Q. The Torah seems to advocate use of the death penalty. Does this mean we should support its implementation today?
A. At the very dawn of civilization, immediately after the flood, God commands Noah: "Whoever sheds the blood of man, by man will his blood be shed, for in the image of God did He create man"(Genesis 9:6). It is precisely because of man's elevated, Divine nature that we were commanded to deal strictly with anyone who diminishes the expression of His image by committing murder.
After the giving of the Torah, we find that many different transgressions are liable to capital punishment, including murder, adultery, and desecrating the Sabbath.
So it would seem that for mankind as a whole, and also among the Jewish people, capital punishment is a legitimate and even vital part of the system of justice.
In 1981, Rabbi Moshe Feinstein, the most outstanding rabbinical authority in the United States at that time, was asked by the Governor of New York (Hugh Carey) to present the Orthodox Jewish approach to capital punishment, which was then (as ever) a controversial topic in the state. In his answer (volume II of Choshen Mishpat number 68), Rav Moshe constantly emphasizes not the underlying liability to capital punishment but rather the many different practical obstacles that the Torah justice system, as explained in the Talmud, places in the way of actual execution of this punishment.
First of all, Rav Moshe explains, "the death penalty is mentioned in the Torah only for the gravest transgressions," which would be committed by people who are completely amoral. He goes on to state that even these punishments "are not out of hate for the wrongdoers or [even] out of concern for the stability of society . . . but rather so that people should be aware of the seriousness of these prohibitions and therefore would not transgress them." Indeed, even these punishments are tempered by "sensitivity to the importance of each soul," to the extent that the technical requirements for carrying out the death penalty were next to impossible to fulfill: That no circumstantial evidence is accepted, that warning of the penalty is given and acknowledged before the crime is committed, and so on.
For this reason, Rav Moshe explains, the death penalty was never customary in Jewish communities even when the secular government authorized them to employ it. "And even so, in all the generations there were virtually no murderers among the Jews, because of the gravity of the prohibition and because they were educated by the Torah and by the punishments of the Torah to understand the gravity of the prohibition, and not because they were simply afraid of the punishment."
We can summarize by saying that on the one hand, the Torah prescribes capital punishment for a variety of transgressions. Yet simultaneously, our tradition tells us that these punishments were next to impossible to carry out. It seems that the prescription of capital punishment is mainly an educational device to impress upon us the severity of a small core of basic regulations which are essential for an ethical society. It is not meant to encourage the legal system to actually sentence offenders to death.
However, Rav Moshe adds that in the case of a particularly cruel murderer, or in a situation where bloodshed becomes widespread and out of control, there is justification for the authorities to carry out the death penalty in order to restore respect for the law.
We can learn from this profound reply that in any system of justice, the educational dimension is at least as important as the deterrent factor. Severe punishments are meant to impress upon citizens the severity of the crime even more than they are meant to raise the cost of crime.
In fact, sometimes the educational and deterrent elements contradict. "Cruel and unusual punishment" forbidden by the US Constitution should be a particularly effective deterrent. Yet its educational message is negative, as it tends to erode rather than affirm man's Divine image. It seems that the United States founding fathers were aware of the inner message of the Biblical justice system, as expounded by Rabbi Feinstein, as they forbade this kind of judgment and thus gave precedence to educating the citizens in what is right and wrong rather than threatening them to toe the line.
Incentives and deterrents have importance, but alone they can never create an enlightened society. The fundamental bedrock of society is education towards uplifting values, and the criminal justice system, like other aspects of law and society, must take this into account.
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