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Chancellor's Parashah Commentary

Parashat Mishpatim 5763
Exodus 21:1-24:18
February 1, 2003     29 Shvat 5763

Rabbi Lewis Warshauer JTS rabbinic fellow

In the closing days of his administration, outgoing IIlinois Governor George Ryan pardoned or commuted the sentences of all prisoners on the state's death row. The governor's action sparked a renewed debate about the death penalty in the United States. For Jews, this debate presents the opportunity to review and clarify the stance of Jewish law on capital punishment not only for our own information but in light of public policy discussions now underway.

One might think that the Jewish view of capital punishment is governed by one of the verses in this week's parashah, "He who fatally strikes a man shall be put to death." (Exodus 21:12). However, it is not that simple. In Jewish law, one cannot form a defense simply by taking one's pick of biblical verses and ignoring others.

A good example of why we cannot do this is a panel that was sponsored in June 2001 by the Pew Forum on Religion and Public Life. On this panel, a Catholic, a Jew, an African-American Protestant and a Southern Baptist presented their different religions' and denominations' views on the death penalty. Each spokesperson arrived at this position by citing distinct sources that supported his denomination's viewpoint.

The Catholic spokesman emphasized the development in his Church's thinking — a development away from capital punishment. He did not quote Bible, nor mention religious law per se. He did, however, cite three sources: the catechism of the Church, the statements of the current Pope and the statements and advocacy of the US Catholic Bishops. The Church's position, he said, is that while the state has the right to impose capital punishment, it should forego that right for a variety of reasons.

The Southern Baptist spokesman, Barrett Duke, stated that his denomination favors capital punishment because the Bible supports it. He cited as his key verse: "Whoever sheds the blood of man, by man shall his blood be shed" (Genesis 9:6). Mr. Duke notably chose not to quote a different verse from the Bible: "A person shall be put to death only on the testimony of two or more witnesses. He must not be put to death on the testimony of a single witness. Let the hand of the witnesses be the first to put him to death" (Deuteronomy 17:6-7), because it would not have served his case to do so.

The African-American spokesman, Joseph Lowery, a minister and former associate of Martin Luther King, Jr, used primarily secular points to argue against the death penalty. He quoted a verse from the Bible "an eye for an eye, a tooth for a tooth" (Exodus 21:24 this week's parashah) saying that Dr. King had denounced that verse.

The Jewish spokesman, Nathan Diament, an attorney by training who works for the Orthodox Union, quoted extensively from the Talmud showing that Jewish law employs procedural safeguards to limit false convictions in capital cases. As discussed in great detail in the Talmudic tractate of Sanhedrin (particularly chapters 4 and 5), these safeguards include the requirement that two witnesses be present at trials and that judges interrogate witnesses thoroughly. Mr. Diament finished by saying that since sufficient questions have been raised about the accuracy and fairness of jurisprudence in capital cases throughout the United States, there ought to be a moratorium on the death penalty while these issues are examined. He said that because the death penalty, when properly applied, implements justice for society, it should not be abolished outright.

In 1960, the Conservative Movement's Committee on Jewish Law and Standards approved a paper by Rabbi Ben Zion Bokser that advocated abolition of the death penalty. We as Conservative Jews should raise this issue again today as a contribution to the public policy debate. More than that, it would be a chance for us to demonstrate our emphasis on the legal tradition in Judaism - a careful, thoughtful, subtle tradition developed over many centuries and still evolving. It is a tradition that avoids both vague pronouncements on one hand and selective Bible quotation on the other. Many people have been executed on the testimony of one person alone or, worse, in the absence of eyewitness testimony. Although Jewish criminal law is no longer applicable in any jurisdiction, its methods and lessons have much to recommend.

I would advocate for abolition, on the grounds that the capital punishment system in too many states in America is so broken that it cannot be fixed. It is not just a question of procedural safeguards. The criminal justice system in the United States is driven by prosecutors whose main goal is to obtain convictions. Judges are being sidelined. The Jewish legal system, however, is judge-driven. The judge is supposed to be interested in obtaining justice, not in securing the conviction of the defendant. These are not always the same thing. Because execution is irrevocable, inequities for the meantime have to be tolerated. Capital punishment should be abolished until the system can be overhauled. Only then can it correctly be called a justice system.

Shabbat Shalom,

Rabbi Lewis Warshauer


The publication and distribution of Rabbi Warshauer's commentary on Parashat Mishpatim are made possible by a generous grant from
Rita Dee and Harold (z"l) Hassenfeld.