The Sceptic Blog

Random thoughts of a random chappy

The Death Penalty

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This morning the American State of California executed a murderer. This is a comparatively rare event in America, and in most Western countries the death penalty is no longer used at all.  Around the world 122 countries have either renounced the death penalty or allowed it to become de facto obsolete: and the list of countries abandoning the death penalty grows at an average of 3 each year.  But in 74 countries and territories around the world the death penalty is used, with varying degrees of frequency: in 2004, around the world 3,797 people were executed and another 7,395 sentenced to death.  97% of the executions took place in China, Iran, Viet Nam and the United States of America.  Most countries use either hanging, shooting, electrocution or lethal injection.  But Saudi Arabia and Iraq use beheading and Afghanistan and Iran use stoning.  (The figures in this paragraph were taken from the website of Amnesty International – I have not attempted to verify them.)

There is a distinct ambivalence in the Jewish approach to the death penalty.  On the one hand, our religious and natural principles of kindness and humanity cause us to recoil in horror from the idea of deliberate and cold-blooded killing of a human being, however guilty.  On the other hand, we cannot forget that the Torah prescribes the death penalty for certain crimes, and that while this is not administered at a time when there is no Sanhedrin in the Temple precincts (Rambam, Hilchos Sanhedrin 14:13), it remains as much a part of Torah thought as any other mitzvah which is in temporary abeyance during the absence of the Temple and its attendant institutions.

It is clear that the same ambivalence is not only encountered but encouraged during times when the Sanhedrin is in place and the death penalty administered in accordance with Torah law.  The Rabbis describe the degree of reluctance with which the dayonim approach the application of the death penalty, and condemn as “bloodthirsty” the hypothetical court that passes the death sentence as often as once in each seven years (Rambam, Hilchos Sanhedrin 14:10) (the Talmud records other opinions varying this period).  And the halochoh of the imposition and administration of the death penalty shows many details designed to ensure not only that it is reserved for cases in which there can be no doubt as to guilt (and it is a staggering fact, again according to Amnesty International, that since 1973, 122 prisoners have been released in the USA after evidence emerged of their innocence of the crimes for which they were sentenced to death) but also that it is administered in as humane a way as possible.  In particular, the modern pharmaceutical methods of ensuring insensibility prior to the act of killing find their counterpart in the halochoh (Rambam, Hilchos Sanhedrin 13:2) and would, were the death penalty reintroduced today with the re-establishment of the Sanhedrin, be one aspect of the halochoh that certainly both could and would be developed to embrace modern technological improvements.  And the halochoh requires that once the judicial process is entirely concluded beyond all reasonable chance of reopening, administration of the death penalty is not delayed even by a single day, so as not to prolong the convict’s period of suffering waiting to die (Rambam, Hilchos Sanhedrin 12:4).

Incidentally, one of the most contentious aspects of the debate about whether one can ever be sufficiently sure of a person’s guilt to justify his or her execution concerns the use of confessions.  While some regard it as an essential prerequisite of certainty, those with knowledge and experience of the processes of criminal law even in civilised countries that do not routinely interrogate by torture, regard confessions as sufficiently unreliable, for a variety of reasons, to make it unthinkable to rely upon an uncorroborated confession.  And this receives interesting Biblical support: in Yehoshua (7:21) we find that Achan admits his guilt on a charge of plundering and goes on to mention the order in which the spoils were hidden; and the Torah records (7:22) that on investigation the order  given was found to be correct – possibly the earliest recorded instance of what is now the modern practice of regarding a confession as inherently unreliable unless it contains details of a kind that could not reasonably be expected to be known to anyone other than the criminal.

It is not the purpose of this short message to debate the issue of capital punishment in detail or at any length.  But I wish to offer one observation, based on this week’s parashah Vayishlach.  When Yaakov struggles with and captures the angel, there is a puzzling passage in which he refuses to release the angel “unless you bless me” (Bereishis 32:27).  This can be understood in a number of ways: one involves approaching the entire episode as an internal struggle of Yaakov with the evil inclination inside him (the “ish” that is always “imo” – 32:26).  The rabbis (see, in particular, Michtav Me’Eliyahu volume 2, essay on parashas Vayeitzei) explain that Avrohom became expert in diverting his evil inclination, Yitzchok went further and became expert in confronting and destroying it, but Yaakov went further still and became expert in the even more demanding enterprise of converting his evil inclination into a positive influence.  Hence the idea that he would not release the angel – end the struggle – until it had ceased to be a curse or threat and had become a positive influence or blessing (a thought which occurred to me and which I record here with the express approval of Rabbi Dovid Cooper shlito).

It is this idea of reclamation rather than destruction which colours the whole Torah approach to the treatment of offenders.   Our starting point is always to aim for spiritual rehabilitation of even the worst criminal.  Sometimes, the matter is taken out of our hands – where the Torah prescribes the death penalty and we are obliged to apply it as unquestioningly as we perform any other Divine commandment.  But the cases in which the circumstances and evidence are such as to require the application of the death penalty in accordance with halochoh will necessarily be very few and far between.  In the normal instance we are left with considerable discretion as to the treatment of an offender, and in such cases our aim will always be to improve and reclaim, rather than merely to punish and to protect society (both of which are also duties).  (Hence the well-known story in the Gemoro (Brochos) where B’ruria reminds her husband to pray not for the downfall of sinners but for the downfall of sin – and the sinners’ rehabilitation.)

With this in mind the following comments of the Governor of California in relation to this morning’s execution are particularly interesting: “After studying the evidence, searching the history, listening to the arguments and wrestling with the profound consequences, I could find no justification for granting clemency.  Stanley Williams insists he is innocent, and that he will not and should not apologise or otherwise atone for the murders of the four victims in this case. Without apology and atonement for these senseless and brutal killings, there can be no redemption.”  So the Governor appears to have been significantly influenced by his assessment that the murderer did not have a sufficient appreciation of and remorse for his crimes to provide a foundation for spiritual reformation.  Without that remorse – which in Torah thought also is an essential ingredient of teshuvah (Rambam, Hilchos Teshuvoh 2:2 and 3) – it will be impossible for the criminal to begin the three-stage process of diverting, confronting and finally transforming his evil inclination, and society will be unable to assist him in that process and will be able to address only the necessary duties of protection and punishment.


Written by Daniel Greenberg

December 13, 2005 at 11:13 am

Posted in Uncategorized

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