Capital Punishment

Rabbi Akiva still intended that murderers would be indirectly killed by locking them away and starving them before giving them barley that would expand their stomach and kill them. Thus, there would be a deterrent against murder. In no way did R’ Akiva mean that there should be no deterrent against murder.

Popa has really expressed it well, IMO. The bottom line is that I have no wish to keep murderers alive. They do not deserve the gift of life, the free medical care, room, and board (even though it is is a terrible place). They deserve to be in the same type of dark, cold box in which what is left of their victims innocently and undeservedly resides. A person who would even THINK of setting off a bomb, does not even deserve that much.

A cousin of mine in E”Y once said that every Muslim terrorist who is caught should be executed and wrapped in pigskin or fed to pigs. Perhaps THAT would be a deterrent to that particular group. (They can’t get to Paradise and their 72 ladies in that case).

I apologize if I am coming off as bloodthirsty. I used to be a more politically-liberal thinker. Then I grew up.

The purpose of executing murderers is justice for society, not revenge.

Hi oomis

I wonder if you have ever considered what would be the consequences for Jews worldwide (especially in Muslim countries, but also in Western countries with strong Arab or Muslim minorities) should your misguided plan be implemented. Or is that an intended consequence of your plan, to make life impossible for Jews outside the Medinat?

I would also like to ask what you propose to do, when it comes to the consequences for the Medinat itself, given that we can expect the Arab citizens, the PA citizens, and the citizens of the neighbouring countries will “react” to your proposal. Are you going to demand that, after having been kicked out by the countries we lived in for centuries (and losing whatever belongings we have there) we “donate” our children’s life to the IDF so that they may R”L suffer a futile death?

Finally, given that your proposal is unlikely to pass unnoticed in the international community, I wonder if you would be delighted in the event R”L the hospital and police services of countries worldwide would deliberately make sure that Jews who are determined (by their legal systems) to be guilty of something and die in custody, should suffer autopsies and afterwards be cremated.

Thank you for clarifying for all readers the difference between Torah and Zionism. That is the same difference between Zaka respectfully washing and recomposing every deceased, including the terrorists, and the proposal you stated.

Thank you, oomis, for your flattering words, but I have not been young (much less “very young”) since a long time.

I had already read you attribute the opinions to an Israeli cousin of yours. Two questions remain: why you decided not to challenge his position (possibly you agree with him, if it weren’t for the detail you do not believe it would be a “deterrent”? am I misunderstanding your clarification?) and why you decided to post such a statement in public, in fact, presenting it as an opinion shared by a sizeable number of Jews, including – according to you – some (unnamed) rabbis.

Torah allows killing either in immediate self-defence or, under precise conditions which nowadays it’s questionable if they ever can be fulfilled even for nonjews, within the framework of death penalty. The person condamned to death, gentile or Jew, is executed immediately to minimize their suffering and then the body is treated with the respect which is owed to every human body. I happen to find it very strange that a Rabbi would state something against Torah. Stating that “Jews” would approve, much less suggest, desecrating human remains, sounds to me eerily similar to a blood libel, if I may say.

You are correct however, it is not your cousin’s original idea. Large-scale desecration of deceased Muslims enemies was pioneered by mussolini and graziani in Libya and later adopted by hitler in his north african campaign. They even made sure to hang any enemies who were still alive or who were sentenced to death, before dirtying the deceased with pig’s carcasses, because according to Muslim beliefs, strangulation or hanging prevents the soul from exiting through the throat.

Daniela,

The “precise conditions” to which you refer only apply to a din Tora. The secular authorities (Rambam Hilchot Rotzeach 2:4 and Hilchot Melachim 3:6) or an official bet din acting under emergency powers (Shulchan Aruch Choshn Mishpat 2:1) may execute criminals without regard to these procedural rules (see Shemuel Bet 1:10-16).This is necessary when there is disrepect for the law in order to preserve public safety and order (Ran Derasha 11, Maharal Chiddushei Aggadot Makkot 7a). Thus, Rav Moshe rules (Iggerot Moshe Choshen Mishpat 2:68) that if someone takes murder lightly due to his cruelty or there is a general disregard for this heinous crime the authorities are obligated to institute the death penalty.Obviously this should be done as quickly as possible but not so quickly as to chance doing an injustice (Rambam Hilchot Sanhedrin 13:1).

