On Capital Punishment, SCOTUS on the Wrong Side of the Talmud – and History

Following Justice Samuel Alito’s reading of his majority opinion in Glossip v. Gross, upholding the use of the sedative midazolam in capital punishment despite its record of painful and prolonged executions, three additional justices passionately read dissenting and concurring opinions in an unprecedented back and forth from the bench. The drama thrilled Supreme Court watchers and reporters. I was especially interested by one line of their argumentation, which so closely mirrored an 1800-year-old talmudic precedent, yet reached a different conclusion.

The petitioners claimed that midazolam, even if properly administered, does not reliably cause unconsciousness before the drugs that actually cause death are injected. In several recent cases, prisoners regained consciousness during executions, appearing to choke, writhe, and exhibit great pain for extended periods of time, violating the Eighth Amendment’s protection against cruel and unusual punishment. Justice Alito, though, noted that midazolam is currently the only drug available to states wishing to execute prisoners by lethal injection, as the petitioners had not demonstrated the availability of an alternative. For Justice Alito, the lack of alternative was critical, as he wrote, “because capital punishment is constitutional, there must be a constitutional means of carrying it out.”

In a blistering dissent, Justice Sonia Sotomayor pointed out that, given Alito’s logic, the state might then be allowed to burn the inmates to death, so long as the petitioners had not specifically demonstrated an alternative; clearly, the Eighth Amendment should prevent this. Therefore, she concluded, even if capital punishment is constitutional in theory, there are times when there is no way to apply it in practice such that it would not be cruel and unusual. The lack of alternatives does not make what remains any less cruel or unusual, nor does it permit the suspension of the Eighth Amendment.

Justice Sotomayor’s argument tracks closely with that of several third-century talmudic sages as they grapple with the Deuteronomic laws of the Wayward and Rebellious Son (Ben Sorer u-Moreh) and the Wayward City (‘Ir HaNidachat). The first case deals with a young man who consistently refuses his parents’ discipline and instead engages in gluttony and idleness. His parents take him before the judges of the town, and he is executed (Deuteronomy 21:18-21). Rabbi Simeon, bothered by the moral implications of the law, explains, “It never happened and never will happen. Why then was this law written? — That you may study it and receive reward.”

The second case deals with an Israelite city that turns to idolatry. In retribution, the inhabitants are to be annihilated, before the city is razed to the ground (Deuteronomy 13:13-19). Again, the rabbis state that this never actually happened — and, in fact, they interpreted the laws in such a way as to make their application nearly impossible beyond the understanding “that you may study it and receive reward.”

One sage, though, Rabbi Yonatan, claimed that these laws actually were applied — and that he himself had visited both the grave of a Wayward and Rebellious Son and the ruins of a Wayward City. Perhaps, like Justice Alito, Rabbi Yonatan felt that a law on the books must have a practical application. However, Rabbi Yonatan is a minority viewpoint.

The overwhelming weight of the Jewish tradition comes down against the notion that these laws were ever carried out, and certainly not such that there was any trace of them by the talmudic period. In a similar fashion, despite the many offenses for which the Bible prescribes capital punishment, and the many long discussions of their laws and procedures by the rabbis, the dominant sense in the Talmud is that the death penalty was to sparingly applied — if at all. “A court that puts a man to death once in seven years is called murderous. Rabbi Eleazar ben Azariah says ‘Or even once in 70 years’” (Makkot 1:10).

There is some controversy as to what reward the talmudic sages thought there might be for studying these morally troubling laws that would never be applied in real life. Some say that the value is in Torah study for its own sake, so the content is actually besides the point. Others explain that the dire consequences of these laws would provide a deterrent by demonstrating their seriousness to those who might stray. However, as Justice Antonin Scalia noted in his concurring opinion, a punishment that is deliberately never applied is no deterrent at all — in fact, it may even be the opposite.

I would argue that at least part of the benefit is in appreciating the developing sense of morality with which we perceive the world. There is value in seeing troubling laws written into our foundational texts and understanding that they are a monument to a different point in our living traditions.

The laws governing the owning and maintenance of Canaanite slaves, for example, while practical for the sages of the Talmud, are now theoretical, having long ago joined the ranks of those that we “study to receive reward.” For me, much of that reward is the feeling of gratitude for how far we have come, and the renewed sense of purpose and mission as I envision an even more just and ethical future.

Justices Scalia and Alito argued that the death penalty must be constitutional because it is specifically prescribed by the Constitution, as the punishment for treason. Despite this, Justices Breyer and Ginsburg countered that, as currently practiced, the death penalty may likely be cruel, unusual, and wholly unconstitutional. The Jewish tradition dealt with similar questions centuries ago and concluded on the side of progress. Hopefully the American legal tradition will eventually come around as well.