Tuesday, November 20, 2007

Death Penalty and Jewish law

Rabbi Akiba and Rabbi Tarfon say: had we been in the Sanhedrin none would ever have been put to death.
Rabban Simeon ben Gamaliel says: they would have multiplied shedders of blood in Israel."

From NYT November 16
For the first time in a generation, the question of whether the death penalty deters murders has captured the attention of scholars in law and economics, setting off an intense new debate about one of the central justifications for capital punishment.
According to roughly a dozen recent studies, executions save lives. For each inmate put to death, the studies say, 3 to 18 murders are prevented.

The effect is most pronounced, according to some studies, in Texas and other states that execute condemned inmates relatively often and relatively quickly.

The studies, performed by economists in the past decade, compare the number of executions in different jurisdictions with homicide rates over time — while trying to eliminate the effects of crime rates, conviction rates and other factors — and say that murder rates tend to fall as executions rise. One influential study looked at 3,054 counties over two decades.

“I personally am opposed to the death penalty,” said H. Naci Mocan, an economist at Louisiana State University and an author of a study finding that each execution saves five lives. “But my research shows that there is a deterrent effect.”

The studies have been the subject of sharp criticism, much of it from legal scholars who say that the theories of economists do not apply to the violent world of crime and punishment. Critics of the studies say they are based on faulty premises, insufficient data and flawed methodologies.

The death penalty “is applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-to-year changes in the homicide rate caused by other factors,” John J. Donohue III, a law professor at Yale with a doctorate in economics, and Justin Wolfers, an economist at the University of Pennsylvania, wrote in the Stanford Law Review in 2005. “The existing evidence for deterrence,” they concluded, “is surprisingly fragile.”

Gary Becker, who won the Nobel Prize in economics in 1992 and has followed the debate, said the current empirical evidence was “certainly not decisive” because “we just don’t get enough variation to be confident we have isolated a deterrent effect.”

But, Mr. Becker added, “the evidence of a variety of types — not simply the quantitative evidence — has been enough to convince me that capital punishment does deter and is worth using for the worst sorts of offenses.”

From Jewish viewThe Death Penalty in Jewish Tradition
Though the Torah prescribed capital punishment for certain crimes, the rabbis moderated its use.
By Louis Jacobs
Reprinted with permission from The Jewish Religion: A Companion, published by Oxford University Press.

The Bible prescribes the death penalty for a large number of offences including religious offences such as idol worship and the profaning of the Sabbath. But the question of capital punishment in actual practice in ancient Jewish society is extremely complicated.

Talmudic Restrictions
According to the Mishnah (Sanhedrin 1:4) the death penalty could only be inflicted, after trial, by a Sanhedrin composed of twenty-three judges and there were four types of death penalty (Sanhedrin 7:1): stoning, burning, slaying (by the sword), and strangling. A bare reading of these and the other accounts in the tractate would seem to suggest a vast proliferation of the death penalty. Yet, throughout the Talmudic literature, this whole subject is viewed with unease, so much so that according to the rules stated in that literature the death penalty could hardly ever have been imposed.

For instance, it is ruled that two witnesses are required to testify not only that they witnessed the act for which the criminal has been charged but that they had warned him beforehand that if he carried out the act he would be executed, and he had to accept the warning, stating his willingness to commit the act despite his awareness of its consequences. The criminal's own confession is not accepted as evidence. Moreover, circumstantial evidence is not admitted.

From Practice to Theory
It has to be appreciated, however, that practically all this material comes from a time when the right to impose the death penalty had been taken away from the Jewish courts by the Roman authorities. According to one report in the Talmud (Sanhedrin 41a) the power of the Jewish courts to the death penalty ceased around the year 30 BCE; according to another report (Sanhedrin 52b) it could only have been imposed while the Temple stood and must have come to an end not later than 70 CE when the Temple was destroyed.

This means that, although earlier traditions may be present in the Mishnaic formulations, the whole topic, including the restrictions, is treated in the Mishnah and the Talmud in a purely theoretical way. It is hard to believe that when the courts did impose the death penalty they could only do so when the conditions above obtained. Who would commit a murder in the presence of two witnesses when these had solemnly warned him that if he persisted they would testify against him to have him executed for his crime?

