What is Judaism’s take on capital punishment?

BY ROBERT A. COHN, Editor-in-Chief Emeritus

The St. Louis premiere of the opera “Dead Man Walking,” the story of the relationship between Sister Helen Prejean and a Louisiana prisoner on death row, has rekindled the age-old debate about capital punishment. The National Conference of Roman Catholic Bishops has long been on record as opposed to the death penalty, and there are various other views, pro and con, among different faith communities. What has been the Jewish position on capital punishment, and has it evolved over the centuries since the biblical reference to the lex talionis – “an eye for an eye, a tooth for a tooth, a life for a life”?

In a recent Torah commentary, Orthodox Rabbi Yosef Edelstein of the Savannah, Ga. Kollel, points out that “in theory, capital punishment for homicide is perfectly in order, and in fact, mandated.” He cites the description in Genesis: 9:6, that after the flood, as human society is about to be reconstituted, God tells Noah unambiguously, “Whosoever sheds the blood of man, by man shall his blood be shed; for in the image of God, He made man.” Rabbi Edelstein adds, “So, at least theoretically, the Torah can be said to be pro-capital punishment. It is not morally wrong, in absolute terms, to put a murderer to death,” according to the Torah.

Regarding the “eye for an eye” reference which is often cited as a justification for the death penalty, he notes, “As many commentators have pointed out, neither vengeance nor deterrence is the (stated) justification; it’s certainly got nothing to do with misconceived notions of an ‘eye for an eye,’ which is a Scriptural phrase that our Oral Tradition clearly states and proves was never applied (nor meant to be applied) literally.”

It is interesting to note that after the first murder in the Hebrew Bible, when Cain killed his brother Abel, God did not administer a death penalty, but banished Cain to exile to “dwell in the Land of the Nod.” It appears that throughout Jewish history, while there are offenses for which the death penalty can be administered, there are few recorded instances of Jewish authorities carrying out such penalties. The biblical passages that state if a child is disrespectful to his parents, he can be put to death by stoning in front of the entire community appears to be “on the books” as a threat to enforce the commandment that a child must honor his parents rather than as a mandate to kill disrespectful children. There is no record of such a sentence ever having been imposed or carried out.

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During the periods of the First and Second Temples, the Sanhedrin, made up of 70 priests and sages, had the authority to administer death sentences. That power was taken away from the Sanhedrin during the Roman occupation of Judea, starting in about 40 BCE. (Hence the Sanhedrin at the time of Jesus of Nazareth lacked the legal authority to sentence people to death or to carry out such sentences; that authority rested solely in the hands of the Roman Procurator, Pontius Pilate).

An often cited and famous discussion among rabbinic sages is described in the Mishnah (Makkos 1, 10) between Rabbi Akiva and Rabbi Tarfon on one side, and Rabbi Shimon ben Gamliel on the other. The Mishnah states a court that administers capital punishment just once in seven years (and another sage says, “once in 70 years”) is termed a “murderous” or “bloody” court, a vivid description of just how difficult it was for a court to impose the death penalty in the days of ancient Israel when the Temples stood. Rabbi Akiva and Rabbi Tarfon assert that had they lived at the time when capital punishments were still being carried out (before the destruction of the Second Temple), they would have guaranteed-through their rigorous examination and cross-examination of witnesses to uncover doubts and inconsistencies-that no one would be put to death. Rabbi Shimon ben Gamliel is said to have responded, “They would thereby increase murderers in Israel.”

So, Rabbi Edelstein concludes that while in theory capital punishment may be morally correct according to Torah, there was “great concern-expressed both in the legislation of the Torah, and in the sentiments of some of our great Sages-regarding its practical implementation.”

He notes that in ancient Israel, it took place once in 70 years – and not 135 times in five and a half (as occurred in Texas). The enumerated methods for the death penalty in the Torah are indeed harsh – the four types specified are burning, stoning, decapitation and strangulation. According to a position paper issued by the Orthodox Union, “these penalties serve as a deterrent to rampant crime and anarchy. The threat of death is intended to dissuade those so inclined from murdering others. (There was, however, a legal process to be followed, including warning, witnesses, etc. Death penalties were not just handed out indiscriminately, in Biblical times.”

The OU adds that the death penalty only applied “to the courts in the time of a properly constituted Sanhedrin,” and thus there has not been an appropriate successor legal entity to hand down a death sentence since the Second Temple was destroyed by the Romans in the year 70 C.E. Even in Jewish communities which were allowed by host countries to have their own internal rabbinical courts, the death penalty was not administered or carried out.

The Reform movement’s Religious Action Center, in a paper on “The Death Penalty and Jewish values,” notes that while historically there was a Jewish belief that the death penalty, if carried out judiciously, can be a deterrent, prevailing Jewish thought in every movement, has followed the previous opinions, which either oppose the death penalty outright, or allow for it only in the most extreme – one in 70 years – circumstances. Since 1959, the Reform movement’s Central Conference of American Rabbis (CCAR) and the Union for Reform Judaism (URJ) have opposed the death penalty.

The URJ notes that “We believe that 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.”

In the modern State of Israel, the death penalty can only be administered for offenses under the Nazis and Nazi Collaborators (Punishment) Law and under the Penal Law for treason and assisting the enemy in times of actual warfare. The death penalty has been carried out in only one instance in 1962, following the conviction of Adolf Eichmann, the high level Nazi official responsible for implementing much of the “Final Solution of the Jewish Problem.” Ivan Demjanjuk was given a death sentence in 1988 as the suspected “Ivan the Terrible” of the Treblinka death camp, but the Israeli High Court overturned his sentence after it was proved he was not that war criminal. (Demjanuk was later convicted of war crimes by a court in Munich, Germany for his role as a concentration camp guard, and sentenced to five years in prison).

Since the advent of widespread acts of terrorism, there have been calls among some Israelis to add terrorism to the list of crimes for which the death penalty can be administered, but to date no new death penalty laws have been enacted in the State of Israel.

Thus it is that from Biblical days, through the days of the First and Second Temples all the way through the modern era, Jews have either used the death penalty very sparingly, or have opposed it outright. If a defendant like the murderer in “Dead Man Walking” was brought before a Jewish court – in any era – it is very unlikely that he would have faced the death penalty.