On the Machinery of Death

The machinery of death roared to life again this week. Kenneth Smith was killed in Alabama on Thursday using a method which the American Veterinary Medical Association declared was unacceptable for euthanasia of most mammals. In his trial, the jury had voted to spare his life, but the judge overruled their verdict in a maneuver which is no longer legal. 

Why do we as a society continue to kill to demonstrate our disdain for murder? Do we think that capital punishment is an appropriate — nay, an essential tool — in creating a just society? What can we learn from the Jewish tradition about these questions?

Judaism is not a Biblical religion, it is a Rabbinic religion. This is not to say that the Rabbis did not believe that the Torah, given at Sinai, was the grounding for Jewish law — they did. However, they also knew that a simple reading of Torah does not lead to the Judaism that they practiced nor the Judaism that we have today — whether Haredi/Ultra-Orthodox or humanist. The reason we can have a debate about what Shabbat is like is that our collective point of reference is a practice which owes far more to Mishnah Shabbat and its Talmudic commentaries than it does to the Shabbat laws articulated in Torah. A simple test will prove this. If you kept Shabbat according to Torah you would be sitting inside your tent in the dark and cold and not leaving for the whole “day” of Shabbat (itself undefined as to whether it is refers to daylight or 24 hours). The 25-hour Shabbat of candles, kiddush wine, challot and meals with friends that is the touchstone for what we do and not do is never mentioned in Torah.

I mention this to respond to a claim that has been made that since capital punishment is mentioned in all five books of the Torah, it is therefore a central principle of Judaism. This is a specious argument with no Jewish legal basis whatsoever. There are many such lists and capital punishment never shows up on any of them. (“Love your neighbor as yourself” does. “For man was created in the image of God” does. Torah study does. And so on.)

The serious debate about capital punishment in the Mishnah and Talmud focuses on two aspects of the ethics of the death penalty. On the one hand, the morality of execution in general: the procedural integrity and therefore viability of the system. It is well-known that there is a debate about execution in the Mishnah (Makot 1:10).While Rabbi Akiva and Rabbi Tarfon said that if they were on the Sanhedrin no one would ever be executed, Rabban Simeon ben Gamliel replied that they would thus increase spillers of blood in Israel. However, this is just the tip of the proverbial iceberg.

There is no debate that a court that judged capital cases had to be comprised of 23 judges (Mishnah Sanhedrin 1:1) who had children so that they could still remember how hard it is to raise children; that the judges all needed to be merciful. (Maimonides, Laws of Judges 2:1-3) This is in addition to the fact that in order to actually execute someone, the murderer had to have been warned by two witnesses that murder was a capital crime seconds before he committed his crime. Additionally, the murderer had to say: “I know that this is murder.” (b Sanhedrin 40b) The bar is almost ridiculously high. Finally, once the great Sanhedrin (of 71 judges) left their assigned place in the Temple (40 years before its destruction according to the Talmud), death penalties could not be imposed.

On the other hand, Maimonides kept the laws of murder and capital punishment in his great code. Murder in its premeditated form does not allow a society to function, a community to form. Since one of the central goals of the law is to create a just community, a murderer falls outside of this community and forfeits his rights to live in this community. Execution seemed to Maimonides the only solution.

Does rabbinic Judaism see the death penalty as necessary for the functioning of the system as a whole? For the good of the community? There are those who argue that, yes, the death penalty is indeed necessary for the good of the community. Stephen Passamaneck, emeritus professor at HUC-JIR who died in 2013, argued that the death penalty is part of a process which “with atonement and forgiveness clears the offender’s slate of his grave sin,” and that a “balance is restored … because the life of the offender is not held more worthy than the life of his victim.”

Indeed, asking for and receiving forgiveness from the person wronged is central to the halakhic, or Jewish legal notion of justice. Passamaneck’s argument is that this is impossible in the case of homicide since the victim is not able to forgive. This, I believe, is a misreading of the tradition, on two counts. The death, together with suffering and atonement to clear the offender’s slate and bring about forgiveness, need not be the result of execution. It is the murderer’s death that brings forgiveness in its wake. The rabbis understand natural death as a painful and cleansing process. Second, there is a procedure, articulated by the Rabbis in the Talmud (b Yoma 86b) and codified by Maimonides (Laws of Tshuvah, chapter 2), by which one can, and actually should, ask forgiveness of a dead person. The offender is mandated to bring 10 people to the cemetery and publicly declare his crime and beg for forgiveness.

Capital punishment itself, then, is neither central nor vital for the functioning of the halakhic system or the health of society. The ultimate goal is to repair the tear in the fabric of the community. 

Capital punishment itself, then, is neither central nor vital for the functioning of the halakhic system or the health of society. The ultimate goal is to repair the tear in the fabric of the community. 

Nowadays there is a way to isolate a murderer outside of society without killing him. This can be done with a sentence of life in prison without the possibility of parole. On top of this, the “machinery of death” in this country is broken beyond repair. For example, recent research has cast doubt on eyewitness testimony in general. 

Given all the problems with the actual rightful conviction of a murderer, the only viable and just option is the use of a sentence of life in prison. This also seems to be the opinion of the Jewish tradition. When New York State was contemplating the reenactment of the death penalty, Governor Hugh Carey (D) sent a letter to religious leaders asking for their opinions of capital punishment. One was Rabbi Moshe Feinstein, then the most respected of Orthodox poskim in North America. On the way to saying that he is against capital punishment except under the most extreme circumstances of lawlessness (by which I think he means genocide), he wrote the following “It is not appropriate to mete out capital punishment on the basis of circumstantial evidence — as great as that evidence might be — but only by the testimony of two proper witnesses who have no conflict of interest. Further, [the  perpetrator] needs to have been warned [prior to the action], and he needs to have accepted the warning and to have said explicitly that even though he knows all this he intends to transgress.”

It is beyond the time to stop the machinery of death and to begin the hard work of justice — reforming our prisons, making victims and/or their families whole, allowing for transgressors to repent and atone. Then perhaps we will turn our cities into places of righteousness in which the Divine presence may dwell.

Rabbi Dr. Aryeh Cohen is Professor of Rabbinic Literature at the Ziegler School of Rabbinic Studies at the American Jewish University. He is also the co-convener of the Black Jewish Justice Alliance. He is the author of “Justice in the City: An Argument from the Sources of Rabbinic Judaism.”