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RABBI ARTHUR SEGAL:HEBRAIC AND JUDAIC CONCEPTS CONCERNING THE DEATH PENALTY
From: Howard Radest
Re: Seminar meeting, Wednesday, June 4, 2008
Our final Ethics Seminar of this season will meet on Wednesday, June 4 from 3 – 5 pm. at the Hilton Head Public Library. Leading the discussion will be Rabbi Arthur Segal, a member of our Seminar. Arthur received his DMD and post-doctoral training at the U of Penn. He retired from practice in '96 and moved to HHI where he became active in community affairs from the arts to medical charities. Arthur was ritual chairman at Congregation Beth Yam and was Scholar-In-Residence at Congregation Mickve Israel in Savannah, the third oldest Jewish congregation in the US. He was ordained a Rabbi in '07.
Topic: The Death Penalty, The First Amendment, and Hebraic and Judaic Commentaries
Issues: Modern Jewish Biblical scholarship shows that our typical references to the social and ethical teachings of the Hebrew Bible are in the main 2500 years behind the times:
1) as in the use of the Hebrew Bible literally and without its Talmudic commentary to support capital punishment;
2) as when our "Founding Fathers" were schooled, as were theologians, in Jesus' preaching which could not help but reflect the Hebrew Bible of His time;
3) as when those who, referring to the so-called "Old" Testament, maintain that the Republic was founded on Judaeo-Christian principles
In this context, the 1st Amendment's "separation of church and state" becomes crucial in order to avoid the consequences of an inadequate sense of history.
For your reflection:
From the Torah and the commentaries [Talmud]
Hebrew Law: Numbers 35:31 " You shall take no ransom for the life of a murderer . . . he shall surely be put to death."
Hebrew Law: Exodus 21:23-25: "Thou shalt give life for life."
Jewish Law: Re executions "It never happened and it never will happen." (Talmud Tractate Sanhedrin 71a)
Jewish Law: ''A court that effects an execution once in 70 years is branded a destructive tribunal'' (Talmud Tractate Makkot 7a)
Jewish Law: In 30 CE, "The rabbis abolished capital punishment''(Talmud Tractate Sanhedrin 161).
Jewish Law: "If one commits a capital offense, his punishment should be carried out by divine agencies'' {Talmud Tractate Ketubot 30a)
In contrast to the Code of Hammurabi, an earlier legal code of the Babylonians which preceded the Torah, Torah law limits the death penalty to the murderer--a family member cannot be executed in his or her place, in Exodus Chapter 21. 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. Deuteronomy Chapter 19, verses 13-21 asserts that a false witness is subject to the same punishment as the defendant--including death. The Torah also distinguishes between a premeditated murder and unintentional killing. In the case of an unintentional slaying, the killer is permitted to take refuge in one of six cities run by Levite priests. This is stated three times, in Numbers Chapter 35 verses 9-15, Deuteronomy Chapter 4 verses 41-43, and in Joshua Chapter 20.
The pattern of not inflicting the ultimate punishment is established early in the Bible. After Cain kills his brother Abel in a fit of rage, God does not demand Cain's life in retribution; instead, Cain is set free to wander the earth. The mark God places on Cain's forehead is not a sign of punishment, as is commonly assumed, but one of protection; it served as a kind of mobile "city of refuge," warding off anyone seeking to avenge the wrong Cain had committed.
As mentioned, the recording of these death penalty laws in the Hebrew Bible gives a false impression about the actual practice of capital punishment in Judaism. While the Torah supports the death penalty in principle, the Talmud places formidable obstacles to its implementation.
The well-known lex talionus , the law of retaliation: "Thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe" in Exodus Chapter 21, verses 23-25 may appear to endorse capital punishment, but it is actually a formula for restricting the punishment to be meted out. Further the Talmud goes on to say that this means equal monetary punishment and not a literal life, eye, tooth, etc, at all.
The rabbis who compiled the Talmud for 1000 years interpreted and expanded upon the biblical laws governing capital punishment. They too stipulated transgressions deserving of death, among them idolatry, bestiality, blasphemy, illicit sex, violating the Sabbath, witchcraft, and adultery in certain circumstances. Then, in meticulous detail, they linked each crime with its corresponding method of execution such as stoning, burning, strangulation, or slaying by the sword. Grisly punishments all--but the rabbis never actually imposed the death penalty.
The went through the same detail in recording the sacrifices at the destroyed Temple even though, as stated above, they in no way, wanted that Temple to be reestablished. In 100 CE, the Rabbis were offered by the Romans to have the Temple rebuilt at the Roman's expense, and the rabbis said 'no thanks.'
After a long, elaborate discussion of the class of capital crime befitting the stubborn and rebellious son and a description of how the execution was to be carried out, the Talmud states: "It never happened and it never will happen."
