By Rabbi Leonard Rosenthal
SAN DIEGO — While the Torah requires capital punishment (i.e., the death penalty) for murder, it was not easily meted out. First, direct testimony by two witnesses was required: “A person shall be put to death only on the testimony of two or more witnesses; he must not be put to death on the testimony of a single witness.” (Deut. 17:6) Circumstantial evidence was not allowed.
Second, the witnesses have to mete out the punishment with their own hands and the rest of the community had to join them in carrying out the execution: “Let the hands of the witnesses be the first against him to put him to death, and the handsof the rest of the people thereafter.” (Deut. 17:7)
According to our Etz Hayim Torah commentary: “This requirement would impress upon the witnesses that by their testimony they are in effect executing the accused. If their testimony is incorrect, initiating the stoning would make them murderers.” (p. 1099)
Dr. Richard Elliot Friedman in his Torah commentary adds: “In biblical law, the community must know that if they are going to have capital punishment they must understand that this means that the community as a whole is taking lives. So that there can be no mistaking this point, the entire community must participate in the execution.” (Commentary on the Torah, p. 619)
In the Rabbinic period carrying out the death penalty was even more difficult. Not only was the direct testimony of two eye witnesses required, the witnesses were also obligated to warn the murderer that if he proceeded he would be subject to the death penalty. The murderer then had to acknowledge the warning, “Yes, I know if I kill my victim I will be subject to the death penalty but I am going to do it anyway!” In the absence of any of these requirements, capital punishment could not be levied.
Needless to say, capital punishment was almost never imposed during the Rabbinic period. The Talmud says, “A Sanhedrin that puts a man to death once in seven years is called a murderous one. Rabbi Eleazar ben Azariah says ‘Or even once in 70 years.’ Rabbi Tarfon and Rabbi Akiva said, ‘If we had been in the Sanhedrin no death sentence would ever have been passed.'” (Mishna Makkot 1:10)
What can we learn from the Bible and Talmud about capital punishment in our day? It would not be correct to assert that Jewish tradition is categorically against it, because it was clearly permitted. Rabbi Tarfon and Rabbi Akiva (“If we had been in the Sanhedrin no death penalty would ever have been passed”) did not have the last word on the matter because they were immediately challenged by Rabban Shimon ben Gamliel who retorted: “If so, they would have multiplied murderers in Israel.” That is, if capital punishment was never imposed, the lack of it as a deterrent might have led to more murder.
Furthermore, all of these rabbis were declaring their opinions during Roman rule of the Land of Israel, during which Jews could not impose capital punishment. The Romans reserved this right for themselves. The discussion was purely theoretical.
The dilemmas surrounding capital punishment are brought to the surface in a story about Rabbi Shimon ben Shetach. Rabbi Shimon said, “I once saw a man running after his neighbor. He clearly intended to do him harm and so I followed them. When I finally caught up with him he stood over his victim holding a knife dripping with blood.
“I shouted at him: ‘Evil One! Who killed this man? Me or you? But what can I do? I can’t bring you to justice because the Torah says: “A person shall be put to death only on the testimony of two or more witnesses; he must not be put to death on the testimony of a single witness.” You deserve the death penalty but you will not receive it!'”
Fortunately, the story has a “happy ending.” Rabbi Shimon ben Shetach concluded: “In the end, the One who knows the hearts and minds of all flesh will punish the person who murders his neighbor.”
His rabbinic colleagues reported that Rabbi Shimon ben Shetach did not move from the place until a snake came and bit the murderer. (T.B., Sanhedrin 37.b)
We do not know why Rabbi Shimon ben Shetach opposed capital punishment but perhaps this story gives us insight to his thinking. As much as he wanted to impose the death penalty, perhaps he thought that since human beings are frail and prone to error, in the end, the taking of human life must always be a Divine, and never a human, prerogative.
Regardless of your thoughts on capital punishment today, the Torah and Talmud give us much food for thought.
Rabbi Rosenthal is spiritual leader of Tifereth Israel Synagogue in San Diego. He may be contacted at [email protected]