D’var Torah: Judaism and the Death Penalty

Reference: Daily Kos / Elders of Zion

By Navy Vet Terp

Daily Kos / Elders of Zion group blog

Torah readings:  Exodus chapters 21 through 24, and 30: 11-16.

Haftarah:  Second Kings 11:17 to 12:17.

On January 30th, Maryland Governor Martin O’Mally entered the chamber of the Maryland House of Delegates to deliver his State of the State Address.  The speech included the following:

But when we realize that something isn’t working and it’s also expensive, we should stop doing it.  The death penalty is expensive and it does not work and we should stop doing it. Research in our own commission has shown that it is not a deterrent.  It cannot be administered without racial bias.  It costs three times as much as locking someone up for life without parole.  And it cannot be reversed if an innocent person is executed.

It is time to repeal the death penalty in Maryland and replace it with life without parole.

Consider this, consider this: all across our ever-more-closely connected world, the majority of executions now take place in just seven countries:  Iran. Iraq. The People’s Republic of China. North Korea. Saudi Arabia. Yemen.  And the United States of America.

This week’s primary Torah reading, Mishpatim, begins the ancient Hebrew legal code, and this legal code will be picked up a number of times later in the Torah.  This legal code provides for capital punishment, over and over again.  Thus, from this Shabbat’s reading, in Exodus chapter 21:

12.  He who fatally strikes a man shall be put to death. . . .
15.  He who strikes his father or his mother shall be put to death.
16.  He who kidnaps a man – whether he has sold him or is still holding him – shall be put to death.
17.  He who insults his father or his mother shall be put to death. . . .
22.  When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be paid by reckoning.  23.  But if no other damage ensues, the penalty shall be life for life, 24. eye for eye, tooth for tooth, hand for hand, foot for foot, 25. burn for burn, wound for wound, bruise for bruise.

Reading this, and other lines from other sections of the Torah, one gets the impression that Judaism was a pretty bloody religion, executing people at the drop of a hat for all kinds of offenses, many of which we would not consider criminal acts today.  Yet, the Talmud all but abolishes capital punishment.  Why was that?  And how could the rabbis so twist the clear text of the Bible?  I’ll try to explain below the squiggly lines.

The rabbis who compiled the Talmud understood the evils of the death penalty.  They and their fellow Jews lived, and too often died, under the tyranny of the Roman Empire.  It is likely that over the centuries, hundreds of thousands of Jews were executed by the Romans for real and imagined crimes.  A number of the rabbis suffered this fate.  Indeed, the Christian religion was founded in reaction to the execution of one particular rabbi.  But it was not only Jesus who bore this suffering.  In the Talmud, Berakhoth 61b, we read:

Our Rabbis taught: Once the wicked Government [the Roman Empire] issued a decree forbidding the Jews to study and practise the Torah. Pappus ben [son of] Judah came and found Rabbi Akiba publicly bringing gatherings together and occupying himself with the Torah. . . .  It is related that soon afterwards Rabbi Akiba was arrested and thrown into prison, and Pappus ben Judah was also arrested and imprisoned next to him.  He said to him: “Pappus, who brought you here?” He replied:  “Happy are you, Rabbi Akiba, that you have been seized for busying yourself with the Torah!  Alas for Pappus who has been seized for busying himself with idle things!”

When Rabbi Akiba was taken out for execution, it was the hour for the recital of the Shema [Deuteronomy 6:4-9], and while they combed his flesh with iron combs, he was accepting upon himself the kingship of heaven.  His disciples said to him:  “Our teacher, even to this point?”  He said to them: “All my days I have been troubled by this verse, ‘with all thy soul’ [Deut. 6:5], which I interpret, ‘even if He takes thy soul’. I said: When shall I have the opportunity of fulfilling this? Now that I have the opportunity shall I not fulfill it?”  He prolonged the word ehad [One, Deut. 6:4] until he died while saying it.

