Torah Portion
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. 67 7 MINNA
Who Shall Live Or Die?
Judging Capital Punishment
crime, but will do it anyway. Only in
such cases could the court put someone
to death..
The Mishnah Makkot 1:10 castigates
a Sanhedrin that executes more than
once in seven years as a "violent" court.
Rabbi Eliezer ben Azaraiah says once in
70 years. Rabbis Tarfon and Akiva
exclaim that had they been in the
oes Judaism favor the death
Sanhedrin, no one would ever have
penalty? Even a cursory
been executed! The pendulum seems to
reading of our portion indi-
have swung against capital punishment.
cates that, indeed, the Torah
Yet in the final line of the Mishnah,
mandates capital punishment for a -
Rabbi Shimon ben Gamliel objects to
broad assortment of violent, ritual and
his colleagues — you would increase
moral crimes.
bloodshed in Israel! Here we have a sec-
Mishnah Sanhedrin (7:1) identifies
ond rationale for capital pun-
four forms of execution; these
ishment — as a deterrent to
are elaborated upon in great
violent crime.
detail by the Talmud. It
On a conceptual level,
would seem that Judaism is
Judaism may defend capital
very comfortable with capital
punishment as a way of blot-
punishment.
ting evil out from our midst
How can a "pro-life" reli-
or in order to deter violent
gion such as Judaism support
crime. Yet on a practical level,
the death penalty? Because
the Halachah (Jewish law)
God is the One who creates
placed such extraordinary lim-
and sanctifies all life, God also RABBI DANIEL its on the death penalty that it
has the authority to determine
could almost never be prac-
NEVINS
"who shall live and who shall
ticed. Indeed, the Sanhedrin
Special to the
die."
ceased executions more than
Jewish News
The Torah's stipulation of
2,000 years ago.
capital punishment for certain
crimes follows from its teaching that our
Today's Issues .
purpose in life is to create holiness; cer-
What about capital punishment in our
tain transgressions so profane life that
day? If we look at the way in which cap-
the ultimate punishment is mandated.
ital punishment is practiced in America,
In Deuteronomy, capital punishment is
it seems utterly impossible to defend on
repeatedly justified by the phrase, u'vi-
you
shall
Jewish
grounds.
yarta harah mikerbekha —
The standards of evidence are ludi-
destroy the evil from your midst.
crously low in this country — circum-
On an ideological level, then,
stantial evidence often suffices. Many
Judaism certainly supports the notion of
innocent people have been sentenced to
capital punishment. Practically, however;
death and executed in this country, as
the rabbis understood the extraordinary
DNA testing has now proven. Inmates
care required to prevent the courts from
are offered incentives to testify against
killing people who were either innocent
criminal defendants.
or insufficiently aware of the conse-
The proof of criminal intent in
quences of their actions. They estab-
American law is also worlds apart from
lished very high standards of evidence
the Jewish ideal. Not only is there no
— two eyewitnesses had to testify to the
need for prior warning to the criminal;
crime; and such testimony could be dis-
we execute the mentally retarded and
missed for a broad variety of reasons.
minors as well.
Moreover, the rabbis required two
Many studies have shown that
witnesses for criminal intent. According
American courts are far more likely to
to the Tosefta (Sanhedrin 11:1), the wit-
execute criminals who have murdered
nesses must confront the criminal before
white or female victims. Standards for
the crime, warn him of its consequences
criminal defense are haphazard, with
and hear him declare that he knows that
poor defendants far more likely to be
what he is about to commit is a capital
sentenced to death. As writer Scott
Turrow
has argued, we are also more
Daniel Nevins is a spiritual leader of
Shabbat Mishpatim
Exodus 21:1-24:18;
30:11-16;
II Kings 12:1-17
D
Adat Shalom Synagogue.
TORAH PORTION on page 58
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