Parshat Beha'alotcha
June 23rd-24th, 2000

A FEW REFLECTIONS ON CAPITAL PUNISHMENT

The execution yesterday of Gary Graham has brought the question of the death penalty squarely to the center of public attention in the U.S.  I'm not sure how much of a hot topic it is down in Georgia, but up here in New York City (where I'm spending the summer), it has certainly been dominating the airways.  Though capital punishment in Jewish law and tradition is a large topic, and one which deserves more extended treatment than I can give it here, I felt strongly compelled before entering Shabbos to set down at least a few reflections on it…as much for my own peace of mind as for your edification.

It's a topic that can raise tempers and passions, to be sure, and I have no desire to be provocative or polemical.  But as a student (and teacher) of Torah, I feel that it's a shame to let this national debate rage on without some--shall we say--Judaic interjection, on the matter. 

An editorial in today's New York Times reiterates the paper's no-doubt longstanding position that capital punishment "is morally wrong and also unconstitutional as being cruel and unusual."  The Torah would not agree with the first part of this statement: in theory, capital punishment for homicide is perfectly in order, and in fact, mandated. 

After the flood, as human society is about to be reconstituted, G-d tells Noach (Noah) unambiguously: "Whoever sheds the blood of man, by man shall his blood be shed; for in the image of G-d He made man."  (Genesis: 9, 6)  This statement is part of what is known as the Noachide Legislation, the seven commandments which, the Talmud explains, were given to Noach and constitute a universal code of law and morality binding on the non-Jewish world; the first of the seven was the commandment to institute courts of law--a judicial system--to carry out justice and protect society.  Administering capital punishment is part of that general mandate.  (Due to  my own ignorance, however, and lack of immediate access to the sources, I cannot tell you the exact parameters of this: is it absolutely forbidden for a non-Jewish nation--in the absence of extenuating circumstances--to punish a proven murderer with death?  In other words, is this verse in Genesis a dispensation or an absolute requirement?  There are good English books on the subject of the Noachide laws, and I intend to pursue the matter myself; feel free to enlighten me if you have pertinent information.)

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.  The Torah parts company with The New York Times. 

Let me point out that the verse quoted above states clearly why homicide deserves such a severe penalty: "…for in the image of G-d He made man."  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, in any case, is a Scriptural phrase that our Oral Tradition clearly states and proves was never applied (nor meant to be applied) literally.  Rather, it is the peculiarly horrendous nature of murder--the blotting out of the "divine image," which ALL human beings (not just Jews!) represent--that requires the forfeiture of the perpetrator's own right to exist on this earth. 

I don't want to invoke that phrase which has become such a cliché (and a spur to sanctimony in such often unholy mouths), "the sanctity of life," and yet, this is precisely what the Torah is speaking about: the inestimable value of a human life. 

You may say, of course, "Well, then, why take another life by putting to death a murderer?"  Here, we can only invoke the divinity of the Torah, and the absolute justice--in the truest sense--of its every law.  Whether or not we understand the ultimate reason for any Torah law--and, in the final analysis, we cannot fully "read the mind of G-d," obviously--it is binding, nonetheless.

Put differently, whether or not my explanation of the verse clarifies or not, the Torah has stated as an absolute value: "…for in the image of G-d He made man." And, therefore, a proven murderer must be put to death.  No thirst for vengeance, no eye to reduce crime (at least as a primary motive), but to uphold the principle of the inviolability of human life.

As for the Jewish people specifically, it comes as no surprise to anyone who has ever dipped into Exodus or Leviticus that capital punishment is the stated penalty for several different crimes (including homicide).  A good portion of the Talmudic tractate, Sanhedrin, is taken up with spelling out the procedural details of the Torah's death penalty. 

Again: in theory, the Torah is in favor of capital punishment.

