Judaism and the Death Penalty – “UNESCO Chair’s Prisons, Compassion, and Peace Initiative”

UNESCO CHAIR’s Prisons, Compassion, and Peace Initiative – University of Oregon – Eugene, Oregon

Lecture Series

Jan 31, 2013

Rabbi Maurice Harris – Judaism and the Death Penalty

I’ve been asked to give a talk this afternoon on Judaism and the death penalty, and it’s an honor to be here. Judaism is a religion that is over 3,000 years old, and it is built upon a foundation of literally thousands and thousands of pages of sacred texts developed over many centuries. So when someone asks me, as one solitary rabbi trained in one of the liberal denominations of Judaism, to give a succinct presentation on how Judaism views the death penalty (or any other issue), the first challenge I have to face is that the tradition I am representing to you today is one whose sacred literature is voluminous, non-systemmatic, and sometimes interpreted quite differently by the different contemporary denominations of Judaism (actually, we use the term movements instead of denominations).

Furthermore, much of Jewish sacred literature – especially the Talmud and the Medieval commentaries – is organized around vigorous debates over ethical, moral, spiritual, and legal questions. Much of this literature is presented as a series of sacred arguments, often involving half a dozen or more different rabbinic opinions on a single question. The Talmud in particular tends to present these debates in such a way that, usually, there’s an opinion that is ultimately acknowledged as the majority viewpoint, but even so the Talmud takes care to preserve all of the minority viewpoints. Dissenting views are included in the sacred literature itself. (Now you see why there really are so many Jewish lawyers.)  

So, before I directly address the subject of Judaism and the death penalty, I’m going to give a quick historical sketch of the development of the major sacred texts of Judaism, which will be helpful to understanding how the tradition has developed its thinking on capital punishment. The foundational sacred text of Judaism is, of course, the Torah – the first five books of the Hebrew Bible: Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. In addition to the Torah, the Hebrew Bible includes two other collections of books, known as the Prophets and the Writings. Christians refer to the Hebrew Bible as the Old Testament, and Jews refer to this anthology of ancient books as the Tanakh, or the Hebrew Bible.

The Tanakh became the operating sacred cannon for the ancient Jews roughly around 2,200 to 2,300 years ago, during the last few centuries of Jewish life in the ancient land of Israel prior to the great Roman destruction and exile of the Jews in the year 70 of the Common Era. During those last centuries before the Roman exile, a group of Jewish scholar-preachers who came to be known as rabbis began to develop a set of sacred teachings that expanded upon the Hebrew Bible. These rabbinic teachings often debated the many possible interpretations and applications of the Hebrew Bible. These rabbinic discussions began as unwritten oral teachings, studied in academies whose leading sages often debated one another over the correct meaning of elements of the Torah and Tanakh.

As I mentioned, in the year 70 C.E., the Roman Empire destroyed Jerusalem and deported the surviving Jews far and wide throughout the empire. With the Temple in Jerusalem destroyed and the traditional Jewish priesthood no longer able to function, the Roman destruction could have spelled the end of Israelite religion. But the fluid, interpretive, and scholarly religious methods of the rabbis provided a way for the religion to live on in a reconstructed form.

Now based in exile, over the next few centuries the rabbis filled the vacuum of religious authority among the Jews, and they committed their now voluminous oral teachings to writing. The first of these written rabbinic compilations was called the Mishnah, and it was circulated among the world’s major Jewish communities around 220 C.E. By about 600 C.E., the rabbis had added yet another massive layer of debates, legends, and interpretations to the Mishnah. This next set of discussions, arguments, and parables came to be called the Gemara. The Gemara is a non-systemmatic running commentary and series of debates over the correct meaning of the Mishnah. The Mishnah and the Gemara combined form the Talmud. (Hopefully everyone’s still with me?)

Moving forward in time into the Middle Ages, the rabbis and philosophers of Judaism still weren’t done expanding the cannon of Jewish sacred literature. An entirely new body of interpretive commentary on the Hebrew Bible emerged during this period. It is known in Hebrew as Parshanut, or Medieval Commentary. Also, the well-known Jewish mystical literature of Kabbalah began flowing out of Thirteenth Century Spain, and over the next four hundred years kabbalistic writings become more and more integrated into the Jewish cannon.

