Are Jews Exempt from Capital Punishment?

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

Chapter Nine of Tractate Sanhedrin continues the Talmud’s discussion of capital crimes. As we have seen, the Torah provides for four types of execution. Crimes against God, such as idol-worship, are punished by stoning; sexual crimes, such as the licentiousness of a priest’s daughter, are punished by burning. These types of offenses are the most serious in Jewish law, because they represent attacks on God’s purity and authority. But for that very reason, they have no parallel in modern, secular legal systems, which are concerned with crimes against human beings.

The most serious of those secular crimes is murder, which was the focus of the Talmud’s discussion this week. Murder, in American law, is the worst crime of all, the only one that can be punished by the death penalty. In halakhah, by contrast, it is only the third-worst, as can be deduced from the type of punishment it incurs—not stoning or burning, but decapitation with a sword, which the rabbis consider to be less severe. (Certainly, it is quicker and less painful.) The Torah institutes the death penalty for murder in the Book of Numbers, where Moses instructs that if a man strikes another with “an instrument of iron,” a stone, or a piece of wood, and the victim dies, then “the murderer shall be put to death.” A verse from Deuteronomy provides another general statement of the justice of capital punishment: “And you shall eradicate the innocent blood from the midst of you.”

As we have seen over the last several weeks, however, the rabbis are reluctant to shed any blood, guilty or innocent. They consistently interpret the Torah in such a way as to make the death penalty difficult or impossible to carry out. That pattern continues when it comes to murder, where the rabbis adopt an extremely stringent definition of what it means to cause the death of another person. Only direct, premeditated, and instantaneous killing qualifies as murder under rabbinic law; causing another person’s death in a more indirect or ambiguous fashion is exempt from capital punishment. This principle is carried so far as to result in the acquittal of many defendants who, in American law, would be clearly guilty.

The distinction between direct and indirect killing emerges in the mishna in Sanhedrin 76b, which considers the instruments of murder. In the Torah, as we have seen, murder is imagined as a physical assault using a weapon of iron, wood, or stone. But there are many other ways to cause a person’s death: for instance, a murderer who “held another in the water or in the fire, and the victim could not extricate himself from there and he died.” Such assaults, the mishna says, are also considered murder, and they carry the death penalty.

But for the rabbis, there is a conceptual difference between these types of killing. A blow from a weapon causes death directly, while in the case of drowning or burning, it is the water or fire that is the actual cause of death, with the killer standing at one remove from the crime. That is why the mishna specifies that the killer must “hold another in the water or in the fire”: It is only by rendering escape from death impossible that the killer becomes guilty of murder. If, on the other hand, you merely push someone into a pool of water, you are not actually killing him, only exposing him to the risk of death. Even if he dies, the rabbis reason, it is the water that killed him, not the person who pushed him into the water. Thus this kind of assault does not count as murder, even if it results in the victim’s death: “If one pushed another into the water or into the fire and the person could have extricated himself from there but failed to do so and he died, the one who pushed him is exempt.”

This sounds unpleasantly like blaming the victim for failing to rescue himself from a deadly assault. But to the rabbis, the definition of murder must include two parts, the intent to kill and the performance of killing; if either of these is absent or doubtful, the killer cannot be put to death. They find a scriptural basis for this distinction in a close reading of the verse from Numbers mentioned above. The Torah says that anyone who uses “an instrument of iron” to kill is guilty of murder. With stone or wood instruments, however, the Torah specifies that they must be “in hand” to qualify as murder weapons. What is the reason for this addition? It is because, the Gemara reasons, any iron weapon is lethal, because it can be used to stab, while most stone and wooden tools are not deadly weapons. It is only when the killer uses a stone or wooden instrument large enough to be lethal that he is guilty of murder. In other words, the Torah’s language silently introduces the concept of premeditation: To be guilty of murder, the killer must strike with a weapon that is specifically intended to kill.

The Gemara goes on to introduce another element to the definition of capital murder: It must be instantaneous. Death must result immediately from the killer’s actions. Thus, Rava says in Sanhedrin 77a, “If one bound another and he died of starvation, he is exempt.” The reasoning here seems to be that the binding itself did not cause the victim’s death; it was the starvation that killed him, and the one who bound the victim is only indirectly responsible for his starvation. Similarly, Rava says, if you tie someone up and expose him to a lion, this is not murder, because it is the lion who directly causes the victim’s death. Death was not inevitable in this case because the lion might have chosen to ignore the defenseless man.

In both these cases, the Talmud’s logic contradicts our moral intuitions. Surely, we think, an action that predictably results in someone’s death should be considered murder? But for the rabbis, any ambiguity about any element of the crime is grounds for acquittal. So, to take another example in the Gemara, say you push someone into a deep pit that has a ladder in it. This is not murder because the ladder allows the victim a way to escape. Then say that a second person comes along while the victim is in the pit and removes the ladder. He too is not guilty of murder, because he did not kill the victim, merely prevented him from escaping a deadly situation. This is already a dubious claim, but then the Gemara goes even further. Say that the same person pushed the victim into the pit and removed the ladder, thus ensuring his death. According to the rabbis, this person is not guilty of murder, since neither of his acts, taken separately, immediately caused the victim to die.

The problem here seems to lie in the model of murder established by the Torah, which involves a deliberate blow from a deadly weapon. In that case, death is instantaneous and there can be no doubt about the killer’s intentions or the effect of his action. In cases where any of these elements is absent, the rabbis see grounds for doubt, and therefore for acquittal. A corollary of this principle is that, as we read in Sanhedrin 78a, a deadly assault committed by two or more people cannot be considered murder. “If ten people struck an individual with ten sticks and he died, whether they beat him simultaneously or whether they beat him one after the other, they are exempt from liability for killing him,” the Gemara says. Again, this is because it is impossible to assign responsibility for the death to any one person, and murder can only be committed by an individual. And the same principle holds if the serial assaults are separated in time. If a man is dying of a deadly injury and a second assailant comes along and kills him, the latter is not guilty of murder because he did not actually cause the victim to die; he merely hastened an inevitable process. (Of course, because everyone dies sooner or later, this same logic could acquit any murderer.)

Reading about all the ways that halakhah exempts criminals from capital punishment, one might well wonder how a society could function under such lenient rules. For instance, as we saw earlier, a guilty verdict in a Jewish court requires that two witnesses to the crime testify that they saw the exact same thing, and furthermore, that they specifically warned the criminal in advance that he was about to commit a capital offense. Such cases must have been rare indeed. But what was the court to do with a defendant who was clearly guilty, even if he didn’t meet the extremely stringent requirements for a guilty verdict?

As it turns out, Jewish courts did possess a backup punishment: the “vaulted chamber,” which appears to have been a kind of underground prison or dungeon. “With regard to one who kills a person not in the presence of witnesses,” the mishna says in Sanhedrin 81b, “the court places him into a vaulted chamber and feeds him sparing bread and scant water.” In other words, he is condemned to a slow death by starvation. The same punishment is reserved for other criminals who can’t be executed but also shouldn’t be freed, such as a person who repeatedly commits non-capital crimes. In this way, capital punishment, which the rabbis made almost impossible to use, sneaks back into the realm of possible sanctions—and it is, arguably, a crueler form of execution than a quick death by the sword. Compared to our own system of mass incarceration, on the other hand, the rabbis’ occasional use of the “vaulted chamber” seems positively humane.

Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on the complete archive, click here.