24 Jan
Early Rabbinic Reflections on Capital Punishment (Part 1/2)
There can be no doubt rabbinic tradition took a dim view of capital punishment. Mishnahic law required that those accused be warned by witnesses immediately before they commit the offense, and that they acknowledge such warning—a clear indication of the rabbinic distaste for capital punishment, explicitly found elsewhere.[1] Life imprisonment did exist for cases that could not technically be legally prosecuted, even though the evidence left no room for doubt[2]; such a person had to subsist on sparse diet of barley bread and water, and the Talmud indicates the criminal usually died from starvation. There may be a Scriptural allusion to this practice: the prisoner was condemned to eat “the bread of misfortune and the water of distress” (Isa. 30:20). Other rabbinic statements express even greater ambivalence:
- R. Yose says, “Under no circumstances is one put to death unless both witnesses against him have given warning to him,” as it is said, ‘At the testimony of two witnesses’ (Deut. 7:6).”[3] He whose trial ended and who fled and was brought back before the same court—they do not reverse the judgment concerning him and retry him. He whose trial ended and who fled and was brought back before the same court—they do not reverse the judgment concerning him and retry him . . . A Sanhedrin which imposes the death penalty once in seven years is called murderous. R. Eleazar b. Azariah says, “Once in seventy years.” R. Tarfon and R. Akiba say, “If we were on a Sanhedrin, no one would ever be put to death.”[4] Rabban Simeon b. Gamaliel says, “So these Sages would multiply the number of murderers in Israel.”[5]
Moreover, the defendant may not be put to death unless two (or in some cases three) eyewitnesses testify against him or her. Each witness must be so certain of his testimony that he personally would be willing to carry out the execution. A passage from Deuteronomy 19:13-21 asserts that a plotting witness is subject to the same punishment as the defendant—including, presumably, death. Although the Torah prescribes the death penalty in the case of adolescent rebellion (i.e., “the rebellious son” of Deut. 21:18-21), the Sages admit, “Such a case never occurred, and it never will happen.” The entire passage is heuristic, so, “That you may study [the Torah for its own sake] and receive reward.”[6] The rabbinic angst and reticence to implement the death penalty, and its alternative system of imprisonment is of great relevance for modern biblical scholars and laity.
Rabbinic law is pretty straightforward about such cases. Maimonides writes, “The following rules apply when two groups of witnesses offer conflicting testimonies. If one witness from one group came together with one witness from the other group and they both delivered testimony concerning another matter, the testimony is of no consequence for it is obvious that one of them lied, but we cannot ascertain which one.”[7]Likewise Maimonides also notes, “Should a court err with regard to a case involving capital punishment and convict an innocent person, ruling that he is guilty, and they discover a rationale that would require that the ruling be nullified and he be vindicated, they nullify the ruling and retry the case. If the Court erroneously ruled and acquitted a person liable to be executed, then the judgment is not nullified and the case is not retried.”[8]
According to the Jerusalem Talmud, if one of a hundred witnesses is declared invalid, the entire testimony is rejected.[9]This was certainly the case here, and in a Jewish court, Troy Davis would never have been executed on this basis alone, and would have probably even been set free. Beyond this point, if the judge suspects the witnesses are indeed lying, he must refuse to render a decision upon the basis of their evidence (cf. Isa. 11:3-4).[10] Unlike American civil law that allows known criminals to testify in court against an alleged murderer, Rabbinic law prohibits the testimony of criminals either because they have zero credibility in rabbinical law and a valid witness is not even allowed to be associated with a dishonest witness.[11]
Notes:
[1] The Mishnah in BT Makkot 7a expresses a well-known view that any Sanhedrin that imposes the death penalty once in seven years is called “murderous.” R. Eleazar b. Azariah says, “Once in seventy years.”R. Tarfon and R. Akiba added, “If we were on a Sanhedrin, no one would ever be put to death.”On the other hand, Rabban Simeon b. Gamaliel expressed a pro-capital punishment view and responded to critics of the death penalty, “So they would multiply the number of murderers in Israel” (BT Makkot 7a). There is some scholarly debate as to whether the Sages enforced capital punishment even after the Temple’s destruction. The Talmud deals with many theoretical cases pertaining to the death penalty some of which include: the question of intentionality (BT Ketubot 15a); ignorance of the law (BT Makkot 7b); forewarning a potential murderer before he commits the homicide (BT Makkot 6b, 9b); and defining when a court is permitted to handle a murder case in which the judges actually witnessed: (BT Makkot 12a);
[2]Cf. Mishnah. Sanh. 9:5.
[3] Mishnah Makkot 1:9.
[4] Their cross-examination of the witnesses would have been so exhaustive that some flaw would have appeared in their testimony (Kehati).
[5]Mishnah Makkot 1:10. Rabban Simeon b. Gamaliel felt that Akiba and Tarfun would have diminished respect for the law and the fear of punishment, thus increasing the number of murderers.
[6] BT. Sanhedrin 71a.
[7] Maimonides, MT Hilchot Sanhedrin 22:1.
[8] Maimonides, MT Sanhedrin 10:9.
[9] JT Sanh. II, 6 (20c) כל דיאתיקי שבטלה מקצתה בטלה כולה .
[10] See BT Sanhedrin 6b.
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