During the era of the European Enlightenment and all the way forward into the contemporary period, Judaism passed through several more evolutionary stages. This process has led to the development of several different modern movements of Judaism, including Reform, Reconstructionist, Orthodox, Conservative, and Renewal. Today you’ll find Jews defining their religious beliefs and their religious values in a wide variety of ways. In addition to a shared history, what unites these different Jewish movements and philosophies are the common denominators they share – from the most liberal of them to the Ultra-Orthodox.

These common denominators can be summed up as follows: all of the movements of Judaism share a belief in monotheism, though how God is conceived of varies widely; they all find meaning in the great mythic story lines of Judaism, such as the Exodus narrative and the Passover story, even though they disagree over how literally they take these stories; they all celebrate the same holy days and major ritual practices, though they differ in many of the ways they interpret and engage in these practices; and, finally, they all are engaged in a living dialog with the same cannon of sacred texts, even though they differ in how they interpret and work with these same texts.

In any event, now that I’ve taken up a good bit of time explaining why Jewish tradition makes it complicated for me to address the question I was asked to address, I will now try to give you a sense of how this complex, layered, and multi-vocal religious tradition has dealt with the issue of capital punishment: basically, we’re against it. Thank you very much and good night. (Just kidding.)

The truth is actually more complicated than that, though there is a grain of truth in my joke. For the most part, Jewish religious authorities across the different movements have great misgivings about the use of capital punishment in modern times. How did this general, though not unanimous, Jewish religious perspective come about? In order to explain that, I’ll start with the earliest foundational texts of Judaism, the Torah and the Hebrew Bible.

The first thing that jumps out at many people about these particular texts is that they definitely include capital punishment as the required penalty for a wide range of offenses. There’s no pretending otherwise. If that’s true, then why have  the rabbinic organizations representing the great majority of America’s rabbis gone on the record as opposing the use of capital punishment in this country? Well, in the words of one of my mentors, Rabbi Yitzhak Husbands-Hankin: in our tradition, the Torah is the beginning of the conversation. The beginning, not the end.

So how is the death penalty treated in the Torah – at the beginning of the Jewish religious conversation?

The Torah assigns capital punishment for a number of offenses. Intentional murder, certain forms of criminal negligence, some types of idolatrous worship, and even certain violations of the Sabbath all carry the death penalty in the Five Books of Moses. The death penalty is even prescribed in the case of a “stubborn and rebellious son,” who insults his parents and carries on like a drunkard. And, of course, there are the famous passages in Exodus and Leviticus that have come to be known as Lex Talionis, or the law of retaliation – stating that if one person deliberately injures or kills another, he or she must receive exactly the same injury as a consequence – eye for eye, tooth for tooth, limb for limb, life for life.

Simply put, the death penalty is all over the Torah, beginning with Genesis’ early primeval history of humankind. Genesis 9:6 first addresses the issue with a poetic doublet that is written in a form of Hebrew verse that is designed to be easily remembered. The passage reads, in Hebrew: shofech dam ha-adam / ba-adam damo yishafech. It’s usually translated into English as, “Whoever sheds human blood, by humans shall their blood be shed.” So that you can hear the chiastic structure of these compact two verses – I’ll say it in Hebrew again: shofech dam ha-adam / ba-adam damo yishafech. The one who spills the blood of a human – by a human their blood shall be spilled.

I described this verse as a poetic doublet, but in actuality there’s a third poetic segment to the verse, and it’s this third bit that we can regard as beginning the internal Jewish conversation that morally complicates the issue of the death penalty in Jewish thought. You see, Genesis 9:6 in its entirety reads, “shofech dam ha-adam / ba-adam damo yishafech / ki b’tzelem elohim asah et ha-adam.” Translation: “Whoever sheds human blood, by humans shall their blood be shed, for in the image of God has God made humankind.”

There’s an unspoken question embedded in this verse when it is taken as a whole, and it’s a question that, centuries later, the rabbis who gave us the Talmud identified and struggled with profoundly. The question is: if human beings are made in the Divine image – if they are that sacred – then how can human judges, prone to make mistakes from time to time, risk executing an innocent person? Wouldn’t the enormity of their mistake be so great as to make it taboo? This question, as we will see in a few minutes, becomes the central question of the Talmudic sages about the death penalty, not the more general question about whether or not the death penalty is moral in theory.

