Rabbi Micah Citrin
May 23, 2014
When I was 17, at the end of a wonderful summer at UAHC Camp Swig in California, I remember a conversation I had with my best friends the night before we said goodbye for the summer. We talked and laughed about the great time we had at camp.
Then for reasons I can’t remember our conversation took a serious turn into the realm of Jewish ethics. I vividly recall engaging in a heated debate about whether or not the death penalty was ethical. Our litmus test was the execution of Adolf Eichmann by the State of Israel in 1962. Eichmann was the Gestapo officer responsible for rounding up hundreds of thousands of Jews and sending them to their deaths in gas chambers and concentration camps. Eichmann, this bureaucrat of death, oversaw the annihilation of nearly all of Hungarian Jewry in just one year, 1944-1945. My friend Doug and I argued that Eichmann deserved death for the systematic murder of countless men, women, and children; for such a serious crime there could only be one answer. Ari argued that in Israel, the Jewish State, it was impossible for Eichmann to get a fair trial, and that a state should not carry out the execution of anyone, even someone who deserves such a punishment.
Our conversation went late into the night as we wrestled with this moral dilemma. Neither side convinced the other of its merits, but we had staked out the boundaries of any debate regarding the death penalty. Are there any circumstances in which a sentence of death is warranted? Who has the authority to condemn another human being to death? What are the proper procedures to carry out the judicial and executive processes of the death penalty? Is the question absolute? In other words, is capital punishment either acceptable or unacceptable, or can it be appropriate in certain situations?
Just over 20 years later I think about this discussion from time to time, and given recent events in the news I have been replaying it in my head once again. Many of us have been thinking lately about the death penalty on account of Oklahoma’s execution of Clayton Lockett on April 29th. We are all very familiar with the details of the case. Something went awry during the administration of the lethal injection, witnesses saw Lockett writhe in pain for three minutes before prison officials shut the observation window, and nearly an hour after the process began, Lockett was declared dead. Now Oklahoma, a state that executes more prisoners per capita than any other in the nation, has faced condemnation from the United Nations and a call for a moratorium on the death penalty by the ACLU and other human rights groups. The president has expressed deep concern and ordered a national review of the practice of capital punishment. We are right as individuals and as a society to scrutinize this practice of our judicial system.
One question my friends and I were not fully equipped to answer back in the summer of 1992 centered on what Judaism has to say about capital punishment. Tonight, I want to share with you some Jewish perspectives on the death penalty, and how these perspectives might help us to apply a Jewish ethic to the question of capital punishment.
If we turn to biblical sources, capital punishment is clearly accepted as a just consequence for certain crimes. Torah identifies 36 offenses for which the punishment is death. These instances include crimes that we might expect, such as murder, adultery, and even kidnapping. But, capital offenses also correspond to more obscure or unexpected crimes – offering children as sacrifices, desecrating Shabbat, insulting one’s parents, and striking one’s parents. Like so many aspects of biblical law it is hard to know exactly how these statutes were applied in their own day. When we look closely at Torah, we come to see that our ancestors grappled with the same ethical questions regarding the application of capital punishment as we do today. Exodus chapter 21 identifies crimes that require the punishment of death, but the text does not detail how a person can be found guilty of such serious offenses. In Deuteronomy, dated later than the writing of Exodus, we come to find that a person may only be put to death on the testimony of two witnesses. Even within Torah we can identify a trajectory toward a more stringent standard for applying such a serious sentence. In order to gain a more detailed picture of how capital punishment developed in Jewish law, we have to turn our attention to the Talmud and other Jewish legal codes.
In Talmud Sanhedrin, the tractate that addresses all kinds of civil and capital cases, we see the great lengths to which the rabbis went to avoid wrongfully sentencing someone to death. Consider just a few examples from this legal discussion. Whereas in a civil case three judges would suffice, in a capital case no fewer than 23 judges would be called to adjudicate, and that number could increase up to 71 in an especially complicated trial. Judges were instructed to admonish the witnesses against offering hearsay or testimony based on conjecture. To drive home the magnitude of the proceedings, the judges would remind the witnesses that if their testimony led to an improper conviction, the blood of the accused, and that of any potential offspring would be on the head of the witnesses. The rabbis went so far to ensure that an innocent man would not be wrongly convicted they brought the following example. If a person sees the accused run into a building after a man, and then happens upon the man with his sword drawn, with blood dripping off the sword and the victim still writhing in pain, it is not enough to sentence that person to death.
