Capital punishment is one of the modern era’s great controversies. Does a judicial system have the right to sentence a person to death? Like most such controversial topics, similar questions and discussions may be found in the Talmud.
The best known Talmudic reference to capital punishment is found in Makot 7a: “A sanhedrin that effects an execution once in seven years is branded a 'destructive tribunal.' Rabbi Eliezer ben Azariah says once in seventy years. Rabbi Tarfon and Rabbi Akiva say, ‘Were we members of the sanhedrin, no person would ever be put to death.’”
The Mishnah cited is an excellent reflection of the Jewish attitude to the death penalty. Even though the written Torah calls for execution (“Whoever sheds the blood of man, by man will his blood be shed - Genesis 9:6), the oral Torah regulated the process to the point where it becomes almost impossible to convict someone of murder.
Capital crimes, such as murder, incest or idolatry, were usually tried by a beit din (tribunal) of 23. Conviction required a majority of at least 13. If all 23 judges voted to convict, however, the accused was acquitted because of the implausibility that not a single judge doubted the witnesses (implying that there was a conspiracy). In capital cases, the witnesses were critical since no circumstantial evidence was accepted. Therefore, not only did the witnesses need to be upright, law (Torah) abiding citizens, but they must have definitively warned the accused that the intended act was a capital offense. The testimonies of both witnesses had to match, flawlessly, and lying was, itself, a capital offense.
If conviction was virtually impossible, why bother? The reverberations of the rare cases in which an execution did actually occur were enough to dissuade others from committing the same crime. Thus, said Rabbi Simon ben Gamliel, “If we never condemned anyone to death, we might be considered guilty of promoting violence and bloodshed...[and] multiply murderers in Israel” (Maakot 7a).
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