A Jewish View on the Death Penalty

Masei
Numbers 33:1-36:13

Précis: The Book of Numbers ends with this parasha. “These are the stages (masei) of the journey” which the Israelites made through the desert. In what amounts to a recapitulation, all of the stops along the way are identified. The Israelites are reminded to drive the Canaanites from the Land. Most of the parasha deals with plans for entry into the Promised Land, and the first steps to establish their home, including the division of the Land among the tribes. The Levitical cities are described, as well as the cities of refuge. Just prior to their entry into the land, the laws differentiating murder and killing are repeated. The parasha ends with a summary of the commandments and ordinances.

Numbers 35:31 “You may not accept a ransom for the life of a murderer who is guilty of a capital crime; [a murderer] must be put to death”

The parasha mandates the creation of six “cities of refuge.” When a person is accidentally killed, the perpetrator can find sanctuary from vengeance-seeking relatives in one of these designated cities. Even if a court finds him innocent of murder, the malfeasor must remain in the city of refuge until the death of the reigning high priest (when a sort of Jubilee takes place, releasing the individual).

On the other hand, in the case of a premeditated murder, the text is clear. It constitutes a clear and unequivocal statement in support of capital punishment for intentional murder.

Nevertheless, the rabbis over the centuries tried time and again to limit the application of the death penalty. Ultimately, rabbinic law virtually abolished it. The Rabbis declared that the death penalty could not be imposed in the absence of a “proper” tribunal, or because the killer was not warned (perhaps even twice!) before committing the act, or because (at least two) witnesses had to testify to the event and the testimony of all witnesses had to agree on every detail. What we today call “procedural due process” became a central focus in the rabbinic effort to circumscribe capital punishment. Evidentiary rules (today some call them “loopholes”) became firmly embedded in Jewish law.

As recorded in the Mishnah Makot 1:10, “A Sanhedrin that puts a man to death once in seven years is called a murderous one. Rabbi Eleazar ben Azariah says ‘Or even once in seventy years.’ Rabbi Tarfon and Rabbi Akiva said, ‘If we had been in the Sanhedrin no death sentence would ever have been passed.’”

What does this say about the Jewish view of capital punishment today? If all are made in the image of God, even the malfeasor merits life. Our tradition describes a steady journey which began in a culture where vengeance killings were common enough to require the creation of cities of refuge. The journey continued with rabbinic limitations on capital punishment to the point of its eradication. As such, this “journey” is a fitting conclusion to the Book of B’midbar.

In the here and now, Amnesty International reported in 2010 that the United States ranked 5th in the world in the number of executions carried out, behind only China, Iran, North Korea, and Yemen, and followed by Saudi Arabia, Libya, and Syria. I submit that this is a "moral neighborhood" in which the United States should not feel comfortable.