Capital cases are not like civil cases. In a civil case, a [false witness] pays restitution and gains atonement. In capital cases, [the executed’s] blood and the blood of all his decedents are connected to [the false witness] for eternity… therefore [the first] man was created a single individual to teach that anyone who destroys a single life its as if he destroyed an entire world. (Mishna Sanhedrin 4:5)
Rabbi Chanina the deputy [High] Priest said: Pray for the welfare of the government, for if not for the fear of it, a person would swallow his fellow alive. (Mishna Avot 3:2)
In the wake of Supreme Court’s ruling in Glossip v Gross, many are accusing the Court of deciding against Judaism. The irony isn’t lost on me. Many, myself included, were pleased to separate American Law and Jewish law in the recent decision (Obergefell v. Hodges) on Gay marriage. But now that some find the Court’s ruling incongruous with their beliefs, cries of ignoring Jewish law echo in cyberspace. One tweeter said “A horrifying setback. Judaism calls a court that sentences 1 to death w/in 70 yrs murderous” while another went as far as to pen a blog entitled “On Capital Punishment, SCOTUS on the Wrong Side of the Talmud – and History”.
Like gay marriage, I would prefer not mixing Torah and Halacha with American law. While I can appreciate the court’s desire to be informed how various communities, including religious ones, view legal and ethical questions, one of the reasons I can support Obergefell v. Hodges is because I cherish the separation of religion and state in America and wish we had more of that over here in Israel.
However, whether or not one supports the death penalty in American law, I think it fair to set the record straight. Like so many issues, Judaism does not speak with one voice and I think it wise to refrain from using terms such as “Judaism says” or “the Talmud says “ etc. The Torah came from God but was given to man. And the role of the human interpretation prevents us from ever reaching the pure Torah as revealed to Moses on Mt. Sinai. In the immortal teaching of one of the greatest of rabbinic sages, Rabbi Yehoshua, “it is not in heaven”.
In defense of an approach against capital punishment, many will no doubt turn to the Mishna in tractate Makkot:, “A Sanhedrin which executes once a Sabbatical cycle [ie once in seven years] is called destructive. Rabbi Eleazar b. Azariah says once every seventy years. Rabbi Tarfon and Rabbi Akiva say, ‘if we had been on the Sanhedrin a person would never be killed.’” (Makkot 7a) These are strong words. Even though in innumerable places the Torah mentions capital punishment, the sages were reluctant to bring this form of punishment to fruition. In the famous words of Toby Ziegler to President Bartlet in The West Wing, “the fact is that 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 that make our criminal justice system look … they made it impossible for the state to punish someone by killing him.” (H/T Rami Schwartz.) However, just as the writers of The West Wing limited their understanding of Jewish law to the parts which fit with their political agenda, so too many others seemingly miss a more complex and nuanced to tradition.
The end of the Mishna quoted above abruptly changes direction. Rabban Shimon ben Gamliel (RaShBG), scion of the patriarchate, and eventually Prince of the Jews in Israel, harshly rebukes the earlier mentioned sages, “RaShBG says even these [sages] increase bloodshed in Israel.” It would seem that Rabbi Akiva and RaShBG are engaged in the same debate those in favor and opposed to the death penalty have today. Rabbi Akiva could never bring himself to kill anyone while RaShBG implies that such shirking of responsibility will lead to more murders and more loss of (innocent) life. So is Judaism more like the first position in the Mishnah which reluctantly allows for capital punishment, the second which limits its application even further, like Rabbis Tarfon and Akiva who refuses to allow it at all, or like RaShBG who seemingly upholds the Torah demand?
Given that Jews were to a large extent disenfranchised from political life until the modern period, capital punishment doesn’t receive as extensive a treatment in the Halachic literature as other more commonly practiced areas of law do. The locus classicus for less immediately practical issue is usually the writings of Maimonides. In the Laws regarding the Jewish supreme court, the Sanhedrin, Maimonides seems to side with the first position in the Mishnah – limited capital punishment. He states, “the court must [seriously] sit on capital cases and wait and not rush. And any court which executes within seven years, behold, this is a destructive court. Despite this, if it occurs that [they need to] execute daily, they should do so.” (Hil. San. 14:10) Seemingly, according to Maimonides, then, capital punishment is something best to be avoided but if necessary must be acted upon even daily. Rambam’s statement here should be read in conjunction with another ruling. Regarding the king, the equivalent to our modern secular government, Rambam notes that many or most of the restrictions for evidence do not apply. “All who murder without clear evidence, or without proper warning, even with only one witness…the king has the right to kill them and to repair the world according to what the times demand.” The commentaries debate if Rambam’s ruling here is limited to murder cases or can be extended to other capital crimes as well; however, all agree that the king has much more leeway than the religious court in trying capital cases.
