“How can you be pro-life and believe in the death penalty?”

DovBear wrote:

“Why kill a convicted murderer if there is a chance new evidence might one day exonerate him,”

I don’t think a murderer should be executed unless his guilt is proven beyond a shadow of a doubt. Nowadays, with DNA testing and other technological means, it is possible to prove guilt to a 100% degree of certainty.

However, I suspect that your “what if they get the wrong man?” argument is a red herring. In my experience, most liberals oppose the death penalty. Period.

Even if there is no doubt at all–for example, if there are witnesses to the murder as well as incontrovertible physical evidence–most liberals still oppose the death penalty.

A particularly fascinating phenomenon to me is the liberal argument that goes like this: “You claim to be pro-life, but you are not consistent. When it comes to murderers, you are not pro-life. Therefore, you are a hypocrite.”

I have seen this line of reasoning so often lately that I think it must be Chapter One in the Young Liberals Handbook.

If the person who makes this argument is an atheist, the very concept of guilt and innocence may be foreign to him.

However, when the argument is made by an ostensibly Orthodox Jew, the answer is right there in the Torah.

1. The Torah says, in the Ten Commandments, “Thou shalt not murder.” The very same Torah says that if someone DOES commit murder, he is subject to the death penalty!

2. The Torah forbids the taking of innocent life. The Torah also says, “Therefore choose life.” And the very same Torah describes the circumstances under which the death penalty is to be carried out by a duly designated Bais Din, a court of Jewish law.

3. The Torah has rules of war. Here is an example of one rule you will NOT find in the Torah: “If someone makes war on you, lie down and die, but under no circumstances should you ever fight back.”

Now I would like to turn the argument around and ask liberals this: Why, if the killing of anyone under any circumstances is so abhorrent to you, are you so quick to kill people who are helpless yet inconvenient? Why would you kill a baby in its mother’s womb? Why would you kill a brain-damaged woman by starvation and dehydration?

And how do you then turn around and pat yourselves on the back for your moral superiority? How do you condescend to those who would kill the guilty, when you yourselves insist on killing only the innocent?

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27 comments to “How can you be pro-life and believe in the death penalty?”

  • Chana Meira

    “I agree. So… are you pro-death penalty? ” -Comment by DovBear

    I do support the death penalty in principle, for reasons well-addressed in the above post. However, it is precisely because of what I (personally) find to be convincing evidence of problems with the system I oppose the penalty being implemented at this time. However, from a Torah perspective one is not inconsistent or hypocritical for defending capital punishment, while protecting the lives of innocent and law-abiding citizens.

  • DovBear

    Jewish tradition recognizes the tension inherent in the death penalty. While, the Torah perscribes capital punishment for numerous offenses, ranging from murder to breaking Shabbat, it also recognizes the risks involved with the death penalty and immediately seeks to place limitations on its use, requiring stringent standards for its application. These standards were clearly meant to limit its use, leading the rabbinic authority, well, over 1800 years ago, to note: “The Sanhedrin [Supreme Court] that puts to death one person in seven years is termed tyrannical.” Another rabbi says it is, “One person in seventy years.” Others go so far as to say “If we had been in the Sanhedrin, no one would have ever been put to death.” (Makkot 1:10)

    See, these Rabbis, our Rabbis, knew what it meant to “err on the side of life.” They absolutely didn’t share your opinion on the Torah’s death penalty — let alone your opinion on the US’s death penalty, a punnishment that is *never* adminstered according to the Torah’s very high standards of evidence, standards that demand two corroborating witnesses, and a pre-crime warning.

    Now I would like to turn the argument around and ask liberals this: Why, if the killing of anyone under any circumstances is so abhorrent to you, are you so quick to kill people who are helpless yet inconvenient? Why would you kill a baby in its mother’s womb? Why would you kill a brain-damaged woman by starvation and dehydration?

    I am a liberal, in the Torah tradition, and I personally, would do neither of those things. I wouldn’t commit an abortion, and if Terri Schaivo were my wife she’d be alive today.

    However, I am not insensitive to the fact that Jewish law permits abortion under certain circumstances. It’s a tremendous oversimplification to say that the Torah considers abortion to be murder, as a number of fundamental issues are the subject of dispute among achronim. Some say (1) it is murder; others say (2) it is murder, but a Jew who kills a fetus is not liable for capital punishment; still others say (3) it isn’t murder, but forbidden only on the grounds that it causes a deliberate injury to the mother. Additionally, these opinions depend on the phase of the pregnancy, and on the circumstances of the pregnancy and the welfare of the other. Many poskim permit abortion in the case of rape. The Christian may see this as a black and white issue. For the Torah Jew, it’s very grey.

