We hear about topics with great societal impact being
discussed in the media today. Among
these topics is the question whether the death penalty which has been repealed
in Nebraska, should be
re-instated .
It should come as no
surprise that capital punishment existed on the “books” of the Sanhedrin, the
high court of Israel during the period of Yehudah HaNasi, who lived in the 2nd
half of the 2nd century. Yet,
it was considered a murderous court if an execution took place once in 70
years. If there was a bias in the court,
it was to err on the side of the accused, because society understood the
gravity of condemning an individual to death.
In a capital case there were 23 judges assembled. It was not
permissible to have an even number of judges. One was not judged by one’s
peers. Judgement made during capital
cases opened only with arguments to acquit.
A capital case could only be retried for the purpose of acquittal and
not for conviction. In terms of a
capital case, a judge could rule to convict but then change his mind to
acquit. One who ruled to acquit was not
allowed to change his ruling and convict.
Capital cases had to be tried and concluded during the day. If it was decided that the ruling was to
acquit the defendant, then it could conclude on the same day. If it was for conviction, it would happen on
the following day.
When the 23 judges gathered, each sat in a semi-circle so
they could look at one another. There
were three scribes recording the testimony that was heard. One scribe wrote the words of the acquitting,
one wrote the words of the convicting, and the third recorded both sets of
words. The purpose being that there
should be no errors in the recording of testimony.
The judges had 7 examinations that they asked of each witness: what week, what year, what month, what day of
the month, what day of the week, what time of the day, and in what place. In addition,
they asked did you recognize the accused? Did you warn him? Two witnesses had to
actually see the crime being committed, had to attempt to verbally stop the
criminal from acting. They also had to
see each other at the time of the crime and couldn’t be related to one
another. If the two witnesses
contradicted each other based on the examinations, their testimony was considered
invalid. After examining the first
witness, they would bring in the second one to be examined. If the testimonies coincided, they would open
the discussion for acquittal. If one of
those who saw the crime said he wanted to say something on behalf of
conviction, he would be silenced. Even
the accused was allowed to be heard if he wanted to speak on behalf of his own
acquittal. Interestingly enough, an individual was not allowed to confess a
crime and then have that used as evidence against him during a trial.
The judges actually tried to intimidate the witnesses in a
capital case. How? They would say,
“Maybe you’re saying your testimony based on an assumption or hearsay or the
words of another witness, or the words of someone you trust. Perhaps you don’t realize that you will be
examined with inquiry and investigation.
In capital cases, if a mistake is made, you are accountable for his
blood and the blood of his offspring for all eternity.”
Anyone found innocent was immediately released. If the judges all found the suspected
perpetrator guilty, then the case was thrown out. It was felt that there was something wrong
with the court in that instance. If the individual was not found innocent, the
verdict was delayed to the following day.
The judges were then paired off to discuss the matter all night. Early on the following day they would come to
the court. An acquitting judge could
say, “I acquitted and I continue to find him innocent.” A convicting judge
could say, “I convicted and I continue to find him guilty.” An individual who had been in favor of
conviction could change his position, but one who argued for acquittal was not
allowed to change his position. Twelve
acquitting and eleven convicting resulted in acquittal. If 11 acquitted or 12 convicted or if 11
acquitted and 11 convicted and one says “I don’t know,” then two more judges were
added to break the deadlock. You could
have a maximum of 71 judges ruling, but if the final result was 36 convicting
and 35 acquitting then the judges had to argue with each other until a
convicting judge acquitted. There could
be no abstentions, because that was seen as an abdication of
responsibility. It took a majority of
two to convict an individual of a capital crime. It only took a majority of one
to acquit the individual.
The society from which the Sanhedrin was born, although
allowing for capital punishment had a crisis over executing an individual. Although it was felt that the wicked should
perish, it was also considered a primal sin to execute someone wrongly. A murderous court was seen as multiplying the
numbers of shedders of blood in Israel.
Therefore, in essence, the death penalty was a matter of principle not
practice in ancient Israel. The purpose
for assigning the death penalty to certain crimes was to show the severity of
the sin rather than “the expectation of death.”
In reality, it was nearly impossible to fulfill the stringent conditions
for the death penalty.
What I just shared with you was the
historical perspective on the death penalty found in the Mishnah. The Conservative movement of Judaism has written a responsum by its Committee on Jewish Law and
Standards, that opposes the modern institution of the death penalty. Let
me read it to you. It states:
“The Talmud ruled out the
admissibility of circumstantial evidence in cases which involved a capital
crime. Two witnesses were required to testify that they saw the action with
their own eyes. A man could not be found guilty of a capital crime through his
own confession or through the testimony of immediate members of his family. The
rabbis demanded a condition of cool premeditation in the act of crime before
they would sanction the death penalty; the specific test on which they insisted
was that the criminal be warned prior to the crime, and that the criminal indicate
by responding to the warning, that he is fully aware of his deed, but that he
is determined to go through with it. In effect this did away with the
application of the death penalty. The rabbis were aware of this, and they
declared openly that they found capital punishment repugnant to them… There is
another reason which argues for the abolition of capital punishment. It is the
fact of human fallibility. Too often we learn of people who were convicted of
crimes and only later are new facts uncovered by which their innocence is
established. The doors of the jail can be opened, in such cases we can
partially undo the injustice. But the dead cannot be brought back to life
again. We regard all forms of capital punishment as barbaric and obsolete.”
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