Capital and corporal punishment in Judaism


Capital and corporal punishment in Judaism has a complex history which has been a subject of extensive debate. The Bible and the Talmud specify capital punishment by the "Four Executions of the Court," — stoning, burning, decapitation, and strangulation — for the most severe transgressions, and the corporal punishment of flagellation for intentional transgressions of negative commandments that do not incur one of the Four Executions. According to Talmudic law, the authority to apply capital punishment ceased with the destruction of the Second Temple. The Mishnah states that a Sanhedrin that executes one person in seven years — or seventy years, according to Eleazar ben Azariah — is considered bloodthirsty. During the Late Antiquity, the tendency of not applying the death penalty at all became predominant in Jewish courts. In practice, where medieval Jewish courts had the power to pass and execute death sentences, they continued to do so for particularly grave offenses, although not necessarily the ones defined by the law. While it was recognized that the use of capital punishment in the post-Second Temple era went beyond the biblical warrant, the rabbis who supported it believed that it could be justified by other considerations of Jewish law. Whether Jewish communities ever practiced capital punishment according to rabbinical law, and whether the rabbis of the Talmudic era ever supported its use even in theory, has been a subject of historical and ideological debate.
The 12th-century Jewish legal scholar Maimonides stated that "It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death." Maimonides argued that executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely "according to the judge's caprice". Maimonides was concerned about the need for the law to guard itself in public perceptions, to preserve its majesty and retain the people's respect.
The position of Jewish Law on capital punishment often formed the basis of deliberations by Israel's Supreme Court. It has been carried out by Israel's judicial system only twice, in the cases of Adolf Eichmann and Meir Tobianski.

Capital punishment in classical sources

In the Pentateuch

Warrants for the infliction of capital punishment, as opposed to private retribution or vengeance, are found in the Pentateuchal codes for the commission of any one of the following crimes: adultery ; bestiality ; blasphemy ; false evidence in capital cases ; false prophecy ; idolatry, actual or virtual ; incestuous or unnatural connections ; insubordination to supreme authority ; kidnapping ; licentiousness of a priest's daughter ; murder ; rape committed on a betrothed woman ; striking or cursing a parent, or otherwise rebelling against parental authority ; Sabbath-breaking ; witchcraft and augury.
Only in comparatively few instances is the particular mode of death incurred by the commission of a crime prescribed. Blasphemy, idolatry, Sabbath-breaking, witchcraft, prostitution by a betrothed virgin, or deceiving her husband at marriage as to her chastity, and the rebellious son are, according to the Pentateuchal laws, to be punished with death by stoning; bigamous marriage with a wife's mother and the prostitution of a priest's daughter are punished by burning; communal apostasy is punished by the sword. With reference to all other capital offenses, the law ordains that the perpetrator shall die a violent death, occasionally adding the expression, "His blood shall be upon him." This expression, as we shall see presently, post-Biblical legislation applies to death by stoning. The Bible speaks also of hanging, but, according to the rabbinical interpretation, not as a mode of execution, but, rather, of exposure after death.

In Rabbinic Judaism

The harshness of the death penalty indicated the seriousness of the crime. Jewish philosophers argue that the whole point of corporal punishment was to serve as a reminder to the community of the severe nature of certain acts. This is why, in Jewish law, the death penalty is more of a principle than a practice. The numerous references to a death penalty in the Torah underscore the severity of the sin, rather than the expectation of death. This is bolstered by the standards of proof required for application of the death penalty, which has always been extremely stringent. The Mishnah outlines the views of several prominent first-century CE Rabbis on the subject:

"A Sanhedrin that puts a man to death once in seven years is called a murderous one. Rabbi Eliezer ben Azariah says, 'Or even once in 70 years.' Rabbi Tarfon and Rabbi Akiba said, 'If we had been in the Sanhedrin, no death sentence would ever have been passed'; Rabban Simeon ben Gamaliel said: 'If so, they would have multiplied murderers in Israel.'"

The Sanhedrin stopped issuing capital punishment either after the Second Temple was destroyed, in 70 CE, or, alternatively, according to passages in the Talmud, in 30 CE, when the Sanhedrin were moved out of the Hall of Hewn Stones. Other sources, such as Josephus, disagree. The issue is highly debated because of the relevancy to the New Testament trial of Jesus. Ancient rabbis did not like the idea of capital punishment, and interpreted the texts in a way that made the death penalty virtually non-existent. The idea of killing someone for a crime they commit is frowned upon in the Jewish tradition.
It was almost impossible to inflict the death penalty because the standards of proof were so high. As a result, convictions for capital offense were rare in Judaism. The standards of evidence in capital cases include:
The following is a list by Maimonides in his Mishneh Torah of which crimes carry a capital punishment.

Punishment by ''skila'' (סקילה, stoning)

According to the Halakha, this punishment is conducted by pouring molten metal into one's throat, rather than burning at the stakes.
have given up the ability to inflict any kind of physical punishment, and such punishments are left to the civil court system to administer. The modern institution of the death penalty, at least as practiced in the United States, is opposed by the major rabbinical organizations of Orthodox, Conservative, and Reform Judaism.

Orthodox Judaism

Orthodox Rabbi Aryeh Kaplan wrote:
"In practice,... these punishments were almost never invoked, and existed mainly as a deterrent and to indicate the seriousness of the sins for which they were prescribed. The rules of evidence and other safeguards that the Torah provides to protect the accused made it all but impossible to actually invoke these penalties... the system of judicial punishments could become brutal and barbaric unless administered in an atmosphere of the highest morality and piety. When these standards declined among the Jewish people, the Sanhedrin... voluntarily abolished this system of penalties.

On the other hand, Rabbi Moshe Feinstein, in a letter to then-New York Governor Hugh Carey, states:
"One who murders because the prohibition to kill is meaningless to him, and he is especially cruel, and so too when murderers and evil people proliferate, they would judge to repair the issue to prevent murder – for this saves the state."

Conservative Judaism

In Conservative Judaism, the death penalty was the subject of a responsum by its Committee on Jewish Law and Standards, which has gone on record as opposing the modern institution of the death penalty:
"The Talmud ruled out the admissibility of circumstantial evidence in cases which involved a capital crime. Two witnesses were required to testify that they saw the action with their own eyes. A man could not be found guilty of a capital crime through his own confession or through the testimony of immediate members of his family. The rabbis demanded a condition of cool premeditation in the act of crime before they would sanction the death penalty; the specific test on which they insisted was that the criminal be warned prior to the crime, and that the criminal indicate by responding to the warning, that he is fully aware of his deed, but that he is determined to go through with it. In effect, this did away with the application of the death penalty. The rabbis were aware of this, and they declared openly that they found capital punishment repugnant to them… There is another reason which argues for the abolition of capital punishment. It is the fact of human fallibility. Too often, we learn of people who were convicted of crimes, and only later are new facts uncovered by which their innocence is established. The doors of the jail can be opened; in such cases, we can partially undo the injustice. But the dead cannot be brought back to life again. We regard all forms of capital punishment as barbaric and obsolete."

Reform Judaism

Since 1959, the Central Conference of American Rabbis and the Union for Reform Judaism have formally opposed the death penalty. The CCAR resolved in 1979 that "both in concept and in practice, Jewish tradition found capital punishment repugnant", and there is no persuasive evidence "that capital punishment serves as a deterrent to crime".