Thou shalt not kill Jewish teachings on death penalty

Jewish teachings hold contradictory views on capital punishment. While biblical law mandates it for many offenses, the rabbis limit its application to the point of near extinction.

The Torah mandates capital punishment for numerous grievous offenses: murder, idolatry, cursing God or parents, sexual transgressions, public violation of Shabbat, witchcraft, etc. It requires courts to mete out such punishment for murder: “Whoever sheds man’s blood, by man his blood shall be shed” (Genesis 9:6).

Biblical law emerged in the ancient Near East where capital punishment was universal practice. The Torah innovated, seeking to correct the common practice that allowed the wealthy to pay for a life taken, while the poor gave “life for life.” “You shall not take ransom for the life of a murderer who is guilty” (Numbers 35:31).

Biblical law balanced capital punishment with its core value, the sanctity of human life: “And God created the human in God’s image; in the divine image (betzelem elohim) [God] created him…” (Genesis 1:27).

Furthermore, the Torah placed stringent limitations on capital punishment by requiring the testimony of two eyewitnesses to convict and execute a murderer: “Whoever strikes down a person, by [testimony of] two witnesses shall the murderer be killed; and a single witness shall not testify against a person [sentenced] to die” (Numbers 35:30).

Rabbinic law turns the two-eyewitnesses requirement into a mechanism that renders capital punishment essentially unenforceable. The fact that Jewish authority to execute criminals was suspended by the Romans “forty years before the destruction of the Temple” (Babylonian Talmud, Sanhedrin 41a) does not deter the rabbis from lengthy discussion and exacting legal principles.

“They would examine them [witnesses] with seven searching queries: In what seven-year period [did it occur]? In what year? What month? On which day of the month? What day of the week? At what hour? At what place?” (Sanhedrin 40a)

Few if any eyewitnesses could answer all these questions; few if any testimonies would be accepted. Furthermore, the rabbis required establishing in cross-examination that the witness duly warned the perpetrator of the gravity of his intended crime and his liability for capital punishment.

“Did you warn him? … Did he accept the warning? Did he admit his liability to death? Did he commit the murder within the time needed for an utterance [to hold sway]?” (Sanhedrin 40a)

How likely is it that a murderer in pursuit of his victim would receive and acknowledge such warnings, then commit his crime forthwith? It’s clearly a theoretical construct, making capital punishment nearly impossible.

Finally, the rabbis directly state their aversion to capital punishment: “A Sanhedrin [high court] that executes a person once in seven years is a murderous one [hovlanit].” Rabbi Ele’azar ben Azariah said: “Once in seventy years.” Rabbis Tarfon and Akiva said: “If we were members of the Sanhedrin, nobody would ever be put to death” (Mishnah, Makkot 1:10).

In the talmudic tradition of preserving minority opinions, the passage ends with the lone voice of Simeon ben Gamliel: “[Thus they] would multiply the shedders of blood in Israel.” His warning is valued, but rejected.

Rachel Biale is the author of “Women and Jewish Law” and a former Bay Area regional director of Progressive Jewish Alliance, now Bend the Arc: A Jewish Partnership for Justice. She also writes a parenting column for j.