So lucky for us, all the talk about the death penalty in the Talmud is just in case we start ordaining judges/Rabbis to the Great Sanhedrin again. Turns out these Rabbis had a special power that Rabbis today don't have; they had the power to decide who would live and who wouldn't. Nevertheless, the Rabbis felt so odd about the idea of death penalty that they put a number of provisions on it that would make it nearly impossible.
Let's say tomorrow that the Sanhedrin appears and that judges can start condemning people to death. In order to put someone to death we need to examine them. Not only that, but we must convict them with more than a simple majority (13 out of 23 people). Additionally, the person who is subjected to death penalty must have been warned about the particular form of executions that they will be liable for if they follow through with their intended action (whether committing murder, adultery, or any number of other crimes). And here's the kicker--in the time that it would take them to say "hello my friend" (b'toch k'dei dibur) the criminal must both acknowledge to the person that warned them that they understand the implications of their action AND they must actually do them. This means it must be with no hesitation. Furthermore, there must be a second bystander who happens to be around to serve as the second witness (because as we know, we can’t condemn someone to death on the testimony of just one witness).
If you combine all of these stipulations, you find that it is nearly impossible to ever put someone to death for a crime they commit. The Temple was not standing, there was no Sanhedrin, and the Rabbis took the opportunity and freedom to create a series of laws that essentially did away with a procedure with which they disagreed and that would have been reinstituted if the Great Sanhedrin came back. It was a great move, just in case.
On a personal note, I wonder what the Rabbis would think about debates going on in the USA about the death penalty. Are we taking the right steps to make sure that we never execute an innocent person? To learn more about this visit the Religious Action Center.
Wednesday, March 24, 2010
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There's no question that the rabbis imposed very high evidentiary standards in order to be able to impose a death penalty. But, in this as in many other cases, we mustn't conclude that because what they did looks like death-penalty abolition, their overall attitude was therefore indistinguishable from contemporary death-penalty abolitionists. First, the rabbis assume that the death penalty can be carried out in appropriate circumstances (see succeeding chapters of Sanhedrin). Second, whereas they say that the biblical case of the "ben sorer u'moreh" was "lo hayah v'lo atid l'hiyot" (San. 71a) they never say this of capital penalties. Third, see B. Yevamot 90b, in which the rabbis seem to reserve for themselves an extraordinary power to punish--even capitally--when the times call for it. While there is no case I'm aware of in the Talmud that this teaching was invoked, it was invoked in the Middle Ages, notably in Christian Spain, where allegedly Jewish communities did have royally-granted death penalty jurisdiction (see Yitzchak Baer's History of the Jews in Christian Spain and R. Asher b. Yehiel's responsum 17:2).
ReplyDeleteSee Prof. Stephen Passamaneck's "Capital Punishment--Again?," CCAR Journal (Summer 2006), and Prof. Beth Berkowitz's book Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures. Again, my point is that whatever position we take today, and however we choose to utilize these sources, we have to realize that we can't read them through our own lens--what looks similar may not be similar.