What does the Torah say about… capital punishment?

With Rabbi Ariel ABEL.

WHITE SUPREMACIST serial killer Joseph Paul Franklin was executed at the end of November this year. He was administered a lethal injection and died ten minutes later. He had been on death row in the United States for 35 years for the murder in October 1977 of Gerald Gordon outside a synagogue in St. Louis.

Franklin was also blamed for 22 other shootings across various states which prosecutors said were part of an attempt to start a race war. A late appeal to the governor of Missouri by one of Franklin’s victims to stop the death penalty on principle and instead impose life imprisonment was denied. What does the Torah say about capital punishment?

Noah was informed by God that “he who spills the blood of man shall have his blood spilled by man, for man is made in the image of God”. It is therefore an offence against God which would require capital punishment for a heinous offence. Some offences carrying capital punishment, such as stoning a man for gathering sticks on the Sabbath, would be opposed by liberal society. In an interview, Franklin said he believed he was not going to hell because he had been on a three-year mission comparable to that of Jesus of Nazareth.

Ironically, the fact of Jesus being a Jew had not occurred to him. After the time of Jesus, Rabbi Akiva is reported to have boasted to his colleagues that if only the courts were under his aegis, no-one would ever be executed under halachic law. The Talmud states that a beth din that carries out the death penalty more than once in 70 years is called an “evil beth din”. This is because it is the function of a full quorum of judges to find legal ways to “save” the accused – irrespective of what he has done, there is still a legal obligation to save his life!

The finality of execution would make later exoneration on discovering new evidence impossible and thus risk a miscarriage of justice. But would incarceration for life be punishment enough for someone who has taken innocent life?

Our sages teach that four people are compared to the dead: the leper, the non-sighted, the impoverished and the convicted to execution. Thankfully, the first three are not “dead” in the modern age as there is a higher quality of life available to them. The fourth category will suffer every moment anticipating execution, unless the inevitability of capital punishment is removed.