For some of us, it is a “no brainer.” Someone who murdered multiple people in cold blood with a hateful motivation doesn’t deserve to live. And, yet, Judaism has a complicated relationship with the death penalty.
The Torah explicitly mentions death as the penalty for violating some 30 sins. At the same time, the threshold for imposing a death is quite high and requires a Sanhedrin and a Beit Hamikdash. The Mishnah in Makkot (7a) famously teaches:
A Sanhedrin which executes once in seven years is considered murderous. Rabbi Elazar ben Azarya says: Once in seventy years. Rabbi Akiva and Rabbi Tarfon say: If we had been on the Sanhedrin, no one would have ever been executed. Rabban Shimon ben Gamliel says: In adopting that approach, they would increase the number of murderers among the Jewish people. The death penalty would lose its deterrent value, as all potential murderers would know that no one is ever executed.
Throughout most of history, the question of the death penalty was a theoretical one. Jews had no courts or jurisdiction. This all changed with the establishment of the State of Israel in 1948. Chief Rabbis Yitzhak Herzog and Ben-Zion Uziel, along with Rabbi Yechiel Michel Tukachinsky, contended that given the halakhic hesitation over this practice, there was no need to introduce the death penalty. Let a life sentence in jail, which was becoming more widespread, serve as an alternative deterrent. In 1954, the Knesset voted to abolish the death penalty for the crime of murder. It was retained only for war crimes, crimes against humanity, crimes against the Jewish people, treason, and certain crimes under military law during wartime.
Then came the capture and trial of Adolf Eichmann, who was sentenced to hang for his crimes against the Jewish people. This decision was not without controversy. A group of Israeli intellectuals, including Martin Buber and Gershom Scholem, opposed Eichmann’s execution due to their fundamental opposition to the death penalty without exception. Rabbinic voices supported the punishment and believed that, based on Jewish law, the Israeli government has the right and obligation to bring murderers of the Jewish people to justice and, if need be, to put them to death.
What does Jewish law say about capital punishment being utilized by other governments? It’s complicated.
Rabbi Ahron Soloveichik, in the 1970s, wrote against capital punishment.
“[I]t is irresponsible and unfair to submit a statement in favor of capital punishment in the name of Orthodox Jewry. In my humble opinion, from a Halachik point of view, every Jew should be opposed to capital punishment. It is true…that the Torah recognizes capital punishment. However, the Torah delegates the authority to mete out capital punishment only to Sanhedrin, not to anyone else. Even Sanhedrin are [sic] not able to mete out capital punishment if there is no Beis Hamikdash.”
In a 1981 letter to a Governor (likely Hugh Carey), Rabbi Moshe Feinstein argued that Jewish law would support capital punishment if it could effectively deter the rising homicide rates that indicated a cheapening of human life. He didn’t wholeheartedly endorse the death penalty, rather, he recognized it as a tool in maintaining law and order.
What do Jews think about capital punishment? According to a 2014 poll, American Jews are less supportive of capital punishment (33%) compared to all Americans who were surveyed (44%). This makes sense. It is complicated.
Should we execute the Tree of Life murderer? On the one hand, evil murderers should be punished. On the other hand, the death penalty is not perfect in its implementation. On the third hand, the Talmud rejects capital punishment without a Temple. On the fourth hand, Rabbi Soloveichik is opposed to capital punishment while Rabbi Feinstein supports it to maintain law and order. On the fifth hand, we aren’t the ones making the laws; we’re protecting ourselves and fighting evil.
That’s a lot of hands.
It seems that those impacted most directly by the Pittsburgh murderer see the death penalty as appropriate for his heinous actions. Those less directly impacted fall back to their respective worldviews on capital punishment in general.
What do we take away from all this?
This week, we read in the Torah (Bamidbar 35) about executing the murderer and providing the unintentional killer with a city of refuge. Rabbi Samson Raphael Hirsch finds a moral lesson from within these violent crimes and punishments. Our right to life is contingent on respecting the rights of others.
Nathan Diament of the OU discusses the Jewish approach to capital punishment in a 2004 article entitled, “Judaism and the Death Penalty; Of Two Minds but One Heart.” He concludes:
“As is often the case, the Torah does not offer a onesided view of an issue, but reflects the Divine nature of God’s creation in incorporating and balancing the competing values that are inherent to any human challenge. While recognizing there might be multiple means to fulfill a single goal, in its heart, Judaism seeks to achieve the single goal — fostering a world in which each human life is protected as unique and sacred.”
The question is less often death penalty yes or no. The challenge is what do we do practically to protect and support the people around us so that we live together in a better world.
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