Kol Yaakov Parshat Masay: Capital Punishment and Curbing Crime
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Masay(Numbers 33-36)

Capital Punishment and Curbing Crime

You would get the impression from a few verses in Parshas Masay that the Torah takes the crime of homicide very seriously. No less than 29 verses (35:6-34) discuss the various consequences of all kinds of murder, both intentional and unintentional. In Parshas Shoftim there are another 13 verses that address the same subject, as well as more individual verses throughout the Torah. Murder is a cardinal sin and needs to be punished severely.

Yet, we find a fascinating, seemingly contradictory, series of statements in the Mishneh Makkos 7a:

A Sanhedrin (High Court) that executes once in seven years is called a destroyer. Rabbi Elazar ben Azariah says: Once in 70 years. Rabbi Tarfon and Rabbi Akiva say: Had we been on a Sanhedrin, no one would ever have been executed. Rabbi Shimon ben Gamliel says: They would then have increased the number of murderers in Israel."

(Tosafos Yom Tov commentary explains that Rabbi Shimon ben Gamliel was concerned with murder more than other sins because it is the most destructive one. His point though applies to increasing all other types of sins besides murder as well.)

Strange. There is no other word to describe the feeling one gets when reading this Mishneh. At the maximum, a High Court was not expected to execute any criminal, even for capital offenses, more than once every seven years, and even that is considered too often. Even Rabbi Shimon ben Gamliel, while criticizing Rabbis Tarfon and Akiva as being too lenient, agrees with that.

The Bartenura commentary explains the basic rationale of this Mishneh as encouraging judges to examine carefully and decide slowly, so that they could find a method to exonerate the accused. We don't wish to kill even a criminal, unnecessarily.

But what then are we to do with all of the verses in the Torah delineating all the capital consequences and punishments of transgressions? The Torah was not simply wasting its time in an exercise in futility. So why does the Torah list and threaten numerous punishments if they are not easily designed ever to be carried out?

The answer is this. The mark of social stability, morality, and lack of crime within any society is not necessarily based on the number of criminals who are actually convicted. What matters most is not how many arrests we make but the very fact that we put a law on the books and make a statement of what our values are. It is of utmost importance for a society to prohibit and make adultery illegal. Whether it is practical or possible to enforce such a law is irrelevant. We need to make the strong declaration that adultery is patented evil, regardless. We must make statements explaining our values.

Murder is unacceptable and deserving of death, whether we are able to punish all murderers or not.

We may think that it doesn't matter very much when we firmly state our morals even without the ability to carry out punishment. But it matters very much. The difference is the entire pulse and tone of our society. Children grow up with a sense of right and wrong in their outlooks and understanding when we clearly and cogently state our morals and values. If society has no stated values, the child will experiment with anything and everything and walk down immoral paths.

There is no real way that any society can eliminate crime strictly through carrying out punishments. Shoplifting, drugs, muggings, or murder will never be curbed unless society expresses how it feels about crime. A society must look with contempt at a thief, with horror at a murderer, with total intolerance at a rapist, in order to work toward eliminating all of them. But if criminals do not get these feelings from society but, on the contrary, receive understanding and compassion from the justice system due to their 'unfortunate upbringing,' this guarantees that not only will it not curb, but it will actually encourage more crime.

We cannot impose discipline from without. We can only do so from within. When a child shoplifts we must look at him with revulsion and scream, "You thief! How could you?" If children continuously receive these reactions, they will not shoplift. But if we merely tell them, "You better not do that because you don't want to get a criminal record," it won't make the slightest impression upon anyone to avoid it. We must strongly frown upon all crimes and not give it the slightest degree of acceptance.

In societies where values are clearly expressed, crime will truly be minimal. In societies where this is not done, crime will be an ongoing problem. Thus, the Torah constantly describes all of the serious consequences of murder, theft, and all transgressions.

It is irrelevant whether or not punishments will actually be carried out. But it is of utmost significance to state the severity of the punishments, which apply to the crimes.

We should support capital punishment for severe crimes such as murder, because we need to instruct all members of society that taking someone's life warrants the forfeiting of the murderer's own life. If the fact remains that capital punishment does not curb murder in the United States, it is only because society does not show enough outrage at the criminal but rather seeks to understand with tolerance, the criminal's motive and rationale.

Yes, it is possible to be too tolerant, at times. Compassion for criminals is one such example. We can never allow our contempt for immoral acts to be weakened. If we do so, we risk sacrificing the entire moral fabric of society and we guarantee that crime will exist perpetually.

Published: July 22, 2003

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Visitor Comments: 12

(11) Yehudith Shraga, June 30, 2013 6:12 PM

Unconditional Faith in Wisdom of Torah

As difficult and frightening it sounds to decide on the capital punishment, we should go Faith above the Knowledge and to agree with the WISDOM of TORAH!



Sometimes we do misinterprit the meaning of the True Mercy, because it is too difficult for a human being to oversee all the effects of this or that action, and so it is especially important to learn to rely upon the statements of the Torah and follow them either it sounds to us cruel or not, because, as the article states, the wrong usage of Mercy may bring us to the tragic results which will be much more difficult to correct, than it is to follow the commandments of Torah.

(10) michoel chayim, July 26, 2011 9:56 PM

why support cap punishment??

the aino yehudim do not have the same strictures of eidus and evidence as we do, so why should we support capital punishment in our days? while 1. studies show it does not prevent crimes, and 2. the statement of R. Shimon Ben Gamliel is the minority opinion.

(9) Dennis E. Means, MD, July 26, 2011 7:59 PM

A Reason Not to Support Capital Punishment

As an African American man, I am opposed to laws supporting capital punishment. Numerous studies have demonstrated that the capital punishment is unequally applied across racial lines, with Blacks being far more likely to receive a death sentence than Whites. Until we live in a system where race and socioeconomic status are not primary determinants of who receives a death sentence it should not be applied to anyone.

(8) harold, July 26, 2011 4:03 PM

value of human life

i beleive the torah is very clear on this subject

(7) cassandra hansen, July 19, 2011 1:08 AM

i believe in captail punshment in all countrys

i am a austrailan. i believe we should have the death penatly back everywhere. austraila doesnt have it. thats why our justice system is no good. life in prison dosent do anything. our jails are over run. so judges give out less punshment for the guity.. thats why i love the american system. you have the death penaty. i believe a eye for a eye and a tooth for a tooth.. if someone kills another person the same thing should happen to them..

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