Capital punishment in Judaism

Sefer Torah

The institution of capital punishment in Jewish law is defined in the Law of Moses (Torah) in multiple places. The Mosaic Law provides for the death penalty to be inflicted upon those persons convicted of the following offences:

• adultery (for a married women)[lower-alpha 1] (Leviticus 20:10;Deuteronomy 22:22);[12]
• bestiality (Exodus 22:18; Leviticus 20:15);
• blasphemy (Leviticus 24:16);
• premarital sex (for girls) (Deuteronomy 22:13–21);[12][13]
• false testimony in capital cases (Deuteronomy 19:16–19);
• false prophecy (Deuteronomy 13:6, Deuteronomy 18:20);
• homosexual relations (Leviticus 18:22, Leviticus 20:13)
• idolatry, actual or virtual (Leviticus 20:2, Deuteronomy 13:7–19, Deuteronomy 17:2–7);
• incestuous or unnatural connections (Leviticus 18:22, Leviticus 20:11–14);
• insubordination to supreme authority (Deuteronomy 17:12);
• kidnaping (Exodus 21:16, Deuteronomy 24:7);
• licentiousness of a priest's daughter (Leviticus 21:9);
• murder (Exodus 21:12, Leviticus 24:17, Numbers 35:16, et seq.);
• Proselytizing and promoting other religions (Leviticus 13:7);
• rape committed on a betrothed woman[lower-alpha 2](Deuteronomy 22:25–27);
• striking, cursing, or otherwise rebelling against parental authority (Exodus 21:15, 17, Leviticus 20:9,Deuteronomy 21:18–21);
• Sabbath-breaking (Exodus 31:14, Exodus 35:2, Numbers 15:32–36);
• Touching Mount Sinai while God was giving Moses the Ten Commandments (Exodus 19:13);
• witchcraft, divination, necromancy, sorcery, etc. (Exodus 22:17, Leviticus 20:27).[14]

The court had power to inflict four kinds of death-penalty: stoning, burning, beheading, and strangling.[15]

Death by burning was issued in ten cases, among which being a bigamous marriage with a wife's mother and the prostitution of a priest's wedded daughter.[16] Perpetrators were not burnt at the stake, but rather molten lead was poured down the perpetrator's esophagus. Death by the sword was issued in two cases: for wanton murder and for communal apostasy (idolatry).[16] The perpetrators of these crimes were beheaded. Death by stoning was issued for the transgression of one of eighteen crimes, among which being those who wantonly transgressed the Sabbath-day by breaking its laws (excluding those who may have broken the Sabbath laws unintentionally), as well as a male who had a licentious connexion with another male.[16] Stoning was administered by pushing the bound, convicted criminal over the side of a building, so that he fell down and died upon impact with the ground. Death by strangulation was the punishment for six crimes, among which being a man who had a forbidden connexion with another man's wife (adultery), and a person who willfully caused injury (bruise) to one of his parents.[17]

The Ten Commandments

Only in comparatively few instances is the particular mode of death incurred by the commission of a crime prescribed. Blasphemy, idolatry, Sabbath-breaking, witchcraft, prostitution by a betrothed virgin, or deceiving her husband at marriage as to her chastity (Deut. xxii. 21), and the rebellious son are, according to the Pentateuchal laws, to be punished with death by stoning; bigamous marriage with a wife's mother and the prostitution of a priest's daughter are punished by burning; communal apostasy is punished by the sword. With reference to all other capital offenses, the law ordains that the perpetrator shall die a violent death, occasionally adding the expression, "His (their) blood shall be upon him (them)." This expression applies to death by stoning. The Bible speaks also of hanging (Deut. xxi. 22), but, according to the rabbinical interpretation, not as a mode of execution, but, rather, of exposure after death (Sanh. vi. 4, 75b).[17]

Illustration in 1883 encyclopaedia of the ancient Jewish Sanhedrin council

The principal tractate in the Talmud that deals with such cases is Tractate Sanhedrin.

