CAPITAL PUNISHMENT, the standard penalty for crime in all ancient civilizations.
In the Bible
Many of the crimes for which any biblical punishment is prescribed carry the death penalty. The three methods of executing criminals found in the Bible are stoning, burning, and hanging.
Stoning was the instinctive, violent expression of popular wrath (Ex. 17:4, 8:22; Num. 14:10; I Sam. 30:6; I Kings 12:18; II Chron. 10:18), and is often expressly prescribed as a mode of execution (Lev. 20:2, 27, 24:16; Num. 15:35; Deut. 13:11, 17:5, 21:21, 22:21, et al.). As the survival of vindicta publica, it was and remained characterized by the active participation of the whole populace (Lev. 24:16; Num. 15:35; Deut. 17:7; et al.) – all the people had to pelt the guilty one with stones until he died. Stonings were presumably the standard form of judicial execution in biblical times (Lev. 24:23; Num. 15:36; I Kings 21:13; II Chron. 24:21).
Burning is mentioned as a pre-Sinaitic punishment (Gen. 38:24). As a mode of judicial execution it is prescribed in respect of two offenses only (Lev. 20:14, 21:9), but it seems to have been used to aggravate the punishment of stoning,
Hanging is reported in the Bible only as either a mode of execution of non-Jews who presumably acted in accordance with their own laws (e.g., Egyptians: Gen. 40:22; II Sam. 21:6–12: Philistines; and Persians: Esth. 7:9), or as a non-Jewish law imported to or to be applied in Israel (Ezra 6:11), or as an extra-legal or extra-judicial measure (Josh. 8:29). However, biblical law prescribes hanging after execution: every person found guilty of a capital offense and put to death had to be impaled on a stake (Deut. 21:22); but the body had to be taken down the same day and buried before nightfall, "for an impaled body is an affront to God" (ibid., 23).
Talmudic law distinguished four methods of judicial execution (arba mitot bet din): stoning, burning, slaying, and strangling. In no area can the genius of the talmudic law reformers better be demonstrated than in that of capital punishment. Two general theories were propounded which, though dated from a period too late to have ever stood the test of practical application (see below), reflect old traditions and well-established ways of thinking: namely, first, that "love your neighbor as yourself" (Lev. 19:17) was to be interpreted as applying even to the condemned criminal – you love him by giving him the most humane ("the most beautiful") death possible (Sanh. 45a, 52a; Pes. 75a; Ket. 37a); secondly, that judicial execution should resemble the taking of life by God: as the body remains externally unchanged when God takes the life, so in judicial executions the body should not be destroyed or mutilated (Sanh. 52a; Sifra 7:9).
Stoning was not only confined to the 18 offenses for which the Bible had expressly prescribed it (Maim., Yad, Sanhedrin 15:10), but instead of having all the people kill the convicted person by pelting stones at him a "stoning place" was designed from which he was to be pushed down to death (Sanh. 6:4). This must not be too high, so that the body should not be mutilated falling down (Rashi, Sanh. 45a), and not too low, so that death would be instantaneous. One of the hermeneutical reasons given for this change of the law was the scriptural rule that "the hands of the witnesses shall be first upon him to put him to death" (Deut. 17:7); it is true that "the hand of all the people [should be on him] afterward" (ibid.), but it is the hand of the witness which is to put him to death. A mode of "stoning" had therefore to be devised in which the witness would not only be assured of the first chance to lay hands on the convicted person, but also of the certainty of thereby putting him to death (Sanh. 6:4). Talmudic jurists may have been influenced by Roman law (Saxum Tarpeium of the Twelve Tables 8:13f., 8:23) or by Syrian or Greek laws (cf. II Macc. 6:10), or perhaps by a single biblical precedent with prisoners of war (II Chron. 25:12) – what they attained was a more humane substitute for the biblical stoning, by which the danger of mutilation was considerably reduced and death accelerated. Maimonides justifies the talmudic method with the reflection that it really made no difference whether stones were thrown at one or one was thrown on the stones (Maimonides, Comment. to Sanh. 6:4). A great penal reform was achieved with the exclusion, contrary to biblical command, of the general public from the execution of death sentences and the elimination therefrom of all traces of vindicta publica. The participation of witnesses – and perhaps also the blood avenger – was not eliminated because they were regarded as a lesser evil in comparison with professional executioners.