Part of what these rabbis also noticed in the Torah was a key passage in the Book of Deuteronomy reflecting concern over a court wrongly taking an innocent life. Deuteronomy 19:15 states that in order for a Jewish law court to convict someone of a serious offense, there needs to be a minimum of two or three credible eye-witnesses to the crime.

Let’s segue now into the Talmud’s discussion of capital punishment. There are well known passages in the Talmudic tractates known as Sanhedrin and Makkot that deal directly with questions of courts of law attempting to convict someone of a capital offense or administer the death penalty. But before we consider what those particular Talmudic discussions and debates do with the death penalty, let’s look briefly at how the early rabbis treated the Torah’s famous “eye for an eye” laws, since those passages also deal with capital punishment.

In the Talmudic tractate known as Baba Kamma, the rabbis state that the passages in the Torah that mandate an eye for an eye are to be implemented in terms of monetary compensation, and not in terms of actual physical injury. They go on to discuss the various questions connected to the task of determining what an appropriate monetary amount would be for various kinds of physical injuries, taking into account things like the impact of the injury on the victim’s livelihood, pain and suffering, and other factors.

This discussion of “an eye for an eye” gives me the opportunity to address one of the most common misunderstandings of Judaism found in Western culture. Sometimes in an effort to contrast New Testament teachings with those of the Torah, or in other efforts to point out the moral error of seeking vengeance, people will say that the Old Testament’s “eye for an eye” represents the primitive teaching of Judaism, and that the more enlightened “turn the other cheek” of Jesus offers humanity a way out of the endless cycle of violence and vengeance. These critiques wrongly define Judaism as the religion of the literal reading of the Old Testament, instead of what Judaism actually is: the religion of the rabbinic tradition of interpreting and debating the values and ideas first presented in the Hebrew Bible – which Christians call the Old Testament.

If “turn the other cheek” offers a new ethical direction partly in response to how some in the Jewish community may have been interpreting the Torah’s “eye for an eye” during the lifetime of Jesus, so does the “monetary compensation” interpretation of the early rabbis. The discussion is complicated by the fact that the “eye for an eye” passages in the Torah clearly refer to penalties that can only be administered by a proper court of law, and not through personal retaliation, whereas the famous passage in the Gospel of Matthew in which Jesus teaches “turn the other cheek” over “an eye for an eye” seems to me to be addressing situations in which a person is considering acting out in personal vengeance or possibly in self-defense. This is probably good material for another talk on the development of early Christianity and rabbinic Judaism, but for the purposes of this talk let me say that my point here is that both the early Christians and the early rabbis developed their respective religions as responses to and interpretations of the received teachings of the Hebrew Bible, and both groups sought to redefine or even change the common interpretation of previously received biblical teachings.

So now that we know that in the rabbinic tradition, “an eye for an eye” was understood to mean that a court of law should award the victim monetary compensation for his or her injuries, to be paid by the perpetrator, we can better understand the road that the rabbis of the Talmud ended up taking when they came to address questions about capital punishment in general. So let’s turn to those texts.

In the Talmud’s most famous discussions of capital punishment, the rabbis discuss the requirements needed by a Jewish law court to secure a conviction. Capital cases had to be brought before a court, called the Sanhedrin, comprised of 23 judges. In order to convict a defendant of a capital crime, a minimum of two eye-witnesses of upstanding character had to testify and be subjected to intense interrogation by the court. (The need for these witnesses to be of upstanding character is important, especially when you think about how many capital convictions in the U.S. rest on circumstantial evidence alone or on witness testimony provided by people receiving reduced sentences in exchange for their willingness to testify. None of these kinds of evidence would be admissible to the Talmudic sages.)

I can’t resist sharing one part of this Talmudic discussion in which the sages offer a short list of people of suspicious character who should be automatically disqualified from being witnesses. Among those who are ineligible to testify in a capital case are “. . . he who plays dice; he who loans money on interest; [and] those who race pigeons. . .” I kid you not.

