As many of you have undoubtably heard, the U.S. Department of Justice announced that it would be resuming the execution of federal death row inmates. While there is much to discuss with regard to secular issues such as the rule of law, deterrence, racial bias, DNA, and innocence, I thought it important to discuss where Judaism has stood on capital punishment, and where Judaism, indeed Reform Judaism, stands today.
One of my favorite television shows is The West Wing and, in one particular episode, the characters wrestle with the idea of an upcoming execution. Toby, a Jewish character, tells the president:
Even two thousand years ago, the rabbis of the Talmud couldn’t stomach it. I mean, they weren’t about to rewrite the Torah, but they came up with another way. They came up with legal restrictions, which make our criminal justice system look… They made it impossible for the state to punish someone by killing them.
Toby’s not all that wrong. The Torah lists 36 offenses in which capital punishment is authorized, including relatively understandable ones such as rape, kidnapping, and murder, but also some with historical distance issues, such as desecrating the Sabbath and adultery. While certain moral platitudes of our Torah are timeless, when it comes to the execution of those by the state, these ideas deserved (and deserve) a closer eye. The sages felt the same unease in their “modern” period when discussing the issue of capital punishment, and certain law codes and rulings are pertinent to this discussion.
For instance, the Mishnah, our 2nd century rabbinic code, states in tractate Makkot: “A Sanhedrin (legal court) that executes once in seven years, is called murderous. Rabbi Eliezer b. Azariah Says: once in seventy years.” It continues: “Rabbi Tarfon and Rabbi Akiva say: “Had we been members of a Sanhedrin, no person would ever be put to death.”
In looking at these statements, we can see that while capital punishment was perhaps carried out, it was, at the very least, controversial. Additionally, and more to Toby’s point, while standard Jewish cases of crime were set before a court of three judges—a beit din—the Mishnah tells us that, “Cases concerning offenses punishable by death [are decided] by twenty three.” The rabbis clearly felt that multiple judges were needed in regards to an issue as serious as capital punishment. In the same tractate, capital punishment is also made more difficult by the numbers of witnesses needed:
Rabbi Yosei says: Transgressors are never executed unless his two witnesses are the ones forewarning him, as it is stated: “At the mouth of two witnesses…he who is to be put to death shall die” (Deuteronomy 17:6).
Later in the Talmud, in tractate Sanhedrin, another step was taken:”Rav Kahana says: In a Sanhedrin where all the judges saw fit to convict the defendant in a case of capital law, they acquit him.” In other words, if all the judges convict a person and sentence him to death, something is wrong, and Jewish law acquits the person. Furthermore, when looking at the situations in which capital punishment was to be enacted, more hindrances were put in the way:
If there was a mere one-vote majority or if any judge was undecided, additional judges were added in pairs until the majority ruled against conviction, or until one judge in favor of conviction was persuaded to err on the side of innocence (Mishnah Sanhedrin 5:5).
In practice, these guidelines made applying the death penalty nearly impossible.
With all of these rabbinic views in mind, the Central Conference of American Rabbis resolved in 1979 that “both in concept and in practice, Jewish tradition found capital punishment repugnant” and there is no persuasive evidence “that capital punishment serves as a deterrent to crime.”
Additionally, the Union for Reform Judaism stated in 1959:
We believe there is no crime for which the taking of human life by society is justified, and that it is the obligation of society to evolve other methods in dealing with crime. We pledge ourselves to join with like-minded Americans in trying to prevent crime by removal of its causes, and to foster modern methods of rehabilitation of the wrongdoer in the spirit of the Jewish tradition of tshuva (repentance).
The resolution by the URJ further states:
We believe […] that the practice of capital punishment serves no practical purpose. Experience in several states and nations has demonstrated that capital punishment is not effective as a deterrent to crime. Moreover, we believe that this practice debases our entire penal system and brutalizes the human spirit.
So there you have it. It’s also important to note that the Rabbinical Assembly (our friends in Conservative Judaism) formally resolved to oppose capital punishment in 1996, and the Reconstructionist Rabbinical Association resolved in 2003 to go on record opposing capital punishment. The Orthodox Union also wrestled with the idea of capital punishment, concluding that “while recognizing there might be multiple means to fulfill a single goal, in its heart, Judaism seeks to achieve the single goal — fostering a world in which each human life is protected as unique and sacred.”
It is always encouraging to see multiple Jewish denominations stand together on an issue; capital punishment is one of those examples. While it may seem gratifying to some in theory, or perhaps from an emotional standpoint, Judaism understands that the practice of the death penalty has no place in our country, or our world.