    When you ask “Why would you kill a baby in its mother’s womb?” you’re effectivly sweeping legitimate Torah debate and legitimate Torah disagreement under the rug.

    I don’t like that.

  • DovBear

    Nowadays, with DNA testing and other technological means, it is possible to prove guilt to a 100% degree of certainty.

    For the record, DNA and fingerprints are strong evidence, but Circumstantial, and therefore inadmissable to a Bes Din.

    A Torah court accepts only direct evidence from a witness who saw or heard something, and two are needed;a Torah Jew should not accept a jutice system that puts men to death on less evidence than this.

  • ja

    what do you think of torah jews who oppose both the death penalty and abortion/euthanasia etc.

    The death penalty is administered by government bureaucracies. Even with DNA evidence, there will be mistakes, and there will be miscarriage of justice. Jailing for life, no parole, would do fine, and allow for reversal in cases of error.

    “And the very same Torah describes the circumstances under which the death penalty is to be carried out by a duly designated Bais Din, a court of Jewish law.”‘

    Arguing from the torah allowing a sanhedrin to use capital punishment is disingenuous. Sanhedrin is a religious court, not a secular one; do you expect the US government to execute sabbath violators? Chazal expected secular courts to administer capital punishment, but they knew no secular governments that didn’t. The issue is whether capital punishment leads to killing of innocents, and whther equally or more effective means of deterrence exist. What sanhedrin did is irrelevant.

  • Lipman

    - Rn Katz: “I have seen this line of reasoning so often lately that I think it must be Chapter One in the Young Liberals Handbook.”

    Why look so far when common sense is so near?

    - Rn K: “The Torah says, in the Ten Commandments, “Thou shalt not murder.” The very same Torah says that if someone DOES commit murder, he is subject to the death penalty!”

    The Toure doesn’t say “Let some non-Jews or Jews illegaly acting according to goyishe law, kill the person.” Apart from that, in our law (haloche), the murderer is not a murderer in most cases, but a suspect. I know you’re learned, so may I remind you of the “Court of Blood”, called like that because once in several generations they issued a death verdict? (And you’re learned enough to know that not even that is for sure.)

    - Rn K: “The Torah has rules of war. Here is an example of one rule you will NOT find in the Torah: “If someone makes war on you, lie down and die, but under no circumstances should you ever fight back.””

    Point? Most liberals take no issue with self-defence.

    - Rn K: “Now I would like to turn the argument around and ask liberals this: Why, if the killing of anyone under any circumstances is so abhorrent to you, are you so quick to kill people who are helpless yet inconvenient? Why would you kill a baby in its mother’s womb?”

    If it IS killing (haloche doesn’t simply equate an embryo with a born human being like you do) – because there might be good reasons. I don’t think the avarage Toure observant liberal thinks abortion is a completely free choice in all circumstances.

    - Rn K: “Why would you kill a brain-damaged woman by starvation and dehydration?”

    Why would you think Toure observant liberals think like that? And they don’t have a uniform thinking anyway, as hard as this is to imagine for a Conservative.

    And something I never understand: The proponents of death penalty argue with morals and reproach the opponents of a lack thereof. Death penalty in the US is not imposed according to the Toure, which for a pro-DP Jew, can only mean: Yes, killing is morally OK, only the deal is if you’re caught, then we may also. It’s nothing personal, just business. This is mob morals, not Toure.

    Another question is why Orthodox Jews in Israel and Europe don’t hold by DP, only in the US where it’s part of Southern Christian folklore?

  • Saul Mashbaum

    This very topic is discussed in the current edition of the Jewish World Review by the
    distinguished Orthodox scholar Dr. Asher Meir. This article reflects the ambivalent
    attitude O. Judaism has towards the death penalty, and the tension between theory and practice. The article is well worth reading, particularly since it cites at length the opinion of Rab Moshe Feinstein zt”l on this subject

    http://www.jewishworldreview.com/jewish/ethicist.php3

  • Ori Pomerantz

    Toby Katz:

    Now I would like to turn the argument around and ask liberals this: Why, if the killing of anyone under any circumstances is so abhorrent to you, are you so quick to kill people who are helpless yet inconvenient? Why would you kill a baby in its mother’s womb? Why would you kill a brain-damaged woman by starvation and dehydration?

