August 30, 2003 - 5763
Annual Cycle: Deuteronomy 16:18-21:9 (Hertz, p. 820; Etz Hayim, p. 1088)
Triennial Cycle 2: Deuteronomy 18:6-19:13 (Hertz, p. 825; Etz Hayim, p. 1094)
Haftarah: Isaiah 51:12-52:12 (Hertz, p. 835; Etz Hayim, p. 1107)
Prepared by Rabbi Lee Buckman
Head of School, Jewish Academy of Metropolitan Detroit
Department of Services to Affiliated Congregations
Rabbi Martin J. Pasternak, Director
Discussion Theme: Capital Punishment - A Rorschach Test?
If, however, a person who is the enemy of another lies in wait for him and sets upon him and strikes him a fatal blow and then flees to one of these towns, the elders of his town shall have him brought back from there and shall hand him over to the blood-avenger to be put to death; you must show him no pity. Thus you will purge Israel of the blood of the innocent, and it will go well with you. (Deut. 19:11-13)
- Whoever sheds the blood of man, by man shall his blood be shed, for in His image did God make man. (Genesis 9:6)
- He who fatally strikes a man shall be put to death. (Exodus 21:12)
- You may not accept a ransom for the life of a murderer who is guilty of a capital crime; he must be put to death. (Numbers 35:31) A Sanhedrin that executed one person in seven years is called murderous. Rabbi Elazar ben Azaria says once in seventy years. Rabbi Tarfon and Rabbi Akiva say that if we had been on the Sanhedrin, no one would ever have been executed. Rabbi Shimon ben Gamliel says that they would thereby multiply shedders of blood in Israel. (Mishnah Makkot 1:10)
- One who murders without clear proof that he is the murderer, i.e. there were not two witnesses, or without warning having been administered by two witnesses, the king has authority to execute him and to perfect the world in accordance with what the hour requires. The king is empowered to take the measures necessary to inspire fear, and to break the hands of the world's evil people. (Maimonides, Mishneh Torah, Laws of Kings 3:10)
- One who commits murder without witnesses is placed in a cell and fed with bread of adversity and waters of affliction. How do we know he committed the murder? Shmuel said: There were witnesses but they did not warn him. Rav Chisda said: He was convicted through witnesses who were disproved on the minor circumstances of the crime, but not on the vital points. The murderer is placed by the court in a cell and fed with barley bread until his stomach bursts. (Talmud Sanhedrin 81b)
- The Bible is quite explicit about the specific need for execution for the sake of retributive justice. The rabbis of the Talmud never rejected execution as an inherently unjust punishment. Professor Moshe Greenberg suggests that talion for murder was indeed a moral step forward in the Near East. The death penalty prevented the rich person from buying him self or her self out of the crime. Actual cases of judicial execution in the Tanach and in the Second Commonwealth are quite rare. Moreover, the rabbis of the Talmud, who developed a legal system through interpretation of the Bible, imposed an array of restrictions on capital cases. These extraordinarily strict demands (two credible witnesses who had each forewarned the potential offender), meant to prevent mistaken identity, allow for a situation in which execution would have become very rare. We do not know how rare because the Romans eliminated capital punishment at least forty years before the Temple was destroyed and Jewish jurisprudence no longer had standing to impose the death penalty. (Elie Spitz "The Jewish Tradition and Capital Punishment")
- There are few areas in Jewish law where the biblical and talmudic view so conflict as in the matter of capital punishment. The dominant, although not exclusive, line of argument proffered in the Talmud opposes the death sentence, even in the case of premeditated murder. It places so many restrictions on the judicial authorities that very few, if any, murderers would be convicted were these restrictions enforced. A contemporary Orthodox legal scholar, Rabbi J. David Bleich, notes that, from the perspective of Jewish law, "fingerprints, forensic evidence and the like must be relegated to the category of circumstantial evidence" and thus are judicially worthless.
The Talmud explains that they would have ensured that no death sentences were carried out by subjecting the witnesses to such searching cross-examination that, inevitably, there would be questions they couldn't answer. Akiva and Tarfon would have used the witnesses' inability to answer as the rationale for not sentencing the defendant to death (Talmud Makkot 7a). Gerald Blidstein has rightly noted that the "source of their opposition was not a fear of killing the innocent but a reluctance to kill the guilty." Rabbi Shimon ben Gamliel's response, that Akiva and Tarfon's behavior would have caused an increase in murder, reflects, of course, the view that the death sentence is a deterrent. To me, it seems that the impossible range of restrictions the Rabbis placed on judicial authorities constituted a form of protest against Roman rule, for the Romans executed whomever they wanted, for whatever offense, based on the flimsiest evidence.
(On the other hand), in times of emergency, these extreme precautionary measures could be suspended, a ruling subsequently incorporated into Maimonides's code (see "Laws of Kings" 3:10). Second, the Talmud ruled that if it was clear to the court that a defendant had committed murder, but one of the technical factors had not been fulfilled, then the courts were empowered to impose their own form of capital punishment (see Sanhedrin 81b). (Joseph Telushkin "Murder and the Death Penalty")
Sparks for Reflection/Discussion
Dennis Prager, in his quarterly journal "Ultimate Issues" (April-June, 1989) asserts that opposition to capital punishment for murder can reveal more about a person than his views on any other contentious issue. One's position on the death penalty is a kind of Rorschach test because the reasons offered by opponents to capital punishment are usually not the reasons for their opposition. Rather, he claims, it has to do with one's ability to recognize evil and to confront it. He believes that "it is not death whose existence people want to deny; it is evil's.
The wish to deny evil-specifically, that people are the primary cause of evil-is the strongest denial mechanism operating in the world today - It is particularly strong in the West, among those who believe that people are basically good, and that reason alone, not force, is needed for good to triumph. This denial of evil explains another major belief of opponents of capital punishment-the moral equation of capital punishment with murder. 'To kill the offender is to respond to his wrong by doing the same wrong to him.' (This belief states that) nothing is morally better or worse; no one is morally better or worse.
Whether they intend to or not, opponents of capital punishment direct their compassion toward those who commit the greatest evil man can commit. And that misdirected compassion inevitably expresses itself in misdirected cruelty-toward the society at large, toward the bereaved who yearn to see justice done, and toward those who fight against the greatest evil man can commit." Do you agree with Prager's argument? Given the great discrepancy in the positions of the Bible and Talmud and perhaps even with the Talmud itself, is Prager correct that our position on capital punishment says more about us than about the issue itself?