The passage then explains that the entire matter is presented purely for study: "That you may study the Torah for its own sake and receive reward" (Talmud Tractate Sanhedrin 71a). In other words, the discussion of capital punishment in the Talmud seems to exist only in the realm of theoretical speculation, just as--after the destruction of the Temple in Jerusalem--all the laws of sacrifice were retained and studied long after the sacrifices ceased to be offered.
Capital cases were heard by a court of twenty-three judges (Talmud Tractate Sanhedrin 2A) and, in some cases, seventy-one judges (Talmud Tractate Sanhedrin 2A, 15A, & 16A), all of the highest character. "Anyone fit to try capital cases could also try monetary cases," the rabbis stated, "but a person fit to try a monetary case may still be unfit to try a capital case" (Talmud Tractate Nida 49B).
According to Rabbi Judah, a person whose disposition is cruel should be excluded from sitting in judgment in such cases (Talmud Tractate Sanhedrin 36B). Not only should a person's own record be pure and righteous, but his ancestry had to be free of blemish before he could sit on this court (Talmud Tractate Sanhedrin 36B). The judges sat on three rising semicircular tiers, as in an amphitheater, in order to see one another, and all murder cases were tried in the light of day; in these ways, everything could be open and aboveboard. Two judge's clerks stood before them, one to the right and the other to the left, and wrote down the arguments of those who would acquit and those who would condemn; both clerks were necessary as a precaution against any mistake.
Rabbi Judah said that there were three such clerks: one to record arguments for acquittal, a second to record arguments for conviction, and a third to record arguments for both acquittal and conviction. Witnesses stood in front of these tiers of judges.
The stringent demands on witnesses in capital cases rendered almost impossible the likelihood that a defendant would be convicted. To ensure that a witness's testimony was not based on conjecture (e.g. circumstantial evidence), hearsay, simple rumor, or the observations of another witness, the court would "fill the witness with fear."
Witnesses were asked to establish the day and hour of the crime and explain the circumstances surrounding it (Talmud Tractate Sanhedrin 2B). They were then warned that they would be subject to rigorous questioning and relentless cross-examination and held personally responsible should the accused be falsely condemned. Bearing false witness in a capital case was in itself a crime punishable by death (Talmud Tractate Sanhedrin 9B, 32B, 86A, & 89A). A witness in a capital case had to have seen the entire crime as it was being committed; circumstantial evidence was inadmissible.
For example, Rabbi Simeon ben Shatach witnessed the following incident: "I saw a man chasing another man into a ruin; I ran after him and saw a sword in his hand dripping with the other's blood, and the murdered man in his death agony...." Even though he was convinced of the man's guilt, the rabbi could not testify against him, because he did not see the actual crime (Talmud Tractate Sanhedrin 37b).
Not only did witnesses have to see the crime take place, they had to have warned the perpetrator prior to the act that he was about to commit a capital offense. According to Rabbi Judah, a warner even had to inform the perpetrator of the type of execution prescribed for his crime (Talmud Tractate Sanhedrin 8B).
The perpetrator was then obliged to have verbally acknowledged this warning by saying something like, "I know I am warned not to do this"; to have admitted his liability to death by adding something like, "even though I shall be punished by such-and-such manner, yet I want to go ahead and commit this crime"; and to have committed the murder within the time needed to make such an utterance (Talmud Tractate Makkot 6A).
This last restriction suggests that if a murder was delayed longer than the time necessary to make an utterance, the plea might be accepted that the perpetrator had forgotten the warning altogether. Furthermore, two or three witnesses had to have similarly interacted with the accused.
And on the unlikely chance that such witnesses could be found, the Court could convict the accused only if guilt could be proven beyond a reasonable doubt. According to the Talmud, "A doubt in capital charges should always be for the benefit of the accused" (Talmud Tractates Bava Batra 50B , and Tractate Sanhedrin 79A).
In reaching a verdict, a judge was free to argue in favor of the accused, but not against him. A judge who had argued initially for condemnation could subsequently argue for acquittal, but one who had argued for acquittal could not argue later for condemnation. Acquittal in capital cases required a majority of one vote, condemnation a majority of two.
A verdict could be reversed for acquittal if errors were revealed, but no new evidence was allowed which would reverse a decision from acquittal to condemnation.
Just in case someone was found guilty, there were rules to staying the execution. Following a guilty verdict, provisions were made to stay the execution. A herald was dispatched to announce something like: "So-and-so, son of so-and-so, is going forth to be stoned because he committed such-and-such offense, and so-and-so are his witnesses. If anyone has anything to say in his favor, let him come forward and state it."
If someone offered to make a statement in favor of the condemned man, a retrial followed. A person was stationed at the door of the court holding a signaling flag, while a horseman stood at the ready within sight of the signalman.
If one of the judges said he had something further to state in favor of the condemned, the signaler waved his flag, sending the horseman to postpone the execution. Indeed, even if the condemned said he had something further to plead in his own favor, the court was obliged to reconvene (Talmud Tractate Sanhedrin 42B).
