Mitzva 47 – Capital Punishment Rabbi Ian (Chaim) Pear

1) Sefer HaChinuch Mitzvah 47 מצות בית דין להרג בחנק המחיב - שנצטוינו להמית העוברים על קצת מצות שבתורה בחנק, שנאמר (שמות כא יב) מכה איש ומת מות יומת. וזו של מכה איש אחת מהן שמיתתו בחנק, שהרי כתוב בו מות יומת, ובפרוש אמרו ז''ל (סנהדרין נב ב) כל מיתה .האמורה בתורה סתם אינה אלא חנק.

The commandment on the court (beit din) to kill with strangulation one who is liable: That we have been commanded to kill the transgressors of some of the commandments of the Torah with strangulation, as it is stated (Exodus 21:12), "He who strikes a man and [that man] dies shall surely be put to death." And this one of "One who strikes a man" is one of the ones whose death penalty is with strangulation. Since it is written about it, "[he] shall surely die" ‐ and in the explanation, they, may their memory be blessed, said (Sanhedrin 52b), "Any death penalty stated in the Torah undifferentiated is only strangulation." שורש מצוה זו נגלה לכל, כי (משלי כט ד) מלך במשפט יעמיד ארץ, שאלולי יראת המשפט יהרגו בני אדם זה את זה, על כן צונו האל ברוך הוא להמית הרוצח, ובחכמתו ברוך הוא ראה שראוי לענש אותו במיתת חנק. והדבר נאות גם לדעתנו כי (ויקרא כד יט) כאשר עשה כן יעשה לו, והרוצח כונתו להמית הנרצח במהרה כי מפחדו אליו ימהר מיתתו בכל כחו, וכמו כן הקלה התורה במשפטו להמיתו בחנק (בשאר הדפוסים כתוב האמת כי הרוצח מיתתו בסייף ומכה אביו ואמו מיתתו בחנק) שהיא מיתה .ממהרת, ולא בשרפה וסקילה שהן בצער רב

The root of this commandment is revealed to all, as 'by justice a king sustains the land.' As were it not for the fear of judgment, people would kill one another. Therefore, God, blessed be He, commanded us to kill the murderer. And in His wisdom, blessed be He, He saw that it is fitting to punish him with the death penalty of strangulation. And the matter is beautiful, also according to our [understanding], since 'as he has done, so shall it be done to him' ‐ since the intention of the killer was to kill the murdered quickly, as from [the killer's] fear of him, he will quicken his death with all of his might. And so too was the Torah lenient with his judgment to kill him with strangulation, which is a quick death penalty; and not with stoning and burning, which are with great pain.

משנה מכות י:א (2

סנהדרין ההורגת אחד בשבוע )=בשבע שנים( נקראת חובלנית .רבי אליעזר בן עזריה אומר: אחד לשבעים שנה .רבי טרפון ורבי עקיבא אומרים: אילו היינו בסנהדרין, לא נהרג אדם מעולם .רבן שמעון בן גמליאל אומר אף הן מרבין שופכי דמים בישראל רמב"ם, ספר המצוות רצ (3

אם לא נקיים את העונשים ]גם[ באומד החזק מאוד, הרי לא יוכל לקרות יותר משנפטור .את החוטא; אבל אם נקיים את העונשים באומד ובדימוי, אפשר ביום מן הימים נהרוג נקי

.ויותר טוב ויותר רצוי לפטור אלף חוטאים מלהרוג נקי אחד ביום מן הימים

אגרת משה, סימן פח (4 בענין עונש מיתה: מעלת כבוד שר המדינה הנכבד וחביב עלינו מאד יאריך השם יתברך ימיו ושנותיו וממשילתו בטוב ובנעימים הנני רגשותי באהבה ובירת הכבוד ראשית לשר המדינה בדבר רצונו לידע דעת התורה "The ethics and morals involved in this decision are too complex for me. I believe they are too complex for you as well. Therefore I referred it to an old rabbi on the Lower East Side of New York. He is a great scholar, a saintly individual. He knows how to answer such questions. When he tells me, I too will know."

