Death Penalty Moratorium

Rabbi Melanie Aron

June 1, 2001

If there is a law that you don't like, there are many ways to deal with it. You can fight to abolish the law, you can disobey it, or sometimes you can place so many restrictions on it, that in essence you have changed the law in an indirect manner. Throughout Jewish history there have been various laws or practices that later generations found morally objectionable but which for various reasons they could not abolish outright. Often it has been through restriction and reinterpretation that the effect of the law has been changed.

One ancient example is slavery. In Biblical times it was inconceivable that slavery be abolished, yet the Torah's sympathy was with the slave and not the slave owner. Therefore we have extensive legislation changing the institution of ancient slavery. Runaway slaves could not be returned, slaves had to be freed in the seventh year, when they were freed they were not to be let go empty-handed but given something with which to start their new lives, a slave who was physically hurt by his master was set free, and so forth. Similar laws developed in Judaism over the centuries concerning the practice of taking more than one wife. Bigamy was not abolished formally in the Jewish community until the year 1,000 CE. It had Biblical precedent in the families of the patriarchs, yet early on was recognized as a destabilizing force to family life and was restricted in a variety of ways.

I believe that the Jewish approach to capital punishment follows this model. The death penalty was established in the Torah for various crimes. It was something taken for granted in human culture at that time. Yes even in that context, the Torah provides limitations on that accepted institution. With regard to the rebellious and defiant child, the Torah takes the right to impose the death penalty away from the father, as was customary at that time and gives that right only to a council of elders. This is an advance even on later Roman Law, where the father continued to have life and death rights over his family. The Torah also demands special attention to testimony in a capital case and heavier responsibility for witnesses in these situations.

Jewish Law as it developed in the post Biblical period, continued this practice to the extreme and many, many restrictions were placed on the death penalty. For starters the rabbis saw some of the cases in the Torah as merely instructive. Writing, for example, about the case I mentioned before, the wayward and defiant son, the rabbis insisted that this law was never operative, it was written merely for us to study. In practice the death penalty came to an end among the Jews 2,000 years ago with the end of the Sanhedrin, the only body able to convict in capital cases, and with the end of Jewish independence and the imposition of Roman rule. While some rabbis saw a deterrence effect to the death penalty, the consensus was "The Sanhedrin that puts to death one person in seven years is termed tyrannical" and some of the great rabbis went even further: Rabbi Eleazar ben Azariah says: "One person in seventy years." Rabbi Tarfon and Rabbi Akivah say: "If we had been in the Sanhedrin, no one would have ever been put to death."

There were many restrictions on witnesses and testimony in capital cases. There had to be two witnesses unrelated to each other, but aware of each other's existence. The witnesses had to be totally disinterested parties, they could not benefit in any way from the testimony, or be under the influence of or in debt to some other person with an interest in the case. Women were not allowed to testify because they were considered at that time under the influence of their husbands and there was fear that they could be pressured by their husbands into witnessing something they had not seen. The criminal had to receive a warning concerning the punishment for the crime he was about to commit. The net effect was to very severely decrease the number of capital cases that could even be tried. Capital Punishment was on the books as a solemn warning as to the seriousness of the crime, but the courts circumvented the law, making it in essence a dead letter. Let me give you a flavor of the law by reading one paragraph:

"How do they exhort witnesses testifying in capital cases? They brought the witnesses in and admonished them. Perhaps you will speak from supposition and from hearsay, evidence from the mouth of a witness or "We heard it from a trustworthy person" or perhaps you do not know that afterwards we will test you by inquiry and examination. Know that capital cases are not as monetary suits. Monetary suites- a person, who gives false testimony, may give his property and effect atonement; capital cases- his blood and the blood of his offspring depend on him until the end of the world, for we find concerning Cain who killed his brother, it is written "the bloods of your brother cry." It does not say the blood, but bloods, meaning his blood and the blood of his offspring. Therefore man was created singly to teach you that whoever destroys a single soul, Scripture accounts it as if he had destroyed a full world, and whoever saves a single soul, Scripture accounts it as if he had saved a full world." Mishnah Sanhedrin 4:5

The death penalty as currently practiced in the United States does not in any way meet the standards of Jewish law concerning capital cases. Both in the volume of cases in which the death penalty is imposed, and in the way these cases are pursued current practice is inimical to Jewish moral and ethical concerns. Many cases are tainted by the use of witnesses who stand to gain personally by their testimony, as other convicted felons are given incentives to testify. Rather than capital cases being pursued with the highest degree of scrutiny, we know that in many cases the defendants have not benefited from competent legal representation. Jewish law has always developed in conformity with the level of knowledge available. Our legal system is still far behind the knowledge available in our society, not only concerning DNA testing, but also with regard to witness identification. Jewish law did not allow monetary compensation in place of the death penalty, lest the rich being able to buy themselves out while the poor would be put to death. Yet that is what seems to occur in our society today. In addition, by causing other countries to refuse to extradite criminals to the United States, the death penalty actually prevents justice from being done in some situations.

The Reform Movement in Judaism, the largest movement in the United States currently, has long opposed the death penalty. However we recognize that in this matter, there is some controversy within the Jewish community and even within our congregation. A moratorium on the death penalty however, is something that we can support without a challenge to the Biblical laws concerning capital crimes. A moratorium could allow a thorough investigation of the problems so obvious in a system in which wrongful conviction is so common ( since 1976, 95 individuals on death row have been exonerated and released).

One final word: when Cain killed Abel, the punishment should have been by right, the death penalty Genesis 9:6 "Whosoever sheds the blood of a man, by a human shall his blood be shed." But in this particular case, the judge and jury, were no human court but God. And the punishment was Naah ve Nad, a ceaseless wanderer, a life sentence. The Mark of Cain, was not a mark of sin, but of God's protection, that no one kill him.

To me this is a lesson in what we should emulate as a society. Perhaps it is through the death penalty being on the books that we express our society's moral outrage at the taking of another life, destroying an individual created in the image of God. However, we must consider God's example in not imposing the death penalty in practice, and certainly not as it is presently imposed.

Last night I was down at the County Building urging the board of supervisors to support a moratorium on the death penalty for Santa Clara Country. I hope that message will be heard also in the office of our governor Grey Davis, so that he emulates his colleague Governor George Ryan of the State of Illinois. To do any less is to allow injustice to proliferate in our communities, and to potentially destroy "the bloods" of our innocence fellow citizens.