Maimonides, the greatest codifier of Jewish law went even further to limit the application of the death penalty. Not only did there have to be two witnesses who saw the murder take place, they also would have had to warn the accused that his actions could warrant capital punishment. While Jewish law still accepts the principle that some offenses are worthy of capital punishment, it placed a level of stringency on the judicial process that made it next to impossible to impose.
We have to ask ourselves, why did our legal tradition go to such lengths to limit the application of the death penalty? Perhaps the answer resides in the maxim also found in this section of Talmud, “If one saves a life it is as if one saved the entire world, and if one takes a life it is as if one has destroyed the entire world (Mishnah Sanhedrin Ch.4).” The Jewish concern for human life is paramount. We are created in the Divine Image, even those who commit unspeakable evil deeds. Taking a life, even in the name of justice, cannot be held lightly, and it would seem that everything possible must be done to cast the burden of proof upon the system and process that leads to this sentence. Our tradition is suspicious of a legal system that is quick to condemn a fellow human being to death. It was taught that a Sanhedrin, a court that issues a sentence for execution every seven years is considered a murderous tribunal. According to Rabbi Elezar ben Azariah, it is murderous if it sends the accused to death once every 70 years, and Rabbis Tarfon and Akiva declared that if they were members of the Sanhedrin, no man would ever be executed. Yet, Rabbi Shimon ben Gamliel retorted, that this would increase those who shed blood in Israel. (Makkot 7a).
So where does this leave us? What do we do with the challenge that Rabbi Shimon ben Gamliel places before us? If we do not apply the death penalty more vigorously, does it mean that Judaism does not take heinous crime seriously? Hardly. The alternative to the death penalty according to classical Jewish law is life imprisonment under the most severe conditions, conditions that would likely be found unconstitutional in the United States today. From this we can glean that harsh punishment can still be meted out in the absence of the death penalty. We can preserve both the value of justice and the value of life.
Given this substantial body of Jewish legal debate on capital punishment, it is interesting to note that the death penalty is one area where the three major American Jewish movements agree. Both the Reform and Conservative rabbinical associations are on record calling for abolishment of the death penalty in the United States, and the Orthodox Union, the largest representative body of Orthodoxy in America, has called for an indefinite moratorium on capital punishment. Each of these movements arrived at a similar conclusion based on their understanding of the Jewish tradition. For the death penalty to be applied, the system of justice itself must be nearly flawless. Each have noted the well documented ways that the death penalty is applied disproportionately against minorities in the United States, and that the justice system does not meet Judaism’s standards when it comes to judicial processes in capital cases.
A new study out of the University of Michigan estimates that 4.1% of all those given death sentences are wrongly convicted. Between 1973 and 2004 7,482 individuals were sentenced to death. If this study bears out, that means approximately 300 people were wrongly convicted. American Jewry has spoken with clarity on this issue, and our movement has led the way with the strongest condemnation of capital punishment stating, “We believe that there is no crime for which the taking of human life by society is justified, and that it is the obligation of society to evolve other methods in dealing with crime. We appeal to our congregants and to our co-religionists and to all who cherish God’s mercy and love to join in efforts to eliminate this practice [of capital punishment] which lies as a stain upon civilization and our religious conscience.” (URJ)
When we open the newspaper and read about people convicted of abhorrent, heart-wrenching crimes, those perpetrators deserve punishment. Human beings are capable of unspeakable evil, and such deeds constitute chilul hashem, desecration of God’s name. We cannot know the full agony that the family of a victim feels, though we can imagine what we might want to do a person who destroys the life of a loved one. Yet, executing a person does not bring victims back, and ultimately, being a member of a society that allows the state the power to impose death undermines our own humanity. Jewish tradition has identified the reality that some crimes, in theory, are worthy of punishment by death, while exhibiting a practical discomfort with applying capital punishment. The State of Israel still embodies this tension. Even though the death penalty is technically legal in Israel, since Eichmann, Israel has not imposed the death penalty; not on terrorists who blew up buses and murdered children, or even upon Yigal Amir, the man who assassinated Prime Minister Yitzchak Rabin.
Our country needs our voices at this time more than ever to speak as people of faith. Let us resist the desire to place the power of death in the hands of an imperfect state, for life and death reside in God’s hands. Let us resist the temptation to commit state sanctioned murder for the sake of vengeance, and debase ourselves to the level of those who perpetrate evil. Let justice be done for those who have been victims of violence, and may we work to see a world in which all people recognize the Divine image in one another.