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.
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.
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.
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.
Edelstein is Director
of the the Savannah Kollel and the
Savannah Torah Education Project (STEP).
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