Burning remained confined to the *adultery of a priest's daughter and to certain forms of *incest (Sanh. 9:1; Maim. Yad, Sanhedrin 15:11). Here again the question arose of how to execute by burning without destroying the body: an old tradition has it that when Aaron's sons were consumed by divine fire (Lev. 10:2) only their souls were burnt, their bodies remaining intact (Sanh. 52a); in accordance with this, a mode of burning which would leave the body intact had to be devised. The man to be burnt was to be immersed in mud up to his knees (so that he should not fall); two kerchiefs were then to be bound round his neck, each to be held in the hands of one witness and drawn in opposite directions until he opened his mouth, and then a burning wick was to be thrown into his mouth "which would go down into his bowels" (Sanh. 7:2). As will be seen, this mode of execution is almost identical with that of strangling, it being reasonable to suppose that the wick will no longer burn when it arrives in the bowels, but suffocation will already have supervened. Maimonides substitutes hot lead or zinc for the comparatively harmless mishnaic wick (Sanh. 15:3), taking the wick to be a metallic substance, but insisting that as little pain as possible should be inflicted (Comment. to Sanh. 7:2). There is no record that this method of burning was ever actually practiced. There is a report that a priest's daughter was burnt for adultery by being bound with bundles of grapevine which were then ignited (Sanh. ibid.). The explanation there given was that this may have been the method employed by a Sadducean court, leading some scholars to conclude that that had been the original biblical mode of burning, the Sadducees rejecting later oral law modifications. The same older method of burning is reported to have been adopted by a later Babylonian scholar, Ḥama b. Tobiah, who was rebuked for it (Sanh. 52b). That burnings may also have taken place at the stake appears from midrashic sources (cf Gen. R. 65:22; Mid. Ps. 11:7). Josephus reports that Herod ordered men who had incited others to desecrate the Temple to be burnt alive and their accomplices to be killed by the sword (Wars, 1:655).
Slaying by the sword was the mode of executing murderers and the inhabitants of the subverted town (Sanh. 9:1). As for the subverted town, it is the biblical prescript that its inhabitants be "put to the sword" (Deut. 13:16); and as for murderers, a slave murdered by his master must be "avenged"
Strangling is the residuary capital punishment; where no other mode of execution is prescribed, the death penalty is carried out by strangulation (Sanh. 52b, 84b, 89a), supposed not only to be the most humane but also the least mutilating (Sanh. 52b). The mishnaic procedure resembles that for burning. The convicted man is immersed in mud up to his knees, two kerchiefs are bound round his neck and then drawn in opposite directions by the two witnesses until he suffocates (Sanh. 7:3). Strangling is applied in six capital offenses (Sanh. 11:1; Yad Sanh. 15:13). There is no report of this mode of execution ever having been carried out. (For strangulations by hanging, see *Extraordinary Remedies.) Post mortem hangings were restricted by talmudic law, some holding that only executions by way of stoning should be followed by a post mortem hanging, and the majority view being that these hangings should be limited to the two offenses of blasphemy and idolatry only (TJ, Sanh. 6:4, 45b).
