In 1995, Rabbi Aharon Soloveichik sent this message to New York State’s then-Governor-elect George Pataki regarding the death penalty:
“…you have the written law mandating the death penalty and the oral law, saying, in effect, that you can never apply it…Now, the death penalty should be there for use in extraordinary situations, in extraordinary threats to the public order…but if [Pataki] acts on the death penalty, he will be the leader of a bloody government.”
Placed in the middle of a series of verses dealing with torts—which in and of itself seems to be ostensibly acontextual coming in the middle of the narrative about the maternal Danite blasphemer—verse 24:17 in this week’s parsha is one of a multiple set of Torah directives to administer the death penalty for willful murder.
The aftermath of the recent terrorist massacre at the Tree of Life Synagogue in Pittsburgh engendered a broad media-driven discussion regarding the “true” Jewish view of the death penalty. The consensus presented classical Judaism as invariably abolitionist. In light of Rabbi Soloveichik’s 1995 letter—whether today’s pundits were aware of his position or not—one might forgive one particular headline/declaration which took upon itself to declare “Prosecutors want the death penalty for suspect in synagogue massacre. Here’s why rabbis oppose it.” It was a bit glib even more them: the paper felt compelled enough to issue the following caveat the next day: “This story has been updated to clarify the breadth of Jewish views on the death penalty.”
More poignant was the published declaration of a Tree of Life congregant whose husband had survived the attack: “The Pittsburgh shooter could have killed my husband. I still don’t want him to get the death penalty.” While the author of the piece might capture some of the spirit, but she employs several inaccuracies to get there.
“Although there are many Torah prohibitions that call for a death sentence, our tradition does not interpret them literally.” This assertion is of a piece with the author’s contention that Biblical tort law—as presented in this weeks parsha and elsewhere—was “literally” lex talionis a la Hammurabi, which the halachic tradition contends clearly and consistently was never the case; the author therefore presents an alternative tradition which is at odds with the normative one, both vis a vis tort and capital cases. At any rate, the corpus of laws that make up the bulk of Maseches Sanhedrin which instruct when the penalty applies and how it is to be carried out indicates that, at the very least, it certainly wasn’t allegorical.
“According to the Mishnah, a Jewish court is considered bloodthirsty if it allows the death penalty to be carried out once every 70 years, with some of the rabbinic sages balking at ever approving the sentence. (Mishnah Makkos 1:10).” The author neglects to mention that very mishnah ends this way: '; Rabban Simeon ben Gamaliel said: 'If [no death sentence would ever have been passed], they would have multiplied murderers in Israel.'" In fact, bas din would administer a standing cell punishment ending in a rather uncomfortable demise for the deliberate murderer whose crime couldn’t be clearly established beyond all doubt by witness testimony, in order to protect the public. There are clearly distinctions drawn between ritual or relational capital offenses, and outright criminal offenses that involve bloodshed, certainly mass bloodshed
The author then cites the example of TB Brachos 10a where Bruria convinces her husband Rabbi Meir to pray that robbers in his neighborhood repent rather than die, and the more recent story of white nationalist Derek Black, who renounced his beliefs after spending time around a Shabbat table at his college. The author claims that these two narratives should “articulate the Jewish attitude toward those filled with hate.”
They shouldn't, and they don't.
In the case of Bruria, Rabbi Meir and and the robbers, hate wasn’t the issue: it was a public nuisance, not a threat to public order, and the criminals were driven by greed, not hate. They didn’t present an ongoing clear and present danger to Jews qua Jews. And for all respect due Mr. Black for his transformation, he hadn’t killed anyone yet; repenting hateful beliefs is of a different order than repenting a hate-driven mass murder.
