The United States Law Week

INSIGHT: Conservative Religious Law Rejects the Death Penalty

July 23, 2020, 8:01 AM

As Jordan Rubin recently reported in Bloomberg Law, public approval of execution has declined to a slim majority of 54%—racial biases stare us in the face, and downstream effects of the pandemic complicate logistics.

Invoking the same themes of prejudice and practice, the distinctive and nuanced perspective of Jewish law rejects the death penalty—on legal grounds we would consider “conservative” today.

In fact, the Jewish position has evolved. The Hebrew Bible not only countenances capital punishment, but even prescribes it for certain offenses. And Judaism’s post-Biblical legal scholars, known as the Rabbis, never overruled the Bible’s core position.

Instead, the Rabbis overwrote that Biblical position from various angles. Whereas early Christianity (in roughly the same period as the Rabbis) rejected the death penalty most ardently out of compassion, Rabbinic Judaism demurred out of respect for the risk of governmental abuse, the slipperiness of evidence, and the religious primacy of life.

System Is Flawed

From the political perspective, Rabbis across the centuries saw themselves as a disenfranchised minority. As such, they took a dim view of any government’s capacity to judge people of any race or religion fairly—especially in matters of life and death.

Additionally, testimony and truth do not always coincide. Attempting to avoid false testimony from those with grudges, something to gain, or other biases, the Rabbis whittled down the list of eligible witnesses to a virtual vanishing point. Even confessions, as ample modern sociological and psychological studies suggest, can muddle the truth. So the Rabbis disallowed them, as well, in capital cases.

The Rabbis even aimed to restrain judges, the very class of people with whom they most identified. In tight decisions to execute, they increased size of the judicial panel, progressively stacking it in the defendant’s favor—up to as many as 71 judges. Then, they unabashedly put their thumb on the scales: “If 36 convict and 35 acquit, the case is to be tried over… until one who convicts agrees with those who acquit.”

The Rabbis also adopted a deeply religious perspective: “One’s body does not belong to oneself.” That is, it belongs to God. As such, an injury to a human being of any stripe is an injury to the divine.

Errors Are Committed

With so much on the line, there is no room for error. However, human justice can only grope and grasp for the truth, committing inevitable errors along the way. Even the most thorough and fair-minded system of justice must contend with the fragility and contingency of evidence itself, especially when refracted through human experience.

For the sake of societal functionality (called tikkun olam in Talmud), we accept this indeterminacy and its margin of error in the course of routine jurisprudence. Uniquely, however, when it comes to the ultimate punishment, Judaism admonishes us to defer to the limits of human perception, the frailty of our analysis, and the power of our unseen passions and politics—to abstain, in other words, from execution.

Similarly recognizing the inevitable flaws in the dispensation of justice, state moratoria across the country, beginning with that of Illinois Gov. George Ryan (R) in 2000, specifically cite the system’s disastrous errors.

And in secular fashion, our founders echoed Judaism’s ancient religious sensibility, by protesting that all “are endowed by their Creator with certain unalienable rights, that among these are life….”

Theoretically, the absolute certainty of guilt in a given case might justify the alienation of this supposedly “unalienable” right. However, the possibility of such a just execution only exists in the context of legal executions in general, that is, amidst the statistical certainty of executing innocent people in other cases.

Judaism’s venerable standards of justice force us to reckon with this irreducible problem, even in the case of an individual who murdered 11 and injured seven at a Jewish synagogue in Pittsburgh over a year ago. Despite the lasting, devastating impact of this and similar atrocities, we ought to question a form of supposed justice that in fact presupposes inevitable, gross injustice.

While society must absorb the errors of justice in all other things, Jewish authorities explicitly argue that the injury to the deity is simply too great, and the perversion of justice too predictable to sustain, when—not if—we err in executing human beings.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Dr. Joshua Holo is the dean of Hebrew Union College-Jewish Institute of Religion, Jack H. Skirball Campus in Los Angeles, and associate professor of Jewish history. His publications focus on Medieval Jews of the Mediterranean, particularly in the Christian realm. He founded the HUC College Commons, a community digital learning platform.

Rabbi Joel Thal Simonds is the founding executive director of the Jewish Center for Justice, where he envisioned the need for a Jewish justice organization to reach the unaffiliated and expand the breadth and scope of the wider Jewish community. Rabbi Simonds also serves as Rabbi of the Synagogue for the Hebrew Union College in Los Angeles, and for the past 10 years has been the associate Rabbi at University Synagogue in Los Angeles.

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