March 9, 2000
Jews and the Death Penalty
Down on his luck, Barak faces one political blow after another
Many people assume that Jewish law unequivocally advocates capital punishment, because of frequent references to capital crimes and capital punishment in the Torah. But while Jewish law supports the death penalty in theory, the Oral Law makes it difficult, and in most cases impossible, to execute someone for murder, says Rabbi Yitzchok Adlerstein, director of the Jewish Studies Institute of Yeshiva of Los Angeles and the chair of Jewish law and ethics at Loyola Law School.
For a Jew to be convicted by a Jewish court, two eyewitnesses must have seen the perpetrator about to commit the crime and warned him of the potential penalty. The murderer must verbally answer that he chooses to proceed anyway. (For a non-Jew, only one witness is required and no verbal warning.) Twenty-three, rather than the usual three judges, must sit on the rabbinical court, among other requirements; circumstantial evidence is never allowed in a Jewish court hearing a capital case. A court that executed once in 70 years was referred to as a bloody court, according to one sage.
Nevertheless, Adlerstein says, the unusually strict rules assume a society in which murder is not commonplace and in which most people respect the law; in a society in which human life becomes a trifling matter for criminals, it may be necessary for the courts to impose a different standard. "In short, the Talmud says that if the generation calls for it, the court can rule to execute even if all the requirements are not met," Adlerstein explains.
For Jews living in America in the last half of the 20th century, public opinion about capital punishment has changed over time. In the 1950s, the Reform movement voted to oppose the death penalty, in part because of the shock and dismay following the execution of convicted spies Julius and Ethel Rosenberg, says Ronald Tabak, president of New York Lawyers Against the Death Penalty and an active participant in the Reform movement. Memories of the Holocaust and the lynchings in the South in the '50s also contributed to Jewish sentiments against capital punishment.
In the 1960s, a majority of Jews opposed the death penalty, influenced by the liberal politics of the time and by popular culture, Tabak says.
The tide significantly began to turn in the 1970s, with the increase in murder rates, the advent of "get tough on crime" political campaigns and Jewish flight from the inner city, among other developments. According to the "Sourcebook of Criminal Justice Statistics," 66 percent of Jews favored the death penalty in 1977, 87 percent in 1989 and 72 percent in 1998, roughly mirroring the national average.
Late last month, a Gallup poll revealed that 66 percent of Americans now favor capital punishment, the lowest number in 19 years; though no Jewish statistics are available, leaders like Tabak believe many Jews still favor the death penalty. While Tabak is hoping to rally the Jewish grass roots against capital punishment, others are vowing to publically support the death penalty. "If we keep all murderers alive," says national radio talk show host Dennis Prager, "society announces that it does not consider murder all that terrible."