Is the death penalty kosher?
After last year’s prisoner releases and the relapse of several terrorists since being traded for Gilad Shalit in 2011, the calls to prevent those sorts of trades in the future have driven people to call for the death penalty in Israel. Some people may not realize that the death penalty is actually already a legal option for Israeli prosecutors, but as an unwritten rule they never seek it. The one historic exception was the conviction and execution of Adolf Eichmann.
The major parties advocating for a broader application of the death penalty – or any use of it – are Jewish Home and Yisrael Beytenu. Yisrael Beytenu has already submitted a bill before the new Knesset that would demand anyone convicted of murder under terrorist circumstances be executed by the state.
“There’s no question on the one hand that rabbinic tradition is allergic to the death penalty, even though the Torah allows for it,” says Rabbi Dr. Jeffrey Woolf, who is a Senior Lecturer in the Talmud Department at Bar Ilan University. “Effectively, rabbinic tradition makes it impossible in terms of so many caveats and conditions that make it effectively impossible to fulfill.”
“The death penalty becomes declarative rather than a deterrent,” says Rabbi Woolf, describing an effect that delineates normative behaviors in society. He points to the first mishnah in the first chapter of Talmudic tractate Makkot as laying out the principle:
"A Sanhedrin that puts to death one person every seven years is called destructive; Rabbi Eliezer ben Azaria says: Even once in seventy years. Rabbi Tarfon and Rabbi Akiva say: Had we sat in the Sanhedrin, no person would ever have been put to death (Makkot 1:10)."
Yet, Halachah has not completely stripped Jewish judges or governors of the ability to employ execution in order to govern.
“We have the mishnah in Sanhedrin (9:5) that proscribes if murderer gets off on technicality you imprison him to die of natural causes, which is effectively a death penalty.”
However, there is another principle that allows a Jewish court to implement capital punishment even absent the list of requirements which are usually standard in Halachah.
"A court has the right to impose penalties or punishments that aren't warranted, justified or mandated. There are a bunch of cases where someone was caught riding a horse on the Sabbath and that person was executed. It was not justified in court, but it was deemed necessary. The line was critical throughout the Middle Ages to allow for many penalties.”
“It happened more in Spain than in Ashkenaz. In Spain, there were cases where someone who endangered the entire Jewish community by striking deals with the authorities or undermining sovereignty of Jewish community by informing on it. In such cases the court is actually allowed to execute people.”
Menachem Ratson explains in the journal Hebraic Political Studies that “The court’s authority to administer abnormal punishment depends on a situation in which ‘the people have become lax and made a breach in a certain matter.’”
“When the Rosh (Rabbenu Asher) fled to Spain, he was surprised (by the executions the community was conducting) but in principle not against it,” highlights Rabbi Woolf.
The Rosh is quoted as having said (Responsum, Rosh, 17:8), “…You surprised me greatly by your inquiries about capital jurisdiction. For in all the countries of which I have heard, there is no capital jurisdiction, except here in Spain. And I was astonished to discover upon my arrival that the courts adjudicate capital matters in the absence of a Sanhedrin, and they informed me that they had governmental authorization, and the community used its jurisdiction to save… and I permitted them to persist in their custom, but I never gave my consent to an execution…”
“My point is that the constitutional basis for the use of the death penalty definitely exists but there is fundamental allergy to using it,” explained Rabbi Woolf.
When asked what the implications might be philosophically for streams of Religious Zionism, Rabbi Woolf felt that while it was related, we were ultimately discussing a different topic.
Is there any distinction between Jews and non-Jews who might face capital punishment from a Jewish court? “Non-Jews are not part of the discourse, which brings other broader issues in society to the table like issues of Jewish sovereignty.”
“Establishing a medinat Halachah (Halachic state) or the restoration of the Sanhedrin, I think, are completely separate issues. Is it something society needs or might fall apart without it? Then it’s definitely possible. Is it actually desirable? Now, that's a policy issue.”