Wrestling with Judaism’s View on the Death Penalty by Rabbi Ed Gelb

What does Judaism say about the death penalty?  With the sentencing to death of Boston Marathon bomber Dzhokhar Tsarnaev, many people are wrestling with this very difficult question.

The Torah clearly allows for the death penalty and prescribes it in many cases. “A life for a life, an eye for an eye, a tooth for a tooth…” (Exodus 21: 23-24)  The biblical idea of “a life for a life…” seems almost bloodthirsty.

Yet rabbinic Judaism did much to minimize the times that the death penalty was implemented.

“A Sanhedrin (assembly of sages) that puts a man to death once in seven years is called destructive. Rabbi Eliezer ben Azariah says: even once in seventy years. Rabbi Akiba and Rabbi Tarfon say: had we been in the Sanhedrin none would ever have been put to death. Rabban Simeon ben Gamliel says: they would have multiplied shedders of blood in Israel.” (Mishnah Makkot 1:10)

Of course, throughout most of Jewish history, the Jewish people have had little political power and little chance to be the decision makers in these cases; more often, they were facing societies that might hurt them or kill them.  So it stands to reason that our rabbis wanted to limit the death penalty as meted out by the state.  My sense is that the rabbis did not like the death penalty and especially did not like it in the context of a world where Jews were at the mercy of courts that did not like them.

There are many viewpoints to consider in this discussion: that of the victim, the perpetrator and the executioner.

“Tzedek, Tzedek Tirdof – Justice, Justice, shalt thou pursue.” (Deuteronomy 16:20) The repetition of words in the Torah is considered important.  The repetition of the word “justice” can be interpreted in many ways.  “Justice, justice” can be interpreted to mean that for the victim, justice should be fervently pursued.  The repetition can mean that both sides of the coin need to be weighed equally.  For example, don’t favor the rich, but don’t be too quick to punish them.  The same can be said for the poor, the accused, society, etc.  We need to be very careful in dispensing justice.

I believe it is easiest to advocate for the death penalty from the viewpoint of the bombing victims.  The victims had their lives stolen away from them and punishment seems fair.  There is no doubt in my mind that Tsarnaev does not deserve to live.  He purposefully tried to kill many people, including little children.  The physical and mental trauma that people experienced is hard to understand.  Yet the victims of the bombing who survived have differing views about the death penalty for both moral as practical reasons.  In Judaism, the death penalty often was to be carried out by the victim’s relatives. From a victims’ perspective and from the verse “justice, justice,” Judaism certainly seems to support the death penalty.

In the case of the Boston Marathon, there is no doubt who set off the bombs.  It seems very clear both by admission and evidence that Tsarnaev is guilty.  Yet, throughout history, the death penalty has been imposed on people in unjust ways.  We know that African Americans in the United States have been executed for crimes they did not commit.  History shows that those in power have made a mockery of justice and imposed the death penalty for their own aims.  The idea of “justice, justice shalt thou pursue” could be interpreted to mean that in the pursuit of justice, we must be very careful not to convict the wrong person.  The accused deserves justice too.  Judaism’s pursuit of justice, in my opinion, requires us to be certain that no innocent person is put to death.  If that means that some people who are indisputably murderers, like Tsarnaev, spend their lives in jail instead of being executed, so be it.  The death penalty, once imposed, is irreversible.  Too many mistakes have been made and in the pursuit of justice, I believe that Judaism cannot support the death penalty.

The last, and to me the most compelling, Jewish reason for outlawing the death penalty is that someone has to both bring down the judgment of death and be the executioner.

Here is a scene from the Harry Potter books that I believe illustrates this point well.  Dumbledore, who is suffering from a terminal illness (so to speak) wishes to die and is trying to orchestrate his death to help in the greater cause of defeating Voldemort.  A teenager, Draco Malfoy, has been ordered by Voldemort to kill Dumbledore.  Dumbledore and Snape discuss their plans:

Dumbledore: “That boy’s soul is not yet so damaged. I would not have it ripped apart on my account.”

Snape: “And my soul, Dumbledore? Mine?”

Dumbledore: “You alone know whether it will harm your soul to help an old man avoid pain and humiliation.”

Even in the most just of circumstances, such as defending oneself or fighting Nazi Germany, one who must take another’s life is impacted in a very negative way.  I believe that Rabbi Shimon ben Gamliel’s comment above (“they would have multiplied shedders of blood in Israel”) refers to this.  He is saying that if the death penalty is imposed, more people will be forced to shed blood.  Dumbledore’s conversation with Snape in the Harry Potter series is a poignant observation of what shedding blood does to the soul.  No human being should be put in a position to have to take the life of another.  It harms the person.  Additionally, in watching the jurors’ anguish, I think that they are greatly harmed by having to decide the sentence of life or death.  I recognize that there have been “just” wars and instances of self-defense that have left many with no choice.  Even in doing the right thing, the person who has to take a life suffers.  We can avoid this with the death penalty because we are not compelled to do this.

This is a complicated and emotional issue with different perspectives.  I hope that my thoughts on the matter will spur your thoughts and observations.  My understanding of Judaism is that our society should no longer impose the death penalty.