Though in strict law the competence to inflict capital punishment ceased with the destruction of the Temple (Sanh. 52b, Ket. 30a; cf. Sanh. 41a, 40 years earlier), Jewish courts continued, wherever they had the power (e.g., in Muslim Spain), to pass and execute death sentences – not even necessarily for capital offenses as defined in the law, but also for offenses considered, in the circumstances prevailing at the time, as particularly dangerous or obnoxious (e.g., *informers: Yad, Ḥovel u-Mazzik 8:11), or even for such offenses alone as distinguished from those originally punishable under the law (cf. Resp.Rosh 17:1). In order not to give the appearance of exercising sanhedrical jurisdiction, they would also normally refrain from using any of the four legal modes of execution (Resp. Maharam of Lublin, 138); but isolated instances are found of stoning (Zikhron Yehudah, 75), slaying (ibid., 58; Resp. Rosh. 17:2), and strangling (Zekan Aharon 95), along with such newly devised or imitated modes of execution as starvation in a subterranean pit (Resp. Rosh 32:4), drowning, bleeding, or delivering into the hands of official executioners (S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud, no. 48). In most cases, however, the execution of death sentences was probably left to the discretion of the persons who were authorized or assigned by the court to carry them out (cf. Resp. Rema, 11).
[Haim Hermann Cohn]
In Practice in the Talmud
It is of extreme difficulty to determine whether the modes of capital punishment given above, and based on the detailed discussion, mainly in the tractate Sanhedrin, reflect actual practice, or whether they were academic discussions, as, for instance, are the detailed discussions on the sacrifices. Thus the law of the "stubborn and rebellious son" covers five mishnayot (Sanh. 8:1–5) and four folios of the Babylonian Talmud (68b–72a), and it is laid down that he is put to death by stoning and then hanged (ibid., 46a). Yet it is stated that "It never happened and it never will happen" and that the law was given merely "that you may study it and receive reward" (for the pure study; Tosef., Sanh. 11:6; Sanh. 71a), though on the other hand in the talmudic passage R. Jonathan protests "I saw him and sat on his grave." The same statement is made in the case of the death penalty for communal apostasy (Tosef., Sanh. 14:1) and the same reason given for its study.
Much more pertinent, however, is a passage of the Talmud which explicitly compares the study of, and the discussion on the various death penalties with that on the sacrifices. The halakhah was established in the case of the death penalty for an adulterous woman. R. Joseph asked, "Is there need to establish a halakhah for the messianic age (the Sanhedrin no longer having jurisdiction in capital offenses)?" Abaye answered, "If so, we should not study the laws of sacrifices, as they also apply to the messianic age. But we say 'Study and receive reward'" (Sanh. 51b). Similarly, the passage in Mishnah Makkot 1:10: "A Sanhedrin that puts a man to death once in seven years is called a murderous one. R. Eleazar ben Azariah says 'Or even once in 70 years.' R. Tarfon and R. Akiva said, 'If we had been in the Sanhedrin no death sentence would ever have been passed'; Rabban Simeon b. Gamaliel said: 'If so, they would have multiplied murderers in Israel.'" Instructive though this is, it is merely an academic discussion, the right of imposing capital punishment having been taken from the Sanhedrin by the Romans a century before, "40 years before the Destruction of the Temple" (Sanh. 41a; TJ, Sanh. 1:18a). The rabbis agreed that with the destruction of the Temple the Sanhedrin was precluded from inflicting capital punishment (see above).
The Talmud actually asks whether the statement of
That the discussions are largely academic is reflected in the language of the Mishnah. Of capital punishment by the sword it is stated that "they used to decapitate him, as the [Roman] government does [at the present time]" (cf. Tosef., Sanh. 9:10) and R. Judah proposes another method. It goes on to state how "they used to" fulfill the method of death by strangulation (ibid., 7:3). No less significant is the fact that R. Akiva himself, who would have abolished capital punishment, enters into the halakhic discussion on it as fully as his colleagues (cf. ibid., 11:7, 12:2).
