Judaism does not reject the death penalty

According to a recent headline in The New York Times, “Jewish Tradition Rejects the Death Penalty.” For those who might be in any doubt, there is an important lesson here: Little can be learned about Judaism from newspaper headlines.

Judaism, in fact, does not reject the death penalty. It makes carrying out the death penalty difficult, exceptional and rare, but the death penalty remains a possibility.

When the state of Israel executed Adolf Eichmann in May 1962, the rabbis did not object. Those versed in the sources did not claim that the execution was inconsistent with Jewish law. When Eichmann’s executioner, Shalom Nagar, stated that he “was involved in the great mitzvah of wiping out Amalek,” nobody declared his act to be a transgression of Judaism.

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Every single book of the Torah, moreover, calls for the death penalty. The greatest constitutional work of Judaism repeatedly endorses the death penalty, at least rhetorically. It is, therefore, simply untenable to claim that Judaism is theoretically opposed to capital punishment.

And yet.

And yet in a world in which ancient civilizations applied the death penalty with extraordinary frequency, Judaism consciously forged a different path. The oral Torah details a host of provisions and safeguards that would have made carrying out the death sentence a very unusual occurrence even if the rabbis had retained the power to implement the death penalty in practice.

The Talmudic system of justice, advanced beyond its time, requires two eyewitnesses to a crime for capital punishment to be feasible; it requires that the potential perpetrator be forewarned that the contemplated act could result in a death sentence; it requires one standard of justice for all and evidence that the death penalty deters; it requires that cases be adjudicated before a Sanhedrin of 23 competent judges, that the judges painstakingly probe the testimony of each eyewitness separately, and that more than a simple majority of judges vote for the death penalty; some were even of the view that it requires a functioning Temple in Jerusalem.

Small wonder that the Mishnah (Makkot 1:10) describes the result of these various provisions in the following way: “A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal. Rabbi Elazar ben Azarya says: This categorization applies to a Sanhedrin that executes a transgressor once in seventy years. Rabbi Tarfon and Rabbi Akiva say: If we had been members of the Sanhedrin, we would have conducted trials in a manner whereby no person would have ever been executed.”

Those who are opposed to all capital punishment regularly quote this passage as evidence that the rabbis of old support their view. But the text can only be understood this way when it is quoted without its last line. After Rabbis Tarfon and Akiva speak, Rabban Shimon ben Gamliel responds: “Rabban Shimon ben Gamliel says: In adopting that approach, they too would increase the number of murderers among the Jewish people.”

When viewed in its totality, the Makkot passage succinctly encapsulates what would come to be the historic Jewish ethos concerning capital punishment: On the one hand, the tradition conveys that capital punishment is a momentous and weighty act with irreversible consequences for all; on the other hand, it proposes that ultimate evil — in rare instances — needs to be met with the threat of the ultimate response.

Obviously, Eichmann never appeared before a Sanhedrin, he was never forewarned and the deterrent power of his execution is debatable. But even though the specific conditions of Jewish law were not in place, the consensus view regarded Eichmann’s execution as being in keeping with the Jewish ethos expressed in Makkot. Importantly, in the 61 years that have passed since Eichmann was put to death, nobody since then has received the death penalty from a court under Jewish authority. And that, too, seems to comport well with the long-standing Jewish ethos.

What, then would be the approach of Judaism to the death penalty in contemporary America? The classic ethos of Judaism would not contend that there should be zero executions in America. But it would also posit that the number of executions should not be far distant from zero. Eschewing absolutist positions, Judaism advocates a path that is capable of confronting the worst evil imaginable but does not hold that every heinous crime fits that description.

More than anything else, of course, Judaism yearns and works for the day when the “reign of evil” shall have passed away from the earth such that capital punishment will never again need to be considered. PJC

Rabbi Danny Schiff is the Federation Scholar at the Jewish Federation of Greater Pittsburgh.