Mishpatim: On delivering punishment to fit the crime

Shabbat Shekalim


Exodus 21:1-24:18; 30:11-16

II Kings 12:1-17

This week's Torah portion, Mishpatim, advises parents challenged by an obstreperous teenager to kill the child. Such a son or daughter, referred to as a ben sorare ou-moreh — "a disobedient and defiant child" — was depicted as the equivalent of a drunkard or a glutton and thus deserving capital punishment (Exodus 21:18).

However, a death sentence for any child or even for an adult was quite extreme and in most instances was virtually impossible to carry out. The Talmud notes that a Sanhedrin who issued an execution order once in seven years was labeled a "bloody Sanhedrin" (Makkot, 7a).

This Torah portion encourages us to think carefully about the issue of capital punishment and our responsibility to prevent today's children from becoming tomorrow's capital offenders.

Jewish tradition is circumspect about punishment in general. One well-known section of Parashat Mishpatim instructs the courts to impose the sanction of talion — an eye for an eye, a tooth for a tooth (Exodus 21: 23; Deuteronomy 19:19-21) for physical injuries inflicted by one person upon another.

Talmudic rabbis changed the thrust of the biblical lex talionis by interpreting the law to require financial compensation for loss of income, medical damages, damage for shame, physical or emotional pain and suffering. In the case of murder, however, the biblical text is clear — the literal meaning is intended. A life must be repaid with a life except in cases of accidental death.

Today, popular sentiment increasingly calls for the death penalty in response to capital crime. A recent Gallup poll indicates that over 75 percent of Americans favor the death penalty for the following reasons:

*It is the only just response to murder. Capital punishment provides victims' families with an outlet for revenge.

*A death sentence instead of life imprisonment stresses that capital crime is inherently evil.

*Capital punishment serves as a deterrent to other murders, following the reasoning "that people shall see and be afraid" (Deuteronomy 19:19; 24:7).

Arguments against capital punishment:

*Justice Byron R. White called a justice system that permits a witness to bargain for his life in exchange for testimony against another individual "a grisly trade," because this practice encourages deception and lying.

*Evidence that would exonerate an innocent individual is of no use if it comes to light after that individual has been executed.

*Capital punishment teaches citizens and criminals alike that murder is justified in certain conditions.

*Capital punishment does not deter murder. The rates of capital crime have not declined in states where the death penalty has been reinstituted.

*From 1967 to 1976, the Supreme Court held that capital punishment violated the Eighth Amendment's ban on "cruel and unusual punishment."

*Capital punishment is not blind to race and economic status. Studies from eight states reveal that someone who kills a white person is nearly 4-1/2 times more likely to be executed than someone who kills an African American. Although blacks and whites are murder victims in roughly equal numbers, 84 percent of the 227 inmates executed since 1976 were sentenced for killing whites; only 12 percent were executed for killing an African American. Since 1932, only one white man has been sentenced to death for killing a black man. In that 1991 South Carolina mass-murder case, the black victim was the mass murderer's 10th victim.

Mishpatim required severe penalties for uncontrollable youngsters, even though such punishment was rare. Our society increasingly demands severe punishment for criminals instead of compassion for the thousands of poor minority youngsters at risk of becoming the next generation of criminals and murderers.

We should redouble our efforts to help children who might otherwise grow up hindered by a lack of education, social skills and kindness.