Judge's gavel and scales. (Shutterstock) Shutterstock
Judge's gavel and scales

One of the powers the Sanhedrin had was the ability to sentence someone to death.

By Rabbi Ari Enkin, Rabbinic Director, United with Israel

The Torah portion of “Shoftim” (Deuteronomy 16:18-21:9) and teaches us about many of the laws and procedures regarding the ancient Jewish court system and its punishments for violation of Jewish law. In this article, we are going to focus on capital punishment, the death penalty.

The court in ancient Israel that had the power to issue the death penalty was known as “The Sanhedrin.” There were two primary configurations of a Sanhedrin court: 23 judges, known as the Lesser Sanhedrin or 71 judges, known as the Greater Sanhedrin. Every major city in Israel had a Sanhedrin. The Great Sanhedrin were only in Jerusalem and occupied a specially designated room in the Holy Temple. They met every single day except Shabbat and Holidays. The Sanhedrin disbanded after the destruction of the Temple.

The Sanhedrin had powers that the common Jewish court of 3 judges, still in use today, did not have. One of these powers was the ability to sentence someone to death. The death penalty, or, capital punishment, is cited throughout Scripture with its details found in the Talmud.

In Jewish law there are four types of capital punishment that were used: a) stoning, which contrary to misconception, essentially meant being thrown off a building b) burning, by ingesting molten lead c) strangling, a cloth was used for this and d) beheading, by means of a sword. The death penalty could only be issued if the Sanhedrin voted as such by a majority. For less severe transgressions, lashes were issued.

There were strict regulations and qualifications as to who could serve as a judge on the Sanhedrin. For example, the judges had to be married and also have children. It was believed that a married family man would have more care, compassion, and understanding for others.

The laws of what kind of witnesses could testify against someone in a capital punishment case was even stricter. For example, the witnesses to a capital crime had to be observant adult Jewish men who were learned in Jewish tradition. Witnesses of any other type would not be admitted to testify in a capital punishment case. So too, there had to be at least two witnesses to the transgression who were able to see each other at the time of the sin. Witnesses could not be related to each other, or to the accused. What’s more, in order for someone to be worthy of the death penalty, they had to commit the sin within seconds after having been warned by the witnesses.

If any of these requirements were not met, a person could not be sentenced to death.

Although the Torah and Jewish law certainly mandate the death penalty when appropriate, it seems that it was rarely used in practice. Take for example the following passage from the Mishna: “A Sanhedrin that executes one person in seven years [some say it should read “seventy years!”] is a bloody court. So too, Maimonides (12th century) stated that “It is better to acquit a thousand guilty people than to put a single innocent person to death.”

Philosophers have suggested that the death penalty of the Bible was more to serve as a reminder and warning to the community that some transgressions were especially severe rather than an expectation that the punishment would actually ever be given. Indeed, with all the requirements regarding the judges and the witnesses, it was hardly implemented.

Some suggest that the imprisonment of criminals was impractical due to the costs involved. In ancient society there was no money for the upkeep of criminals for decades on end in prison. As such, perhaps the death penalty and other corporal punishments were the only practical options for severe crimes. Thus, use of the death penalty in ancient society would not necessarily imply that the Jewish tradition prefers it in wealthy modern society.

The Jewish view on capital punishment today is mixed.

The great thinker Rabbi Aryeh Kaplan wrote: “In practice, … these punishments were almost never invoked, and existed mainly as a deterrent and to indicate the seriousness of the sins for which they were prescribed. The rules of evidence and other safeguards that the Torah provides to protect the accused made it all but impossible to actually invoke these penalties … the system of judicial punishments could become brutal and barbaric unless administered in an atmosphere of the highest morality and piety. When these standards declined among the Jewish people, the Sanhedrin … voluntarily abolished this system of penalties.”

Clearly, Rabbi Kaplan would be opposed to the death penalty nowadays. On the other hand, the renowned authority on Jewish law, Rabbi Moshe Feinstein, in a letter to then-New York Governor Hugh Carey, wrote: “One who murders because the prohibition to kill is meaningless to him, and he is especially cruel…the courts should use capital punishment to repair the issue and to prevent murder… .”

May we never need to even think about it!

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