Furthermore, the Talmud’s rabbis required that eye-witnesses to capital crimes had to see the actual crime take place, quite literally. The great Medieval Jewish legal authority, Maimonides, explained this principle with the following hypothetical example: imagine a witness who sees person A chasing person B down a road. Person A is wielding a knife in an upraised arm and he chases the Person B into a house. Next, the witness hears horrible screams, and so the witness enters the house, where he sees Person B covered in blood, gasping his last breath, and Person A standing over Person B holding a bloody knife. According to Maimonides, this eye-witness’s testimony is invalid before the court, because he did not see the actual act of murder. Maimonides concludes his discussion of this point by writing, “. . .it is better and more desirable that a thousand guilty persons go free than that a single innocent person be put to death.”

The Talmud’s discussion goes even further in creating obstacles to obtaining a death sentence. The rabbis add that, in order to be eligible for a death sentence, alleged perpetrators had to have been verbally warned before they committed the crime, and that the warning had to include a clear reminder that they were about to commit a crime that carries the death penalty. Some sages even argued that this warning had to be given by the eye-witnesses testifying against the defendant in the trial, or else the condition was not properly met. Only under these virtually impossible circumstances could a death sentence actually be carried out.

It was through these layers of rabbinic requirements that the rabbinic tradition killed the death penalty in practice, while retaining it in theory. Fascinatingly, the rabbis’ motivation to make it all but impossible to carry out a death sentence seems to be grounded in the very reverence for the sacredness of human life that the Torah states is the basis for ordaining the death penalty in cases of intentional murder.  

As I said before, the rabbinic tradition is multi-vocal, especially the Talmud. So even though the anti-death penalty faction among the early rabbis won the Talmudic debate of their day, the text still preserves dissenting views. Let me illustrate. In the earliest, or mishnaic, layer of the Talmudic tractate called Makkot, we find this frequently quoted passage:

“A Sanhedrin [a Jewish court] that puts a person to death once in seven years is called murderous.”

This is the majority view. Next we get to hear from the dissenters:

“Rabbi Elazer ben Azariah says: [No, a Jewish court is murderous if it puts a person to death] 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.”

This is sometimes where people end this quote, although there is one more dissenting rabbi who has a very different perspective on the whole matter, and who sounds a bit fed up with the bleeding heart direction that his fellow sages have taken. Listen:

“Rabban Shimon ben Gamaliel says: [If Rabbis Akiba and Tarfon had had their way and no one could ever be executed by the court, then] they would have multiplied shedders of blood in Israel [through their naivite].”

I’m proud to be part of an ancient religious tradition that is humane enough to include examples of rabbinic liberals one-upping each other in their liberalness, yet broad enough to include Rabban Shimon ben Gamaliel as the grumpy conservative uncle at the Thanksgiving dinner table, expressing his contempt for this liberal mishugass. What the rabbinic interpretive tradition lacks in moral certainty it makes up for in entertaining arguments and convoluted family dynamics. Understand this, and you truly begin to understand the Jewish people.

Anyway, the upshot of the ancient rabbis’ apparent unease with the death penalty laws of the Torah is that they offer us a framework that just might add something helpful to our dysfunctional American discourse about the death penalty. Permit me to caricaturize the American debate over capital punishment for a moment in a way that oversimplifies it. In my experience as a Jewish-American, I’ve tended to watch this issue get debated in largely Christian religious terms. The stock images that come up for me are of liberal Christian abolitionists holding vigils outside of prisons on the night of executions and being countered by conservative Christians quoting the Old Testament and demanding justice for the victims of violent crime. I know that there are others involved in the national debate, but these are the two most visible parties carrying on this piece of our country’s ongoing culture war.

By and large, Christian liberals argue that the death penalty is anti-Christian because it conflicts with Christian teachings of non-violence and forgiveness. They also remind people, rightly, that Jesus himself was executed, and that the very symbol of their religion – the cross – is a reminder of the cruelty of the Roman Empire’s favored method of executing people. In response, Christian conservatives often argue that Jesus instructed individuals not to take the law into their own hands when he said “turn the other cheek,” but that he did not directly countermand the Old Testament’s requirements for the death penalty if it is applied fairly by a court of law, and sometimes they argue that these Old Testament laws endorsing capital punishment demonstrate that God-the-Father supports the death penalty. Christian conservatives also tend to take the moral high ground by accusing liberal Christians of caring more about the perpetrators than they do about the victims and their families. This is – from my vantage point as a member of a religious minority in this country – how the death penalty generally gets debated.

