Judaism and the Death Penalty: Of Two Minds but One Heart

October 1, 2002
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by Nathan J. Diament

If one can be certain of anything in a discussion of Judaism’s views with regard to capital pun-ishment, it is that the following statement in the Mishna about the Sanhedrin (the High Rabbinic Court from about the first to fourth centuries) will be quoted:

A Sanhedrin that executed [more than] one person in a week is called a “murderous” [court]. Rabbi Elazar ben Azariah states: [more than] one person in 70 years [would be denoted as a murderous court]. Rabbi Tarfon and Rabbi Akiva state: “If we had been members of the Sanhedrin, no defendant would ever have been executed.”

While this passage properly finds its way into all discussions of Judaism and the death penalty, other Mishnaic statements of equal authority with a different perspective seem to be often overlooked. In fact, the very Mishna quoted above (Makkot 1:10) gives the last word to Rabbi Shimon ben Gamiliel, who responds that had they indeed ensured that the death penalty would never be carried out, Rabbis Tarfon and Akiva “would have been increasing the murderers in Israel.”

In this single and more completely quoted Mishnaic citation, we see Judaism grappling with the core question that confronts every society that contemplated utilizing capital punishment as a component of its criminal justice system: How can a society protect human lives with a system that itself takes human life?

To answer this question, we must turn to another Mishna. Tractate Sanhedrin (4:5) teaches:

Man was created single [in the person of Adam] to teach you that anyone who eliminates one person in Israel, the Torah considers it as though an entire world has been eliminated; and anyone that sustains one person in Israel, the Torah considers it as though an entire world has been sustained…. And [man was created single], to tell you the greatness of the Holy One, a person can mint many coins with one mold, and they will all be identical in appearance; and the King of Kings…made all of mankind from the mold of Adam the first, and no one person is identical to the other. Thus, each individual person must say “for me was the world created.”

Among Judaism’s seminal and timeless gifts to the world – a world that has seen societies that have endorsed everything from ancient child sacrifices to false gods to modern campaigns of ethnic cleansing – is this teaching of the infinite value of each human life.

What is most striking, however, about this critical Mishna is the context in which this lesson is presented. These noble words are in answer to the Mishna’s question of how the court will instill awe and fear into witnesses in capital cases so that they testify truthfully. The very passage that proclaims our recognition of the value of each life is presented and utilized in the capital case!

Moreover, instilling fear into witnesses is but one of the many procedural safeguards required in capital cases. Other safeguards include requirements for two simultaneous witnesses to the crime who not only viewed the perpetrator but also saw each other and had time to properly warn the perpetrator of the nature of his crime and his punishment prior to him committing the act.

Judaism, it seems, is of two minds about capital punishment. But we can discover where the “heart,” that is to say the spirit, of our tradition lies in one more halakha.

Although the Torah prescribes a strict regime of procedural safeguards before one of the four biblically authorized methods of capital punishment may be imposed, the rabbis recognized that there would be cases in which it was known beyond doubt that a particular person had committed a murder, but one of the biblically required procedural elements was absent. What then? Would a murderer roam free? No. As stated in Mishna Sanhedrin (9:5), the perpetrator would be placed in jail and, essentially, be put to death by malnutrition.

The key to our understanding can be found in Maimonides’ codification of this ruling (Laws of Murder, 4:9):

This procedure [of confinement and death by malnutrition] is not done to perpetrators of other capital crimes [where procedural requirements are lacking, only murder]…because even though there are sins more severe than murder, they do not cause the destruction of the world’s stability and order in the manner of murder; even [the cardinal sins of] idolotry, incest and violating shabbat are not equal to murder. For these sins are between a person and God, but murder is a sin against fellow man, and anyone who commits this transgression is completely evil and all the good deeds of his entire lifetime cannot outweigh this sin nor rescue him from judgment.

Murder is not only a sin against the victim and the Creator. Murder, in the Jewish view, is also a sin against society for it tears at the foundation stone upon which an orderly, productive, and moral society must be built – the dignity and equal worth of each of its members.

A justice system – which Judaism demands via the Noahide Code of all societies – must contain procedural safeguards to ensure fairness and accuracy in the determination of guilt and imposition of punishment, especially capital punishment. And, as has recently been the case in the United States, if there are serious questions about the accuracy and fairness with which capital punishment is being administered, it ought to, at least, be suspended pending procedural reforms.

Thus, the dimensions of our tradition’s discussion of the processes, utility, and values associated with a capital punishment system are highly relevant to the contemporary debates over these very issues. As is often the case, the Torah does not offer a one-sided view of an issue but reflects the Divine nature of God’s creation in incorporating and balancing multiple and competing values that are inherent to any human challenge. While recognizing there are multiple means to fulfill a single goal, in its heart, Judaism is devoted to championing each human life as unique and sacred.

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Nathan J. Diament is Director of the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America.

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