Fabulously Observant: Jews and the death penalty

Israel would do well to get rid of its two-tiered system of capital justice.

By DAVID BENKOF
March 11, 2009 21:32
3 minute read.
Fabulously Observant: Jews and the death penalty

prison jail good 224 88. (photo credit: Courtesy)

Jewish radio talk show host and author Dennis Prager, whom I admire greatly, has been outspoken about his belief that Judeo-Christian values support the death penalty for murderers. He is fond of pointing to the fact that capital punishment for murder is the only law that exists in all five books of the Torah. Yet interestingly, the organized Jewish community is either opposed to capital punishment or takes no position: • The Reform and Conservative movements in North America have both taken strong stands against the death penalty. • Nine years ago, the Orthodox Union called for a nationwide moratorium on the death penalty. • The right-of-center Orthodox Agudath Israel of America takes no official position on capital punishment, despite its conservative stances on many other public issues. I asked the latter organization's director of public affairs, Rabbi Avi Shafran, why he thought so many Jewish organizations do not support the death penalty, and he told me: "Jews have all too often found themselves on the wrong side of the administration of capital punishment - often for the sole 'crime' of being Jewish. So there's a natural and understandable reluctance among many Jews to push society to mete out the ultimate punishment to anyone. That many a convicted criminal in the United States has later been exonerated by evidence or testimony only adds to the reluctance." The Torah calls for the death penalty not only for murder but for a variety of other offenses, including violating Shabbat, witchcraft and a wide range of sexual sins. But we know from the Talmud and other rabbinic texts that the Jewish death penalty was applied very rarely, with high burdens for proof of guilt - far higher than those imposed by the 36 American states that have capital punishment. For example, two individuals had to witness the capital crime, and there had to be a "kosher" warning before the act took place. The Talmud says that any court that imposed death on a convict once in seven years - or even once in 70 - was considered a "bloody" court. Given the private nature of many of the transgressions that call for the death penalty, it is not surprising that the high burden of proof was rarely if ever reached. Yet opponents of Torah law like to point to the existence of capital punishment in Torah law as evidence that the God-given system of human justice is somehow barbarous and bloodthirsty. It's just not true. Conversely, some law-and-order types cite the phrases "an eye for an eye" and "a life for a life" out of context, and use the biblical system of retribution to support civic measures of punishment that go far beyond the way capital punishment ever worked under Torah law. Israel only has the death penalty for genocide and crimes against humanity, and there has been just one civil execution in the country's history - of Final Solution architect Adolf Eichmann. While I am certainly glad that the Earth's air is no longer poisoned by Eichmann's breath, I wonder if someone in his category should be killed while others who have caused grave suffering to the Jewish people get to live out their lives in prison. The deaths at Auschwitz were horrible, yes, but are the tears of the families of victims of bombings planned by Palestinian murderers any less bitter? Israel would do well to get rid of its two-tiered system of capital justice and swear off the death penalty altogether. Finally, there is the issue of the humaneness of the death penalty. Under Jewish law, capital convicts would be given alcohol until they were intoxicated, so they would suffer less. In the American system, convicts are first given a paralytic, so if they do suffer under the consequent two lethal drugs, they cannot express their pain. And there is significant evidence that they do suffer. This system works well for everyone but the convict - the executioners and the witnesses do not have to see anything messy, while the condemned may suffer greatly in silence. If we have to have a death penalty, a firing squad would be better, as it is in effect the opposite of lethal injection - the condemned suffers little, while the rest of us have to see exactly what we've done. Somehow I like that better. But ultimately, it seems to me that life in prison without parole is a better option than the death penalty - in Israel, North America and throughout the world. [email protected]


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