That the Mishnaic material is purely on the theoretical level can be seen from the oft-quoted statement (Mishnah Makkot 1:10): "A Sanhedrin that puts a man to death once in seven years is called destructive. Rabbi Eliezer ben Azariah says: even once in seventy years. Rabbi Akiba and Rabbi Tarfon say: had we been in the Sanhedrin none would ever have been put to death.
Rabban Simeon ben Gamaliel says: they would have multiplied shedders of blood in Israel."
This Mishnah is a kind of reflection on the whole law of capital punishment. Faced with the clear biblical injunctions, the Rabbis mentioned could not simply have said that capital punishment was wrong. After all, the Bible states that it is right and has to be imposed on the guilty. But the statement seems to imply that the Rabbis welcomed the development by which the Sanhedrin no longer functioned with the power to impose the death penalty and Rabbi Akiba and Rabbi Tarfon speculate that even when the Sanhedrin did possess this power, various legal means could have been adopted to negate the imposition of the penalty.

It is not so much as Jewish apologists maintain, that the Rabbis consciously attempted to reform the law, but rather that when the power to inflict the death penalty fell into abeyance in any event this development was interpreted as being fully in accord with the Torah's regard for all human life, including the life of the criminal; so in a sense it was felt to the good that the death penalty could no longer actually be imposed but was simply left in the books for theoretical discussion. Once the matter was discussed on a purely theoretical basis the gruesome details could be described in all their starkness while, at the same time, restrictions could be piled on in order to make the death penalty virtually impossible. In practice it became illegal for a Jewish court to impose the death penalty.

Extra-Legal Punishment
Against all this is the Talmudic statement (Sanhedrin 46a) that as an emergency measure, "when the generation requires it," a court has the power to "act against the Torah" and to order an execution or other "illegal" physical penalties. In other words, although it is illegal to impose the death penalty, the court can, on rare occasions, act illegally if the aim is to protect the Torah. Naturally, it all depends on the circumstances that would warrant executions without the due process of the law. The statement was never interpreted as meaning that what the Law took away with one hand it gave back with the other.

The German and French communities in the Middle Ages ignored the statement altogether and never imposed the death penalty, not even when circumstances seemed to call for it. Not so in Muslim Spain, where the Gentile authorities gave the Jewish courts a good deal of autonomy. In Spain, albeit on rare occasions, the courts did rely on the Talmudic statement and imposed otherwise illegal penalties such as mutilation (found nowhere in the classical sources) of certain offenders; they also executed offenders such as informers who endangered the community. When Asher ben Yehiel (d. 1327) came from Germany to Toledo in Spain he expressed his horror at the Spanish practice, totally unknown in Germany, although later on he himself conformed to the Spanish norm.

Modern Considerations
There the matter rested until the establishment of the State of Israel.

The remarks of Rabbi Isaac Herzog (1888-1959) in an article on Sanhedrin published in 1932 are worth noting. Herzog begins: "I have often heard it remarked that the restoration of the Jewish State in accordance with Jewish law would isolate the Jewish people from the modern civilized world; for the Hebrew penal code includes the death-penalty for purely religious offences such as the willful desecration of the Sabbath, etc." Herzog, quoting the material mentioned above and other Talmudic sources which make the re-establishment of the Sanhedrin dependent on the rebuilding of the Temple in the Messianic age, demonstrates in his reply that until the advent of the Messiah it is illegal to impose the death penalty for any offence, even for murder. There follows this statement:

"The difficulty in question is therefore a matter which could only arise in the Messianic age and need not enter into any practical calculations affecting the reconstitution of the Jewish State in Palestine. But, of course, in view of the actual position the idea of a Jewish State in Palestine (as distinct from a National Home), quite irrespective of the restoration of the Temple, is, in itself, rather a Messianic hope than a question of practical politics."

Little did Rabbi Herzog think when he wrote this that the State of Israel would be established and that he would become its Chief rabbi. When the State of Israel was established the Israeli Parliament, the Knesset, did debate whether or not to retain the death penalty as in the law established under the British mandate but the Knesset was not acting as a religious court or Sanhedrin, only as a secular body, albeit one influenced in its decisions by the Jewish religious tradition. The debate between Rabbi Akiba and Rabbi Tarfon and Rabban Simeon ben Gamaliel was referred to it the Knesset debate, and it was eventually decided to abolish capital punishment entirely except for treason committed in time of war.

Rabbi Dr. Louis Jacobs is the rabbi of the New London Synagogue, Goldsmid Visiting Professor at University College London, and Visiting Professor at Lancaster University. His books include Jewish Prayer, We Have Reason to Believe, Principles of the Jewish Faith, and A Jewish Theology.

Rabbi Jonathan Ginsburg

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