Death Penalty: The Torah and Today


By Jack B. Weinstein*

New York Law Journal
Wednesday, August 23, 2000

I would like to share with your readers the following text of a sermon I will deliver to the congregation of Temple Emanuel of Great Neck on Sept. 8:

When we examine capital punishment from biblical to present times, we see a radical change in attitudes (sometimes with backsliding that goes on for centuries). Then it was accepted. Now there is a general detestation of capital punishment among political leaders and jurists in Western nations ¯- except in the United States. (As in the United States, however, public opinion polls in Europe and Canada generally favor the death penalty.) Here it is both prevalent and imposed with sometimes inadequate protections against irreversible mistakes.

In today's Torah (Deuteronomy, 22:18-21) appears a powerful biblical deterrent against talking back to your mom or pop:
18. If a man have a stubborn and rebellious son, which will not obey the voice of his father, or the voice of his mother, and that, when they have chastened him, will not hearken unto them:
19. Then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place;
20. And they shall say unto the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton, and a drunkard.
21. And all the men of his city shall stone with him with stones, that he die: so shalt thou put evil away from among you; and all Israel shall hear, and fear.

In those days when your mother said, "Wait until Poppa comes home, and I tell him you won't listen to me," well, you really had something to worry about.

This ancient biblical rule was, curiously, probably a protective development. Your father could not literally kill you on his own (as he probably could have under Roman law). As I read the passages, both mother and father had to agree on the punishment of death and then it had to be approved by the elders (presumably after a hearing). Note, too, that a daughter was not so punishable.

Rashi (the great medieval scholar), in his Commentaries (Vol. 1, pp.105-106) (Silberman Ed. 5733), explains that the theory is that such a son would ultimately commit a capital offense, so he was being punished prospectively. But, protective procedures were devised. Three witnesses to the rebelliousness other than the parents were needed, and the son had to remain refractory after public admonishment by the parents. Even then, he would first be lashed to ensure he understood his peril. To bring the death penalty upon himself, the son would have to continue to show his grossness by eating huge amounts of meat and drinking enormous amounts of wine to prove that sooner or later, as a glutton, he would squander his father's wealth and, without money, stand at the crossroads and rob people. So reads Rashi.

The biblical capital penalty was so hedged with procedural restrictions that execution, as the Jewish law developed, became next to impossible. A confession was banned because, as Maimonides put it: "Perhaps he was one of those who are in misery, bitter in soul, who longed for death.... Perhaps this was the reason that prompted him to confess to a crime he had not committed, in order that he be put to death", (cited in Miranda v. Arizona, 384 U.S. 436, 459 n.27 (1966)).

One ancient rabbi termed a Sanhedrin that permits even one execution in 70 years "murderous," and another rabbi said, "If we had been among the Sanhedrin, no one would have been executed." Limitation on capital punishment was accomplished by meticulous application of rules governing admissibility and sufficiency of evidence.

The idea, put forward in a recent brief of Jewish scholars to the Supreme Court, that stoning was less cruel and unusual than the electric chair (and therefore killing by electrocution was outlawed by the Eighth Amendment to the Constitution) is not very persuasive. An observer of a recent stoning to death in Afghanistan by the Talibans, with people actually throwing stones at the defendant, reported that the person being killed lived for an hour and suffered terribly. It was, however, probably less painful and mutilating than burning at the stake or being cast alive into a funeral pyre ¯ punishments of other cultures. Nor would the rabbis have tolerated mutilation by pulling a person apart by being tied to wild horses ¯ another cultural achievement of medieval Europeans.

Jewish stoning appears to have been accomplished by pushing the defendant from a high platform to a stone floor so that his fall would result in instantaneous death. (This does not impress me as sufficiently compassionate.)

The point, however, is that the Bible's rule was an advance over the cruelty and lack of restraint of earlier times. Rabbis of the Talmudic period insisted that death be quick, relatively painless and not mutilating. In later times, exclusion from the Jewish community, as in Spinoza's case, seems to have been the maximum religious penalty.

