Is There a Place for the Death Penalty?

Parshat Emor

by Rabbi Avi Billet 

Confession: I am a believer that there are some crimes which go beyond the pale of what it means to be a human being, and that those who commit them have forfeited their right to live in a civil society. 

 I also wonder about people who are so sick-in-the-head that they either justify their evil or don’t understand why they are evil – do they fall into a different category? Or is there hope for Teshuvah? 

To the opening statement, I would imagine that most people who would never harm anyone would agree that dangerous people have forfeited their right to live in a civil society. This might mean they should go to prison for life, or it might mean that the death penalty is on the table. [Experience has shown that very few people who are so evil ever truly have remorse, regret, and do real Teshuvah.]

We can argue whether either of these (life in prison or execution) are humane, but we also have to ask ‘humane to whom?’ A serial rapist, a serial killer, a terrorist, etc. were surely not humane to their victims. Why should they get a nicer outcome than their victims got? 

This question gets even more dicey when we look at some of the “deserving of death” acts as defined in the Torah. This is not the space to explore all of them, so this will just focus on the one in our Parsha that actually includes an execution, namely the tale of the Megadef (blasphemer) at the end of the Torah portion. 

Rambam records the verse here in his description of the mitzvah to Revere God (Positive #4) as well as in Lo Taaseh #60 - היא שהזהירנו מנקוב השם הגדול יתעלה ממה שיאמרו הכופרים עלוי רב. 

 Sefer HaChinukh (70) places this law as the aftermath of the law in Mishpatim against cursing judges (69), and uses the example from the narrative here to understand some of the particulars of this mitzvah. 

 It is unique in that when the punishment is to be meted out, all those who are to cast testimony against the offender need to place their hands on his head. The Midrash in Toras Kohanim explains how the witnesses each need to SAY the offending statement in order for their testimony to be acceptable. Since they too will (technically) be committing a sin in doing so, they place their hands on his head indicating that the statement they are being forced to repeat is literally on his head. 

Chid’a notes that putting a person to death is a punishment that is meant to give a kapparah, an atonement for the sin. This sin in question was so grave, Moshe was unsure what to do because he thought the person could not get atonement for such a sin. In the case of the blasphemer, it can be argued though, his death also gave atonement for everyone who heard what he said. 

In this case, an effort is made to explore the gravity of the sin. Sefer HaChinukh describes the violation in question as one in which speech – the tremendous gift that separates us from animals – is utilized for destruction. When a person chooses to disregard God’s name in such a manner – a bastardization of the 3rd of the Ten Commandments – the person is like a disgusting critter, the lowest of the low. God wants our best, and any language that causes us to remove Him from allowing us to achieve our best goes against His greater desire in the world. 

 Baal haTurim equates this sin to idolatry – an offense also subject to Capital Punishment – using a similar language from Melachim II 10:22 in which those who worship Baal are similarly instructed to be “brought out” (הוצא). If cursing God is equal to idolatry, we can begin to see and understand what the punishment is all about. 

 Of course, nowadays we don’t do capital punishment for a whole host of reasons. But the Sefer HaChinukh notes that we still have one bag of tricks up our sleeve if we find someone committing this sin: ועכשיו בחוצה לארץ שאין לנו סמוכין מרחיקין כל ישראל ממנו ומחרימין אותו. 

 Excommunication. Exclusion. Isolation, it seems, is the modern equivalent of capital punishment. Maybe in some societies, and for some crimes, this is what prison is all about 

 The scene in our parsha is troubling all the same, because we imagine everyone picking up a stone and throwing it at the man. Perhaps some of us have seen images of Sharia law doing exactly this to an accused adulteress. 

 And so I think we need to have a slightly different view of Capital Punishment. Firstly, Nachama Leibowitz points out the many commentaries who explain any problems with the image here in that this tale is a direct response to what God commanded. The last verse in the parsha, after describing that they stoned him, says, “The Israelites thus did as God had commanded Moses.” 

 This removes any notion of cruelty or zealousness, revenge, or the like. It also removes the possibility from people claiming at a later time that this is what God wants because precedent was set here. No! This was purely God’s instruction being carried out directly. Which implies that absent God’s instruction and direct involvement in the moment, such an act – the whole nation serving as the capital punishment tribunal - would be entirely forbidden. 

