The Sceptic Blog

Random thoughts of a random chappy

Death penalty

with 2 comments

1.  The victims’ families in a murder case that concluded today have called for the reintroduction of the death penalty.

2.  Jewish law and thought supports the notion of a death penalty.  The Torah prescribes death as a penalty for a number of wrongs, including murder.  And the executive powers of a Jewish King includes powers of taking life.

3.  The executive imposition of a death penalty can be justified in Jewish law by the need to deter others from a particular course of action.  Of course, modern research sheds considerable doubt on the deterrent effectiveness of a death penalty, and that research would have to be taken into account in any modern re-application of the Jewish criminal code following the rebuilding of the Temple and the re-establishment of the Sanhedrin.

4.  The judicial death penalty as prescribed by the Torah is not, however, expressly linked to deterrence.  Rather, it is part of the Jewish notion of kapparah – atonement – that a person needs a way to purge himself or herself of the spiritual damage self-inflicted by the commission of a wrong.  In some cases, such as a wilful murder, giving up one’s life in this world may be the only effective way of moving in spiritual purity to life in the next.

5.  The possibility of a miscarriage of justice is one which worries Torah judges and scholars to such an extent that the Jewish applied criminal laws are a mass of complexity, designed to make the execution of an innocent person a practical impossibility.  An uncorroborated confession is insufficient, for example, there being many cases in which an inbalanced person will confess to a crime he or she did not commit.  Indeed,  it could almost be said that the Jewish death penalty is “voluntary”, in the sense that there are so many opportunities for a defendant to oppose technical obstacles – such as objecting that he or she was not given an intelligible warning of the possible punishment before the commission of the crime – that one cannot see that anyone would actually be killed without in effect co-operating in the process.

6.  Clearly, that is the essential issue, to ensure that there is no possibility of miscarriage of justice: easier said than done – no kind of evidence is unimpeachable, whether it be fifty witnesses who may all have conspired together or a DNA sample that may have been deliberately or inadvertently contaminated.

7.  But, of course, it is a mistake to think that we need worry less about miscarriages of justice so long as we do not have the death penalty: imprisoning a person is potentially completely ruining their lives – and indeed the spiritual damage may in some cases be worse than that caused by the death penalty: which is why prison is not an approved Torah punishment, although it can be used as a preventative technique.


Written by Daniel Greenberg

February 21, 2008 at 5:37 pm

2 Responses

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  1. In what sense is prison considered preventative of crime in halacha? The vast and often Benthamite gaols we have ended up with in the UK prevent crime against non-inmates only for as long as a prisoner’s sentence and make it more likely on his release. Crime between inmates is allowed or cannot be stopped by the authorities. Worse and more skilful crime against ‘civilians’ often occurs on release of prisoners, while rehabilitation is rare. So the only people who do better than outright suffering are those of us outside gaol, but only for the period of incarceration.

    Is reform and eventual release countenanced in halacha, or is ‘prevention’ permanent – does halachic prison punishment involve ‘whole life’ sentences? It is worth noting that the UK has fewer than 50 ‘whole life’ prisoners, while the USA has tens of thousands; the States may therefore ‘prevent’ more crime outside their prisons. Yet their inmates are far more likely to be seriously assaulted or murdered while imprisoned.

    Who has priority in terms of safety and protection from harm? Should prison punish as well as incarcerate? Should we throw away the keys?

    (Incidentally, if the halachic prison is at all close to its pre-modern English counterpart (excluding debtors’ prisons), it will involve only the shortest possible period of time: usually a night in a cell to sober up as a prelude to appearance before the law. That we have ended up with prison as almost our sole form of punishment seems to me a sad result of centuries of lack of imagination.)

    Benjamin Vos

    March 4, 2008 at 11:00 am

  2. interesting points

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