The machinery of death roared to life again last week, killing two people. Of the guilt of one of the dead, Troy Davis, doubt beyond the reasonable had been raised, though not heeded. Seven of nine witnesses recanted their testimony. Why do we as a society continue to kill to demonstrate our disdain for murder? Do we think that capital punishment is an appropriate, nay an essential tool in creating a just society? What can we learn from the Jewish tradition about these questions.
Judaism is not a Biblical religion, it is a Rabbinic religion. This is not to say that the Rabbis did not believe that the Torah, given at Sinai, was the grounding for Jewish law—they did. However, they also knew that a simple reading of Torah does not lead to the Judaism that they practiced nor the Judaism that we have today—whether Chareidi/Ultra-Orthodox or humanist. The reason we can have a communal conversation or debate about what Shabbat is like is that our collective point of reference is a practice which owes far more to Mishnah Shabbat and its Talmudic commentaries than it does to the Shabbat laws articulated in Torah. A simple test will prove this. If you kept Shabbat according to Torah you would be sitting inside your tent in the dark and cold and not leaving for the whole “day” of Shabbat (itself undefined as to whether it is refers to daylight or 24 hours). The twenty five hour robust Shabbat of candles, kiddush wine, challot, meals with friends that is the touchstone for what we do and do not do is not mentioned in Torah at all.
I mention this only to respond to a claim that has recently been made that since capital punishment is mentioned in all five books of the Torah it is therefore a central principle of Judaism. This is a specious argument with no Jewish legal basis whatsoever. The Rabbis know how to articulate central principles or most important commandments. There are many such lists and capital punishment never shows up on any of them. (“Love your neighbor as yourself” does. “For man was created in the image of God” does. Torah study does. And so on.)
The serious debate about capital punishment in the Mishnah and Talmuds (the cornerstone of the Rabbinic tradition) focuses on two aspects of the ethics of the death penalty. On the one hand, the morality of execution in general. On the other hand, the procedural integrity and therefore viability of the system. It is well-known that there is a debate about execution in the Mishnah (Makot 1:10), while Rabbi Akiva and Rabbi Tarfon said that if they were on the Sanhedrin no one would ever be executed, Rabban Simeon ben Gamliel replied that they would thus increase spillers of blood in Israel. However, this is just the tip of the proverbial iceberg.
There is no debate that a court that judged capital cases had to be comprised of 23 judges (Mishnah Sanhedrin 1:1) who had children so that they could still remember how hard it is to raise children; that the judges all needed to be merciful. (Maimonides, Laws of Judges 2:1-3) Circumstantial evidence was never admitted (b Sanhedrin 37a-37b). Testimony that was procured through a plea bargain (testimony for lighter sentence) would not be accepted by the court. This is in addition to the fact that in order to actually execute someone, the murderer had to have been warned by two witnesses that murder was a capital crime, seconds before he committed his crime. Additionally, the murderer had to say: “I know that this is murder.” (b Sanhedrin 40b) The bar is almost ridiculously high. Finally, once the great Sanhedrin (of 71 judges) left their assigned place in the Temple (forty years before the destruction according to the Talmud), death penalties could not be assigned.
On the other hand, Maimonides still kept the laws of murder and capital punishment in his great code. He also explains the reason for this: murder is different than other crimes. Murder in its premeditated form does not allow a society to function, a community to form. Since one of the central goals of the law is to create just community, a murderer falls outside of this community and forfeits his rights to live in this community. Execution seemed to Maimonides the only solution. Rabbi Menahem HaMe’iri writing in the 14th century, also argued that courts outside the land of Israel should be allowed to apply capital punishment. In certain very exigent circumstances, Jewish communities in the middle ages actually carried out the death penalty.
The question, then, is this. Does rabbinic Judaism see the death penalty as necessary for the functioning of the system as a whole? For the good of the community? There are those who argue that, yes, the death penalty is indeed necessary for the good of the community. Stephen Passamanek, an eminent scholar and emeritus professor at HUC-JIR in Los Angeles, has argued that the death penalty is part of a process which “with atonement and forgiveness clears the offender’s slate of his grave sin,” and that a “balance is restored… because the life of the offender is not held more worthy than the life of his victim.”
