The Death Penalty

Is there ever justice in capital punishment?

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Provided by American Jewish World Service, pursuing global justice through grassroots change.

On the surface, capital punishment looks like a perfect embodiment of justice. What could be a more fair and logical consequence for people who take others' lives? The Torah seems to unequivocally support the death penalty. Deuteronomy teaches, "Life for life, eye for eye, tooth for tooth, hand for hand, foot for foot (Deut. 19:21)." Moreover, numerous biblical offenses are punishable by death, murder being only one of them.

Parashat Shoftim, however, reflects a more complex perspective. Although our parashah affirms the use of capital punishment, a deep ambivalence surfaces in the description of biblical executions: "Let the hands of the witnesses be the first against him to put him to death, and the hands of the rest of the nation thereafter (Deut. 17:7)."

The requirement that the witnesses, whose testimony condemned the criminal to death, throw the first stones, forces them to consider whether they are prepared to bear the responsibility of extinguishing a life. And the community's participation ensures that all Israelites share this responsibility. Blood shall be on everyone's hands; no one may grow numb to capital punishment.

This ambivalence deepens in the Talmud. The rabbis effectively abolish capital punishment, primarily on the grounds that human justice systems are fallible and that executing wrongly convicted individuals is unacceptable. The death penalty should be left in the hands of God, so to speak (Sanhedrin 37a-b, Ketubot 30a-b).

Rabbinic Hesitation

justiceTo ensure this, the rabbis prescribe extremely stringent legal measures for capital cases. For example, witnesses must have seen the entire crime as it was being committed, circumstantial evidence is illegitimate, and the accused receives the benefit of the doubt. It is virtually impossible to sentence someone to death in rabbinic courts. Thus, the Mishnah (Makkot 7a) teaches:

"A Sanhedrin [rabbinic court] that executes once in seven years is destructive. Rabbi Eliezer ben Azariah says, 'Every 70 years.' Rabbi Tarfon and Rabbi Akiba say, "If we were in a Sanhedrin, no man would ever be executed."

Centuries later, Maimonides proclaims (Sefer Hamitzvot, negative commandment no. 290), "It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death." Considering the inevitable margin of error in any justice system, Maimonides essentially eliminates the death penalty.

In the spirit of the rabbinic limitations on capital punishment, more than two-thirds of the countries in the world today have abolished the death penalty. But dozens have not. Last year, at least 8,864 people were sentenced to death in 52 countries and at least 2,390 people were executed in 25 countries.

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Sam Shonkoff

Sam Berrin Shonkoff is currently the Jewish student life coordinator at Stanford Hillel. He earned a Bachelor of Arts degree in Religious Studies from Brown University and has also studied in Jerusalem at Hebrew University, Pardes Institute and The Conservative Yeshiva.