Losing Our Head - Judaism and Capital Punishment

Losing Our Head:
Judaism and Capital Punishment

Rabbi Michael L. Feshbach

          At the time of this writing, I have on my mind the recent violence in Connecticut, the trial of the Aurora shooter, the new movie about the search for Bin Laden (what would have happened had he been captured alive instead of killed on the spot?), and Governor O’Malley’s recent call to make Maryland the latest state to abolish the death penalty.

          The “Jewish” view(s) on the question of capital punishment is a complicated one.  It is also a very important example – almost the classic case of why Judaism is the religion of the “rabbis,” and no longer simply something that is based on the Bible.  Indeed, understanding how the Jewish approach to capital punishment developed and changed serves as a paradigmatic illustration of the interpretive process through which our tradition has grown, evolved, and survived over time.

          In the earliest layer of our legal history, of course we believed in capital punishment – at least on paper (or scroll).  A quick review of the Torah reveals a shocking number of capital crimes – the penalty was stated as death for murder, of course, but also for kidnapping, idolatry, reading horoscopes, disrespect for parents, or using electricity on Shabbat (or whatever the ancient equivalent would have been).  This catalog of capital crimes stands in seeming contrast to the classical but mostly misunderstood counter opinion, the (in)famous law of lex talonis (an eye for an eye).  Indeed, that law, cited by later Christian sources as an example of the “harsh justice” of the “Old Testament,” actually meant that only for a life could a life be taken.  (It meant two other things as well: first, it was about equality under the law, because in other societies if a master put out the eye of a slave s/he was fined, but if a slave put out the eye of a master s/he was killed.  And, it served as a requirement that everyone needs an attorney, because the only literal punishment was the capital crime; all others were the monetary equivalent of the calculated value of the damage, and to figure that out… you needed a lawyer.)

          The fact that later Christian reaction to the laws of the Torah was so negative would be a troubling indictment – if it stood alone.  In fact, however, the rabbis of the Talmud had essentially the same reaction.  But they had a bit of a problem.  Professing (indeed, promoting and expanding) the idea that the Torah was word for word the word of God (a claim the Torah itself never actually makes), the rabbis could not just come out and announce that they disagreed with the Torah, or were hereby changing the inherited tradition.  They claimed to be the bearers of that tradition, not its critics.

          And yet, what else are we to conclude from what they did, other than that… well, they basically did not believe in capital punishment?  They could not come out and say that.  But through the power that was in their hands, the power of interpretation, they made sure that capital punishment was… essentially impossible to carry out.

          In the Talmud, in Tractate Sanhedrin and other places, the rabbis laid out the legal rules and procedures for capital cases.  Here are just a few of them: in a capital case it had to be known that the accused knew that what he or she was doing was a capital crime.  Perhaps they knew but forgot?  So the person had to be reminded, by one of the two (minimum required) witnesses… while the crime was taking place.  Witnesses, by the way, were always warned: lie in a capital case and they would be subject to the same penalty themselves!  But wait, there’s more.  In civil cases senior judges spoke first, but in capital cases junior judges spoke – lest they be influenced by people they felt they needed to impress.  In civil cases judges could argue and change their minds back and forth; in capital cases you can argue for conviction and then switch – but once you argue for acquittal you are done.  In civil cases a unanimous verdict is a wonderful outcome.  In capital cases a unanimous conviction was treated as a major problem – what, there was no one to argue on behalf of the accused? – and the conviction was automatically overturned.  (There are many places to study this material in detail, but for those who are interested see http://en.wikipedia.org/wiki/Capital_and_corporal_punishment_in_Judaism).

          Page after page after page of the Talmud serves to limit the applicability of capital punishment – until one sage says that a court that carried out an execution even once in seventy years was considered… a “bloody court.”          But then another sage came along, and added that those who take this approach would “multiply robbers and murderers in Israel” --meaning amongst the Jewish people; the sovereign state obviously no longer and did not yet exist.

          But that raises an interesting question.  How much of this limitation, this reduction of a punishment outlined in the Torah to a practical impossibility, arose precisely because, and at a time, when all this was theoretical to us?  We were, indeed, no longer sovereign at the time these discussions took place.  So it is clear that the rabbis in the Talmud, in the so-called “Rabbinic” era of Judaism, were uncomfortable with, or even opposed, to the death penalty.   What does that mean, for Jews in a democratic state such as the United States – or even for Jews in a newly sovereign state of our own – today?

          The insights of the ages are important, I believe, as a guideline for our values, and should influence but not automatically determine our choices today.  As a summary I think it is fair to say that Judaism accepts the notion of capital punishment on the books in theory, but is generally opposed to its application for murder in practice.  Rare exceptions would have to meet a very high standard indeed – mass murder, even genocide.  Remember that the only public execution Israel ever carried out was that of Adolf Eichmann.  And that another man convicted in a capital case (in a trial I was present for part of), John Demjanjuk, was freed on appeal, not because he was able to prove who he claimed to be (he was not), but because his defense lawyers were able to raise minor questions in the claims about who the prosecutors claimed him to be.  (The whole question of “extra-judicial assassinations” in the context of the fight against terrorism is a related, important but slightly different moral and legal issue.)

          For the state to take a life is a serious matter indeed.  And yes, it is a “political” matter that, as bearers of a tradition of morality and justice, our “spiritual” and “religious” tradition has a lot to say about. 

What happens in terms of Jewish values and Jewish law in Israel is one question (and a complex one); it is not my intent to assert that, in a multi-cultural democracy such as the United States, one religious tradition should be able or even seek to impose its views as national law.  But I do think that to study the way we have struggled, over time, with the question of “the ultimate power” that a sovereign state has… this is not only worthwhile for its own sake… but important in our lives, as educated and involved citizens… and as educated and engaged Jews.