Time to bury a bad law
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Time to bury a bad law

The death penalty is back on the table in New Jersey as the State Legislature begins to take up S171/A3716, a bill that would replace the death penalty with life imprisonment without the possibility of parole. It would also make New Jersey the first state to rescind the death penalty after having earlier reinstated it. In the Garden State’s case, that was in 198′.

As is usual in death penalty debates, both sides rush to point out that "the Bible" is on "our side." Of course, one side has to be wrong, right? Wrong.

Both sides are right. One side, however, is more right than the other.

To be sure, capital punishment is very much a part of Torah law, at least on the surface. "And your eye shall not pity; but life shall go for life," God decrees in Deuteronomy 19:’1. "You shall take no ransom for the life of a murderer…, but he shall surely be put to death," He insists in Numbers 35:31.

The death penalty is invoked for crimes other than murder, too, such as for violating Shabbat (see Exodus 35:’); cursing one’s parents or disobeying them (see Leviticus ‘0:9 and Deuteronomy ‘1:’1); blaspheming against God (see Leviticus ‘4:14); and engaging in an intimate liaison with the wrong person (see especially Leviticus ‘0). In all, there are 36 instances in which the Torah mandates capital punishment.

The Torah also seemingly has no problem carrying out the death penalty. Thus, Numbers 15:3′-‘6 tells us of the execution of a man for violating a Shabbat prohibition.

That, however, is too simplistic a reading of the Torah’s legislation. Often, what the Torah says and what it means are two different things. Only by understanding the totality of the Torah does one understand a specific commandment.

The death penalties in the Torah are not unique to it; they were the way of the world 3,500 years ago. Outside of issues of blasphemy and heresy, only in rare instances does the Torah try to overturn commonly accepted practice. Instead, it permits those practices in theory, but sets rules that limit and even eliminate their application.

Thus, for example, blood vengeance was accepted in the ancient world. Kill my relative, even by accident, and I kill you. In the Code of Hammurabi, it is even permissible to kill others. Law No. ’10 states that if a man strikes a free-born woman and she dies, the man’s daughter is put to death. Law No. ’30 states that if a poorly constructed building collapses, killing the owner’s son, "the son of the builder shall be put to death."

This was too much a part of accepted practice 3,500 years ago for the Torah to challenge directly. Instead, it throws into the mix a new ingredient, the city of refuge (first mentioned in Exodus ‘1:13 and elaborated on elsewhere, especially in Numbers 35). If a person unintentionally kills someone, "the avenger of blood kills the slayer, he shall not be guilty of blood" (see Numbers 35:’7). If the unintentional murderer has his wits about him, however, he will not wait around for the death to be discovered. Instead, he will get a head start on the blood avenger by immediately running to one of the cities of refuge and — following a trial at which his claim to accidental homicide is found credible — be permanently protected.

The principle of blood vengeance is preserved in theory; in practice, it is made virtually impossible.

So it is with the death penalty. There are other laws in the Torah that must also play a part in a decision to impose the death penalty.

Thus, for example, the Torah makes clear in several places that neither circumstantial evidence alone nor the testimony of only one witness can lead to the death penalty, but "by the mouth of two witnesses, or three witnesses, shall he who deserves death be put to death…." (See Deuteronomy 17:6.) This also bans the use of confessions to convict.

This is not rabbinic spin on what the Torah says (although the Sages of blessed memory had much to say on the subject, almost none of it pro-death penalty). This is plain-text, unevolved, un-spun Torah law, and it clearly limits the extent of the death penalty’s viability. Few people commit murder in front of witnesses. Almost no one commits incest while others watch.

The witnesses surely will take great care in framing their testimony, because the very next verse mandates that they also be the executioners: "The hands of the witnesses shall be first upon him to put him to death…."

Witnesses also will take great care in not framing the defendant by perjured testimony. Deuteronomy 19:18-19 states, "And the judges shall make diligent inquiries and, behold, if the witness is a false witness, and has testified falsely against his brother, then shall you do to him, as he had thought to have done to his brother; so shall you put the evil away from among you."

Put another way: A person who lies about a defendant in order to convict that person receives the punishment he wanted to see imposed on the defendant. If that punishment was death, then it is the witness who dies.

That the judges are required to make "diligent inquiries" in itself limits the imposition of the death penalty, because it forces them into extensive cross-examination of witnesses. (See the extensive discussion regarding cross-examination in the Babylonian Talmud tractate Sanhedrin 37a ff.)

So yes, the Torah does impose the death penalty with a degree of liberality. However, the totality of Torah law turns this on its head.

"The Jewish view of the death penalty is that it should exist, but should never be used," is how Rabbi Aaron Soloveichik summed it up for Gov.-elect George Pataki of New York in 1994. Only "in extraordinary situations, in extraordinary threats to the public order" should it even be a real option, he added.

That is because death is final and irreversible. The Torah, in simple, unambiguous language, makes it clear that there must be absolute certainty that the defendant committed the crime and that the act was wanton and willful before he or she can be executed.

What we know for a certainty is that innocent people can be — and have been — convicted of a capital crime. In the United States since the death penalty was brought back in 1976, nearly ’00 people have been exonerated and their convictions overturned because DNA evidence proved that they were innocent. Only God knows how many of those who were executed since 1976 also were innocent.

If the Torah requires certainty to a degree that is not possible, then it is not possible to justify the death penalty by citing the Torah. It is as simple as that.

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