Cases concerning offences punishable by death are decided by 23 judges.[18] The reason for this odd number is that the early rabbis had learnt that it takes at least 10 judges to convict a man, and another 10 judges to acquit a man, and the court being unequal will result in a verdict rendered by majority vote.[19] Strict regulations were in place as to how these judges were to be selected, based on their sex, age and family standing. For example, they could not appoint a judge who did not have children of his own, for he was thought to be less merciful towards other men's children.[20] Nor could they select a judge who was not a male, for fear of the levity of the other sex.

The harshness of the death penalty indicated the seriousness of the crime. Jewish philosophers argue that the whole point of corporal punishment was to serve as a reminder to the community of the severe nature of certain acts. This is why, in Jewish law, the death penalty is more of a principle than a practice. The numerous references to a death penalty in the Torah underscore the severity of the sin, rather than the expectation of death. This is bolstered by the standards of proof required for application of the death penalty, which has always been extremely stringent (Babylonian Talmud Makkoth 7b). The Mishnah (tractate Makkoth 1:10) outlines the views of several prominent first-century CE rabbis on the subject:

"A Sanhedrin that puts a man to death once in seven years is called a murderous one. Rabbi Eliezer ben Azariah said, 'Or even once in 70 years.' Rabbi Tarfon and Rabbi Akiba said, 'If we had been in the Sanhedrin, no death sentence would ever have been passed'; Rabban Simeon ben Gamaliel said, 'If so, they would have multiplied murderers in Israel.'"[21]

The Talmud notes that "forty years before the destruction of the [Second] Temple, capital punishment ceased in Israel."[22] This date is traditionally put at 28 CE, a time that corresponds with the 18th year of Tiberius' reign. At this time, the Sanhedrin required the approbation of the Roman procurator of Judea before they could punish any malefactor by death. Other sources, such as Josephus, disagree. The issue is highly debated because of the relevancy to the New Testament trial of Jesus.[23][24] Ancient rabbis did not like the idea of capital punishment, and interpreted the texts in a way that made the death penalty virtually non-existent.

Legal proceedings involving capital punishment were to be handled with extreme caution. In all cases of capital punishment in Jewish law, the judges are required to open their deliberations by pointing out the good qualities of the litigant and to bring up arguments why he should be acquitted.[25][26] Only later did they hear the incriminating evidence. It was almost impossible to inflict the death penalty because the standards of proof were so high. As a result, convictions for capital offense were rare in Judaism.[27][28] The standards of evidence in capital cases include:

• It requires two witnesses who observed the crime. The accused would have been given a chance, and if s/he repeated the same crime, or any other, it would lead to a death sentence. If witnesses had been caught lying about the crime, they would be executed.
• Two witnesses were required. Acceptability was limited to:
  • Adult Jewish men who were known to keep the commandments, knew the written and oral law, and had legitimate professions;
  • The witnesses had to see each other at the time of the sin;
  • The witnesses had to be able to speak clearly, without any speech impediment or hearing deficit (to ensure that the warning and the response were done);
  • The witnesses could not be related to each other, or to the accused.
• The witnesses had to see each other, and both of them had to give a warning (hatra'ah) to the person that the sin they were about to commit was a capital offense;[29]
• This warning had to be delivered within seconds of the performance of the sin (in the time it took to say, "Peace unto you, my Rabbi and my Master");
• In the same amount of time, the person about to sin had to both respond that s/he was familiar with the punishment, but they were going to sin anyway; and begin to commit the sin/crime;
• The Beth Din (rabbinical court) had to examine each witness separately; and if even one point of their evidence was contradictory - even if a very minor point, such as eye color - the evidence was considered contradictory, and the evidence was not heeded;
• The Beth Din had to consist of minimally 23 judges;
• The majority could not be a simple majority - the split verdict that would allow conviction had to be at least 13 to 11 in favor of conviction;
• If the Beth Din arrived at a unanimous verdict of guilty, the person was let go - the idea being that if no judge could find anything exculpatory about the accused, there was something wrong with the court.[30]
• The witnesses were appointed by the court to be the executioners.

