Capital Punishment
“It was in Burma, a sodden morning of the rains. A sickly light, like yellow tinfoil, was slanting over the high walls into the jail yard. We were waiting outside the condemned cells, a row of sheds fronted with double bars, like small animal cages. Each cell measured about ten feet by ten and was quite bare within except for a plank bed and a pot of drinking water. In some of them brown silent men were squatting at the inner bars, with their blankets draped round them. These were the condemned men, due to be hanged within the next week or two.”
This is the opening paragraph of George Orwell’s short essay called “A Hanging” which was first published in 1931. In the essay, Orwell describes witnessing the execution of a prisoner while he was stationed in Burma (Myanmar today) during his service in the British Imperial Police from 1922-1927.
The essay is a beautifully written, powerful account of the incredible horror which accompanies capital punishment.
What is the Jewish approach to Capital Punishment?
While the Torah allows it in certain cases, famously: “Whoever sheds human blood, by humans shall his blood be shed.”(Genesis 9:6) Our sages, not wanting to contradict the Torah, limited it so severely that they made it nearly impossible. For a death sentence to be carried out, two eyewitnesses must see the act directly, the witnesses must warn the perpetrator immediately before the crime, the perpetrator must verbally acknowledge the warning, in spite of the warning, the person proceeds to commit the act, and the witnesses must agree perfectly on every detail.
The Mishna in Masechet Makot states:
סַנְהֶדְרִין הַהוֹרֶגֶת אֶחָד בְּשָׁבוּעַ נִקְרֵאת חָבְלָנִית. רַבִּי אֶלְעָזָר בֶּן עֲזַרְיָה אוֹמֵר, אֶחָד לְשִׁבְעִים שָׁנָה. רַבִּי טַרְפוֹן וְרַבִּי עֲקִיבָא אוֹמְרִים, אִלּוּ הָיִינוּ בַסַּנְהֶדְרִין לֹא נֶהֱרַג אָדָם מֵעוֹלָם.
“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.’’
The modern state of Israel has only executed one person in its entire existence. That was Adolf Eichman, the person who supervised the transportation of about a million and a half men, women and children to murder them.
The reason I’m focusing on capital punishment today is because of a very interesting instruction for one of the offerings described in our portion Vayikra. Our portion specifies all the different kinds of offerings which are to be made at the tabernacle for different reasons. What, when, and how much should be sacrificed is all spelled out in detail.
When the sin offering is described, and the detailed instructions are given, the Torah acknowledges that not everyone is able to acquire all the ingredients that are required:
"וְאִם־לֹא֩ תַשִּׂ֨יג יָד֜וֹ לִשְׁתֵּ֣י תֹרִ֗ים אוֹ֮ לִשְׁנֵ֣י בְנֵי־יוֹנָה֒ וְהֵבִ֨יא אֶת־קׇרְבָּנ֜וֹ אֲשֶׁ֣ר חָטָ֗א עֲשִׂירִ֧ת הָאֵפָ֛ה סֹ֖לֶת לְחַטָּ֑את לֹא־יָשִׂ֨ים עָלֶ֜יהָ שֶׁ֗מֶן וְלֹא־יִתֵּ֤ן עָלֶ֙יהָ֙ לְבֹנָ֔ה כִּ֥י חַטָּ֖את הִֽוא׃
“And if their means do not suffice for two turtledoves or two pigeons, they shall bring as an offering for that of which they are guilty a tenth of an ephah of choice flour for a purgation offering; they shall not add oil to it or lay frankincense on it, for it is a purgation offering.”
This alternative to the sin offering, which is the minimum one can bring in order to atone, is discussed in several Midrashim.
The Midrashim say that when a person brings an offering of flour drenched in oil and frankincense, the oil symbolizes Torah and good deeds and the frankincense symbolizes the merit of the patriarchs and matriarchs.
Midrash Vayikrah Rabbah: “The Holy One blessed be He said to him: “My son, why did you not mix your actions with the words of Torah, as oil is nothing other than Torah, and oil is nothing other than good deeds.”
Midrash Bamidbar Rabbah: “The hill of frankincense - this represents the matriarchs.”
This means that there is an offering - one of only fine flour, without oil or frankincense, which represents a person without merit or good deeds.
This is very important. Our sages explain that this offering is an extra atonement which extends even to those who don’t deserve it at all.
The Midrash: ”The Holy One blessed be He, too, added one atonement of his own. Which is that? It is the tenth of an ephah.”
Rabbi Shmuel Bornsztain in Shem Mishmuel explains:
“... Even without teshuvah, God extends a special gift to every Jew. This gift is an inherent Godliness which is always present within each of us and enables us to receive Divine chesed regardless of any other factors. Thus, when we sin, we are always able to benefit from God's beneficence, irrespective of our current mind-set. This is the extra atonement which God gives to each of us.”
To me, this humanistic approach is exactly why capital punishment is pretty much non-existent in our tradition. Even to those who don’t deserve atonement at all, those who are without merit and good deeds, in other words, people who cannot be redeemed, to those God extended the tenth of the ephah offering. No matter how horrendous human beings are, they are still human, and so they deserve a second chance. This is why God extends yet another atonement to them. Jewish tradition is hopeful.
The most moving and heartbreaking moment in Orwell’s essay comes when he observes that while the prisoner is led to the gallows by the warders, he suddenly moves aside a little in order to avoid stepping in a puddle.
Orwell writes: “It is curious, but until that moment I had never realized what it meant to destroy a healthy, conscious man. When I saw the prisoner step aside to avoid the puddle, I saw the mystery, the unspeakable wrongness, of cutting a life short when it is at full tide. This man was not dying, he was alive just as we were alive.”
Shabbat Shalom,
Rabbi Ye’ela Rosenfeld