Nor were Jesus and Akiba the only two rabbis to be executed by the Romans.  The Romans’ penchant for executing people caused the rabbis to abhor the death penalty.  Thus, in Mishnah Makkot 1:10, we read:

A Sanhedrin that puts a man to death once in seven years is called bloody Sanhedrin. Rabbi Eleazer ben Azariah says: “Even once in seventy years.”  Rabbi Akiba and Rabbi Tarfon say: “Had we been in the Sanhedrin none would ever have been put to death.” Rabbi Simeon ben Gamaliel says: “They would have multiplied shedders of blood in Israel.”

But the Torah is loaded with death penalties.  If the rabbis had to follow the Torah, how could they have avoided sentencing people to death?  By making setting up so many procedural blockades that the death penalty became impossible to carry out.  Thus, from Deuteronomy 17:6:

 A person shall be put to death only on the testimony of two or more witnesses, he must not be put to death on the testimony of a single witness.

The rabbis derived the following procedural roadblocks:

Two witnesses were required.  Acceptability was limited to adult Jewish men who were known to keep the commandments, knew the written and oral law, and had legitimate professions.   The witnesses had to see each other at the time of the offense.  The witnesses had to be able to speak clearly, without any speech impediment or hearing deficit (to ensure that the warning and the response were done).  The witnesses could not be related to each other or to the accused.

Both witnesses had to give a warning (hatra’ah) to the person that the sin they were about to commit was a capital offense.  This warning had to be delivered within seconds of the performance of the sin (in the time it took to say, “Peace unto you, my Rabbi and my Master”).  In the same amount of time, the person about to sin had to respond that s/he was familiar with the punishment, but they were going to sin anyway; AND begin to commit the sin/crime.

The Beth Din had to examine each witness separately; and if even one point of their evidence was contradictory – the evidence was not heeded.  Although there was some disagreement as to whether minor contradictions could be disregarded.  Thus, from Talmud Sanhedrin 41a:

Rabbi Hisda said:  “If one testified that he [the accused] slew him with a sword, and another, that he slew him with a dagger, it [the evidence] is inadmissible.  If one says, His clothes were black, and the other, his clothes were white; the evidence is admissible.”  An objection is raised: The evidence must be certain; if one witness says, he slew him with a sword, and the other says, with a dagger; or if one says, his clothes were black, and the other, they were white, the evidence is not certain.  Rabbi Hisda interpreted this as referring to the color of the cloth with which he strangled him, which comes under the same category as sword or dagger.  Come and hear!  If the one says that his sandals were black, and the other, that they were white, the evidence is not certain! There too the meaning is, that he kicked him with his sandal and killed him.

The Beth Din (rabbinical court) had to consist of at least 23 judges.  The majority could not be a simple majority – the split verdict that would allow conviction had to be at least 13 to 11 in favor of conviction.  If the Beth Din arrived at a unanimous verdict of guilty, the person was let go, as there was no one on the Sanhedrin who spoke up on the accused’s behalf.  From Talmud Sanhedrin 17a:

Rabbi Kahana said: If the Sanhedrin unanimously finds [the accused] guilty, he is acquitted. Why? — Because we have learned by tradition that sentence must be postponed until the following day in hope of finding new points in favor of the defense. But we cannot assume that this will occur.

 Oh, and about the lines from this week’s Torah reading commanding us to take “an eye for an eye.”  Are Jewish judges commanded to go around poking out people’s eyes?  Note that this passage begins by commanding that a person who pushes a pregnant woman and causes a miscarriage is to be fined – no hint that abortion is murder here!  The Talmud, Bava Kamma 83b-84a, quotes both Rabbi Dosthai ben [son of] Judah, and Rabbi Simeon bar Yochai, as stating:  “An eye for eye means pecuniary compensation.”  Jews are not commanded to poke out people’s eyes, pull out people’s teeth, or cut off hands or feet, but to award the victims a just compensation for the injury another has wrongfully done.