Isn’t The Death Penalty Barbaric?
QUESTION: Isn’t the death penalty barbaric and wrong? Why then does it exist in the Torah?
ANSWER: Forty years before the Temple was destroyed, almost 2000 years ago, Jewish courts voluntarily stripped themselves of the ability to judge all cases of possible capital punishment. Even before that time, the circumstances were so narrowly defined that the Talmud tells us that a court that put someone to death once in 70 years was a “bloody court.”
Just to provide a glimpse how difficult it was to put someone to death according to Jewish law: The person about to commit the act had to be verbally warned beforehand by two proper witnesses who say, “Are you aware that the act you are about to do incurs the death penalty?” And then they had to specify the correct death penalty.
Next, the perpetrator had to reply, “Yes, I understand committing this act is deserving of such-and-such death penalty, but I will do it anyway.”
Without that verbal warning and without that verbal acknowledgement there were no grounds for the death penalty.
And if those who did the warning warned the perpetrator with the incorrect type of death penalty the case was thrown out.
In addition, the witnesses could not be related to each other, could not be gamblers, could never have ever even lifted a hand against a fellow Jew. Plus, there were other factors that could have disqualified them as proper witnesses.
Furthermore, these witnesses were interrogated before the trial. If either of them slipped up in or forgot any detail the case would be thrown out.
Some of the greatest Talmudic sages said that if they had been on the court that put someone to death, their interrogating ability would have meant that no person would have ever been put to death. So, execution by a Jewish court was exceedingly rare.
Why have the law to begin with? It’s important to have it on the books, if for no other reason, than to let people know the severity of the act. Society has to protect its citizens, and part of it is a court system that brings the guilty to justice. However, if a human court cannot convict, for whatever reasons, nevertheless let the gravity of the crime be known.
Of course, in Judaism, if a person is guilty of something that a human court does not have the jurisdiction to carry out a punishment against, justice will in the Jewish viewpoint be served via the “heavenly court” in some way, shape or form, sooner or later. And in many ways – spiritually and perhaps even physically—that is worse.
Contrast this with the American system. In 1992, the Innocence Project was established in the wake of a landmark study which found that incorrect identification by eyewitnesses was a factor in over 70% of wrongful convictions! Over the next 20 years, the Innocence Project freed 292 wrongfully convicted felons, including 17 who spent time on death row.
Those statistics would never happen under Jewish law. The Torah would rather have a guilty man walk than punish an innocent one. Of course, Judaism believes that even if someone wrongfully gets off they aren’t really getting off, because there is a God who keeps the records and will even out all the ledgers. Nevertheless, while the human court is empowered to do what it can to insure justice to the best of its ability the limitations put upon it by the Torah added extra layers of protection for the innocent.
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