The author also displays a misunderstanding of what repentance entails: “calling for the death penalty means there is no possibility for the shooter to repent, to change or to improve…I want to affirm that change is possible.” In fact, the Talmud indicates that the condemned is afforded the chance to confess before the execution, and the sources indicate that Heaven would accept that repentance in a metaphysical sense; but it clearly indicates that is not for the earthly courts to forgive the outrage to the point that the punishment is to be commuted. It is not up to the author to “affirm that change is possible.” (Ironically, this is sometimes a claim one hears in more right-wing Orthodox circles regarding the possibility of miscreants like sex offenders and domestic abusers to “do teshuva” and who therefore deserve a mitigation of punishment and/or legal consequences, proving this misunderstanding of “teshuva”/repentance is not necessarily a function of denomination.)
In any case, there are strong indications that the clamoring against Bowers’ execution is politically driven, as indicated by the firestorm of criticism aimed at President Trump in the wake of the Pittsburgh attack, and the relatively muted reaction to the Poway attack over Passover, after which the Poway Rabbi praised the President. In fact, applying the Pittsburgh author’s standard, one might look for more mitigation and possibility of repentance from a 19 year old offender with an adolescent neurology rather than a 46 year old who will clearly remain unrepentant whether or not he dies now or later. The author herself is consistent: she would afford even Dylann Roof the opportunity to repent. But the Poway attacks did not engender the discussion that ensued in the wake of Pittsburgh, and one would not be remiss to point he finger at politics.
The author also introduces another red herring, that capital punishment is ipso facto “revenge” : “the true revenge against evil is that our congregation is working to strengthen ourselves as Jews.” It is not revenge but rather justice that demands the death of Bowers. Revenge might be if the goel hadam meted out the execution as opposed to the state; either way, there is no doubt that the Torah at least sanctions the notion of blood justice being retributive, even if in a limited sense.
Where does all this leave Rav Aharon’s admonition? Not to misrepresent this author’s view as his, but one can parse a caveat from his 1995 letter: “extraordinary threats to the public order.” In a post-9/11, web-driven world, one could proffer that there are more cases of extraordinary threats to public order that would meet an exceptional criterion, both legally and hashkafically.
A contemporary capital punishment that approximates Torah values (for lack of a better formulation) would be safe, legal, and rare.
“Safe”, in that it would be as antiseptic and painless as possible—the Talmud does say that, under the rubric of “ve’ahavta lare’acha kamocha”, to be “beror lo misa yafa”, that he the earth be as instantaneous and not gruesome, an analog of sorts to avoiding “cruel and unusual” punishment.
“Legal”, in that it follow strict protocols to ensure that the punishment fit the crime and there is no possibility that the wrong person is being convicted—that it be a case where “there won’t be a lot of guilt-innocence maneuverability”, as an Army lawyer described the Nidal Malik Hassan case. As has been detailed elsewhere in these pages, there is the unexpected appearance of the laws of capital murder, followed by the laws of assault, immediately followed by the exhortation that “mishpat echad yih’yeh lachem”—“you all have one law”: listing of these cases after the the mecharef, followed by the “one law” exhortation, is a further indication of how the process delineated in the case of chiruf/giduf is as salient a “due process” as one applied in cases of torts and homicide. As clinical as that might sound, it may be what separates a fully legitimate application of capital punishment from vigilantism.
“Rare”, in that the penalty is applied in cases where strict criteria are met, including but not limited to aggravating factors, where the offender presents an ongoing danger to the public, and where it makes eminent sense to make an offender pay the highest price, even if as a principle as opposed to a deterrent.
This is not to say that the US’ version of the death penalty is always in consonance with Torah law, or even that the abolitionist view is irrevocably at odds with halacha. It might be possible that the Bowerses, Earnests and Hasans of the world could be the exceptions that prove the rule. However, it is equally disingenuous to claim that Torah unequivocally supports a complete moratorium on capital punishment in all cases nowadays. It is especially painful when Jews use those who commit Judeocidally motivated outrages as a paradigm for applying Jewish principles to advocate for said abolition. It is as much our right and privilege to not forgive those who commit those outrages, and it would further behoove us to not afford the persistently unrepentant the opportunity to change.
Even on pain of death. Theirs.