Indeed asking for and receiving forgiveness from the person wronged is central to the halakhic, or Jewish legal notion of justice. Passamanek’s argument is that this is impossible in the case of homicide since the victim is not able to forgive. However, this, I believe, is a misreading of the tradition, on two counts. The death, that together with suffering and atonement clear the offender’s slate and brings about forgiveness, need not be the result of execution. It is the murderer’s death that brings forgiveness in its wake. The rabbis understand natural death as a painful and cleansing process. Second, there is a procedure, articulated by the Rabbis in the Talmud (b Yoma 86b) and codified by Maimonides (Laws of Tshuvah, chapter 2), by which one can, and actually should, ask forgiveness of a dead person. The offender is mandated to bring ten people to the cemetery and publicly declare his crime and beg for forgiveness.
Capital punishment itself, then, is neither central nor vital for the functioning of the halakhic system or the health of society. The ultimate goal is to repair the tear in the fabric of the community in two ways. On the one hand isolating the murderer from the community, allowing him or her to atone for their sins and to suffer in the knowledge of the crime that they committed. Their ultimate death (at the end of their lives) if it follows upon a path of atonement marks their forgiveness. At the same time, the murderer should ask forgiveness of the victim (perhaps through the family, if that is appropriate) and thus restore the appropriate balance between offender and victim.
Nowadays there is a way to isolate a murderer outside of society without killing him. This can be done with a sentence of life in prison without the possibility of parole. On top of this, the “machinery of death” in this country is broken beyond repair. In the Troy Davis case there was more than reasonable doubt. Seven of nine original witnesses recanted. Indeed, recent research has cast doubt on eye-witness testimony in general. Many of the people that were exonerated through the use of DNA testing were originally convicted based on eye-witness testimony.
Despite Rick Perry’s avowal that he sleeps well, there is at least one well-documented case in Texas of a wrongful execution based on shoddy forensic work. The Texas Court of Criminal Appeals (the court which is the state’s court of last resort in death penalty cases), the court has appointed attorneys with previous disciplinary records or little experience to handle Death Row appeals. “In its rulings, the court has frequently proved tolerant of flawed convictions and reluctant to acknowledge holes in the prosecution’s case,” according to a 2000 investigative report by the Chicago Tribune.
Given all the other problems with the actual rightful conviction of a murderer (as affirmed by the Governor of Illinois), the only viable and just option is the abolishment of the death penalty and the use of a sentence of life in prison without the possibility of parole. This also seems to be the opinion of the Jewish tradition. When New York State was contemplating the reenactment of the death penalty, Governor Hugh Carey sent a letter to religious leaders asking for their opinions of capital punishment. One of those asked was Rabbi Moshe Feinstein, then the most respected of Orthodox poskim/legal decisors in North America. On the way to saying that he is against capital punishment except under the most extreme circumstances of lawlessness (by which I think he means genocide), he writes the following (in a responsa dated Purim 5741 (1981): “It is not appropriate to mete out capital punishment on the basis of circumstantial evidence—as great as that evidence might be—but only by the testimony of two proper witnesses who have no conflict of interest. Definitely not by the testimony of witnesses who were promised that they would be freed from punishment if they testify about another. These witnesses must be warned about the gravity of the sin of testifying falsely, and the gravity of murder. Further, [the perpetrator] needs to have been warned [prior to the action], and he needs to have accepted the warning and to have said explicitly that even though he knows all this he intends to transgress.”
It is beyond the time to stop the machinery of death and to begin the hard work of justice—reforming our prisons, making victims and/or their families whole, allowing for transgressors to repent and atone. Then perhaps we will turn our cities into places of righteousness in which the Divine presence may dwell.
Stephen N. Passamanek, “Mayhem, Homicide, Pardon and Forgiveness,” Hebrew Union College Annual, 50:303-327.