America’s courts is undertaken. Its most prominent thinker, Rabbi Moshe Feinstein, wrote a letter (a “Teshuvah” – legal responsum) to the governor of New York State opposing executions except in “dire circumstances” (which he did not specify).

The Conservative Movement’s Committee on Jewish Law and Standards upheld opposition to the death penalty (www.USCJ.org) as has the Reconstructionist Movement (www.jrf.org). Many secular and communal Jewish organizations are also on record opposing the death penalty.

The Reform Movement has officially opposed the death penalty since 1959, when both the Central Conference of American Rabbis (CCAR) and the Union for Reform Judaism (URJ) formally adopted resolutions against it, stating: “This practice (capital punishment) is a stain upon an entire penal system and brutalizes the human spirit. We appeal to our members and to all who cherish God’s mercy and love to join in efforts to eliminate this practice which lies as the blemish upon our civilization and our religious conscience” (www.rac.org).

The Jewish perspective on the death penalty reveals a tradition struggling with the twin goals of holding people accountable for their crimes and doing so in a just manner that elevates the value of human life. In this struggle, not unlike the one that grips our nation today, the arc bends towards justice and away from the scepter of using court- and state-sanctioned killing to show that killing is wrong.

 

Originally published in April 2008 (some figures updated in 2012). Made possible by a grant from the Lisa and Douglas Goldman Fund and written by Rachel Biale, author of Women and Jewish Law (Schocken, 1984) and at the time the Bay Area Regional Director.