However, things look rather different when we turn our attention to the practical realization of this seemingly harsh legislation. You may be aware that it was exceedingly difficult, in practice, to carry out the death penalty in Jewish society.  For capital punishment to be carried out, two legally proper witnesses had to be present at the scene of the impending crime and give a verbal warning to the perpetrator of the penalty, clearly stating what the penalty for the crime would be; the wrongdoer had--I believe--to then acknowledge that he understood the warning before going through with the forbidden act.  Furthermore, an elaborate set of rules for examination of the witnesses-- well as many other procedural requirements--existed in order to decrease the likelihood of being able actually to carry out an execution (and, certainly, of putting to death an innocent person).  As Rabbi Aryeh Kaplan, zt'l, a great Jewish thinker and synthesizer of our time, sums it up: 

"In practice, however, these [physical] punishments were almost never invoked, and existed mainly as a deterrent and to indicate the seriousness of the sins for which they were prescribed.  The rules of evidence and other safeguards that the Torah provides to protect the accused made it all but impossible to actually invoke these penalties…the system of judicial punishments [furthermore] could become brutal and barbaric unless administered in an atmosphere of the highest morality and piety.  When these standards declined among the Jewish people [in the period prior to the destruction of the Second Temple], the Sanhedrin, which was the Jewish supreme court and legislative body, voluntarily abolished this system of penalties.  As the nation's religious and moral standards diminished, it was no longer worthy of having such a ready means of atonement as afforded by the courts."  (Handbook of Jewish Thought, Volume II, pp. 170-71)  

Without meaning to be flip, I think it's clear that with regard to Jewish jurisprudence, the capital punishment outlined by the Written and Oral Torah, and as carried out by the greatest Sages from among our people (who were paragons of humility and humanity and not just scholarship, needless to say), did not remotely resemble the death penalty in modern America (or Texas). 

There's a famous (and fascinating) interchange in the Mishnah (Makkos I, 10) between Rabbi Akiva and Rabbi Tarfon on one side, and Rabbi Shimon ben Gamliel on the other.  The Mishnah first states that a court that administers capital punishment just once in seven years (and another sage says, "once in 70 years") is, termed, "destructive."  (Such was the difficulty of carrying out the death penalty in ancient Israel!)  Rabbi Akiva and Rabbi Tarfon then 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.  To which Rabbi Shimon ben Gamliel responds: "They would thereby increase murderers in Israel."  A classic debate on the death penalty, right there in the Mishnah (written down more than 1800 years ago), with rabbis disagreeing on the proper stance to take towards it.  And an interesting insight into the personality (and politics?) of Rabbi Akiva as well…though modern liberals should probably investigate the matter further before adopting him as their Talmudic standard-bearer! 

In theory, capital punishment is kosher; it's morally right, in the Torah's eyes.  But we have seen that 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.  It was carried out in ancient Israel, but only with great difficulty.  Once in seven years; not 135 in five and a half. 

Don't get me wrong: I am not an opponent of the death penalty…in theory. And even in practice--when it is administered with fairness and justice, or at least a reasonable human facsimile thereof.  A government has the right and the obligation to keep order in society and punish wrongdoers; it's the first of the seven Noachide laws, as mentioned earlier.  Actually putting a murderer to death is also a judicial system's right and obligation, according to the Torah, however awesome (and potentially problematical) that moral burden.    

And, yet, one doesn't have to be a saint or a scholar (or a "liberal") to see that there are serious questions about the way the death penalty is carried out in our United States of America.  Whether or not Gary Graham was actually innocent, I don't know; but I confess I find it hard to share Governor Bush's unwavering conviction that justice is being--and has, in his state (and in others), always been--done.  I have my doubts.  

This pains me as a Jew who says three times a day: "Blessed are You, Hashem, the King Who loves righteousness and judgment." I guess that being in exile--as we are--means being in a world where true justice (as well as true closeness between man and G-d in other manifestations, as well) is not exactly in great supply.  And I guess that it makes me yearn just a bit more for the messianic era, when truth and justice will be realized…for the Jewish people, and for all mankind.  May it come speedily, in our days. 

Good Shabbos!

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Rabbi Yosef Edelstein is Director of the the Savannah Kollel and the Savannah Torah Education Project (STEP).
Phone: 912-355-0157;
fax: 912-354-9923; e-mail: Yosef18@aol.com

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