All that one can do is to assemble the available evidence. That the Sanhedrin had the power of inflicting the death sentence and that they exercised it is historically attested. Herod was arraigned before it on a capital charge, although he was enabled to escape and avoid the penalty (Jos., Ant., 14:168–70). Judah b. Tabbai admitted that he had wrongly sentenced a perjured witness to death (TJ, Sanh. 6:4, 23a–Tosef., Sanh. 6:6). The son of his colleague, Simeon b. Shetaḥ, was also wrongly condemned to death through false witness, and when the witnesses confessed their perjury the condemned man refused to take advantage of it lest his father, the head of the Sanhedrin, be accused of favoritism, and he went to his death, though innocent (TJ, loc. cit.). It is also clear from an incident vividly described by Simeon b. Shetaḥ that the laws of evidence were strictly adhered to (Tosef., Sanh. 8:3). One anonymous case is cited in the same context. "It happened that a man was being led to his execution. They said to him, 'Say, "May my death be an atonement for all my sins.'" He replied 'May my death be an atonement for all my sins, except for this one (for which I have been sentenced to death). If I am guilty of it, may my death not be an atonement, and the Bet Din and all Israel shall be guiltless'" (the version in the Babylonian Talmud adds "but may the witnesses never be forgiven""). When the matter was reported to the sages, their eyes filled with tears, but they said, "It is impossible to reverse the decision, since the matter is endless; [he must be executed] but his blood is on the necks of the witnesses" (TJ Sanh. 6:5, 23a).
Nevertheless, in none of those cases is the manner of execution given and the remarkable fact emerges that in the two cases cited where the mode of execution is explicitly stated the verdicts were extra-judicial. One was the action of Simeon b. Shetaḥ in sentencing 80 women in Ashkelon to hanging for witchcraft (Sanh. 6:4, cf. Sanh. 46a. Derembourg suggests that Simeon b. Shetaḥ is a mistake for the Hasmonean), while of the other it is stated: "It once happened that during the Greek period a man was sentenced to death by stoning for riding a horse on the Sabbath. Not that he was liable to death, but because the special circumstances of the time demanded it" (Sanh. 46a).
What is perhaps the most cogent evidence that the talmudic discussions on the death sentence did not reflect the actual practice is provided by a third instance. In Sanhedrin 7:2 R. Eleazar b. Zadok gave evidence of an actual case of death by burning which differed diametrically from that given by the Mishnah. The answer was given that "the Sanhedrin at that time was not competent." In the Tosefta (9:11) and the Jerusalem Talmud (7:2, 24b) Eleazar b. Zadok vividly describes the circumstances under which he witnessed it. "I was a child and was being carried on my father's shoulders and I saw it," to which his colleagues replied "You were then a child, and the evidence of a child is inadmissible." That the incident happened is therefore definite; the rabbis in the two replies were concerned with establishing their theoretical view of the law even when it conflicted with the actual practice of the past. There are no recorded cases of execution by strangulation or the sword. It would seem therefore that discussions on the various modes of execution and the details of their implementation were made to "study and receive the reward therefore," i.e., academic. As is evident from the above quoted mishnah in Makkot, the whole tendency of the rabbis was toward the complete abolition of the death penalty.
[Louis Isaac Rabinowitz]
In the State of Israel
The death penalty was in force in Israel for offenses under the Nazis and Nazi Collaborators (Punishment) Law, 5710 – 1951 and under the Penal Law, 5737 – 1977, for treason and assisting the enemy in times of actual warfare (Sections 97, 98, 99). In addition, a military tribunal may impose the death sentence upon a soldier for offenses of treason committed in times of actual warfare (Military Justice Law, 5715 – 1955, Section 43) and military courts in the administered territories are empowered to impose the death penalty for certain offenses, though such rulings must be unanimous and can only be given by a panel of justices all of whom have at least the rank of lieutenant colonel. The death penalty has only been carried out in one instance (in 1962) following the conviction of Adolf *Eichmann for crimes under the Nazis and Nazi Collaborators (Punishment) Law, 5710 – 1951. The death penalty for offenses under this law was also imposed in the *Demjanjuk case (in 1988) but was not carried out following his acquittal in the Supreme Court. The proliferation of brutal terrorist acts, and the imposition of life sentences instead of capital punishment, led the military courts to state (cf. Ram 3009/89 Army Pros. v. Ahmed Gibril Ottrrzan Takrzrru) that though the death penalty may be a more appropriate punishment, they were bound "to uphold principles of the State of Israel, the moral concepts of Jewish tradition, in which a Sanhedrin that passed a death sentence was considered to be a 'a bloody Sanhedrin.'" This refers to the statement in the Mishnah (Mak. 1:10; Mak. 7a) that a Sanhedrin that kills (gives the death penalty) once in seven years (R. Eleazer b. Azariah said: once in 70 years) is called "bloody" (ḥovlanit, the term "ḥovel" generally implying a type of injury in which there is blood).
