The morality and ethics of capital punishment – i.e., the death penalty for murder – has been greatly discussed in the past few years, especially in the United States where it was ruled illegal for a short time (between 1972-1976), but now its legality is decided by each state. Twenty-seven states currently allow it and twenty-three do not. Several prominent states abolished the death penalty only recently, such as New York in 2007 and Virginia in 2021, so the debate rages on. Internationally, of the 194 United Nations member countries, 98 have abolished capital punishment completely, and another 49 states still have it “on the books” but have not been implemented in the last few years. As the debate about the ethics and morality of such punishment continues in the world, it is important to understand the Jewish view on this subject, and to show that this is an ancient Jewish ethical discussion that has continued throughout the ages. In Israel the question of the death penalty for terrorists has been revived after the recent exchange of many killer terrorists for Gilad Schalit, which resulted in Arab terrorists becoming less afraid of being apprehended for murdering Israelis, as they count on being freed in a future exchange for another captured Israeli soldier. Capital punishment for terrorists would eliminate this assumption. Is this sufficient reason to institute the death penalty for captured terrorists who are known to have committed horrendous acts of murder on civilians? What, then, is the traditional Jewish view on the death penalty?
THE RATIONALE AND CAPITAL PUNISHMENT IN THE TORAH
What is the rationale for killing a human being who kills someone else? The traditional arguments in favor of capital punishment for an act of murder are threefold: The first is deterrence. When those who may potentially commit murder know that the punishment if they are caught is death, this may prevent many potential killers from carrying out the act. The second is retribution or justice. If a person takes the life of a human being, the logical punishment for such an act is to lose his or her own life. This is the most “fair” punishment for murder. It also provides a feeling of justice and closure for the family of the victim, who suffer the most when a relative is brutally murdered. The third argument is safety – i.e., it is important to keep a murderer away from an innocent population since this person may murder again. However, this argument is negated if a policy of imprisonment without the possibility of parole for murderers exists, because it is an alternative punishment to the death penalty that addresses this concern. But if we look at the Torah, Judaism offers a fourth rationale for capital punishment.
Even before the Torah addresses capital punishment for crimes and sins in an all-Jewish society, the Torah makes it clear that even for non-Jews, the punishment for murder is death. When speaking to Noah, G-d says that he who sheds blood – i.e., the person who murders – should die as a result of his crime. But then the Torah gives a specific reason for this punishment: it is because man was created in the image of G-d. Thus, in addition to the other rationales for capital punishment, the Torah says that because every person has a “piece” of G-d within him or her, if a person takes the life of another human being (who also had a piece of G-d within), that person forfeits his or her “image of G-d,” and is no longer worthy to be called a human being with G-d’s image. It is for this reason that the Torah says he does not deserve to live.
But the Torah, which later on describes a Jewish society that does not distinguish between man to man and man to G-d crimes/sins, lists numerous other sins whose punishment is also the death penalty. In addition to murder, the death penalty is listed for striking one’s parent, kidnapping, bestiality, violating the Shabbat, idol worship, adultery, homosexual behavior and cursing G-d. All these sins are heinous from a Jewish perspective, and the seriousness of their punishment attests to that. However, it would be foolish to form the Jewish view of capital punishment based on these verses alone. Why is this so?
According to Jewish tradition, the corpus of Oral Law was given along with the written Torah at the very same time, in order to render the barebones legal system of Torah verses into a working Jewish system of law for society. Therefore, if we examine the details of capital punishment along with the details of its Oral Laws, we will discover that it was almost impossible to actually punish a perpetrator of any of these crimes or sins with the death penalty. For example, while the Torah says that a court needs two witnesses to convict a murderer, it does not set down the conditions or details about those witnesses or what they saw. The details of all the conditions that need to occur, specified in the Oral Law, make it almost impossible to actually convict a murderer or perpetrator of any of the sins mentioned above.
The Talmud in tractates Sanhedrin and Makkot discuss the specific elements and conditions of all that must occur in order to convict a murderer in a Jewish court. For example, the two witnesses have to be adult Jewish men who keep the commandments, know the Oral Law fairly well and have legitimate professions. Both witnesses must be able to see each other at the time of the act or sin. The witnesses must be able to speak clearly, without any speech impediment or hearing deficit. They are invalidated if they are related to the accused or to each other. In addition, the witnesses have to give a warning to the person right before the sin, saying that the sin he or she is about to commit is a capital offense. If the warning is not delivered within approximately ten seconds before the sin/crime, it is not valid. In that short time period after the warning, the sinner has to respond that he or she is familiar with the punishment, is going to commit the crime/sin anyway, and then begin to act immediately thereafter.
In court, the following conditions must also be present: The judges have to examine each witness separately, and even if one point of their evidence is contradictory (even the eye color of the sinner), the witnesses’ testimony is not admitted. Of the 23 Jewish judges presiding over a capital case, a simple majority of 12 to 11 is not enough to convict (it needs to be at least 13 to 10) and if all 23 unanimously vote to convict, the sinner goes free (based on the logic that if at least one judge cannot find something exculpatory about the accused, then there is something wrong with the court). Thus, it would be nearly impossible to satisfy each and every one of these conditions. While the punishment of death for sins or crimes is clearly stated in order to show the severity of each sin or act, and while the person who commits such crimes may indeed deserve to be killed, in practice, Judaism and Jewish courts could almost never actually convict and put someone to death.
Rabbi Dr. Nachum Amsel currently works with Rabbi Berel Wein and the Destiny Foundation as the Director of Education, whose mission is “to bring Jewish history to life in an exciting, entertaining and interactive way.” Rabbi Amsel has also served as a teacher, a school principal, and an adjunct professor. He has also taught over 2000 educators how to teach more effectively. Rabbi Amsel has worked in all areas of formal and informal Jewish education and has developed numerous curricula including a methodology how to teach Jewish Values using mass media. Recently, he founded the STARS Program (Student Torah Alliance for Russian Speakers), where more than 3000 students in 12 Russian speaking countries learn about their Jewish heritage for five hours weekly. Rabbi Amsel previously served as the Educational Director of Hillel in the Former Soviet Union. He lives in Jerusalem with his wife and has four children and four grandchildren.
This essay is reprinted from the book, “The Encyclopedia of Jewish Values” published by Urim, or the upcoming books, “The Encyclopedia of Jewish Values: Man to Man” or “The Encyclopedia of Jewish Values: Man to G-d” to be published in the future. This essay is not intended as a source of practical halachic (legal) rulings. For matters of halachah, please consult a qualified posek (rabbi).