    This is nice rhetoric, but ignores the basic fact that the people who advocate those things do not view the fetus or the brain damanged woman as innocent people – they do not view them as people at all. In one case, it’s a potential human being. In the other, a corpse whose heart is still beating.

    In you want to convince them otherwise, you need to attack the underlying assumption. Otherwise, you’re expounding religious doctrine to the temple singers (= preaching to the choir).

    Ori

  • Lumpy Rutherford

    >a Torah Jew should not accept a
    >jutice system that puts men to death
    >on less evidence than this.

    I agree. I would also add that the death penalty, as practiced in this country, is motivated by revenge. As a I understand it, the תורה proscribes the death penalty so that the murderer’s life can serve as a כפרה for his ‏עבירה.

  • Aliza

    I think it shows arrogance on the part of liberals who seem to constantly be making judgments on what sort of life is valuable.
    I find this to be quite ironic because often times it is these same people who become outraged when others make judgments about the immoral and/or self-destructive behavior of certain segments of society. By watching liberals and attending one of the most liberal educational institutions I have learned that one can never criticize or seek to rectify any of a groups self-destructive behaviors, we can only accept it and understand it, never try to change it, because that is being judgmental. This however does not preclude my right be judge what life is valuable and worth protecting.

  • OrthoMom

    “Nowadays, with DNA testing and other technological means, it is possible to prove guilt to a 100% degree of certainty.”
    Actually, no. Never to a 100% degree of certainty. Cross-contamination, false negatives and positives, human error, the possibility of evidence planting, and other variables make DNA profiling a game of statistical probability. Even the highest odds of many millions to one would not have been enough to convict in the days of the Sanhedrin, I’m sure.
    And who are you talking to when you tar all those who oppose secular court-sanctioned capital punishment as pro-abortion and pro-euthanasia? Is this a halachic argument or a anti-liberal diatribe? Because I know many non-liberals who oppose the death penalty while opposing abortion and euthanasia in most cases as well. In addition, if you are going to use the Torah argument for capital punishment (which I hapen to think is inapplicable in this case), at least be intellectually honest about it and admit that the Torah by no means is “anti-abortion” across the board either. The strictest abortion law proposals forbid abortion in cases that the Torah permits or even REQUIRES abortion. So this argument of yours can cut both ways.

  • Netanel Livni

    dovbear wrote:
    See, these Rabbis, our Rabbis, knew what it meant to “err on the side of life.” They absolutely didn’t share your opinion on the Torah’s death penalty—let alone your opinion on the US’s death penalty, a punnishment that is never adminstered according to the Torah’s very high standards of evidence, standards that demand two corroborating witnesses, and a pre-crime warning.

    This is simply not true. The beis din has a prerogative to apply the death penalty (in a form other then the 4 deaths mandated by the Torah) with a very small degree of evidence. If the sin committed is murder then the Rambam seems to imply that the beis din goes out of their way to apply the death penalty without any of the restrictions that are reserved for the 4 Mitos beis din. Further, if you look at Hilchot Melachim, you will see that a king (and therefore, the sovereign government of the land) has extra-judicial power to apply the death penalty. All this applies to a Jewish society. Kal VaChomer to a gentile society where the penalty for any one the 7 Noahide laws is death and where almost none of the restrictions of the Jewish system apply.

    Please don’t try to paint the Halacha as supporting the liberal position on the death penalty. It simply does not.

  • Sarah Elias

    The Torah in Bereishis/Genesis states that “he who spills the blood of man, by man shall his blood be spilled.” Sounds like capital punishment to me. Further, according to the 7 Noachide Laws, all nations are required to have a court system and laws, which would seem to include capital punishment, which was commanded before a Sanhedrin existed. I don’t imagine that Noahide courts are required to operate according to the standards of the Sanhedrin. So it seems to me that capital punishment administered according to US law is perfectly legitimate.

  • Lipman

    In a private message, somebody commented on what I said:
    >> may I remind you of the “Court of Blood”, called like that because once in several generations they issued a death verdict?

    > May I remind you of the next line in the same Gemara? “They would multiply murderers in Yisrael.”

    Shkouech for the reminder, but first, Rn Katz was arguing in a determined manner with morals, not with general deterrence, and second, the quote is not on the level of chok, and whatever was valid in this regard in the period of the gemore – for today’s USA, the effect of killing convicted suspects is not deterrent. In combination with other laws, it even invites criminals to kill rather than injure the victim, let alone possible witnesses.

  • DovBear

    They would multiply murderers in Yisrael.”

