A Yawning Gulf? Attitudes Toward the Death Penalty in the Torah and Hazal
A man is trapped in a closed, concrete room. All routes of escape are blocked and heavily guarded. Just outside, a group of trained, highly skilled men intend to kill him with cold precision. An outsider landing in the middle of this scene would be shocked, and employ all his resources to rescue this hapless victim. However, if our righteous visitor was informed that our “victim” was actually a cold-blooded killer himself awaiting the death penalty, making a moral decision about what to do with him would become much more complicated. Modern American politicians debate both how to fairly apply the death penalty as it stands now and whether we should have a death penalty at all. Jewish thought also includes two streams of thinking about this issue, with the Torah more supportive of the penalty and Hazal more reluctant to enforce it.
The Torah is strong in its support of the death penalty, legislating it as a punishment for many violent and non-violent offenses, including forms of incest,[i] adultery,[ii] idolatry, [iii] kidnapping,[iv] rape of a married woman,[v] and violation of the laws of Shabbat.[vi] The Torah is particularly insistent on enforcing the death penalty in cases of murder, declaring, “And one who strikes a person [fatally] shall be put to death.”[vii] In several places, the Torah emphasizes the justness of taking the life of one who has ended another’s. Speaking to Noah after the flood, God declares, “One who spills the blood of man, by man his blood shall be spilt.”[viii] A similar verse, “The land will not be appeased for the blood spilt within it except with the blood of the spiller,”[ix] is repeated at the end of a discussion of the laws of ir miklat (city of refuge) and unintentional murder. These verses portray the death penalty for murderers not simply as a punishment, but as a fair, measure for measure consequence that the perpetrators have brought upon themselves.
Given the Torah’s attitude, it is surprising and somewhat jarring to see Hazal’s much more hesitant view of the death penalty. The Gemara in Sanhedrin 40b lays out a set of criteria necessary before a criminal can be sentenced to death, criteria so strict as to make enforcement of the death penalty essentially impossible. According to the Gemara, before sentencing a criminal to death, the judges must confirm with the witnesses, “Did you warn him? Did he accept the warning?” However, a simple warning on the witnesses’ part is not enough. The defendant himself must also orally acknowledge that he knows his crime will carry the death penalty before he commits it. Furthermore, the time between the witnesses’ warning and the defendant’s crime cannot exceed the amount of time of kedei she’eilat shalom[x], the amount of time it takes to say hello, for otherwise, as Rashi explains,[xi] we are afraid that the defendant may have forgotten the warning. In a famous mishnah in Makkot 1:10, the anonymous Tanna Kamma limits how often capital punishment should be applied and says, “A high court which kills once in seven years is called ‘destructive.’” R. El’azar ben Azariah goes further and gives the same label to a court that kills only once in seventy years. R. Tarfon and R. Akiva go as far as to say that they personally would never enforce the death penalty, although R. Shimon ben Gamliel is unhappy with the freedom this position would give to murderers.
Based on the verses in the Torah cited above, one would think that the Tanna’im should praise a high court that ensures justice will be done and enforces the death penalty, but Hazal seem to take the opposite view and not-so-subtly criticize “trigger happy” courts that impose the death penalty too often. Based on the above mishnah in Makkot, R. Ovadiah Bartenura, a famous fifteenth century commentator, derives that courts should actually deliberately avoid the death penalty when they can, and should specifically “look for merit in capital cases.”[xii]
Some scholars would explain that Hazal simply had a different hashkafah about the death penalty than the Torah did, and therefore tried to use technicalities to circumvent the Torah law. In the words of scholar Sara Japhet, Hazal always lived with a tension that stemmed from “the continuous emergence of gaps between changing historical situations … and the fixed, canonized text,”[xiii] and they reinterpret the text to meet the requirements of the day “guided by their social ideology.”[xiv] As an Orthodox thinker, however, while accepting that Hazal were human beings and therefore influenced by their historical surroundings, I find it difficult to imagine Hazal imposing their own ideology on the law when the Torah has a clear, emphatic, and opposing position. Is it possible to find a different way to reconcile Hazal’s and the Torah’s differing attitudes towards capital punishment? Is it possible to find some source in the Torah that Hazal were picking up on when they lay down rules limiting the situations in which the death penalty applies?
