The misguided reliance in American jurisprudence on Jewish law to support the moral legitimacy of capital punishment.

• Author: Rudolph, Daniel A.

1. INTRODUCTION

   The debate over capital punishment in the United States, particularly during the last quarter century, has engendered emotional diatribe regarding not only the constitutionality of the death penalty but also its inherent legitimacy within the spheres of natural law, religion, and societal morality. Few issues trigger ethical questions that transcend mere written law to a greater degree than does capital punishment, as the interest at stake, human life, is that which we deem to be the most valuable.

   In the context of advocating the death penalty, attorneys, politicians and judges have at times cited the Bible to support the moral legitimacy of capital punishment. While these statements correctly reflect the text of the Bible, they are deceptive and misrepresent the actual historical practice under Jewish law.

   This Note first summarizes the current legal status of capital punishment in American law. After providing examples of the reliance on the Bible in American jurisprudential discussions of capital punishment, the Note introduces the general sources of Jewish law and examines the biblical origins of the death penalty. It then discusses the rabbinical barriers to imposition of the death penalty established through interpretation, a general reluctance to impose capital sentences in Jewish law, and the numerous procedural and evidentiary barriers set up by the rabbis. The Note concludes that an extreme reluctance to impose the death penalty, combined with the array of barriers, rendered capital punishment virtually nonexistent in practice under Jewish law. The American legal system has generally ignored this reality, resulting in misrepresentations of the actual practice under Jewish law.

2. BACKGROUND

   Death penalty boosters have long attempted to superimpose the norms of the Jewish legal system onto American jurisprudence.(1) This section first summarizes0 the historical development and current legal status of capital punishment under American law and then provides examples of how the state, on occasion, relies on Judeo-Christian religious authority to support imposition of the death penalty in a particular case.

   1. Capital Punishment in American Law

      In Gregg v. Georgia,(2) the Supreme Court held that the death penalty is not inherently cruel, and thus does not constitute a per se violation of the Eighth Amendment of the United States Constitution.(3) This decision clarified an area of law that had been rendered murky by the Court's decision in Furman v. Georgia,(4) in which each of the nine Justices wrote a separate opinion. The Gregg Court justified Georgia's punishment scheme, in part, on the death penalty's long history of acceptance both in the United States and in England,(5) and out of respect for the legislative decisions of states that had enacted capital punishment statutes.(6)

      The Court subjected the constitutionality of capital punishment to certain limitations,(7) but stated that the requirement that the death penalty "not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance."(8) Today, thirty-eight states and the federal government have death penalty statutes,(9) and in 1993 there were more than 2800 prisoners on death row.(10) The willingness of states to impose capital punishment can be attributed in part to the perception that it is sanctioned by Jewish law.

   2. Misguided Reliance on Jewish Law, The Bible, And The Talmud In American Death Penalty Jurisprudence

      Assertions that biblical law supports the legality of the death penalty arise most frequently in the arguments of prosecuting attorneys to juries in capital cases. The North Carolina Supreme Court recently upheld as proper the following admonition to the jury by a prosecutor: "Well the Bible . . . says an eye for an eye and a tooth for a tooth. The law is clear."(11) The prosecutor had made this statement during his closing argument in a capital case.(12) Similarly, in 1993 a California prosecutor's closing argument contained the following statements:

      [T]he Old Testament is full of references to the death penalty, full of references to the

      types of things that one should, [sic] could do and subject himself or herself to the

      death penalty. When Moses led the Jews out of the desert [G-d](13) gave him those

      commandments.... [G-d] recognized there'd be people like [the defendant]. That's why

      those commandments were delivered. That's why that message is throughout the Old

      Testament. [Transgressors] must be punished for what they have done and if they

      have done things like he's done they must forfeit their lives. . . . .(14)

      The court did not find these remarks to be prejudicial, holding that although the prosecutor "invoked the Bible to demonstrate the legitimacy of capital punishment," the remarks could not have "diminished the jury's sense of responsibility, or displaced the court's instructions."(15) A final example is that of an Alabama prosecutor who made the following argument during a sentencing hearing: "Our Legislature, you know we are governed by the laws of [G-d] and man. And I'll submit to you the laws of [G-d.] He believed in capital punishment and you will find it many times throughout the Bible."(16) The reviewing court did not find this to be reversible error, rationalizing that the prosecutor was merely telling the jurors that they should not refuse to impose the death penalty because of religious feelings.(17)

      Judges, although typically in dissent, also have employed similar arguments. In 1961, a California Supreme Court justice argued that capital punishment deterred murder because:

      Christians and Jews from the beginning of recorded history have recognized

      that the death penalty is a deterrent to murder.

