Wednesday, February 17, 2010

A Death Penalty Question for RW Jews

Here's a question for one particular type of RW Jew:

You piously accept Chazal's point of view matters like the age of the universe, the gestation period of snakes, and the reproductive habits of lice, yet when it comes to the death penalty you go your own way. Why?

For the uninitiated, this is the famous Mishna which records for posterity the view of the Sages:
A sanhedrin that executes once in seven years, is called murderous. [The view of R. Yehuda, I presume]

Rabbi Eliezer b. Azariah says: once in seventy years.

Rabbi Tarfon and Rabbi Akiva say: “Had we been members of a sanhedrin, no person would ever be put to death.

Rabban Shimon ben Gamaliel remarked: “They would also multiply murderers in Israel.” (Makkos 1:10)
As you see, with the exception of Rabban Shimon Ben Gamliel, the Sages mentioned here were deeply suspicious of the death penalty and reluctant to use it. One execution in seven years was too many for them and, in effect, R. Eliezer b. Azariah, R. Tarfon and R. Akiva would have suspended it altogether.

Even the view of Shimon ben Gamliel is no endorsement of capital punishment. He still required the almost impossible-to-satisfy rules of evidence, rules that required two witnesses and a pre-crime warning that, in effect, made executions uncommon. As for his comment, there are two ways to read it.

If he means to say the death penalty served as a deterrent in Israel the reply is this: We don't live in Israel. Perhaps the death penalty was a deterrent in the world of the Sages. Today in America our research tells a different story: Death Penalty: No Evidence of Deterrence

I, however, think this way of reading Shimon ben Gamliel's remark is a 20th century gloss. I don't think Raban Gamliel is arguing that more murders will be committed if the death penalty is abolished. I think he is saying that the net number of murderers in the general population will increase, which is what you'd expect if murderers are no longer being put to death.

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