    This is the next line in the Gemarah, but the cite doesn’t disagree with Rabbi Tarfon and Rabbi Akiva (the ones who said they would never put anyone to death) All it does it suggest the consequences of their ruling.

    Also, it’s a mistake to assume that the Tanna who articulated this view (Rav Shimon, I believe) thought the DP was a necessary deterrent. That’s a late 20th century gloss. Rav Shimon was not arguing that more murders would be committed if the DP was abolished. He was saying, simply, that the net number of murderers in the general population would increase, which is what you would expect if they were no longer being put to death.

    Erring on the side of life, means upholding the standards of Rav Tarfon and Rabbi Akiva.

  • DovBear

    … without worrying about the consequences which concerned Rav Shimon.

  • Gershon Seif

    DovBear wrote:
    For the record, DNA and fingerprints are strong evidence, but Circumstantial, and therefore inadmissable to a Bes Din.

    A Torah court accepts only direct evidence from a witness who saw or heard something, and two are needed;a Torah Jew should not accept a jutice system that puts men to death on less evidence than this.

    DovBear, If I am not mistaken, I heard from a distinguished posek that the rules that a gentile court use for determining their specific judiciary decisions, don’t have to match those of a beis din.

  • baalabus

    Two pts.

    1) Dov Ber errs in thinking that the standards of chiyuv misa are univerally applied to criminals. The Rambam and Ran (in his derashos) make clear that the chiyuv misa for which bais din has stringent requirements of evidence (two witnesses, a warning, etc.) applies to punishments meted out according to Torah Law. But the King, and, absent a King, beis din, can and did apply capital punishment with no such restrictions in order to establish order. In other words there is a clear basis in Chazal for the argument of deterence (the Ran makes this especially clear), and Dov Ber cannot call it foreign to the Torah. Dov Bears states that non-Torah ” [CP is] a punnishment that is never adminstered according to the Torah’s very high standards of evidence” – and that is patently false.

    2) He and others err in thinking that the Torah ONLY recognizes two witnesses as evidence and therefore does not recognize DNA evidence. The Torah recognizes an “uhmdena” i.e., incontrovertible evidence (see Rav YE Henkin’s writings for a lengthy discusssion). If such DNA evidence is in fact an uhmdenah (as I have heard in the name of some current Poskim) then it would be admissible. The status of DNA is not pashut.

  • ja

    “Also, it’s a mistake to assume that the Tanna who articulated this view (Rav Shimon, I believe) thought the DP was a necessary deterrent. That’s a late 20th century gloss. Rav Shimon was not arguing that more murders would be committed if the DP was abolished. He was saying, simply, that the net number of murderers in the general population would increase, which is what you would expect if they were no longer being put to death.”

    Actually, it’s Rashi on the spot (“im hoyu osim keyn hoyum marbin shofchey domim, she’lo yiru mi’beis din” – if they did this they would have increased murderers in Israel, because they would not have feared the court). Hardly a 20th century gloss.

  • Lipman

    Sarah Elias said: The Torah in Bereishis/Genesis states that “he who spills the blood of man, by man shall his blood be spilled.” Sounds like capital punishment to me.

    It also says “an eye for an eye”. Sounds like one should scratch out the perpetrator’s eye. But not to me.

  • Sarah Elias

    While all the commentaries agree that “an eye for an eye” is not supposed to be taken literally, I haven’t heard anyone who says that “he who spills….” does not refer to the death penalty. Can you bring a source which says that the Torah doesn’t command the death penalty for murder?

  • Sabba Hillel

    In any case, the laws of the death penalty are not those required by Bais Din, but the rules to allow a death penalty under Sheva mitzvos Bnai Noach. Since we are talking about the death penalty as used by the secular courts, I would sat that the Sheva Mitzvos Bnai Noach would be the basis for analysis.

  • Voice of Reason

    There is also the well known position of R’ Moshe regarding the legitimacy of capital punishment as applied in the United States. He was approached during the Reagan administration for his opinion and came to the conclusion that capital punishment as apllied in the United States is entirely consistent with the requirements of halacha for a non Jewish sovereign.

  • tzurah

    All of the above discussion seems to tell me that 1) a non-Jewish government has quite a bit latitude in how it applies the death penalty, and that 2) there’s no need for Jews to insist that the system fit a Halachic framework(aside from a general Noahide law perspective). Therefore, making arguments for or against the current state of death penalty in the US using our halachic understanding of the issue is pointless. The only way, even for religious Jews, to discuss the issue is over the pragmatic issue of balancing the virtue of minimize the occurrence of murder with the equally legitimate virtue of ensuring that people are not punished for crimes they did not commit. This is a very difficult balance to make and people are necessarily going to come to different conclusions about what the best path to take is. Let’s do Klal Yisrael a favor and not make it into a frumkeit issue (as in “if I am to trust your kashrus, you should hold X in the death penalty issue.”).