In Israel, only genocide and a few other crimes are capital. Adolph Eichmann is the only person who has been executed. In the European Community, capital punishment is now outlawed.

In our circle of nations, only in the United States and Japan is capital punishment still available. The European Constitutional Court has declared our procedures cruel and unacceptable.

I oppose capital punishment for reasons both personal and theoretical. There is no convincing statistical analysis showing it has any more deterrent value than life imprisonment. This is what you would expect since almost no murders are accomplished by people who calmly weigh the risk of against the possible benefits of whatever skullduggery they are involved in at the time they kill.

The U.S. Supreme Court outlawed capital punishment some years ago on the ground that the charge to the jury and other procedures provided inadequate protections. Furman v. Georgia , 408 U.S. 238 (1972). Some 25 years ago they allowed it again with some protection. Gregg v. Georgia, 428 U.S. 153 (1976). Justice William Brennan and Justice Thurgood Marshall dissented. They concluded that procedural devices could never be protective enough ¯- a view that I find persuasive. Ultimately, Justice Harry A. Blackmun reached this conclusion as well. Callins v. Collins , 510 U.S. 1141, 1143 (1994) (Blackmun, J., dissenting from denial of certiorari).

Since the Supreme Court allowed reinstatement, most states have adopted capital punishment. The numbers executed in some states seem appalling. Our own Governor has fretted because our district attorneys have not, in his opinion, used the death penalty enough. We do, however, in New York, have an excellent, well-funded defense structure, so miscarriages of justice are less likely than in some other states.

Even if you accept the premise that there should be capital punishment, the present procedures do not, as the Sanhedrin and the Rabbis required, ensure near certainty of guilt. Certainty is never possible.

Studies at Columbia Law School show in many capital cases a shoddy defense and a careless and opportunistic prosecution. Some mistakes are caught in appeals and habeas corpus proceedings, but new laws have so restricted these corrective avenues that they are not working well.

In any event, well paid defense counsel quickly appointed with adequate funds for investigation is the best procedural protection. In a few states like New York, and in the federal courts, there is such a safeguard but even here the numbers suggest a racist and a geographical pattern for applying the death penalty, based on idiosyncratic prosecutors and a local thirst for blood.

Perhaps the Leo Frank miscarriage of the 1920s (resulting in the ultimate lynching of a New York Jew managing a factory in Georgia) would no longer take place, but the underlying bloodthirsty attitudes against some minorities continue. It is significant that the courageous Georgia governor, who stayed the planned legal execution of Mr. Frank before he was kidnapped and lynched, was driven out of public life. Only recently has Georgia belatedly recognized its error after an old man, then a boy, publicly admitted he saw the events and they did not involve Mr. Frank. With an Orthodox Jew now nominated for vice president, we have come a long way in this country.

But a time for a pause and reconsideration is required. Recently it was provided by the Governor of Illinois and our President, who stayed all executions in their spheres.

The present procedural situation is intolerable. Because the polls show a majority of people favor capital punishment, neither of the leading presidential candidates are likely to rectify the situation.

Jews have been burned at the stake by Catholics, hacked to death by the Cossacks and gassed by the Nazis. Should we not be less likely to embrace capital punishment and more likely to insist on the most stringent procedural protections where the death penalty is possible?

What can we say of all this? Conditions change. Our view of what is required of a humane and caring people should change with the times. What was required and permitted in biblical times is not necessarily what decent people should approve of today. The argument that "the Torah says
it, therefore it is right for us," is no excuse for unnecessary cruelty and inhumanity. We can and should reject capital punishment.

Those who merely take a cursory glance at the Torah, with its numerous transgressions seemingly carrying a sentence of death, miss the point. They fail to recognize that capital punishment in late biblical times was exceedingly rare because of vast procedural protections limiting (if not eliminating) its application. Perhaps a coda about the United States is required stating that if we must have the death penalty, we too must provide many more procedural protections than currently exist.

*Jack B. Weinstein is a senior U.S. District Court judge in the Eastern District of New York.

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