Maimonides appears to, on the one hand, maintains some reluctance regarding capital punishment while clearly supporting it when necessary. Furthermore, he allows for the secular branch of the government to use capital punishment when necessary to maintain the safety and order of the country. This dichotomy received a more explicit philosophic expression in the work of Rabbenu Nissim of Gerona (RaN). In his homilies, RaN describes alternate roles for the Sanhedrin, or supreme religious court, and the secular authorities. According to RaN, all the restrictions placed to limit capital punishment were only written for the Sanhedrin who specializes in a theoretical holy law; however, the practical applications of this pristine or religious model law were always theoretical. The Torah legislates that in addition to the Sanhedrin there should be a king. The king’s role is to actually govern the country. He has no time for niceties and can utilize capital punishment wherever and whenever deemed necessary. In the RaN’s words, “if we only punish [with death] transgressors in this manner [with proper witnesses and warning] the national order would be lost and murders would increase and no one would fear punishment. Therefore, God commanded, in order to settle the world, the appointment of a king…And the king can judge…according to what is needed to guarantee the order of the state. ”. So capital punishment, while not always part of the “ideal” legal system should be, according the RaN, part of the “real” legal system.
To be sure, the primacy and centrality of human life, as spelled out in the first quote in this essay, loom large in all of these discussions. Once taken, life can never be given back. Yet, as the second quote I began with above spells out, some rabbis feared a weak justice system would create chaos. The tension between respect for all life, even that of the criminal, on the one hand and the fear that anarchy poses when the deterrent power of capital punishment is removed on the other, clearly permeates the various strands in this discussion. But this topic was not always limited to philosophic discourse.
Historically, some Jewish communities utilized capital punishment when necessary. Rabbi Asher b. Yechiel (Rosh), for instance, records that, upon his arrival in Spain from Germany at the beginning of the 14th century, he discovered that Jewish courts, possibly in violation of accepted Jewish law, executed Jews for capital crimes. While he did not support the actions of these courts in general, in several cases, he also judged in favor of these executions. (See the many cases in Shu”T HaRosh Klal 17)
It is not surprising, therefore, to discover that this debate found its modern Jewish expression. Two of the titans of 20th century Jewish law disagreed as to the applicability of capital punishment in modern America. In a letter to the Orthodox Union written in 1970’s, Rav Aharon Soloveitchik opposed capital punishment in the clearest of terms. He states, “[I]t is irresponsible and unfair to submit a statement in favor of capital punishment in the name of Orthodox Jewry. In my humble opinion, from a Halachik point of view, every Jew should oppose capital punishment.” (Tradition 38:1 2004) Despite Rabbi Soloveitchik’s stern opposition, none other than the most revered decisor of Jewish law in the United States, Rabbi Moshe Feinstein, supported state sponsored capital punishment in certain circumstances. Responding to the inquiry of an unspecified government official, Rav Moshe writes, “one who murders because the prohibition to kill is meaningless to him and he is especially cruel, and so too when murderers and evil people proliferate they [the courts] would [should?] judge [capital punishment] to repair the issue [and] to prevent murder – for this [action of the court] saves the state.” (Igerot Moshe Choshen Mishpat vol. II #68) If all the way from the Rabbis of the Mishnah down to two of the most important Halachik voices of twentieth century America disagree on whether or not Judaism supports capital punishment, it seems to me impossible to make an absolute claim about what Judaism or the Talmud believe or support.
The American criminal justice system and the courts will have to arrive at conclusions which best fit the morals and ethics of 21st century America. Much has come to light about the way capital punishment is performed and the court must, of course, relate to the ethical questions raised by these procedures. Like in all spheres, Jews informed by Jewish law and ethics have a right to make their voices heard; yet, the ins and outs of Jewish law and theology are complex and the texts and opinions are varied. What comes out of delving deeply in our tradition is rich and nuanced. Quickly scratching the surface, it appears, as in many other areas, unjustified to make overarching general statements about Judaism and capital punishment. This, of course, does not mean that one cannot champion a strand in the Jewish legal tradition. On the contrary, religious authorities and laypersons need to choose how best to apply Torah and Jewish law to the modern situation. Having a broad view of the facts can only enable those decisions to be made faithfully to tradition.