As for maiming bodies of those executed, this is a very severe step which should only be taken in an extreme situation after serious deliberation. However, if the authorities deem necessary it would appear that it is permissible (see Shemuel Alef 18:25-27). It should be recalled that after Eichmann ym”s was executed his body was cremated and the ashes scattered over the Mediterranean Sea in order to prevent his grave from becoming a shrine for his followers.

Avi K

I am well aware there are halachot (let me stress, halachot) in regards to people who present a danger. The last time I know these questions being non-theoretical was in Europe during WW2.

Equating cremation of eichmann (which I have no idea if it was done seeking daas Torah, and quite frankly I doubt it) which has no negative connotation for their ideology (many nazis chose cremation for themselves in their will, and I do not recall eichmann protesting it during the trial) with desecration of human bodies which sometimes had to take place in order to safely eliminate evidence after a person had to be assassinated, with a hypotetical deliberate desecration of bodies, speaks for itself. Moreover, the assumption that such a step would scare the aspiring terrorists into becoming meek lambs and fear the might and strength of the Jews, also speaks for itself. What will realistically happen, everywhere in the world, we all know. And, sorry to break the bubble, terrorists are not exclusively motivated by their fantasies of young ladies in the afterlife. They are prepared to do what they do because they believe that is the right thing to do.

Public safety and order, if that is the high priority of the Israeli government, should indeed be implemented, but the statistics on violent crimes and those on vicious crime, somehow tell me that if there were miracolously a peaceful solution of the Arab problem, this would not turn the country into a paradise, would it.

Finally I am well aware of the correspondence between Rabbi Moshe Feinstein and Ronald Reagan on the subject of death penalty in USA. We do not know if nowadays Rabbi Feinstein would pasken the same way (I am sure we all remember the first death penalty trials i.e. frank coppola etc. where the legal debate was not superficial, attorneys studied the papers and the sentence was not written before the trial even started), what we do know is that at this time, multiple poskim in USA say it’s forbidden for observant Jews to be on juries when the death penalty is involved – period.

ICOT – You get it. Thank you. I would never advocate for violence (except in immediate necessary defense), but the THREAT alone of this type of action could prove to be a deterrent to jihadist fanatics, ACCORDING TO ISRAELIS WITH WHOM I HAVE SPOKEN, INCLUDING MY RELATIVE, to those who believe their violence will send them right to Paradise. If they believed they might never get to paradise, they might think twice before blowing themselves up in order to get there.

And that is ALL I was saying, they are not my own original thoughts, neither do I have any reason to apologize for or challenge my cousin for expressing his opinion. I do not live in E”Y, and I don’t know, Daniella, if you do either, but I have long ago learned never to judge the opinions held by people who live with this threat on a daily basis. It is easy for any of us to be arm-chair philosophers, but Israel does not need either my opinions or directions on how best to conduct its own safety protocols.

Health, so why was the Aguda atzeret cancelled for security reasons? For that matter, why does Rambam say that all go out to a milchemet mitzva?

Health, we are not at all in disagreement about the importance of learning Torah in E”Y or anywhere else. But when E”Y is under fire the entire country needs to be prepared to defend itself. Somr feel the best way is by learning, but in practical terms, if that were the sole way, Hashem would not have sent Am Yisrael into battle at ANY time. He would have instructed them to sit down with Moshe Rabbeinu and learn. But that is not what He did, because we always have to put our own hishtadlus into the things we want to hold onto in order to merit having those things. Those who are old, weak, very young, ill, or who should do nothing else but sit and learn to actually fight in a war, can still man the offices, etc., of those who are fighting for their safety or help in other non-combative ways. Their participation can free up others to actually do the combat aspect of the milchemes mitzvah.

Doesn’t the Torah give capital punishment to those who kill others?

If that is what the Torah decides is befitting, then it must be so.

Avi K -“Health, what about Chareidim who don’t sit and learn but are just registered?”

It depends on whether they hold going to the army is Mutter. If they hold it’s Mutter -then let them share the burden.