Where the death sentence was warranted but the court had not the jurisdiction to mete out the death sentence, such as when there were not two or more witnesses, the court had the authority to lock-up the convicted individual within a cupola, or similar confined structure, and to feed him meager portions of bread and water until he dies.[31]

According to an oral treaching alluded to in the now obsolete Megillath Taanit ("Scroll of Fasting"), the four modes of execution formerly used in Jewish law were mostly orally transmitted practices not explicitly stated in the Written Law of Moses, although some modes of punishment are explicitly stated. Megillat Taanit notes that "On the fourteenth [day] of [the lunar month] Tammuz, the book of decrees had been purged" (בארבעה עשר בתמוז עדא ספר גזרתא‎), explained as meaning on the 4th day of the lunar month Tammuz, a book of decrees relayed by the Sadducees and the Boethusians had been taken away, who would, in all cases, show proof from a written text concerning the four modes of capital punishment, rather than from an orally transmitted tradition and which tradition had previously prevailed and been received by the people, as evinced by the Pharisees.[32][33] The vindication of the Pharisees over the Sadducees and Boethusians gave rise to this date being held in honor, until the Scroll of Fasting was cancelled altogether.

According to Halakha, this punishment is conducted by pouring molten metal (lead, or a mixture of lead and tin) into one's throat, rather than burning at the stake.

• Unlawful premeditated murder.
• Being a citizen of a city that has gone astray.

Orthodox Rabbi Aryeh Kaplan wrote:

"In practice, ... these punishments were almost never invoked, and existed mainly as a deterrent and to indicate the seriousness of the sins for which they were prescribed. The rules of evidence and other safeguards that the Torah provides to protect the accused made it all but impossible to actually invoke these penalties ... the system of judicial punishments could become brutal and barbaric unless administered in an atmosphere of the highest morality and piety. When these standards declined among the Jewish people, the Sanhedrin ... voluntarily abolished this system of penalties.[36]

On the other hand, Rabbi Moshe Feinstein, in a letter to then-New York Governor Hugh Carey,[37] states: "One who murders because the prohibition to kill is meaningless to him, and he is especially cruel, and so too when murderers and evil people proliferate, they [the courts] would [should?] judge [capital punishment] to repair the issue [and] to prevent murder – for this [action of the court] saves the state."

In Conservative Judaism, the death penalty was the subject of a responsum by its Committee on Jewish Law and Standards, which has gone on record as opposing the modern institution of the death penalty:

"The Talmud ruled out the admissibility of circumstantial evidence in cases which involved a capital crime. Two witnesses were required to testify that they saw the action with their own eyes. A man could not be found guilty of a capital crime through his own confession or through the testimony of immediate members of his family. The rabbis demanded a condition of cool premeditation in the act of crime before they would sanction the death penalty; the specific test on which they insisted was that the criminal be warned prior to the crime, and that the criminal indicate by responding to the warning, that he is fully aware of his deed, but that he is determined to go through with it. In effect, this did away with the application of the death penalty. The rabbis were aware of this, and they declared openly that they found capital punishment repugnant to them… There is another reason which argues for the abolition of capital punishment. It is the fact of human fallibility. Too often, we learn of people who were convicted of crimes, and only later are new facts uncovered by which their innocence is established. The doors of the jail can be opened; in such cases, we can partially undo the injustice. But the dead cannot be brought back to life again. We regard all forms of capital punishment as barbaric and obsolete."[38]

Since 1959, the Central Conference of American Rabbis and the Union for Reform Judaism have formally opposed the death penalty. The Central Conference also resolved in 1979 that "both in concept and in practice, Jewish tradition found capital punishment repugnant", and there is no persuasive evidence "that capital punishment serves as a deterrent to crime".[39]