July 19, 2023|א' אב ה' אלפים תשפ"ג What is the Torah’s View on the Death Penalty in America? By Rabbi Jonathan Muskat

Robert Gergory Bowes killed 11 people in the Tree of Life synagogue massacre four and a half years ago. Last week, a jury found that Bowes met baseline criteria for capital punishment. It found beyond a reasonable doubt that he met aggravating factors as creating “ a grave risk of death” to multiple people, carrying out the crime with “substantial planning and premeditation,” targeting old, “vulnerable” victims and killing and attempting to kill “more than one person in a single criminal episode.” The trial will now move forward into a final phase in which the jury will hear evidence before deciding if Bowers should be sentenced to death or life in prison.

What does the Torah have to say about administering the death penalty in the United States of America for an antisemitic crime of mass murder committed against eleven Jews? To say that the Torah has a definitive view on this matter is simply incorrect. On the surface, it seems that the Torah supports the death penalty because there are so many crimes listed in the Torah whose punishment is the death penalty. Even though we as Jews certainly value the dignity of every human being, by having the death penalty in our halachic system, we assert that there are certain values that may supersede this value.

However, the Mishna cites a debate as to whether and to what extent administering the death penalty is advisable. The Mishna states:

“A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal. 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. Rabban Shimon ben Gamliel says: In adopting that approach, they too would increase the number of murderers among the Jewish people.” (Makkot 1:10)

The first (unnamed) author of the Mishna and Rabbi Elazar ben Azarya believe that a court can administer the death penalty, but they should only do so very rarely. Rabbi Tarfon and Rabbi Akiva believe that the death penalty attached to a crime conveys the severity of the crime, but in practice we should never administer it. Rabban Shimon ben Gamliel believes that we need to administer the death penalty in society as an act of deterrence.

The truth is that even Rabban Shimon ben Gamliel would agree that a Jewish court could not administer the death penalty today. The gemara in Masechet Avoda Zara (8b) states that forty years before the second Beit Hamikdash was destroyed, the Sanhedrin relocated its judicial chambers from the “lishkat ha-gazit,” a special chamber on the Temple Mount, to a location outside the Temple Mount. As such, they no longer adjudicated capital cases. Why did they do that? Because they saw that the murderers were so numerous and they were not able to judge them and punish with them with death. The death penalty is meant to be an infrequent occurrence to serve as an act of deterrence. When it no longer can serve as that function, then we should not administer the death penalty. Without a Sanhedrin today residing in its special chamber on the Temple Mount, we may not administer the death penalty as a matter of Jewish law.

The question remains, what about a secular court? Maybe a Jewish court does not have the technical ability to administer the death penalty, but does the Torah believe that a secular court can administer the death penalty under some circumstances?

The answer to this question may be the subject of a debate between Rav Aharon Soloveichik and Rav Moshe Feinstein. In the mid-1970s, at a time when the Orthodox Union was considering what position to voice in a domestic debate regarding capital punishment, Rav Aharon Soloveichik wrote a letter to Dr. David Luchins, an officer of the Orthodox Union. He wrote:“[I]t is irresponsible and unfair to submit a statement in favor of capital punishment in the name of Orthodox Jewry. In my humble opinion, from a Halachik point of view, every Jew should be opposed to capital punishment. It is true…that the Torah recognizes capital punishment. However, the Torah delegates the authority to mete out capital punishment only to Sanhedrin, not to anyone else. Even Sanhedrin are [sic] not able to mete out capital punishment if there is no Beis Hamikdash.  B’zman she’yesh kohen makriv, yesh nefashot, b’zman she’ayn kohen makriv, ayn nefashot. Even capital punishment among B’nei Noach cannot be meted out when there is no kohen makriv.”

Rav Aharon Soloveichik believed that when the Jewish High Court is not residing on the Temple Mount with a standing Beit Hamikdash, then no court, Jewish or secular, can engage in such a destructive act as capital punishment. His position seems to be a bit of a stretch because when the Torah and the Talmud speak about the ability of courts to administer the death penalty, they clearly speak about Jewish and not secular courts. Presumably, Rav Soloveichik believed that the very destructive act of killing another person as a punishment for a crime could only be administered by a secular court if there is an ideal Torah society with a functioning Sanhedrin residing on the Temple Mount.

Rav Moshe Feinstein disagreed with Rav Soloveichik. In 1981, Governor Hugh Carey asked Rav Moshe Feinstein about the Jewish view on capital punishment because at that point it was a controversial topic in the state. In his answer, he clearly writes that the requirement of a Sanhedrin and a Temple only applies to a Jewish court administering a capital crime according to Jewish law. He concludes his responsum by arguing that in the case of a particularly cruel murderer, or in a situation where bloodshed becomes widespread and out of control, then there is a justification for the authorities to carry out the death penalty in order to restore respect for the law. (Iggerot Moshe, Choshen Mishpat, 2:68) Clearly Rav Moshe Feinstein allowed capital punishment by secular society under some circumstances.

One could debate whether the death penalty is actually a more effective deterrent than, say, life imprisonment. If the death penalty is not a more effective deterrent, then why kill a criminal if the possibility exists that you may wrongfully execute an innocent person, an act that cannot be undone? If we believe that the death penalty can actually serve as an effective deterrent, then Rav Moshe Feinstein rules that the Torah would support the death penalty under some circumstances and, as per his ruling, we should advocate for the death penalty for Bowes in the hopes that this may deter others from committing murder or antisemitic attacks. However, Rav Aharon Soloveichik would disagree and he would argue that even though Bowes committed a horrific crime directed against our nation, our society is not on the requisite spiritual level to administer such a destructive punishment. As such, to say that the Torah has a definitive view on this matter is simply incorrect.