In this week’s Torah portion, Parashat Noach, the Torah introduces us to the possibility of imposing the death penalty. It does so with these words, “Whoever sheds human blood, by human [hands] shall that one’s blood be shed.” (See Genesis 9:6.)
The death penalty is much in the news of late, especially in Florida. First, there was a jury’s decision earlier this month to sentence Nikolas Cruz to life for murdering 17 people at Marjory Stoneman Douglas High School in Parkland, Fla., in February 2018.
Second, a hearing was held last Friday in a Tampa courtroom questioning whether Gov. Ron DeSantis was responsible for a decision to pursue the death penalty in a murder trial set to begin on Monday.
Third, DeSantis, who was on the re-election campaign trail, responded to both cases by vowing to toughen the state’s death penalty statutes.
Three jurors in the Cruz case refused to impose the death penalty. Under Florida law since 2016, unanimity is needed to sentence a person to death. Before then, only seven votes were required. DeSantis quickly announced that he would seek to restore that simple majority requirement.
In Tampa last week, meanwhile, the Hillsborough County public defender’s office argued that DeSantis was behind the decision to pursue the death penalty in the trial of accused murderer Matthew Terry.
Hillsborough State Attorney Andrew Warren, a Democrat, declined to seek the death penalty in the case. Soon after, for unrelated and controversial political reasons, DeSantis suspended Warren and appointed County Judge Susan Lopez, a Republican, as acting state attorney. The day after her appointment, Lopez put the death penalty back on the table.
At last Friday’s hearing, the trial judge ruled that the public defender’s office had failed to make its case and allowed the death penalty option to stand.
Twenty-seven states still have the death penalty on the books, although in seven of them imposing it is on hold. The remaining 23 states and the District of Columbia have abolished the death penalty. It remains on the books for certain federal offenses.
As is usual in death penalty debates, both sides rush to point out that “the Bible” is on “our side.” In this debate, 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. It is suggested, as noted earlier, by this week’s parashah. It is made more direct elsewhere, however. “And your eye shall not pity; but life shall go for life,” says Deuteronomy 19:21. In Numbers 35:31, we are told that the murderer shall “surely be put to death.”
The death penalty is invoked for crimes other than murder, as well, such as for violating Shabbat (see Exodus 35:2), cursing one’s parents or disobeying them (see Leviticus 20:9 and Deuteronomy 21:21), blaspheming against God (see Leviticus 24:14), and engaging in forbidden intimate liaisons (see especially Leviticus 18 and 20). In all, there are 36 instances in which the Torah mandates capital punishment.
The Torah also seemingly has no problem carrying out executions. 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 Torah law 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. Only in rare instances does the Torah 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. 210 states that if a man accidentally kills a freeborn man, the man’s daughter is put to death. Law No. 230 says 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 it directly. Instead, it throws into the mix a new ingredient, the city of refuge (first mentioned in Exodus 21:13 and elaborated on elsewhere, especially in Numbers 35), where the person who unintentionally kills someone else can flee to safety. 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 that a person may not be convicted of a capital crime based on circumstantial evidence alone, or by the testimony of only one witness, or even by a person’s confession. At least two witnesses are required for conviction. (See Deuteronomy 17:6.)
This is not rabbinic spin on what the Torah says (although our 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 ability to impose the death penalty. Few people commit murder in front of witnesses. Almost no one engages in a forbidden assignation while others watch. Confessions can be forced.
The witnesses, however, must take great care in framing their testimony, because Deuteronomy 17:7 mandates that they also be the executioners: “Let the hands of the witnesses be the first to put [the condemned person] to death….”
Witnesses also must avoid perjuring themselves, and especially so in death penalty cases, because perjurers are punished the way the defendant would have been punished. As Deuteronomy 19:18-19 says, “And the judges shall make diligent inquiries. If the witness who testified is a false witness…, you shall do to this one as he [or she] schemed to do to the other….”
That the judges are required to make “diligent inquiries” in itself limits the imposition of the death penalty, because it forces them into exhaustive cross-examination of witnesses, all of whom must testify to the exact same facts with no deviations. (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 seeming degree of liberality, but the totality of its laws turns this on its head, causing our Sages to make it almost impossible ever to do so. Thus, a mishnah in the tractate Makkot (7a) states that a court “that executes [someone] once in seven years is considered an evil [court, but] Rabbi Elazar ben Azaria says [it is considered evil if it executes someone] once in 70 years.”
As the late Rabbi Aaron Soloveichik noted in 1994, “The Jewish view of the death penalty is that it should exist but should never be used” except “in extraordinary situations, [or] in extraordinary threats to the public order.”
That is because death not only is final and irreversible, but all too often the wrong person is being executed.
That is why, in 2017, 150 rabbis from all of Judaism’s streams—including noted Orthodox, Conservative, and Reform rabbis—issued an unusual joint statement opposing the death penalty. Among the reasons they cited was that the wrong people often are “convicted for crimes they did not commit,” usually because they do not have the resources to mount an adequate defense or to appeal a wrongful conviction. This is especially true of non-white defendants. The rabbis wrote in their letter, “The consequences of this system are not only fundamentally unjust, but also produce racially disparate outcomes.”
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. Since 1973, following the U.S. Supreme Court’s ruling that the death penalty was unconstitutional, 190 prisoners on death row were exonerated of all charges. That is an average of nearly four people a year who were falsely convicted in death penalty cases. There is strong evidence that at least 20 of the 1,552 who have been executed here since the death penalty was brought back in 1976 were innocent of the crime for which they were convicted.
If the Torah requires certainty to a degree that is not possible, then it is not acceptable to justify the death penalty by citing the Torah. It is as simple as that. As the 150 rabbis wrote in their 2017 letter, it is time “to see the death penalty for what it is: not as justice gone awry, but a symptom of injustice as status quo.”
Shammai Engelmayer is a rabbi-emeritus of Congregation Beth Israel of the Palisades and an adult education teacher in Bergen County. He is the author of eight books and the winner of 10 awards for his commentaries. His website is www.shammai.org.