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July 6, 2001
Crime and punishment
Local rabbis' views are mixed on execution issue.
PAT JOHNSON REPORTER
With the recent high-profile execution of Timothy McVeigh in the
United States, the issue of capital punishment has garnered renewed
interest. Although execution is no longer on Canadian law books,
it remains a topic of discussion among Canadians and their politicians,
particularly after grisly crimes.
But what does Jewish tradition say about this most final of punishments?
Recently, some American Jewish organizations have come out against
the death penalty, arguing that Jewish law forbids it. But that
is a matter of contention.
In his book Biblical Literacy, Rabbi Joseph Telushkin is
unequivocal. He points out that capital punishment for the act of
murder is so significant that it is the only law repeated in all
five books of the Torah. He cites Exodus 21:12, "He who fatally
strikes a person shall be put to death." There is a caveat here,
though. If the act was not premeditated, God says He will assign
a place for the perpetrator to flee.
Interestingly, the imperative for vengeance is not the only motivation
supporting the death penalty. Deuteronomy points to the deterrence
factor, saying that murderers should be executed "so that others
will hear and be afraid, and such evil things will not again be
done in your midst."
Telushkin makes a brief reference to the talmudic interpretation,
which says that a murderer can be executed, but only if two eyewitnesses
testify against the accused. In the end, Telushkin is succinct.
"Because murder is the ultimate crime, the Bible insists that it
deserves the ultimate punishment," he writes.
It is worth noting, though, that Telushkin gives short shrift to
another passage (Exodus 21:15), which says a child shall be executed
for striking his mother or father. The author says Jewish tradition
recognized this to mean only if the parent was struck hard enough
to draw blood. History records no incidents of the rule being enforced.
On the subject of capital punishment for murder, a survey of local
rabbis provides a spectrum of responses that is far from the consensus
Telushkin implies.
Rabbi Shmuel Birnham of congregation Har-El has spoken at anti-capital
punishment rallies in his native United States. "In my view, it
is unequivocal," he said. "If we're made in the image of God, we're
made in the image of God."
Birnham said that, although Telushkin is right that the Torah permits
the death penalty, the rabbis 2,000 years ago essentially voided
it by making the burden of proof impossible to meet. The Talmud
said that a court that executes one person every seven years is
a "killer court," said Birnham. Another interpretation says the
same for a court that executes one person every 70 years.
Talmudic interpretations are the essence of living Judaism, which
is why, Birnham said, rules that existed thousands of years ago
are adapted to modern conditions.
"Society develops, values change," he said. Nevertheless, he noted
that his views are not accepted unanimously.
"I've had some energized debates with some individuals," he said.
Rabbi Yitzchak Wineberg of Lubavitch B.C. is one of those people
with a different view. The Talmud establishes the judicial procedures
that are to be followed to determine innocence or guilt. In short,
Wineberg said, a murderer must be informed in advance by two witnesses
that to murder is an infinite crime. That warning must be repeated,
said Wineberg, and it must be acknowledged by the murderer that
he understands the severity of his actions, then goes ahead regardless
and kills. Moreover, the two witnesses must be "kosher" - that is,
Sabbath-observant Jews who are not related and have no connection
to either the accused or the victim.
Wineberg's interpretation is that Judaism allows executions, but
only under the strictest confines of proof.
"The circumstances to make this real are practically impossible,
but not completely impossible," he stated.
There is yet another issue at hand, Wineberg said. The entire debate
is made even more theoretical in that these rules apply to a judicial
system based on halachah, Jewish law. No such system has
existed since ancient times, he said. Even modern Israel does not
base its civil laws on halachah.
Therefore, the decision of whether to implement capital punishment
in the modern, secular world is up to the individual nations or
states, based as they are on a variety of religious and legal traditions.
As a citizen of a democratic country not based on halachic law,
Wineberg's personal views are clear.
"I happen to be a strong proponent of the death penalty as a deterrent,"
he said.
The difference between a legal system based on halachah and a civil
society like Canada or the United States is critical to this debate,
said Rabbi Shmuel Greene, assistant rabbi of Eitz Chaim.
"To tell you the truth, on the one hand, the Torah is very specific,"
he said. "But it does allow a country like the United States to
make its own decision.... Every country must set up its own legal
system."
Though Greene agrees with Wineberg that capital punishment can
be a deterrent, there is also an inherent concept of atonement.
"We find in the Torah and in the Talmud ... to put someone to death
is not only to make sure this person is not allowed to do more harm.
It is also an issue of atonement."
Perhaps the millennia-old debate is best summed up by Rabbi Ross
Singer of Shaarey Tefilah, who acknowledges a great ambivalence
on the issue.
"The Talmud certainly allows for and acknowledges the possibility
of courts executing a criminal," he said. "[But] there's certainly,
I would say, a sensitivity to the sanctity of every life."
This debate will continue.
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