Judaism and the Death Penalty
By Frank Goldsmith
In June CBI hosted a panel discussion organized by the North Carolina Coalition for Alternatives to the Death Penalty (NCCADP), CBI’s Social Action Committee, Carolina Jews for Justice, and CBHT’s Tikkun Olam Committee to explore the issues raised by the documentary film “Racist Roots,” about capital punishment’s racist origins.
In July Jay Jacoby’s Friday Noon Study Group completed its series of discussions on Jewish Perspectives on Capital Punishment.
Also in July, Carolina Jews for Justice joined the North Carolina Coalition for Alternatives to the Death Penalty (NCCADP), a grassroots coalition devoted to the abolition of capital punishment.
But why is this a Jewish issue? How can there be any debate about Judaism’s stance on the death penalty? After all, doesn’t the Torah clearly state, “Whosoever sheds the blood of man, by man shall his blood be shed” (Gen. 9:6)? Aren’t we repeatedly taught “an eye for an eye, life for life”? Isn’t death mandated for a myriad of offenses, including insulting our parents, adultery, idolatry, blasphemy, Sabbath-breaking, lying about one’s virginity, and other transgressions?
These passages remind us of a principle that sounds heretical: the Torah is not the principal source of Jewish law. The rabbis actually teach us not to obey some Biblical injunctions.
In Judaism we say that we live rabbinically, not biblically. It has been that way for millennia. Just as the rabbis interpreted the injunction against boiling a kid in its mother’s milk to mean much more than the literal words, expanding the text to the laws of kashrut we are familiar with today, in the case of capital punishment the rabbis restricted its application to the vanishing point.
In fact, the Torah itself begins that process of restriction. Deuteronomy 17:6-7 states that a person may be executed only upon the testimony of two or more witnesses to the crime, and that those witnesses must be the ones to carry it out.
The rabbis seized upon this requirement for two witnesses to erect formidable barriers to the imposition of the death penalty. They include these rulings: both eyewitnesses must testify; each must have seen the other and the offense from the same vantage point; both must warn the accused that he is about to commit a capital offense (lest he not understand the gravity); he must respond, “Even so, I am going to do it” (lest he not have heard the warning); he must commit the act within three seconds of the warning (lest he have forgotten it); neither witness can be related to the other or to the accused; circumstantial evidence is prohibited; at least one judge must vote to acquit (less the court be prejudiced); and so on.
Obviously, these requirements are implausible extensions of the Torah principle of two witnesses, and the rabbis certainly knew that. But they had decided to restrict use of the death penalty, despite the Torah’s mandates, and they elected to use court procedures as the method. Basically, they interpreted the death penalty out of existence.
Why? One reason is Judaism’s overarching concern for the sanctity of life. The prophets tell us that it is not death that the Almighty wants, but teshuvah. The Talmud states “One who saves a life, saves the world. One who destroys a life, destroys the world.”
Another factor is revulsion at the possibility of executing an innocent person, exemplified by Abraham’s horror at God’s decision to annihilate Sodom and Gomorrah: “Far be it from you to do such a thing, to bring death upon the innocent as well as the guilty, so that innocent and guilty fare alike! Far be it from you! Shall not the Judge of all the earth deal justly?” (Gen. 18:25)
As a result, all major streams of American Judaism – Modern Orthodox, Conservative, Reform, Reconstructionist – have issued statements opposing capital punishment in the American criminal justice system.
That system is too fallible to be entrusted with human life. Some police lie, some prosecutors conceal exculpatory evidence, some defense counsel are incompetent. Appellate review priorities finality over fairness. In North Carolina alone, a dozen men, each convicted and sentenced to death by unanimous jurors who had no reasonable doubt, each conviction upheld on appeal, have later been exonerated upon proof of their innocence. All but one is a person of color. Racial bias infects the system. People of color make up less than 30 percent of the population, but 60 percent of North Carolina’s Death Row. A murder defendant is more than twice as likely to be sentenced to death if the victim was white – white lives matter more.
What can we do? First, go to the Death Penalty Information Center and learn the facts. Get involved with the North Carolina Coalition for Alternatives to the Death Penalty and support its work. If called to serve on a capital jury, think carefully about who will judge the accused if you seek to be excused. Prospective jurors who proclaim their unyielding opposition to the death penalty in any case, regardless of the facts, are not eligible to serve. But if you can conceive of a hypothetical situation where you would at least be willing to consider it (not commit to it, but consider it) – say an Adolf Hitler, or a Ted Bundy – you are eligible. It is unfair to place the decision of life or death solely in the hands of people who have no moral qualms about imposing death.
A system that permits execution of the innocent, or of persons because of their race or the ineptness of their lawyers, is neither accurate nor fair. Our Jewish values cannot support it.