Monthly Learning Forum by Rabbi Yaakov Kermaier: January 2007

Rabbi Kermaier led off today's discussion be referring to the recent execution of Saddam Hussein. Few would deny that he was a wanton murderer and cruel torturer, but, putting aside the method of his execution, was the execution itself justified? Many would say yes, but European nations and the Vatican said no. The Rabbi noted that halacha does not view a mass murderer, terrorist, or serial killer as more worthy of the death penalty than the murderer of a single individual, as the life of each human being has infinite value. He also noted that the Torah assigned capital punishment to offenses other than murder, such as Shabbat violation, adultery, and incest. But murder is unique because it is so disruptive to society and causes not only the victim but his potential progeny to be wiped out.

We began by quoting the verses in Shemot and Devarim that establish the death penalty for murder and set the procedures for trial. (See attached source sheet, item I(A).) Rabbi Kermaier noted that the Torah's ruling out of "ransom" for a murderer is a statement that the offense is against G-d, and there's no waiver of the penalty just because the family of the victim is bought off or satisfied with "blood money." This is in contrast to other societies. Rabbi Kermaier noted a recent story in The Independent about the death penalty in Pakistan. In Muslim societies, capital punishment is seen as a response to the need of the victim's family, and thus the penalty can be lifted in return for blood money.

Thus, the Torah clearly contemplates capital punishment. But how often ought it be implemented? We studied the famous Mishna in Makkot 1:10 (source sheet I(B)) in which a Sanhedrin that executes once in seven years, or perhaps in seventy years, is called destructive. Rabbi Tarfon and Rabbi Akiva said that, were they on the Sanhedrin in question, they would preclude all executions, by strenuous cross-examination of the witnesses. Rabban Shimon ben Gamaliel argued to the contrary that if capital punishment were precluded, there would be an increase in murder.

Clearly, Rabban Shimon ben Gamaliel viewed the death penalty as a deterrent. Rabbi Kermaier cited debate among contemporary scholars debate as to whether this is true and, if so, to what extent the penalty deters. It was also noted that the Mishna was not discussing alternatives to execution such as life imprisonment, although we would soon discuss a quasi-alternative. But, regardless of whether the death penalty deters, Rabban Shimon ben Gamaliel would have other reasons to support capital punishment, e.g., it is the only way for the murderer to achieve atonement, and it rids society of an evil.

The next topic was when the death penalty may be implemented. Rabbi Kermaier quoted the Rambam's Mishneh Torah, Hilchot Sanhedrin 14:11 (source sheet I(C)) to the effect that there may be no capital punishment unless the Temple is standing and the Sanhedrin is in session there. This is learned from the case of the zaken mamre (rebellious elder), who refuses to heed the Kohen. The mesora learns that the Kohen is analogized to the court. If Kohanim are not in full service, then the court -- either the Sanhedrin or a lesser court of twenty-three -- may not administer the death penalty. Indeed, Rabbi Kermaier noted, the Sanhedrin left the Temple forty years before the destruction of the Temple, because murder was so rampant in Israel that they deemed the death penalty no longer effective and did not want courts administering it.

We then pondered the stringent rules of evidence for judicial capital punishment (source sheet I(D)). There must be at least two eyewitnesses; circumstantial evidence (cf. fingerprints, blood tests, or DNA) is insufficient. There must be a warning that is acknowledged by the defendant. Confessions are inadmissible. But what if everyone knows that X killed Y, and we cannot obtain a conviction because of technical problems (e.g., the two witnesses were related to each other or there was no warning)? A Mishna in Sanhedrin 9:5 (source sheet I(E)) says that such a defendant is confined in a "dome" and fed bread and water, the implication being that he will die on such a diet. This is the quasi-alternative adverted to above. This was a form of extra-judicial penalty and was not legislated as a norm.

In contrast to the judicial procedures discussed above, the Rambam (Mishneh Torah, Hilchot Melachim 3:10) (source sheet II(A)) discussed extra-judicial execution at the behest of the king. Not only is the king free of the evidentiary restrictions governing a court, but he may also execute more than one defendant per day and leave the bodies of the convicts hanging for more than one day, in order to deter the wicked. The king may also rely on circumstantial evidence (Rambam, Moreh Nevuchim 3:40) (source sheet II(B)).

Rabbi Kermaier cited Rav Kook's statement that, in the absence of a monarchy, the king's authority devolves to the people and ultimately to their legitimate representatives. Others disagreed, and the Chief Rabbinate in Israel played an important role in abolishing the death penalty in the early years of the State.

Against this background, we turned to the role of capital punishment under Noachide law. The Rambam (Mishneh Torah, Hilchot Melachim 9:14) (source sheet III(A)) said that a gentile may be executed in a gentile court upon the testimony of one witness, even if the witness is a relative, and with only one judge, and without warning. The death penalty applies to all violations of the Seven Noachide Laws, and the Rambam cited Shimon and Levi's destruction of Shechem as justified by the absence in that society of a system of laws that would have punished the abduction and rape of Dinah.

The Ohr Sameach concludes that the cases of a Jewish king and a Noachide court are analogous in lowering the standards. Looking at it the other way, the Torah raised the standards for capital punishment administered by a Jewish court.

Rabbi Kermaier cited an incident in Altona discussed by Rav Yaakov Emden in She'eilot Ya'avetz. There was an argument in shul in which a visitor was standing immediately outside the sanctuary, smoking a pipe and blowing the smoke inward. He ignored requests to desist, and a congregant swatted the pipe out of his mouth. The enraged smoker pulled a knife and stabbed the congregant in the heart, and the congregant died. Subsequently, the murderer repented. He faced trial in a gentile court. He asked a rabbi whether he may escape execution by swearing (falsely) that he was not the killer, and the rabbi consented. Rav Yaakov Emden objected, saying the killer should not be permitted to lie in the gentile court. The implication is that the gentile court was permitted to try and execute the killer.

The Maharam Schick and Rav Zvi Hirsch Chayes agreed with Rav Yaakov Emden. The former had a case in which a man died and evidence pointed to his wife as having poisoned him. The Maharam Schick concluded that the Jewish community should neither hand the wife over to gentile courts nor oppose her being tried.

On the other hand, Rav Aharon Soloveitchik wrote to the OU, when it was considering the position it ought to take in an amicus curiae brief to the Supreme Court (source sheet IV(A)), that every Jew should be opposed to capital punishment from a halachic standpoint, because the Torah limits the authority to carry out the penalty to the Sanhedrin. Once the Sanhedrin is unable to administer the death penalty, that sets the standard for all courts, Jewish and secular.

In conclusion, Rabbi Kermaier stated that capital punishment is consistent with Jewish values. It cannot be said that the Torah would demand capital punishment today, but it would seem to allow it. If circumstances suggest that capital punishment is being administered unjustly or unreliably -- a question that is hotly debated -- Judaism would oppose such abuses. In open-and-shut cases of murder, however, capital punishment today is consistent with if not required by Jewish law.