If they hold going is Ossur -then read my last post above to OOmis.

Yitz,

1. Rambam is talking about a bet din sitting as a regular (non-emergency) court. It does not apply to the secular authorities or a bet din using emergency powers. I refer you to my previous posts, which included references to Mishna Tora and the example of David HaMelech having the ger Amaleki summarily executed on his confession alone – which is inadmissible in a regular bet din proceeding.

2. The question of prosecutorial misconduct is a technical question, not a philosophical question – which is the topic of this thread. It certainly must be addressed in a manner that will root it out (as well as defense misconduct). I find it extremely strange that Bush refused to grant a new trial – and that the decision was his and not that of a court. I also find it extremely strange that the many appellate options, both to state and Federal courts, available were not used. On the Federal level (and I assume that the Boston Marathon case inspired this thread) the precautions are greater.The protocols for approving pursuit of the death penalty are quite rigorous (they appear on-line in the DOJ publication “The Federal Death Penalty System)and include the appointment of an experienced death penalty defender to the defense team IF the request for pursuing the death penalty is approved.

Avi K,

The Rambam is explicitly not talking about a bais din. The torah already says that a person shall be put to death only on the testimony of 2 witnesses, see the Ramban on the sefer hamitzvohs. The Rambam is talking about a case where its not bais din, such as Dovid. And Dovid killed not on circumstantial evidence but on an admission which is 100%. The gemora says that a Ben Noach is put to death on the testimony of one witness, and this is because he is testifying that he is 100% sure.

How can you possibly allow putting a person to death if you are not certain that he is guilty.

As to Bush, the man’s name was Gary Graham, and he did this while he was running for president which shows that he understood that people in America would not at all be troubled with his refusal to simply allow the new evidence to be heard. The reason that it was up to Bush was that the courts did not hear this evidence and so there was no basis for an appeal. The only way to save him was if these witnesses were allowed to be heard and this required a new trial. So it was up to Bush to use his power as governor to order a new trial.

Under the law you cannot appeal a jury verdict. That is the jury decides questions of fact and you cannot appeal their finding of the facts, even of the whole world thinks they were wrong.

The only basis for an appeal is if there was a legal mistake in the trial, such as certain evidence should not have been admitted, or that new evidence was discovered that was not known of by either side after the trial. And even if new evidence is discovered there is a time limit, which varies based on jurisdiction, as to how long after the trial it may be the basis for an appeal. That is if there is clear evidence that he was not guilty that came up 8 years later he cannot appeal based on that.

A court case is also a game. For example if the defense knew of a witness, or 5 witnesses but failed to ask them to testify, its too late and the man on death row cannot appeal that these are 5 witnesses that say that he didn’t do it.

As to the supreme court they have held that “actual innocence”, that is that there was no problem with anything the court did but that he claims that he was in fact innocent, is not a grounds for appeal.They allowed a man in Georgia to die recently despite the fact that every single witness recanted and said that the police threatened them that they will arrest them for crimes they committed.

The supreme court also held in a case in Alaska that a prisoner does not have the right to demand to get access to the DNA evidence that is in the possession of the state.

As for rooting out prosecutorial misconduct the supreme court recently sent a very strong message to prosecutors who are contemplating withholding evidence. An innocent man that sat in prison for 22 years till he was exonerated due to prosecutorial misconduct sued that prosecutor for the 22 years of his life that he lost. The court ruled that as a government official he has immunity and cannot be sued. So the court sent a message to every prosecutor that you will get away with it.

So if you want to address a philosophical question about capital punishment you should describe exactly how this punishment will be decided on. In America when people speak of capital punishment they are referring to the capital punishment that the courts order.

PS I went to Law School

Avi K,

See the Ramban on that Ramban who asks that since the torah requires 2 witnesses for death penalty cases why would the torah need a 2nd law that we can’t use circumstantial evidence. The accepted pshat in the Rambam is that he is not referring to a death penalty issued by a bais din, but to any judgement that is made in regard to killing somebody. See the Rambam in H’ Rotzeach 4:8 that if the requirement of 2 witnesses is not properly met, then bais din causes his death. This too is only done based on testimony for 2 witnesses and not on circumstantial evidence.