5) Sanhedrin 37A “Know ye that capital verdicts are not comparable to monetary judgments. In monetary matters a person can return the money and find atonement; in capital cases the blood [of the executed criminal] and the blood of his progeny until the end of time hang in balance.”

מכילתא דרשב"י כא:יד , תלמוד בבלי עבודה זרה ח:, ומשנה תורה שופטים יד:יג (6 מעם מזבחי תקחנו למות... אם יש מזבח אתה ממית ואם לאו אי אתה ממית מ' שנה עד שלא חרב הבית גלתה סנהדרין וישבה לה בחנות... שלא דנו דיני נפשות. מא טעמא? כיון דחזו דנפישי להו רוצחין ולא יכלי למידן ]=כיון שראו שרבו הרוצחים ולא יכולים היו לדונם[ אמרו: מוטב נגלי ממקום למקום כי היכי דלא ליחייבו ]=אמרו: מוטב נגלה ממקום למקום כדי שלא יתחייבו 7) Rosh Chapter 17 (and Rivash 238)

Although the four types of capital punishment were abolished when the Sanhedrin moved from its location in the Holy Temple, the significance of this rule is that one cannot be sentenced to death in a court of law for committing a capital crime … the killing of a pursuer, however, in the cases discussed in the Mishnah, is not a punishment for committing a crime, but rather a measure for saving the pursued from death or injury and was not abolished.

8) Sanhendrin 46A

תניא רבי אליעזר בן יעקב אומר: שמעתי שבית דין מכין ועונשין שלא מן התורה, ולא לעבור .על דברי תורה, אלא כדי לעשות סייג לתורה. ומעשה באחד שרכב על סוס בשבת בימי יונים

והביאוהו לבית דין וסקלוהו. לא מפני שראוי לכך, אלא שהשעה צריכה לכך. שוב מעשה באדם אחד שהטיח את אשתו תחת התאנה, והביאוהו לבית דין והלקוהו, לא מפני שראוי .לכך אלא שהשעה צריכה לכך

9) Drashot HaRan, #11

שופטים ושוטרים וגו' ושפטו את העם משפט וצד (דברים טז) "JUDGES AND OFFICERS SHALL YOU APPOINT IN ALL YOUR GATES THAT THE L‐RD YOUR G‐D GIVES YOU, ACCORDING TO YOUR TRIBES, AND LET THEM JUDGE THE PEOPLE A RIGHTEOUS JUDGMENT" (DEUTERONOMY 16:18)

Rashi writes in his commentary: "Appoint righteous, expert judges to judge righteously." He was constrained to interpret it thus, for if it were understood as an exhortation to the judges to judge righteously, this is already stated afterwards (Ibid 19): "Do not pervert judgment." He, therefore, interprets it as meaning that the judges who are appointed should be capable of judging righteously; that is, that they should be righteous and expert. And thus is it stated (Sifrei 17): "'A righteous judgment' — but is it not already written 'Do not pervert judgment' by saying: 'This man is prepossessing; this man is my relative' (and I will make him a judge)? This must be an exhortation, then, to appoint a judge who is righteous and expert."

