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The Death Penalty, Lethal Force, and the Stability of Society

April 3, 2014

It is interesting to note that Maimonides counts the infliction of the various death penalties among the 613 commandments. Once again, we can explain these perplexing mitzwoth using a principle we decribed earlier: Rational societies know that in order to maintian the rule of law, govenrments and courts must reserve the right to exercise force, lethal if may be, against its enemies and criminal elements. Even the supposedly advanced and civilized societies in the European Union, who have acted much like the sages’ description of the swine that sticks out its split hooves in order to show off its pure status by declaring that member states must abolish the death penalty, still concede that governments have the right to wage war and that individuals have the right to engage in self defense, which, along with the death penalty, are based on the simple premise that it is sometimes justified to kill someone if he is guilty of killing another or attempting to kill another. The Americans, the Russians, and the Bulgarians do not need a divine command for them to comprehend this point. The Jewish people, however, are naturally compassionate, almost to a self-destructive extent, and God, therefore, preempted them by commanding them to make sure that they “eliminate the evil from their midst,” and put to death those who would present themsleves as menaces to society. Recall what our sages said about misplaced mercy.

I would like to point that when discussing the idea of the death penalty, it is worth noting that Hazal, milleneia before their time, were the first to seek that the death penalty be inflicted in only the rarest of circumstances. And it is also true that the Talmud and codes are full of technical laws that were applied more than 2,000 years ago in order for courts to avoid inflicting the biblically mandated death penalties. If one were to search the history the books, he will find only a handful of incidences in which Jewish courts actually inflicted the death penalty, and that there were long periods when the sages declared that they had no authority to utilize it. Yet, with regards to the crime of murder, Maimonides points out (Murder and the Preservation of Life 1:4):

The court is enjoined not to accept ransom from the murderer to save him from execution. Even if he gave all the money in the world, and even if the blood redeemer was willing to forgive him he should be executed. The rationale is that the soul of the victim is not the property of the blood redeemer, but the property of the Holy One, blessed be He, and He commanded, (Numbers 35:31) “Do not accept ransom for the soul of a murderer.”

And (ibid., 4:8-9):

There is nothing that the Torah warned so strongly against as murder, as (Numbers, ibid., 33) states: “Do not pollute the land in which you live, for blood will pollute the land.” All those murderers [described previously who are not put to death fro technical reasons but who are proven guilty] should be forced to enter a cell. There they are fed parched bread and small amounts of water until their digestive tracts contract. Then they are fed barley until their bellies burst because of the extent of the sickness, and they die. This measure is not taken with regard to other crimes punishable by execution by the court. If a defendant is liable for execution, he should be executed. If he is not liable for execution, he should be released. Although there are other sins that are more serious than murder, they do not present as serious a danger to society as murder does. Even idol worship – and needless to say, incest or the violation of the Sabbath – are not considered as severe as murder. For these sins involve man’s relationship with God, while murder also involves man’s relationship with his fellow man. Whoever commits this sin is an utterly wicked person. All the commandments that he performs throughout his lifetime cannot outweigh this sin and save him from judgment. Thus, Proverbs 28:17 states: “A man weighed down with life’s blood will flee to the pit.” Come and learn from the example of Ach’av King of Israel. He was an idolater so debased in his paganism that I Kings 21:25 says: “There was none like Ach’av who gave himself over to the performance of wickedness in the eyes of God.” And yet when his merits and sins were weighed in the presence of the Lord of spirits, there was no sin that warranted his destruction and was not counterbalanced by a positive quality, except the blood of Navot. Thus, it is written Ibid. 22:21, in the description of the prophecy of Ach’av’s death in battle: “And the spirit came and stood before God.” Our Sages commented:: “This is the spirit of Navot.” And God told the spirit (Ibid.:2): “You will persuade him and prevail.” Now this wicked man Ach’av did not actually kill his victim with his own hands; he merely brought about his death. How much more so this condemnation should apply when a person kills another with his own hands. And also (Sanhedrin 20:4): It is forbidden for the court to have compassion for the killer. The judges should not say: “Since this person has already been killed, what advantage is there in killing another person,” and thus be lax in executing him. This is implied by Deuteronomy 19:13: “Do not allow your eyes to take pity. You shall eliminate innocent bloodshed.”

Years ago, I met an older gentleman who claimed to be an admirer of the by then already comatose “Ariel Sharon, may his name be blotted out.” That is how I referred to him then, for the very reason Maimonides described above. Like Ahab, Sharon fought valiantly on behalf of the people and the land of Israel, but was ultimately the cause of much Jewish bloodshed by surrendering territory in the Land to those who would try to destroy us. “Hakol holech afar hasof,” only the bottom line counts, I told him, and Sharon ruined it, although I do believe that he was serious when he said that if the Gazan Arabs were to start up with us, they would feel the full extent of the IDF’s wrath, except his comeuppance came too soon, and the political sellout and opportunists who then populated the now defunct Kadima party were all lacking the moral clarity to do that when the time came. And of course Netanyahu never had the guts to stop the Gazans, but I digress.

A word about deterrence. the argument against the death penalty working as a deterrent runs like this: The fellow being executed obviously was not deterred by the possibility, so why would others? The answer is that deterrence is not 100% effective. Rather, there always exists a certain minority that will commit the crime regardless of the consequences; however, there are many more who are deterred by the prospect when they realize it can actually happen. Inflicting the death penalty works for, say, the 90% that learn not to do what they feel inclined to do.

Consider what this has led to today: The Israel criminal justice and correctional systems are inundated with unrepentant and confessed murderers, attempted murderers, and accessories to murder. (Those in the American system are considerably more inclined to be at least regretful, remorseful, or maintaining of their innocence.) Now, what is Israel to do with all them? Instead of punishing the first few and deterring the rest, the system basically rewards some, while incacreating others until the day when they are set free for nothing. We Jews are not blood thirsty or vengeful, and thus if you hear about some who would advocate the death penalty for wanton and willful murderers, consider that they they have realized what should be obvious to anybody, and they are only trying to prevent the next murder.

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