 But the death penalty is a tough question for any civil society. What gives us the right to take someone else’s life? Isn’t that cruel? Doesn’t that make us no better than the murderer? 

According to Wikipedia’s note on the subject of death penalty in Israel, capital punishment is allowed only during and only for genocide, crimes against humanity, war crimes, crimes against the Jewish people, treason, and certain crimes under military law during wartime. 

Two people have been executed –Meir Tobianski for treason in June 1948 (later exonerated), and Eichmann. 

 The issue comes up every now and then in Israel because there are political parties and individual MKs who would like to see capital punishment administered to terrorists who have blood on their hands. 

 There’s a reasonable argument to be made here based on a verse early in the Torah which applies to all of humanity: In Parshat Noach (9:6), the Torah states unequivocally שֹׁפֵךְ֙ דַּ֣ם הָֽאָדָ֔ם בָּֽאָדָ֖ם דָּמ֣וֹ יִשָּׁפֵ֑ךְ כִּי בְּצֶ֣לֶם אֱלֹהִ֔ים עָשָׂ֖ה אֶת־הָאָדָֽם: He who spills human blood shall have his own blood spilled by man. This is the Torah’s allowance for a civil society to conduct itself in a manner that punishes the guilty – those who do not respect life.

 I imagine this argument sits better when the guilty are terrorists or murderers - many people have less reservations about taking the lives of such monsters, because that is what the Torah is declaring. But even those supporters of a death penalty might still balk at the example given in our parsha which, again, minus the Divine directive, is indeed, quite disturbing. 

 This is where Rabbenu Bachaye’s comments from Devarim 13 are so instructive. Because there the Torah advocates capital punishment for missionaries. This is what Rabbenu Bachaye says. "The Torah is all mercy and it comes from the Merciful One. When it tells us to take the life of one who is guilty, it never intends for us to do so in a vengeful manner. That would be the excuse were we trying to train ourselves to be cruel. But the 'revenge' is meant to be merciful: to have mercy on everyone else. This is why it says 'Don't let your eyes pity him' and 'All of Israel will hear and see and will not continue to do this any more' and 'you must eradicate evil from your midst.'" 

 In the case of the blasphemer, perhaps we can begin to understand. His brash and outspoken denial of God is not the ramblings of an atheist who says God does not exist. The blasphemer believes in God. But he is so angry, so disgusted with what he sees, so disenfranchised from the God he knows he decides that God cannot be Chesed, that God cannot be Right, that God has NO positive qualities, and that God therefore must be cursed. 

 This is destructive to humanity, to people who struggle with so many things but have a profound Emunah that Hakadosh Baruch Hu is in our lives. We don’t know all the details of the particular tale in question. But we do know what God declared for that man. [In our times he’d be excommunicated, per the Rambam above] 

 Three final thoughts: 

1. It is important and OK to question. But there is a way to seek out answers, and there is a way that is beyond the pale of respect to the people of a Faith-based community. The Megadef went too far. 

2. There is a sensitivity in place directed at the Megadef. (a) His name is not mentioned. (b) Rabbi Frand notes that the Megadef was placed in a holding cell while his fate was being determined, but it wasn’t the same situation as the Mekoshesh Eitzim (wood gatherer) of Parshas Shlach. The wood-gatherer was put on death row, to learn of the method for his execution. The Megadef was put in a regular jail, so he could be optimistic while his fate was determined. His humanity can be preserved before sentencing. 

3. At the same time, a different perspective on the death penalty ought to be considered in light of the Torah’s perspective. The Talmud is clear that death penalty should not be a regular feature of the courts. But the kinds of behaviors that the Torah decries – especially murder and terrorism – are even more harmful to a society than the death penalty could ever be, and as the perpetrators of these crimes ruin life for everyone else, society can make such a decision. Most obviously: The person’s guilt must be 100% clear (circumstantial evidence cannot be used to execute someone). The sentencing court (and executioner) may not execute with vengeance and hate, but must feel ‘we are doing chesed for everyone else, by removing a person who has lost the right to get another chance.’ This makes the world a better and more importantly, safer place. 

 These are difficult decisions – surely points that will be debated on and on. Let us hope and pray for a time when the world knows Who God is, What God is, and how we are meant to treat God and one another, so these difficult questions no longer need to be part of our lexicon. 

 In the meantime, let us conclude with a blessing for all terrorists: That which you wish upon all the Jews should be heaped upon you a thousandfold.