I understand the plain meaning of the verse as follows: It is accepted that men need judges to judge between them, for in their absence (Avoth 3:2) "One man would swallow the other alive" and the world would become corrupt. And every people requires some form of government, the sage going so far as to say: "Even thieves recognize the necessity of justice within their society." And Israel needs this just as the other nations do. But they also need judges for an additional reason — to enforce the laws of the Torah and to punish those liable to stripes or to judicial death penalties, whether or not their transgression is detrimental to society. And, certainly, these two considerations entail two functions, respectively: one, punishing a man in accordance with true justice; the other (though he not be liable to punishment in terms of true justice), punishing him for the benefit of society and the exigencies of the hour. The Blessed One assigned each of these functions to distinct functionaries. He commanded that judges be appointed to administer true, righteous judgment. This is the intent of "and let them judge the people a righteous judgment." That is, the verse indicates the function and jurisdiction of these judges, saying that the purpose of their appointment is to judge the people with a judgment that is true and righteous in itself, and that their jurisdiction does not extend beyond this function. And because the needs of society are not completely served with this alone, G‐d provides for the appointment of a king. We shall explain this further in respect to one of the aforementioned considerations. We learned (Sanhedrin 40b): "The rabbis taught: 'The witnesses are to be cross‐examined in the following manner: Do you recognize him [the defendant]? Did you warn him and did he acknowledge the warning? Did he commit the crime knowing it was punishable by death? Did he kill right after you had warned him?…'" Unquestionably, all of these are prerequisites for a "righteous judgment." For why should a man be killed for a transgression which he did not know to be punishable by death? This explains the necessity for his acknowledgment of the warning and for all of the other things mentioned in that baraitha. This is the true, righteous judgment in itself, that was assigned to the judges. But if law‐breakers were punished in this context alone, the structure of society would break down completely, for, in the absence of the fear of punishment, the number of murderers would dramatically increase. Therefore, for the well‐being of society, the Blessed One mandated the appointment of a king, as stated in this parshah (Deuteronomy 17:14‐15): "and when you come to the land… place a king over you…," this constituting a mitzvah to appoint a king, according to the tradition of our sages of blessed memory (Sifrei, Sanhedrin 20b). And the king can punish without prior warning as he deems fit for the good of the kingdom. We find, then, that the appointment of a king serves a common purpose for Israel and for the other peoples who require a societal structure, and that the appointment of judges serves a distinct purpose for Israel, as stated: "and let them judge the people a righteous judgment." That is, the purpose of the judges and the area of their jurisdiction is the administration of judgments that are righteous and true in themselves.

Pursuing this further, in light of the fact that our Torah is distinguished from the ethical codes of the nations by mitzvoth and chukim [statutes], it follows that these mitzvoth and chukim have nothing whatsoever to do with societal structure at all, but that their sole purpose is to effect the investiture of the Divine Immanence within our nation and to cause it to cleave to us. Whether this is apparent to us (as in the case of the sacrifices and all that transpires in the Temple) or unapparent (as in the case of the statutes, whose reasons were not revealed), there is no doubt that they are oriented to effecting this investiture and this cleaving — although their manner of doing so defies reason. And our ignorance in this regard is not at all surprising, for if we are ignorant of the reasons for so many natural phenomena (whose existence can, nonetheless, not be denied), then how much more ignorant should we be of the reasons for the investiture and cleaving to us of the Divine Immanence! And our holy Torah is herein distinguished from the ethical codes of the nations, which have nothing to do with such things, but only with the regulation of society.

... It is therefore possible [paradoxically] that some of the judgments and laws of the nations will be found more effective in furthering societal order than some of the laws of the Torah. We lose nothing thereby, however, for whatever is left incomplete in this regard is completed by the king, and, of course, we gain great eminence thereby, for the laws of the Torah, being righteous in themselves (as stated: "and let them judge the people a righteous judgment"), ennoble us through the investiture and cleaving of the Divine Immanence.

It is for this reason that the chief and most select of the judges would stand in the place where the Divine Immanence manifested itself, this being the idea behind the presiding of the Men of the Great Assembly in the chamber of hewn stone [lishkath hagazith]. And it is for this reason that our sages of blessed memory said (Avodah Zarah 8b): "When they [the members of Sanhedrin] saw that murderers had multiplied, they said: 'Let us exile ourselves from our place, so as to put into effect (Deuteronomy 17:10): "And you shall do according to the thing that they tell you from that place" — this teaches us that the place is the critical factor'" [so that in exiling themselves from their place, they suspended the death penalty]. And all that our sages have said in this regard is to be understood along the same lines, viz. (Sanhedrin 7a): "Every judge that judges truly causes the Shechinah to reside in Israel, as it is written (Psalms 82:1): 'G‐d stands in the congregation of the Almighty; He judges in the midst of the judges.'" And, similarly, (Shabbath 10a): "Every judge that judges truly — even one moment in the day — is regarded by Scripture as if he were a partner to the Holy One Blessed be He in the creation, it being written here [in respect to judging] (Exodus 18:13): 'from morning until evening,' and there [in respect to the creation] (Genesis 1:5): 'and it was evening and it was morning.'" This "partnership" is an allusion to what we have been saying — that just as in the creation the Divine effluence manifested itself in the terrestrial world, it being the source of all that was created, so, every judge that judges truly draws down that effluence, whether or not his judgment completely fulfills the societal requirements. For just as the sacrifices, though entirely outside the realm of natural cause and effect, made manifest the Divine effluence, so was this effluence drawn down by the judgments of the Torah, though these judgments had to be supplemented with the edicts of the king to guarantee a well‐ordered society. We find, then, that judges were appointed to administer the judgments of the Torah alone, judgments righteous in themselves (as stated: "and let them judge the people a righteous judgment"), and the king was appointed to supplement these judgments with whatever was required for a well‐ordered society and dictated by the needs of the hour.

