Considering Capital Punishment

Shoftim

Deuteronomy 16:18-21:9

Précis: The parasha Shoftim (literally, “judges”) is devoted primarily to various themes of justice, and includes warnings against false testimony, idol worship, and the dangers of mortal kings. The parasha includes regulations for rulers, and also warns the people against false prophets, magicians, soothsayers and witches. It establishes requirements for cities of refuge in the Promised Land. In short, the parasha is devoted to ways to create a just society in the Land of Israel

Deut. 17:7 "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."

The verse in question assumes the legitimacy of capital punishment, as do many other verses in the Bible.  We read in Deut. 19:21 that we take a “life for life.” The rabbis tried to limit the circumstances under which the penalty could be imposed, but never were able to declare the concept invalid. (There is a similarity here to the U.S. Supreme Court’s capital punishment cases, where the how and the when of capital punishment have been circumscribed, but a majority has never considered the concept to be unconstitutional.)

            This week’s reading presents a complex view of the matter. This verse, after all, states that the witnesses to the act must throw the first stones, and thus directly take responsibility for the punishment. When they are joined by the rest of the community, there can be no cause for a blood feud; all of the community bear responsibility for the death. As mentioned, rabbinic authority circumscribed the penalties, and as is noted in the Mishnah (Makkot 7a) "A Sanhedrin 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.’"

The great commentator of medieval times, Maimonides, opined (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." Recent developments in DNA matching have demonstrated how often innocent individuals are sentenced to death, adding weight to the teachings of Maimonides. We should understand that all human systems of justice are at best imperfect, and that so long as capital punishment is imposed, some innocent will die.

Proponents of capital punishment suggest that while such erroneous deaths are unfortunate, they are somehow balanced by the necessity of exacting justice (or revenge) from those who are sentenced to the ultimate recourse. Our Jewish tradition appears to side with those who would eliminate capital punishment. That the State of Israel has executed a single individual in its history (Adolf Eichman) shows us that it is in fact conceivable within current Jewish legal thought to support the death penalty in extraordinary circumstances. But how do we define “extraordinary?”