      This is demonstrated by the fact that, according to the account contained in

      [Leviticus], the Lord spoke to Moses and said: "He that striketh and killeth a

      man: dying let him die." .... "If any man strike with iron, and he die that was

      struck: he shall be guilty of murder, and he himself shall die. If he throw a

      stone, and he that is struck die: he shall be punished in the same manner. If he

      that is struck with wood die: he shall be revenged by the blood of him that

      struck him.... These things shall be perpetual, and for an ordinance in all your

      dwellings.... You shall not take money of him that is guilty of blood: but he

      shall die forthwith.".(18)

      The same justice in a later case reasoned that death is a proper punishment for the most serious criminal offenses, because:

      In the Holy Bible, it is stated: "Whoso sheddeth man's blood, by man shall his

      blood be shed: for in the image of [G-d] made he man." The foregoing

      quotation shows that the death penalty has long been regarded by us and our

      predecessors as an appropriate punishment for a person who commits

      murder.(19)

      Similar interpretations of the Bible's stance on capital punishment now are found even among judges sitting on the federal bench.(20) In fact, in his concurrence in Furman, Justice Marshall mentioned that historically, the Bible has been relied upon to support capital punishment.(21)

      These arguments also are heard in the political arena, where politicians have used biblical references to justify campaign promises to support or reintroduce capital punishment. For example, in the 1978 New York gubernatorial campaign, some Jewish newspapers ran statements and editorials claiming that Judaism not only sanctions capital punishment but that the elimination of the death penalty is an explicit breach of divine law.(22)

      In 1995, New York reinstated capital punishment by lethal injection as a punishment for seven categories of murder.(23) In the white-hot debates surrounding this issue, the Bible often was cited to support reimposition of the death penalty. A state Assemblyman argued: "We as a society, we as a state, we as a nation have the right to seek retribution against those who commit heinous crimes. This tradition can be found as far back as our Bible."(24)

      In light of the use of Jewish legal sources in the arguments surrounding this controversial issue, it is necessary to examine with detail the mandates of Jewish law with respect to the death penalty. This inquiry must begin with the origins of capital punishment in the Torah.

3. THE BIBLICAL ORIGINS OF CAPITAL PUNISHMENT

   In asserting that the death penalty was an integral device in the biblical criminal justice system, American attorneys, judges and politicians most often point to the Torah's discussions of capital punishment. This section introduces the general sources of Jewish law and summarizes the Torah's general statements with regard to capital punishment, the crimes subject to the death penalty, and the biblical methods of carrying out capital sentences.

   1. Introduction to the Sources of Jewish Law

      The sources of Jewish law most pertinent to this discussion are the Torah and the Talmud. Although the following descriptions are overly simplified, they provide an adequate context within which to discuss the origins of Judaic norms of capital punishment. The Torah,(25) also known as the Pentateuch, consists of the five books(26) that Moses received at Mount Sinai.(27) According to the view of observant Jews, the Torah's divine origins render its dictates immutable, and as such the Torah is considered to be the most authoritative and sanctified source of Jewish law. The Torah includes a body of law encompassing all aspects of life--religious and nonreligious, public and private. All subsequent sources of Jewish law have developed and interpreted this earliest nucleus.

      The Talmud, which is essentially an elaboration by rabbinical scholars of the laws and commandments of the Torah, consists of the Mishnah and the Gemara.(28) The Mishnah embodies the oral tradition of many centuries;(29) each of its six sections, or sedarim,(30) deals with a distinct aspect of...