This week as we read Parashat Mishpatim, we truly come down from the mountain when Moses instructs the community about the rules for day to day life. No longer the lofty ten commandments, these laws deal with the practicalities of communal living, from the mundane to the crucial. There are laws about the justice system beside laws about returning lost property — in recognition that both are crucial to the functioning of a just and compassionate society. And in amongst the more than 50 commandments in the parashah, are a number of mentions of capital punishment for crimes including murder, idolatry and wayward sons who disobey their parents. From these very clear directives it would seem that the Torah, and therefore Judaism, has no problem with capital punishment for certain crimes. But the reality of lived Judaism is very different from the Torah pronouncement.
The rabbis of our tradition were uncomfortable with the notion of capital punishment, so they essentially legislated it out of existence. They did not change the Torah, but rather placed preconditions around the execution of the punishment which would ensure it could never be carried out. For example, two witnesses must see the person committing the entire crime, and they must warn the person that the crime they are committing is punishable by death. The person must acknowledge the warning and then say that they understand but they are going to continue with the action anyway, despite the fact it could lead to the death penalty. Further, the witnesses must then give identical evidence at the trial and no circumstantial evidence is to be accepted.
As well as these requirements, the rabbis go further in their quest to abolish the death penalty. They knew that they had put conditions in place which could not be met and that if they were, somebody must have acted illegally. So the Mishna says:
“A Sanhedrin that puts a man to death once in seven years is called destructive. Rabbi Eliezer ben Azariah says: even once in seventy years. Rabbi Akiva and Rabbi Tarfon say: had we been in the Sanhedrin none would ever have been put to death” (Mishnah Makkot 1:10).
The rabbis and their communities were very uncomfortable with the idea of humans taking the lives of others in these circumstances. The irreversible nature of the punishment, the fact that it leaves no room for repentance and rehabilitation, made the rabbis determined to eliminate it. Demonstrating the level of discomfort in the community about capital punishment, Maimonedes said in Sefer Hamitzvot: “It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death”.
The sanctity of human life and the fallibility of the legal system, no matter how just, led the rabbis to legislate the death penalty out of existence. At this time when there are people facing the possibility of execution for crimes they committed, we pray for their lives to be spared and that they be given the opportunity to contribute positively to the world and the people around them.