And do not challenge me with (Sanhedrin 40a): "It was taught: R. Eliezer ben Yaakov said: 'I have heard that beth din administers stripes not according to the Torah — not to transgress what is written in the Torah, but to make a fence for the Torah'" — which seems to imply that beth din is appointed to legislate in accordance with the exigencies of the times. It is not so. In those times when there were a Sanhedrin and a king in Israel, the Sanhedrin would judge the righteous judgment alone and would not institute anything beyond this unless they were empowered by the king to do so. But when there was no king in Israel, the judge embodied two functions, that of the judge and that of the king, as we find (Ibid 49a): "Amasa expounded 'but' ['ach'] and 'only' ['rak']; he went and found the rabbis studying Torah, and said: "It is written (Joshua 1:18): 'Every man who rebels against you [Joshua]…' I would think [that Joshua had absolute power] even [in respect to nullifying] words of Torah. This is ruled out by (Ibid): 'Only ['rak' — without extending this unlimited power to Torah] strengthen yourself and be courageous.'" This shows Joshua to have had the powers of a king even though he was not a king [but a judge]. And our sages of blessed memory, likewise, apply (Deuteronomy 33:5) "And there was a king in Israel" to Moses [although he was not a king].

What was their sin in requesting a king?

In my view it was this: they desired that the administration of justice between man and his neighbor be preponderantly in the hands of the king. This is the intent of the verse (I Samuel 8:4‐5): "And all the elders of Israel gathered together and they came to Samuel to Ramah, and they said to him: 'You have grown old, and your sons have not gone in your ways; now place a king over us to judge us as all the nations.'" I understand this as follows: The Jews saw societal good as being better served by a king than by judges. Therefore, they said: "You are old and cannot judge anymore, and your sons are not worthy of investing us with the Divine Immanence, for they do not walk in your ways. Therefore, it is fit that we have a king and that we be judged through him." This is the intent of "Place a king over us to judge us as all the nations." And they were greatly mistaken in this… This interpretation is substantiated by Samuel's reaction (Ibid 8:6): "And it was evil in Samuel's eyes when they said: 'Give us a king to judge us.'" It is not simply written "Give us a king," for if they had said only this, it would not be evil in his eyes. What disturbed him was "to judge us." and because of this G‐d said to Samuel (Ibid 7): "It is not you they have rejected, but they have rejected My rule over them." That is, they prefer natural government to Divine Immanence.'"

10) State of Israel v. Tamir; Menachem Elon Opinion

Jewish Law was particularly insistent on the preservation of even a criminal’s rights and dignity during the course of punishment. Maimonides, after dealing with the types of punishment a court may impose, including imprisonment, concludes: "All these matters apply to the extent that the judge deems appropriate and necessary for the needs of the time. In all matters, he shall act for the sake of Heaven and not regard human dignity lightly . . . . He must be careful not to destroy their dignity." According to Jewish law, a death sentence must be carried out with the minimum of suffering and without offense to human dignity. This is based on the Biblical verse, "Love your fellow as yourself," and the rule is, "Choose for him a humane death." From this we declare that even a condemned felon is your "fellow."