I have often said that Judaism has something to say about everything. From time to time, I will use this blog to set out my understanding of what Judaism has to say about an issue that is before us as Americans, as Jews, or just as human beings. Although I certainly have my own opinions about these issues, I will do my best to present both sides of the issue from the Jewish tradition.
The death penalty has been much in the news in recent weeks, from the Boston Marathan bombing case, to last week’s decision in the Holmes case in Aurora.
So what does Judaism have to say about capital punishment? Does/should a state have the right, or even duty, to put someone to death for a crime that person has committed?
Some religious opponents of capital punishment begin by pointing to the Ten Commandments, which, in many English translations include: “Do not kill.” These opponents say that this should apply to the state as well as to individuals. The problem with that argument is that the common English translation is wrong. The original Hebrew is: Lo tirtzach, which clearly means “Do not murder.” If it said “do not kill,” the Hebrew would have been: Lo taharog.
The difference between killing and murder is not just one of semantics. Killing is a fact: a life – in our discussion, a human life – is ended. Murder is a legal conclusion that some killings are unlawful. Some killings, such as in self-defense, are considered lawful.
In fact, the Torah prescribes a death penalty thirty-six times, for violation of certain commandments, including murder, kidnapping, adultery, blasphemy, even working on Shabbat, or striking or cursing your father or mother. The Torah even specifies different methods of execution for different crimes. So, at least in principle, the Torah would appear to approve of the use of capital punishment.
But as I learned many years ago in law school, making laws is an exercise in drawing lines. Two hundred years ago in England, you could be executed by hanging for stealing a loaf of bread. Today, the line on capital punishment has moved so far that, according to the Death Penalty Information Center (DPIC), 19 states and many other countries (including the UK) have banned the death penalty completely; and other jurisdictions severely limit it to what are often called “special circumstances,” such as the killing of a police officer (seen as an attack on society as a whole).
One of the reasons for this change is the fear of putting an innocent person to death. Again according to the DPIC, more than 150 people, previously sentenced to death, have been exonerated of their crimes and freed from prison since 1973.
This fear of putting an innocent person to death was a serious concern of the rabbis of our tradition. They were so concerned, that they built up major procedural roadblocks against it. They reminded themselves, and us, a number of times that even an accused or convicted criminal is created in the Divine Image, and we human beings must be absolutely certain of guilt before executing someone.
The Torah itself, in Deuteronomy, requires that the death penalty be imposed only on the testimony of at least two eye-witnesses. And in order to be certain that those eye-witnesses take their testimony very seriously, the Torah commands that they be the ones to carry out the execution, if the defendant is convicted on their testimony. For obvious reasons, close relatives of both the victim and the accused could not be among the witnesses.
The Talmud takes it even further: in a capital case, again as a safety check, the testimony of the witnesses must fully corroborate each other. And it isn’t even enough that the testimonies about the act itself match; the witnesses must also establish that the defendant was warned before the act that committing the crime could result in the death penalty, and the defendant must calmly indicate that he is aware of that, but chooses to commit the act anyway!
The court would also appoint special investigating judges, some to look for evidence of guilt, and others to look for evidence of innocence. These investigators would then report their findings to the rest of the court.
Perhaps the most unusual court rule was that, if the judges all voted unanimously to convict, then the defendant was not executed; there was a concern that, on a court of at least 23 judges, if not even one judge voted for acquittal, then perhaps there hadn’t been enough of an effort to find exculpatory evidence.
And on days when the Sanhedrin, the supreme Jewish court in Jerusalem, would vote on capital cases, all of its members were required to fast, to emphasize the seriousness of what they were doing.
Some rabbis of the Talmud so disliked capital punishment that they said that a Sanhedrin that condemned someone to death once in seven years would be considered a bloodthirsty court; others said a court that condemned someone to death even once in seventy years was a bloodthirsty court! This was not a unanimous opinion: the Talmud does quote one rabbi as saying that such an attitude would have increased the number of murderers in Israel! But this last rabbi was clearly in the minority.
What effect has all this had in modern American Judaism? The Reform Movement has been on record since 1959 as opposed to capital punishment; the Conservative Movement issued an opinion in 1960 saying “we regard all forms of capital punishment as barbaric and obsolete.”
Orthodox opinions follow the above-cited procedural blocks against imposition of capital punishment from the Torah and Talmud. They generally state that, since the Torah provides for capital punishment in so many cases, is isn’t immoral in and of itself; but the cases in which it could be safely and properly imposed are so rare as to be, for all intents and purposes, non-existent.
In this and in other issues that I will be presenting in this blog, we don’t necessarily have to agree. But I suggest that if we are taking our covenantal obligations seriously, we should at least be aware of what our sources and our traditions have to say, as we make up our own minds. Some very wise people have struggled with these issues over the last four thousand years; there is no need for us to reinvent the wheel as we struggle with them today.