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In 1981, the late Rabbi Moshe Feinstein addressed this question in Igrot Moshe, Choshen Mishpat, Vol. 2 ch. 68. He wrote that the Torah prescribes capital punishment for a number of grave offenses, including murder, certain types of kidnapping, adultery and idol worshiping. The transgressors in these cases, he explained, are capable of committing all kinds of atrocities and cruel acts for their own benefit. The punishment, however, was not to be inflicted because of hatred for the offender or concern for the survival of society, for it is the Jewish belief that G-d will punish the offenders (Bava Metzia 83b). The purpose of inflicting capital punishment for these offenses is to educate people about the severity of the offenses, rather than to end the life of the offenders.
Jewish law strongly emphasizes the significance and value of every soul, including those of offenders. For this reason only a twenty-three member court, a small Sanhedrin, is authorized to try capital crimes. Only prominent scholars, well-versed in the wisdom of the Torah as well as in other scholarly disciplines, and who possess excellent values, qualify for membership on this court. A candidate must be humble, G-d fearing, one who despises money, a lover of truth, beloved by people for his qualities of goodness and humility, and who is sociable, self-composed, compassionate and not the subject of any gossip. For this reason a childless person or a very old one, who has forgotten the pain of raising children, is not qualified for membership on the court, because this person might lack compassion and become unduly harsh with offenders. Furthermore, these righteous and excellent judges cannot try offenders of capital crimes in a court that consists of less than twenty three members. In addition, three rows of scholars (candidates for serving on the court) are seated in front of the court, watch the proceeding and alert the court to any error which might lead to an unlawful conviction. These scholars, however, cannot intervene when the error favors the defendant. Circumstantial evidence is inadmissible; to convict the defendant two qualified witnesses who have no material interest in the case are required. Prosecution witnesses are disqualified if they are motivated by a desire to testify in order to escape punishment. The witnesses must be warned about the graveness of perjury in general and in connection with capital punishment in particular. Furthermore, the defendant must have been warned prior to committing the crime about its severity and must have acknowledged an awareness of it.
Because of all these requirements, execution of criminals in the Jewish community was rare, taking place only once in many years. Furthermore, capital crimes were tried only at the time of the Holy Temple, in which the Great Sanhedrin, consisting of seventy one members, was housed. Following the destruction of the Temple, capital crimes were not tried in Jewish courts even when they were granted jurisdiction by the state to try Jewish criminals according to Jewish law.
These rules, however, applied in normal times when murder was rare and committed as a result of unrestrained passion or during a dispute over property or because of injury to one's honor. In case one killed out of cruelty and indifference of the prohibition of murder, or when murder became widespread, the strict evidentiary and procedural rules in favor of defendants in criminal cases were relaxed, and criminals were convicted and executed. Note that the above deals with cases where Jews are governing Jews under Jewish law.
With respect to countries such as the United States, one must look at the imposition of capital punishment under Noahide law, which applies to non-Jewish people, or the power of a king or a state legislature to impose capital punishment, based upon the principle of dina de'malchuta dina, literally, "the law of the state is the law." The authorization for the imposition of capital punishment and the relevant evidentiary and procedural rules under Noahide law or the principle of dina de'malchuta dina are entirely different from those under Jewish law.
The question of capital punishment under the Noahide code was discussed in the Talmud. See B. Talmud, Sanhedrin 57a-b. It was decided that all seven Noahide laws are capital crimes. (Maimonides, Mishneh Torah, Judges, the Laws of Kings 9:14) Under Noahide law one may be executed based on the testimony of one witness or a confession, and without a prior warning. (Maimonides, ibid, 9:14; Chinuch ch. 26) According to one opinion, a criminal might be executed under Noahide law based upon circumstantial evidence (Rabbi Z.H. Chayoth, Ma'aritz Chayot, Vol. 1 ch. 49). According to Maimonides, non-Jews are required to establish a judicial system and apply the Noahide law, including the imposition of capital punishment (Maimonides, ibid, 9:14). It would appear, then, that American courts might be required under Noahide law to impose capital punishment for the violation of any one of the seven Noahide laws based upon one-witness testimony, circumstantial evidence or a defendant's confession.
Similarly, the imposition of capital punishment by a non-Jewish state under the principle of dina de'malchuta dina does not require the application of strict evidentiary and procedural rules as in Jewish law. For instance, the testimony of one witness or the defendant's confession might suffice to convict a defendant (Rabbi B. Ashkenazi's commentary (Shita Mekubetzet) on Bava Metzia 83b-84a, citing Ritva) Although the principle of dina de'malchuta dina was primarily intended to subject Jewish people to the authority of a non-Jewish state, it could a fortiori apply also to non-Jewish people. This is because the underlying theories of this principle, e.g., the people's implied consent to the state's authority, or the power of the state to expel disobedient inhabitants, applies to everyone. The restrictions in Jewish law on the execution of criminals, delineated by Rabbi Feinstein, are limited to trials conducted according to biblical law. A Jewish king, however, is not subject to these restrictions and may execute criminals more easily than a Jewish court. (Maimonides, Mishneh Torah, Kings, 3:10, 4:1-3; Drush ha-Ran, ch. 11). The principles which guide a non-Jewish king regarding capital punishment are more readily compared to those which guide a Jewish king, rather than those which are applied by a Jewish tribunal. Furthermore, some scholars believe that the power of a non- Jewish king or government to try criminals is based on the Jewish king's prerogatives under Jewish law. (Rabbi M. Meterani, Kiryat Sefer, the Laws of Robbery and Lost Objects Ch 5; Maimonides, Guide for the Perplexed, Vol. 3, ch. 40). Consequently, a non-Jewish king is not subject to the restriction applied to Jewish courts with regard to punishment of criminals.
The Reform Movement is against capital punishment. In 1979, the CCAR (the Reform rabbinical body) issued the following resolution:
In 1958 and again in 1960, the Central Conference of American Rabbis stated its opposition to all forms of capital punishment. We reaffirm that position now. Nothing which we have observed during the intervening years has shaken our convictions that:
- Both in concept and in practice, Jewish tradition found capital punishment repugnant, despite Biblical sanctions for it. For the past 2.000 years. with the rarest of exceptions, Jewish courts have refused to punish criminals by depriving them of their lives.
- No evidence has been marshaled to indicate with any persuasiveness that capital punishment serves as a deterrent to crime.
- We oppose capital punishment under all circumstances.
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