I wonder if Judaism’s idiosyncratic take on this issue has something useful to offer the American discourse on the subject. The upshot of the discussions on this subject found in Jewish sacred texts offers up for consideration the idea that, for certain heinous crimes, the death penalty is warranted in theory, but that no human institution is pure enough or certain enough to have the right to implement it in practice.

For several years now, I’ve been wondering whether some version of this idea might actually provide a point of consensus for those engaged in the largely intra-Christian argument over capital punishment in the United States. What if we found a way to implement the rabbis’ idea in a creative way in this country? For example, what if we instituted a new federal law that stated that, only with credible eye-witness testimony, people could be convicted of capital crimes and given a death sentence; however, all death sentences would automatically be commuted to some other sentence – possibly life in prison without parole – because our society recognizes that the possibility of error exists in even the most seemingly open-and-shut cases; and further, the same reverence for human life that makes us outraged by murder prevents us from taking even the smallest risk of wrongly murdering someone ourselves.

If this were the law of our land, it might satisfy some of what death penalty advocates are seeking in terms of their desire for justice. The act of a judge or jury announcing to a convicted defendant that their crime is so terrible they have forfeit their life might provide that so-called “closure” that death penalty supporters claim is so important for victims’ families. Such a public statement honors the irreplaceable value of the victim’s life.

The act of having every death sentence automatically commuted to life in prison could come later, at a separate hearing, during which time the judge could be required to say that this act of mercy is being done not because the offender deserves a lesser sentence, but because a moral society does not take even the slightest risk of error in matters involving the death penalty. I’m eager to hear what people in attendance today think of these suggestions.

Now, I’d like to conclude by bringing our focus back to the Hebrew Bible. So far I’ve focused exclusively on the legal and ethical elements of Jewish sacred texts, but in doing that I’ve neglected to give proper attention to the role that narrative plays in Jewish sacred texts, and especially in the Hebrew Bible. You see, biblical laws functioned as but one part of the entire Hebrew Bible, a set of books that includes a lot of narrative material that often limits, re-frames, or even contradicts the laws it contains. In fact, biblical law has always existed in collaboration with, and at times in tension with, at least two other kinds of literature that make up large parts of the Hebrew Bible: narrative and prophecy. The ancient Jew studying the Hebrew Bible would be confronted with a complex set of messages that would challenge him or her to bring several different kinds of concerns to bear in evaluating how to handle any given situation. Biblical law would only be one biblical element coming into play. And this interplay and dialog between law and narrative continues forward from biblical texts right through rabbinic sacred literature. As Rabbi Jill Jacobs, the Executive Director of Rabbis for Human Rights – North America, has put it, “From the Bible onward, narrative has influenced law and law has produced narrative.”

I’ve said that the Torah and the Hebrew Bible are just the beginning of the Jewish conversation on subjects like the death penalty, and that that conversation extends forward in time through centuries of later rabbinic texts. But if we want to understand fully the beginning of the Jewish conversation on this subject as it appears, for instance, in the Torah, then we need to consider the Torah’s major narratives that deal with the subject of capital punishment, and not just its laws. I’d like to conclude today by examining two of these Torah narratives, each one involving a biblical figure who commits murder.

The first of these narratives is the Book of Genesis’ account of the very first murder, when Cain slew his brother, Abel. After Cain has killed his brother, God asks Cain where his brother has gone, and Cain famously answers with the evasive question, “Am I my brother’s keeper?” It becomes clear, however, that God is not willing to let Cain off the hook. Cain will have to be accountable for his actions.