  • Jessel

    Some contributors seem to be arguing that we Jews should oppose capital punishment because the Jewish laws regarding evidence, testimony and the judicial process in a capital trial, which are seldom adhered to in a secular court, are very limiting (i.e., they seem to favour an acquittal).

    This argument has several problems. The Jewish laws regarding evidence, testimony and judicial proceedings are in many ways difficult to understand, and in some ways seem bizarre. The strange aspects of Jewish judicial proceedings can often be understood only by a recognition that G-d runs the world and ensures that everyone gets his or her due. Therefore, even if a criminal gets off on some technicality (e.g., the witnesses didn’t see each other), as long as the proceedings were conducted properly it is assumed that justice was done and G-d’s will was carried out. G-d will see to it that ultimately no guilty person escapes punishment and no innocent person suffers unnecessarily.

    But the halacha does not require non-Jewish courts to follow the Jewish rules. The Noahide laws only obligate non-Jewish society to establish courts of justice, and to try to ensure that judges and judicial systems do not practice inequity or fail to execute judgement against crime. It might also be a duty for non-Jews to establish just laws, to reprove injustice publicly, and to correct injustices by forcing the legislative and judicial systems to obey the laws. There is no requirement for them to have at least two witnesses and 23 judges, or to require witnesses to warn somebody that he or she was about to commit a crime that the act is a capital offense. Indeed, an argument could be made that such regulations should only apply to a Jewish, Torah-centred society. You cannot, therefore, claim that the Jewish view of capital punishment, inferred from Jewish law as it applies to a Jewish society, is applicable to the question of capital punishment among the other nations.

    Furthermore, it may be an oversimplification to say, as DovBer suggests, that the halachic restrictions on the death penalty are so great that it is clear they would err on the side of life and not allow the death penalty when there was even the slightest room for doubt. Erring on the side of life might mean that you sometimes have to do whatever is necessary to stop the wanton taking of life. Murder is considered so devastating, and so destructive to the functioning of society, that the halacha permits special measures to be exercised to ensure that a murderer does not go free (Rambam in hilchos rotzei’ach u’shmiras nefesh 1:4; 4:8,9). Thus, even if all the various regulations and limitations were observed, they wouldn’t necessarily exonerate a murderer from a death sentence.

    It could be that, in traditional Jewish terms, the incidence of murder and other capital offenses in the USA and other countries is so great that emergency measures are called for, and that the judicial system should actually relax its requirements in order to increase the conviction rate, even though this may bring about an increase in false convictions.

    On a separate note, I believe one could present a good argument for bringing back the punishment of lashes for some crimes. For some crimes, it may be more humane and far more effective than sending someone to prison.

  • Lipman

    Jessel, according to your rationale, why not reintroduce the mediaeval method of finding the truth? Put the suspect in bonds and throw him into the river. If he’s guilty, he deserves it, if he’s innocent, “G-d will see to it that ultimately no guilty person escapes punishment and no innocent person suffers unnecessarily.”

  • Alex F

    “The Torah in Bereishis/Genesis states that “he who spills the blood of man, by man shall his blood be spilled.” Sounds like capital punishment to me. Further, according to the 7 Noachide Laws, all nations are required to have a court system and laws, which would seem to include capital punishment, which was commanded before a Sanhedrin existed. I don’t imagine that Noahide courts are required to operate according to the standards of the Sanhedrin. So it seems to me that capital punishment administered according to US law is perfectly legitimate.”

    Excellent point, except that a Jew can be killed in such a way, which is unacceptable, according to Halacha (a Jew can be killed only by a Sanhedrin). If you say that according to Halacha it is OK for the functioning government to kill Jews, that all the Jews killed by Stalin and Hitler (functioning governments of their countries) were killed according to Halacha (G-d forbid).

  • Toby Katz

    “If you say that according to Halacha it is OK for the functioning government to kill Jews, that all the Jews killed by Stalin and Hitler (functioning governments of their countries) were killed according to Halacha (G-d forbid).”

    There is such a thing as a just government — like the US or any democracy (despite occasional lapses) — and such a thing as an unjust govt. In the USSR the death penalty was carried out capriciously. For proof that there is such a thing as an unjust govt — and what G-d thinks of such — see what happened to Sodom.