And the same goes for executing somebody who is not chayev misah, that these actions cannot be based on circumstantial evidence. And the same is true for what a king uses to establish the facts. And this is why the Torah must warn against the use of circumstantial evidence, even if its 100%.

My main point from the rambam was that the Torah prohibited using evidence that is 100% because that will lead to a slippery slope where they start to use evidence that only proves it at 90% and then 80% and as a result of using such evidence an innocent man will be killed. So we see from the Rambam that using beyond a reasonable doubt will result in the killing of an innocent man, and on this he says that its preferable that 1000 guilty go free than to kill 1 innocent man, so this is not to be done.

In any case according to the Torah there is no such thing as killing a person if there is even a shadow of a doubt. Beyond reasonable doubt means that we cannot say for sure, and the torah does not recognize that a person can be guilty because there is a 75% chance that he did it.

In the Graham case an appellate court ordered the lower court to rehear the case because there was allot of evidence that was not heard. The lower court refused. None of the courts used that affidavit to decide the matter because it is hearsay and the right to confront ones accuser, and he was not executed based on that. And 2 witnesses against the bailiff is still at a minimum a matter for the jury to decide as to whether this creates reasonable doubt, in particular when the bailiff didn’t even say this under oath. And Bush too did not mention that claim in why he wouldn’t grant relief.

The fact that the case was reviewed 35 times by different courts proves that appeals do not deal with the issues of actual guilt or innocence and are not a guard against killing the innocent. The biggest issue, that 2 witnesses said that it was not him was never dealt with in any of those 35 reviews, and this is because grounds for appeals are very limited. Its all a show of fooling around with silly technicalities so that they can say (or believe) that they couldn’t find a single ground to overturn the verdict.

Avi, I am not talking about 2 witnesses, I am talking about circumstantial evidence. And the Rambam says that we are not allowed to use that because, as he explicitly says, we will accept lower and lower percentages and we will eventually kill an innocent man. So this isthe whole point of the Rambam, how he understands the Mitzvah of ???? ????? ?? ?????. The Rambam makes the argument of a slippery slope as to why we can’t use circumstantial evidence that is 100% because we will then come to use 80% and 80% cannot be used because that will inevitably kill an innocent man. So he says that the problem with 100% is that it will lead to 80%. And the problem is that since 80% is certainly not acceptable, we may not even use 100% because it may lead to 80%. And 80% means killing an innocent man one day.

So 1. according to the Rambam even 100% circumstantial evidence may not be used even in the case of a king (and surely not 80%) but we need proof (Dovid in that case with the ger amaleiki was relying on proof from his statement), and 2. The bigger point as it relates to capital punishment in America, there is absolutely no suggestion anywhere in the Torah, or in morals, that a person can be put to death if we have any doubt as to his guilt. And the Rambam does not say this at all. See the Ohr Sameach on the Rambam in Melachim who does not understand how the king can rely on 1 witness in a matter of life and death, even though this is not a bais din. He says that this is learned from the fact that a ben noach can be put to death based on 1 witness. So even though this is not a bais din it is clear that we can only put a person to death if we are certain of his guilt.

Avi, Lets just talk about the Rambam in sefer hamitzvohs that says that using circumstantial evidence that is not 100% but 80% (i believe that reasonable doubt is legally about 70%) will lead to the killing of innocent men, and its to prevent the use of such evidence that the torah says ???? ????? ?? ?????, do not kill an innocent man.

So whoever the court is, using such evidence will kill innocent men and the reasoning of the torah, ???? ????? ?? ????? applies to any just person. And again I want to point out that there is never an example anywhere in torah of using anything other than proof. Beyond a reasonable doubt is not proof, but a probability, and there is no such suggestion anywhere in the torah.

I did not read what Rabbi Bliech writes, I know only that the only example of proof that the gemora says is used by a ben noach is a witness who is saying that he 100% sure, and since he is believed this is proof.

In Massachusetts they drafted a capital punishment bill a while back that required that the standard of proof for this penalty be “certainty”. That is something that should be adapted by all states. All states have criteria for who gets the death penalty and it makes no sense that they don’t add this to those criteria.