While the legal portions of the Torah are emphatic in their insistence for imposing the death penalty on murderers, stories in Tanakh seem to temper this insistence. The Torah’s first murder takes place early on, in the fourth chapter of the book of Bereshit. Kayin kills his brother Hevel in cold blood, and is confronted by God who asks where Hevel has gone. Unrepentant, Kayin responds with the famous question, “Am I my brother’s keeper?”[xv] God, of course, is not fooled and accuses Kayin, declaring, “What have you done!?”[xvi] At this point, Kayin has murdered his innocent brother in cold blood, and is defiant and unrepentant about his crime. Based on the Torah’s own legal principles, we should expect God to destroy Kayin on the spot, to spill Kayin’s blood in retribution for the “sound of [his] brother’s blood screaming to [God] from the ground.”[xvii] But God does not kill Kayin. Instead, He decrees that Kayin will be banished, a punishment starkly similar to the punishment of exile reserved for unintentional killers.[xviii] When Kayin protests that even this punishment is too strict, God in fact protects Kayin from death, placing a special mark on him so that “all who find him should not kill him.”[xix]
Hazal were highly aware of this conflict between the punishment God prescribes for murderers and the punishment He actually gives Kayin. The midrash in Bereshit Rabbah 22:12 expands upon and dramatizes God’s refusal to sentence Kayin to death. R. Yehudah describes the beasts, animals, and birds of the world coming to God and demanding Kayin’s blood in revenge for Hevel’s death, but God instead declares, “Whoever kills Kayin will be killed.” R. Yehoshua ben Levi continues and imagines the primeval snake asking for Kayin’s death and justice for Hevel, but God only repeats, “Whoever kills Kayin will be killed.” R. Nehemiah tries to explain why God would persistently refuse the animals’ seemingly just claim that Hevel should be avenged through Kayin’s death: “The law of Kayin is not like the law of [other] murderers,” R. Nehemiah says, because “Kayin killed, but he did not have from who to learn.” According to R. Nehemiah, Kayin deserved a different punishment than the one normally reserved for murderers because his case was different from cases of other murderers. There were mitigating factors in Kayin’s case; Kayin did not have any precedent to teach him the severity of murder, and therefore he was not fully aware of what he was doing. A midrash in Sanhedrin also expresses this idea that Kayin’s murder was not fully intentional or premeditated. Having never previously experienced death, Kayin was not sure where he should strike Hevel in order to kill him, and ended up bruising and wounding Hevel all over his body, until he happened upon his neck and killed him there.[xx]
Hazal definitely recognized Kayin’s sin as serious, even as causing the world to become less godly; the midrash in Bereshit Rabbah blames Kayin for causing God to remove Herself from the world, stating succinctly, “Kayin sinned, [therefore] it [the Shekhinah] left to the second firmament.”[xxi] And yet, another midrash raises the possibility that Kayin’s great sin was not as inerasable as it seems, and may even have been forgivable. Commenting on Kayin’s question of God, “Is my sin too great to bear?,”[xxii] the Gemara explains that Kayin here challenges God, “Is my sin greater than that of the sixty myriads who in the future will sin before you, and yet you will forgive them!?”[xxiii]
Perhaps, then, when Hazal express a hesitant attitude towards capital punishment, they are not ignoring the Torah’s proclamation that capital punishment is the just response to murder. Instead, perhaps Hazal are simply also attuned to the story of Kayin, to the mitigating circumstances surrounding his murder. Maybe Hazal recognized that almost all capital cases have mitigating factors, that we need strict rules to ensure that anyone sentenced to capital punishment was fully warned and informed of the severity and consequences of his crime.
In modern times as well, the story of Kayin has been interpreted as a story expressing hesitance regarding the justice of the death penalty. Hands Off Cain, an anti-capital punishment organization, uses the story of Kayin to further their position that the death penalty should be abolished worldwide. The group backs up their declaration that “We, the undersigned, are firmly convinced that the abolition of the death penalty is not only a necessity of the individual but also a historic and universal necessity,” with the claim that the biblical story of Kayin supports their assertion. “‘Hands Off Cain’ is written in the Bible,” they contend, “and this ancient imperative means, to us, that the State cannot take the life of one of its citizens.”[xxiv]
It seems reasonable to contend that Hazal’s hesitant view of the death penalty was derived from the Torah itself, not simply from the “social ideology”[xxv] of the time. The Torah’s call for strict enforcement of the death penalty expresses the idea that murder and even other crimes are so abhorrent, so unforgivable, that a person who commits them no longer deserves to live. Recognizing this principle of justice is important, but some slippage occurs when applying ideals and abstract principles of justice to flesh and blood cases. Hazal may believe that few actual, real-life situations qualify as classic criminal cases where strict justice should apply. Perhaps, like Kayin, our imaginary murderer did not fully understand what he was doing or did not have complete intent to murder. Maybe he would not have followed through with his crime had he been warned, or been warned strongly enough. And when you are deciding to put a man to death, you cannot afford to be unsure whether or not the punishment is just.
Atara Siegel is a junior at SCW majoring in Psychology, and is a staff writer for Kol Hamevaser.
[i] Vayikra 20:11-15.
[ii] Vayikra 20:10.
[iii] Shemot 22:19.
[iv] Shemot 21:16.
[v] Devarim 22:23-27.
[vi] Shemot 31:14.
[vii] Vayikra 24:21. All translations are my own.
[viii] Bereshit 9:6.
[ix] Bamidbar 35:33.
[x] Rashi Sanhedrin 40b s.v. Hemit B’tokh K’dei Dibbur
[xii] Makkot 1:10, see Bartenura ad loc.
[xiii] Article in edited book: Sara Japhet, “The tension between Rabbinic Legal Midrash and the ‘Plain Meaning’ (Peshat) of the Biblical Text-An Unresolved Problem?: In the Wake of Rashbam’s Commentary on the Pentateuch,” in Sefer Moshe: The Moshe Weinfeld Jubilee Volume: Studies in the Bible and the Ancient Near East, Qumran, and Post-Biblical Judaism, ed. by Chaim Cohen, Avi Hurvitz, Shalom M. Paul & Moshe Weinfeld (Winona Lake, IN: Eisenbrauns, 2003). 403. Thank you to R. Mordechai Cohen for exposing me to Japhet’s work.
[xiv] Japhet, 409.
[xv] Bereshit 4:9.
[xvi] Bereshit 4:10.
[xviii] As described in Bamidbar 35:9-15.
[xix] Bereshit 4:15.
[xx] Sanhedrin 37b.
[xxi] Bereshit Rabbah 19:7.
[xxii] Bereshit 4:13.
[xxiii] Sanhedrin 101b. In this midrash, Kayin claims that his sin should be no less forgivable than the sin of the 600,000 Jews who left Egypt. Presumably the sin the midrash is referring to is the sin of the Golden Calf.
[xxiv] “Appeal to the United Nations for the Moratorium on Capital Punishment and the end of ‘state secrecy’ on the death penalty,” Hands Off Cain, available at: www.handsoffcain.info.
[xxv] Japhet, 409.