This position of Jewish Law and the related developments
In the judgment in Nagar (CA 543/79 Nagar v. State of Israel 35 (1) PD 113), the Supreme Court addressed the question of whether the suspects could be convicted of murder even though the court had no direct evidence of their having committed the offense, and given that the body itself had not been found. The Supreme Court (Justice M. Elon) referred to a previous Supreme Court ruling (Cr.A. 112/69 Muhamad Halil 23 (1) PD 733) which examined the disparity between the position adopted by Jewish Law regarding the offense of murder and the position adopted by modern systems of law, having reference to the far-reaching statements of the tannaim R. Tarfon and R. Akiva, who said:"Had we been in the Sanhedrin [during the period when it possessed capital jurisdiction] no man would ever have been killed" (Mish., Mak., 7:1). Further on, the judgment cites statements made by certain amoraim, explaining how the judge can disqualify any testimony on murder and render any piece of evidence circumstantial, thereby precluding its admissibility: "Did you note whether he (the victim) was suffering from some fatal condition or was in good health?" R. Ashi said: "Even if the reply is that he was in good health, there may have been a lesion where the sword struck [from which he would have died in any event]."
On this basis, further on in the decision, Justice Silberg concluded that a modern legal system cannot endorse the position in Jewish Law, which is prepared to rely on remote eventualities, on the basis of which it exempts dangerous criminals from punishment "since there is a need for judicial action to punish dangerous criminals, it is necessary to disregard 'remote possibilities,' i.e., exceptional, unlikely eventualities, even though this may possibly cause a miscarriage of justice. In other words, the legislature was aware of this danger, but found it to be necessary, for in its absence, the needs of the law would never be met (p. 741 of judgment).
In the Nagar judgment (pp. 163–71) Justice Elon discussed the various developments in Jewish Law with respect to this sensitive and fundamental issue. First of all, the aforementioned view of R. Akiva and R. Tarfon was a minority view, which merited the ironic demurrer of the tanna. R. Simeon b. Gamaliel that "they too would have multiplied the number of murderers in Israel." An absolute moratorium on enforcement of judgments against murderers would lead to the loss of the court's deterrent power, and thus lead to the increase of bloodshed (see Rashi ad loc. TB, Mak. 7a).
In fact, in its original format, Jewish Law was stringent in its requirements for direct evidence, and in this context Maimonides makes the following illuminating observations on the strict evidentiary requirements of Jewish Law (Sefer ha-Mitzvot, Negative Commandments, 290), "that even if A pursues B with intent to kill and B takes refuge in a house, and the pursuer follows him, and we enter the house after them and find B in his last gasp and his enemy, A, standing over him with a knife in his hand, and both of them are covered with blood, the Sanhedrin may not find the pursuer A liable for capital punishment, since there are no direct witnesses who actually saw the murder…" The reason given by Maimonides is that if the court was permitted to convict a suspect of a criminal offense not on the basis of the unequivocal testimony of witnesses who actually witnessed the act, then the court might soon find itself convicting in criminal offenses on the basis of a "the judge's speculative evaluation of the evidence." Maimonides concludes his comments with the observation that "it is better and more desirable that a thousand guilty persons go free than that a single innocent person be put to death (a statement that later on became a wellknown maxim, see G. Williams, The Proof of Guilt (1963) 186ff.).
