Reprinted with permission from Sh’ma: A Journal of Jewish Responsibility (October 2002).
Though I participate in an "Ask the Rabbi" on-line panel, as an Orthodox rabbi involved in day school education, I am usually asked many more questions about child development and curriculum, or even Kashrut and Shabbat, than about life and death issues like the death penalty. Clearly, I am not a Posek (high-level halakhic decisor) and thus can only share some of my thoughts that have led me to a lukewarm support of the death penalty in America.
There is little doubt that the Torah is quite clear and comfortable mandating death for a number of offenses. Still, the Talmud in Sanhedrin and elsewhere restricts its use through very strict rules of evidence designed to make sure that the perpetrator not only truly committed the crime but was also fully aware of the consequences of his action. The tremendous precautions against unjust execution indeed show the sacredness of every human life. But they do not take away from the fundamental fact that certain intentional sins, particularly murder, are (in theory if not always in practice) deserving of the ultimate penalty of death.
Halakha’s [Jewish law’s] recognition of the possibility of a societal need for the death penalty is shown by the way that various legal scholars have permitted its use despite the clear talmudic restrictions in Sanhedrin. For example, the bet din [Jewish court] was authorized within the same Tractate, not only to imprison those who murdered without all of the rules of evidence being fulfilled, but even to hasten their death through malnutrition (see Sanhedrin 71b). This is codified by Maimonides as well (see the Laws of Murderers, 4:8). Further, the Meiri [Rabbi Menahem ben Solomon Meiri, 1249-1316] also notes that the king is permitted "within his law," and the bet din is permitted as a hora’at sha’ah (decision for the needs of the time), to execute those who have committed heinous acts even without all of the requirements of witnesses being met.
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