Jewish views of capital punishment TB Makkot 7

The Mishnah that concludes chapter 1 of our massekhet on daf TB Makkot 7 is one of the most famous mishnayot in the entire Talmud. It discusses the Jewish views of capital punishment.

“A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal. Since the Sanhedrin would subject the testimony to exacting scrutiny, it was extremely rare for a defendant to be executed. Rabbi Elazar ben Azarya says: This categorization applies to a Sanhedrin that executes a transgressor once in seventy years. Rabbi Tarfon and Rabbi Akiva say: If we had been members of the Sanhedrin, we would have conducted trials in a manner whereby no person would have ever been executed. Rabban Shimon ben Gamliel says: In adopting that approach, they too would increase the number of murderers among the Jewish people. The death penalty would lose its deterrent value, as all potential murderers would know that no one is ever executed.” (Sefaria.org translation)

Louis Jacobs in his book What Does Judaism Say About…? writes: “The first thing to be noted is that the discussion in this passage is purely academic. There is a good deal of uncertainty about the actual nature of the Sanhedrin when it did function, but in any event we are told that the right to inflict capital punishment was taken away from the Sanhedrin by the Romans 40 years before the destruction of the Temple (Sanhedrin 41a). All the teachers mentioned in the Mishna flourished at a time when the Sanhedrin had been defunct for about 150 years. For all that, the opening statement that it was rare for criminal to be executed by the Sanhedrin may well be an authentic tradition to this effect.

“Rabban Shimon ben Gamliel’s argument is the stock argument of anti-abolitionists even today. Capital punishment is the most powerful deterrent and its abolition will only lead to an increase in crimes of violence and murder. Rabbi Akiva and Rabbi Tarfon argue otherwise… They evidently believed that the biblical law was intended as a solemn warning as to the extreme seriousness of the crime but that the courts were justified in circumventing the law, so that it becomes a dead letter. A good illustration of this method of procedure is the rabbinic treatment of the biblical law regarding the stubborn and rebellious son (Deuteronomy 21:18-21) who was to be stoned to death and an idolatrous city which was to be raised and whose inhabitants were to be destroyed (Deuteronomy 13:13-19). The Talmud (Sanhedrin 71a) declares that these punishments were never actually carried out nor are they ever likely to be carried out in a recorded in the Torah for one purpose only, that we might study them and benefit from doing so…

“According to another statement in the Talmud (Sanhedrin 52b) the Sanhedrin can only function while the Temple is standing, so that after the destruction of the Temple it was illegal for any Jewish court to inflict capital punishment...

“The question of whether Judaism would have Jews living outside Israel support abolitionist or anti-abolitionists policies in the countries in which they reside is rather more complicated. From the evidence produced here it would seem to be suggested that the abolitionists are closer to the Jewish spirit and should be supported. However there is no dogmatic statement to this effect, and sincere anti-abolitionists, convinced despite the weighty statistical evidence to the contrary that the death penalty is a deterrent, do have Rabban Shimon ben Gamliel on their side and can support this policy with a clear conscience.” (Pages 66-68)

Abigail N. Sosland discusses capital punishment in the book The Observant Life: The Wisdom of Conservative Judaism for Contemporary Jews.

“One cannot, therefore, derive anything even remotely approaching an unequivocal sense from Jewish codes or Jewish history the executing a criminal is inherently wrong or by its very nature unjust. But the modern world has much to learn from the caution and seriousness with which the rabbis of the Mishnah in the Talmud handled capital cases. For Americans, in particular, this should be an especially sensitive issue. Given the number of cases in the United States in recent years, for example, in which death row inmates were exonerated after years of incarceration-not to mention instances in which already executed individuals were unequivocally vindicated and post humorously cleared of wrongdoing-the American death penalty system seems to require revamping along the lines of halakha. In addition, statistics show that there’s a strong racial aspect to the death sentence as it is carried out in the United States, in so far as black Americans are far more likely to be sentenced to death for murder than white Americans convicted of the same crimes. (When the victim is white, the likelihood of the death penalty also increases dramatically.) The biblical notions of pursuing justice and judging others without concern for social status demanded Jewish jurists and jurors alike look at the evidence carefully and take into account all the possible loopholes in any capital case. The concept of dina d’malkhua dina (the law of the land is the law-gg) cannot be ignored and the requirements to convict or acquit need not-and, in the secular justice system, should not-come directly from rabbinic sources, both from the secular law of the land. Still, the values of Jewish tradition, the level of deliberation with which the rabbinic courts were to handle death penalty cases, and their sense of grave responsibility should still form our participation in such matters.” (Pages 466-7)