Another issue with capital punishment in America is felony murder which is 1st degree murder and is often the kind of murder for which the death penalty is imposed. A classic case of felony murder is if 2 people rob a store and one of them kills the clerk even of the other person didn’t even know that he had a gun he is guilty. A case that i recall was a homeless man who was sleeping in an abandoned building and he lit a fire to keep warm. The fire got out of control and a firefighter died fighting the fire. Even though the death of the fire fighter was not his fault, since he was in the building illegally even if the fire starts by mistake, under the law its considered arson. So he was convicted of felony murder because the statute does not require that he cause the death, it requires only that the death shall be a result of the felony.

Felony murder is not murder at all and so execution for this is flat out state sanctioned murder.

I am coming in the middle of a thread here but would just like to say my piece:

Here in England there is a real shortage of prison space. Criminals such as serial murderers and rapists and paedophiles are therefore often let out of prison early with ‘time off’ their sentences for good behaviour whilst in prison. These people then go on to re-offend. This is a regular occurrence, but England do not have the death penalty. I feel that for deliberate, pre-meditated murder and similar crimes we should have capital punishment since this would prevent such individuals from being released back into civilian communities.

We can all agree that a killer whose guilt is established with certainty that he pulled the trigger (or stuck in the knife, etc.) should carry an automatic death penalty in all 50 States. Once convicted he should be executed forthwith, without requiring any further sentancing by either judge or jury.

Yitz,

1. The Ran says (Derasha 11) that hakpada on Tora evidentiary will lead to anarchy. Therefore , it is necessary to establish a government that will enact those laws that it deems necessary to keep public order. In fact, it can even impose the death penalty for minor offenses such as not going to where he is told to go or violating house arrest if he does so out of rebellion(Rambam Hilchot Melachim 3:5).

2. It is true that felony murder is not murder under Tora law but the government certainly has the right to consider it murder (ibid Halacha 10). The example of fire, while it is only a civil liability under Tora law, is, in my opinion, apt.Damaging by fire is liek damaging with one’s own hands. The fact that it is not a capital offense if he did not intend to murder (although he may well be considered close to meizid and thus he is thrown to the mercy of the goel hadam – and there is an opinion that a government officer has the din of goel hadam).

3. I disagree with your definition of ??? ????? ????? . It is certainly not the peshat. David HaMelech had both the ger Amaleki and two brothers who admitted killing Ish Boshet summarily executed (not even a trial) on their confession alone (Shmuel Bet 4:13) despite what Rambam says in Hilchot Sanhedrin 18:6 that we do not punish people on their confessions (not even malkot) as this may be the way out for someone who wants to die to commit suicide.

4. Even under Tora standards an innocent man might be executed. Navot was, in fact, executed according to the testimony of two witnesses. Ramban says (Devarim 19:19) that if Hashem allowed it the defendant must have been liable to the death penalty for something. In the case of Gary Graham that you once cited, as a Noahide he was certainly liable to the death penalty for his various crimes. This, of course, is not our cheshbon, but it seems that the POSSIBLY innocent men executed were guilty of various crimes for which they should have received the death penalty.

Yitz,

I did some further research and Rambam seems to say explicitly (Guide 3;40) that the government may execute people according to circumstantial evidence. This is also Rabbi Bleich’s interpretation (“Contemporary Halachic Problems” v. 2 p.365). On page 362 he also quotes Rav Tzvi Hirsch Chajes (Torat Nevi’im ch. 7) as saying that the government may even execute people according to estimation and that this appears to also be the view of the Chatam Sofer (Responsa Orech Chaim 208). He also quotes Rav Chajes as saying that rebels may even be executed for minor infractions as I previously posted to prevent a breakdown of law and order. This is his slippery slope.

As for injustices, how would you feel if c”v a loved one was murdered and the killer was set free because of lack of certainty such as the absence of witnesses (such as the case of Shimon ben Shatach and the man who chased his fellow into a ruin and came out with a bloody sword)?

GAW – why didn’t I think of that? Now you get the point and not me…

On the other hand, they could always be offered to leave via the door…

I’m for killing a killer! They just gave parole to a Cop Killer. Even if you believe in life imprisonment – it
shows these liberals can’t be trusted! We need a Dealth Penalty.