Towards the end of the tannaitic period, a principle in Jewish criminal law was enunciated though it had actually been in practice for many years. The acceptance of this principle accommodated a substantive change in Jewish criminal law, both with respect to sanctions and also with respect to evidence and procedure:
Justice Elon pointed out that on the basis of this fundamental provision, which enabled the courts to deviate from the original law of the Torah in criminal and evidentiary law, in accordance with the needs of the time and the place, both the courts and the communal leaders, utilizing their authority to enact communal regulations (see *Takkanot), adopted detailed legislation in the area of penal law. Formally speaking this legislation was referred to as "exigencies of the hour," but in effect it became part of the substantive Jewish Law. Jewish courts all over the Jewish Diaspora used this authority at various times, even to the extent of imposing capital punishment, without the Court of Twenty Three, and without complying with the strict evidentiary requirements of the original Jewish Law (see Jewish Law, 515–19).
Rabbenu Asher, upon his arrival in Spain at the beginning of the 14th century, states that he was surprised to discover that the Jewish courts in Spain had arrogated to themselves capital jurisdiction and were even imposing capital punishment. In one of his responsa he writes:
However, despite the reservations expressed by the Asheri regarding capital punishment, in the particular question put to him concerning a Jew who blasphemed the name of God in public, he was prepared to abide by the questioner's position, writing that "It is fitting that the name of Heaven be sanctified by the elimination of this evildoer. And do as you deem appropriate … because I know that your intention is to sanctify the Divine name, and you will be successful in fulfilling God's will."
In contrast with the Asheri's almost forced acknowledgment of the capital jurisdiction exercised by Jewish courts in Spain, his son, R. Judah b. Asher (Spain, North Africa, end of 14th century) praised and thanked the non-Jewish authorities for allowing the Jewish courts to exercise capital jurisdiction:
Most of the cases in which capital punishment was imposed were for convictions of murder. Hence we find a responsum of R. Isaac b. Sheshet Barfet (Spain and N. Africa, end of 14th century) when asked regarding a person accused of murder, and the nature of the evidence on the matter:
In an additional responsum the Ribash ruled that for the same reason it is also possible to rely on the confession of a litigant, supplemented by circumstantial evidence (similarly to the provision in the law of evidence practiced in the State of Israel, which allows the conviction of the accused on the basis of a confession given outside the court, with the addition of "something extra"):
Not every part of the Jewish diaspora enjoyed such wide autonomous criminal jurisdiction, and even within a given location, the extent of juridical authority fluctuated over time. As we have seen, the Spanish Jewish center enjoyed broad criminal jurisdiction – even including power to inflict capital punishment – for an extended period. Similarly we find that such jurisdiction also existed in a later period in the Jewish community of Poland. For example, in a responsum of R. Meir of Lublin, a leading Polish halakhic authority in the 16th century, he rules that the courts even have the power to impose capital punishment, by virtue of the principle of "imposing punishment not prescribed in the Torah," in order to create a barrier. Even so, on many occasions, the Jewish courts in Poland preferred that the actual sentence be carried out by the non-Jewish authorities (Resp. Maharam of Lublin, 136; Resp. Eitan ha-Ezraḥi, 43–44).
These principles were succinctly set forth in the codificatory literature, "Even though there is no jurisdiction outside the Land of Israel for capital punishment, flogging, or fines, if the court deems that it is an exigency of the time, in as much as the crime is rampant among the people, it may impose the death penalty, monetary fines, or other punishments" (Tur, ḤM, ch. 2, and Sh. Ar. ibid.). Apparently, the reason for the brevity of these codes in their exposition of criminal law lies in the limited criminal jurisdiction of Jewish communities of that time, in contrast to their extensive civil and administrative jurisdiction, and the great detail in which these fields were regulated in the codificatory literature of that period. Another factor may have been that criminal activity was not widespread in the Jewish communities of that time, even though here too there were "high" periods and "low" periods" (p.170 of judgment).
The Court summed up its comments in the Nagar case
[Menachem Elon (2nd ed.)]
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