Given that the legal parts of the Torah present us with a God who commands that any person who murders another person should be put to death, we might be surprised to see that God doesn’t impose a death sentence upon Cain. Rather, God tells Cain that he will have to wander in exile. In Hebrew the key words read: na v’nad tihyeh ba-aretz, meaning that Cain will, for the rest of his life, be “wavering and wandering,” and that he will settle in the “land of wandering” / “land of Nod,” East of Eden. As if to stress the point that Cain is not to be killed in retribution for the murder he has committed, the text goes on to depict Cain complaining to God that he is certain that he will be killed by other people if he is made to be such a homeless wanderer. In response, God proclaims that God will not permit anyone to kill him, and guarantees Cain’s safety.

Now it’s possible that we could see the story of Cain’s murder of Abel, and God’s withholding of the death penalty, as a one-off event in which God gave Cain a break because the human race was still in its infancy and the common rules of decency were not yet sufficiently known. But I read this story differently, because it is only the first of several stories in the Hebrew Bible in which people responsible for capital crimes end up receiving lesser punishments.

Consider, for instance, the great hero of the Torah, Moses. As you may recall, Moses was raised in the Pharaoh’s court as the adopted son of the Pharaoh’s daughter. When he was a young man, one day he went out to witness the sufferings of his ethnic brothers and sisters, the Hebrew slaves. The Book of Exodus tells the tale of how Moses saw an Egyptian task-master brutalizing a Hebrew slave, and then, checking first to make sure no one was watching, Moses struck the Egyptian dead, burying his body in the sand.

While there is an impulsive dimension to Moses’s act, by specifying that Moses looked “this way and that” to ensure that there weren’t any witnesses, the Torah means to impress upon us the deliberate nature of the act of violence. By the standards set forth in the laws of the Torah itself, Moses should have received the death penalty. And, in fact, he did receive a death sentence – from Pharaoh – but Pharaoh never got the chance to carry it out. Instead, Moses fled and God assisted him in successfully making a new life as a fugitive in the wilderness of Midian.

There are some striking parallels between the story of Cain’s and Moses’s respective murders and the consequences they were each made to experience. Both Cain and Moses sought to cover up the physical evidence of their crimes, yet both were found out. In each case, God caused them to wander into unknown lands and face the risks of the vulnerable stranger in a strange land – and this was no small consequence in the ancient world. Both men’s lives were forever changed by the act of committing murder.

But in Moses’s case, we see a more complex storyline develop. After fleeing Egypt, Moses ends up working for decades as a shepherd tending sheep in the blazing heat near Mt. Sinai. Having gone from riches to rags, he ends up having to endure a quiet, hot, laborious, long stretch of years. By the time he hears God’s call at the Burning Bush, he has profoundly transformed and become someone who has endured tremendous hardship and gained spiritual wisdom. In any event, what has not happened is Moses’s execution for the crime of murder, despite the legal texts within the Torah that prescribe that very penalty.

So what are we to make of the Torah’s apparent multiple takes on the question of capital punishment, at least with regards to the crime of murder? I’ve repeated that the Torah is just the beginning of the Jewish religious conversation on capital punishment, but when we consider the Torah’s laws alongside its major narratives dealing with the capital crime of murder, we find a Torah that seems to have more than one message even within itself.

There’s a Jerusalem-based scholar named Judy Klitsner who argues for this understanding of the Torah in her recent book, Subversive Sequels in the Bible: How Biblical Stories Mine and Undermine Each Other. She writes, “As if aware of its own problematics, the [Hebrew] Bible contains a lively interaction between its passages that allows for a widening of perspective and a sense of dynamic development throughout the canon. . . .if certain gnawing theological or philosophical questions remain after studying one narrative, a later passage may revisit those questions, subjecting them to a complex process of inquiry, revision, and examination of alternative possibilities.”

It’s my impression that the Torah presents us with a complicated and unresolved start to the Jewish conversation about the death penalty. On the one hand, it includes laws and story elements that affirm the idea that certain horrible crimes, including deliberate murder, require the death penalty. On the other hand, it includes stories about major figures committing capital crimes, being spared the death penalty, going through long and difficult years of spiritual transformation, and ending up being of great service to humanity. It’s from that messy jumping off point that the early rabbis went ahead with their continued development of Jewish thought on the death penalty, and, as I’ve already discussed, they ruled on the matter in such a way that it became literally impossible to implement it.

Thank you so much for attending today, and I’m happy at this time to take questions or reflections.

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