Is Capital Punishment Sanctioned by Jewish Tradition?

Mishpatim

Ex. 21:1 - 24:18

Précis: Having received the Ten Commandments (in the previous parasha), Moses now reveals ordinances (mishpatim) needed to implement a comprehensive system of laws. The first group of commandments (mitzvot) relate to the rights of servants (slaves), followed by rules about murder, crimes against parents, personal injury law, offenses against property, and bailment. A list of moral offenses follows, including seduction, witchcraft, sexual perversion, polytheism, and oppression of the “widow, the orphan, and the stranger among you.” The parasha also includes the command to observe a sabbatical year, the Shabbat, and then lists the requirements for the observance of the pilgrimage festivals (Passover, Shavuot, and Sukkot). The command not to boil a kid in its mothers’ milk (a key proof text for the laws of kashrut) is mentioned, and at the conclusion of the parasha, we find a ceremony where the People, represented by Moses and 70 elders, have an encounter with the Divine Presence and accept the laws and the Covenant.

Ex. 21:12 “Anyone who strikes a person with a fatal blow is to be put to death.”

In these days when the idea of political compromise seems to be anathema to many, one area where there appears to be a growing consensus is on prison reform, with a focus on reducing imprisonment for non-violent drug offenders. This is indeed a positive development. However, there seems to be little discussion about whether or not our system of capital punishment should continue.

“Strict constructionists” and “originalists” insist that since capital punishment was common at the time of the adoption of our constitution, it must remain constitutional today. Others would suggest that the current system is inherently unfair and thus contrary to constitutional principles. What does our religious tradition tell us?

Rabbi Lewis Warshauer has written about capital punishment (MyJewishLearning.com 2/12/13), and reviewed a panel discussion (the 2001 Pew Forum on Religion and Public Life) which included a Catholic, a Jew, an African-American Protestant, and a Southern Baptist.

The Catholic representative focused on his Church’s movement away from accepting capital punishment, citing his Church's teachings but not Biblical sources. His bottom line? While a state has the right to impose capital punishment, it should not do so.

            The Southern Baptist spokesman stated support for capital punishment because the Bible supports it, specifically noting Genesis 9:6: "Whoever sheds the blood of man, by man shall his blood be shed."

The African-American Protestant used secular reasons for his group’s opposition to the death penalty.

            The Jewish representative quoted rabbinic interpretations, most of which demonstrate the reluctance to impose the death penalty, shown in rabbinic requirements for two witnesses, intense judicial inquiry, and the need to warn the actor against his action before it is taken. He advocated limitation of the death penalty in the United States because of the enormous questions as to its fairness and impartiality in imposition.

I bel;ieve that there are isolated instances where capital punishment may be appropriate in the United States today, but few can doubt that our system is erratic and unfair. Contrary to Jewish law, the prosecutor seeks a conviction, not necessarily truth or justice. Here, the death penalty is applied disproportionately to those with diminished mental capabilities, to the poor, and to racial minorities. Those who can afford excellent defense representation rarely are sentenced to death. Our system is at odds with the traditional Jewish limitation on its implementation.

Should we seek to “impose” our own tradition on broader American society? Of course not, even if we had the means to do so. Nevertheless, our political action on this issue can and should be enlightened by our tradition.