Rabbinic attitudes concerning the death penalty are also reflected in statements such as "a Sanhedrin that effects an execution once in seven years is branded a destructive tribunal." Rabbi Elizer Ben Azariah said "once in seventy years." Rabbis Tarfon and Akiba said, "If we were members of a Sanhedrin, nobody would ever be put to death." In that same Gemarra, however, Rabbi Simeon Ben Gamaliel dissented: "If we never condemned anyone to death, we might be considered guilty of promoting violence and bloodshed.... We could also multiply shedders of blood in Israel" (Talmud Tractate Makkot 7A).
The Talmud records all opinions and Rabbi Simeon was the only one interested in the death penalty. Rabbi Simeon ben Gamaliel is statistically wrong. Scientific studies have consistently failed to find convincing evidence that the death penalty deters crime more effectively than other punishments. The most recent survey of research findings on the relation between the death penalty and homicide rates, conducted for the United Nations in 1988 and updated in 2004, concluded: ". . . it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment."
Forty years before the fall of Jerusalem in 70 CE, the rabbis abolished capital punishment altogether ( Talmud Tractate Sanhedrin 161 ). Rather than applying the four methods of execution themselves, they ruled that punishment should be carried out by divine agencies (Talmud Tractate Sanhedrin 37B, Tractate Ketubot 30A, & 30B). In other words, a punishment so awesome as the taking of a person's life should not be entrusted to fallible human beings, but only to God.
This ruling does not mean the rabbis dispensed with punishment altogether. On the contrary, they expressed no compunction about decreeing corporal punishment--harsh physical suffering. If the rabbinic judges were convinced of a defendant's guilt in a capital case, but the high standard of evidence did not permit execution, he would be sentenced to prison on a ration of bread and water.
The thrust of Jewish tradition and the historical positions of the Rabbis impel Jews to oppose capital punishment in principle and in practice. A person wrongfully flogged for robbery can heal. A person improperly imprisoned for murder can be exonerated and set free. But someone put to death for a crime he or she did not commit can never be redeemed.
If Jews are true to their faith and their tradition, they must respond to the imperative of its teachings and do everything they can to keep society from committing the ultimate of injustices: the wrongful execution of an innocent person.
So great is the Jewish revulsion against capital punishment that when the Jewish state of Israel was established in 1948, even though the death penalty was initially permitted and death sentences for murder handed down, these sentences were never carried out; instead the convicted were sentenced to life in prison.
At Israel's 1st murder trial, in 1948, both the Ashkenazi and Sephardi chief rabbis sent a cable to the Minister of Justice, urging him to abolish capital punishment at once and warning the court that punishment of death was incompatible with the teachings of Judaism and a sin against Jewish law.
Partly as a result of their statement, when the penal laws were revised 6 years later, in 1954, the death penalty was abolished, with one exception: if the accused was found guilty of participation in genocide and treason during a time of war.
Only one person has been executed in Israel since 1948: Adolf Eichmann , administrator of the Nazi destruction of the Jews of Europe. The year was 1962 and the execution followed a two week internationally broadcast trial.
In law schools everywhere, students read the famous quotation from the 12th century legal scholar, Rabbi Moses ben Maimon of Spain, also known as Maimonides : "It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death."
Maimonides argued that executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely "according to the judge's caprice." Maimonides was concerned about the need for the law to guard itself in public perceptions, to preserve its majesty and retain the people's respect.
Lastly, a more recent resolution of the Rabbinical Assembly in 1996 states:
"Whereas the Torah teaches that all human beings are created in God's image; Whereas Jewish tradition upholds the sanctity of life;
Whereas both in concept and practice rabbinic leaders in many different historical periods have found capital punishment repugnant;
Whereas no evidence has marshaled to indicate with any persuasiveness that capital punishment serves as a deterrent to crime;
Whereas legal studies have shown that as many as 300 people in this century have been wrongly convicted of capital crimes;
Therefore be it resolved that the Rabbinical Assembly oppose the adoption of death penalty laws, and urge their abolition in states that already adopted them;
That the Rabbinical Assembly urge the enactment of laws that mandate that some capital crimes be punishable by life imprisonment without parole;
That the Rabbinical Assembly offer support and speak out on behalf of the victims of violent crime and their families;
That the Rabbinical Assembly encourage its members to send this resolution to their appropriate elected officials."
In summation, besides thanking you for your patience, I hope you can now understand how the Rabbis of Talmudic Judaism 2500 years ago as captives in Babylon, decided among other things, to reform Hebrewism , and its concept of the death penalty.
For those that use the Hebrew Bible as a proof text, or as God's word, to permit and condone this horrid behavior, they are misinformed about history and theology. They might be best off consulting the descendents of the people who received the Torah on Mt. Sinai, circa 3500 years ago, on a holiday the Jews call Shavuot, which this year begins Sunday eve, June 8th.
Thank you.
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