Judaism and the death penalty

JOCELYN ROME

Arguments about the re-instatement of the death penalty continue unabated, particularly in view of rising crime and the persistence of horrific high murder rates. In the United States, where the death penalty still remains in 30 states, the debate centres on, as it does in South Africa, the morality of the death penalty itself, the possibility of condemning innocent people to death, its effectiveness as a deterrent, and racial biases in its application.

Where does Judaism stand on the death penalty? Are some people so evil that they deserve to be executed? Is even a slight chance of executing an innocent person too great a risk to bear? Rabbi Ari Kievman tackled these serious questions on 30 January, in a lesson at the Jewish Learning Institute at Chabad House in Sandton, part of a six-part series on Crime and Consequence.

The series looks at contemporary legal matters through a Torah lens. The session was punctuated by insight from the audience, which included two retired judges, Percy Blieden and Ralph Zulman, among the 30 or so people attending.

The audience overwhelmingly supported the death penalty, a view which changed little when a second poll was conducted at the end of the session.

The discussion centred on the possibility of human error. Blieden argued that each case was different, and needed to be assessed on its own merits. Countering this, Zulman recounted a shocking case in South Africa, where the judgement had a distinctly racist overtone. He told of how an accused was convicted and sentenced to death based on the judge claiming proficiency in Xhosa. He had ignored the court translation, which was actually in Sepedi.

Rabbi Kievman outlined the four elements of capital punishment found in the Torah: retribution, incapacitation, deterrence, and rehabilitation. The Torah, in Exodus 21:12, is clear on the moral applicability of capital punishment for those who commit murder: “One who strikes a person with a fatal blow shall be put to death.”

The Mishnah, Sanhedrin 6:2, discusses how confession and regret are part of a spiritual rehabilitation that can be achieved through the death penalty, allowing the perpetrator to achieve a portion in the world to come.

While the Torah is clear that the death penalty itself is not immoral and can rehabilitate the soul – even if only in the world to come – the commentaries show how severe restrictions on its application made the death penalty extremely difficult to carry out.

In the Mishneh Torah, Laws of the Sanhedrin 20:1, the Rambam outlines the rigorous standards that need to be upheld. In order to impose the death penalty, the murder must have been premeditated, the murderer must have received and verbally acknowledged an explicit warning of the consequences of the crime, and two eyewitnesses are required to testify.

Actual executions were thus rare, and needed to be reviewed by a Beth Din of 23 judges and 69 rabbinic scholars, who scrutinised the evidence and offered opinions. “A Sanhedrin that executes once every seven years is called a ‘destructive court’. Rabbi Elazar ben Azaria says once every seventy years.” (Mishnah, Manot 1:1).

The infinite value the Torah places on human life underpins the logic behind these high standards. The Torah considers it preferable that even a thousand guilty people be exonerated, rather than one innocent individual be executed.

The Rambam did, however, as Kievman explained, outline an emergency law that could be invoked, which lowered the standards of proof if done in accordance with the needs of the time for a deterrent to prevent more crimes.

The Beth Din has the mandate to determine such needs. This emergency clause can be invoked only if murder has become a societal problem, and can be deterred only through the use of the death penalty. The death penalty cannot be used if other forms of punishment can serve as an equally effective deterrent.

So how, in today’s times, when there is no Sanhedrin and Jewish courts do not have the authority to impose the death penalty, are Torah views of the death penalty relevant?

Kievman says the Torah’s message is didactic, one that can teach about the severity of murder and of the value of life, even that of a murderer.