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On capital punishment

“Let him have it!” I don’t watch television these days, but my childhood was haunted by the flickering black and white television that provided an eternal backdrop to whatever was going on at home. “Let him have it!” was the cry of Derek Bentley, a nineteen year-old who was sentenced to death in 1952 for assisting the murder of a policeman by his sixteen-year old accomplice, Christopher Craig. The pair of thieves were caught during a burglary that went wrong. Bentley shouted to Craig, who was armed, “Let him have it!” So Craig shot the policeman, killing him. At 16, Craig was too young for capital punishment, and it was Bentley who would hang for the murder. Even though he pleaded that when he shouted “Let him have it!” he meant the literal: “let him have the gun”, rather than the colloquial: “shoot him”.

Capital punishment makes many of us uneasy. In Britain, it was abolished in 1964 but it took a British Jew, Sydney Silverman, to found a National Campaign and work for over twenty years to secure its abolition. Most countries have abolished the death penalty, either in law or in practice, but it still exists in the United States (25 executed in 2018) and Singapore (13 executed in 2018) and in China (more than 1000 executed, that we know about). In Israel it has been used twice in the history of the modern State. Against Meir Tobianski, for treason during the War of Independence in 1948, and most famously for Adolf Eichmann in 1962, for crimes against humanity. Tobianski was accused of passing information on targets to Jordanian artillery, and executed by firing squad. Within a year he would be exonerated, with a note sent to his widow. It would take more than forty years for Bentley in Britain to receive his posthumous pardon.

Why this grim and grisly topic? Well in this week’s Torah portion, Matot-Masei, we are given several laws around murder and manslaughter, revenge and refuge. But in an important verse about capital punishment, the Torah makes clear (Numbers 35.30):

“If anyone kills a person, the manslayer may be executed only on the evidence of witnesses; the testimony of a single witness against a person shall not suffice for a sentence of death.”

The Torah allows capital punishment for murder, but only if two people saw the crime committed.

This raises problems, which the rabbis in the Talmud were quick to illustrate. The following story about the sage, Shimon ben Shetah in tractate Sanhedrin is a good example:

Shimon ben Shetah said… once I saw a person with a sword in his hand, running after another. They went into a ruined building, one after the other. I chased after them and found the one killed and the sword in the hand of the murderer, dripping with blood. And I said to him: Wicked one, who killed this man? It was either me or you! But what can I do to you, since behold the Torah said “a person shall be put to death only on the testimony of two or more witnesses (Deuteronomy 17.6) – rather God will avenge him. And before they could move, a snake came and bit the murderer and he died.

This example presents a challenge to the laws of the Torah, and shows how a divinely-sent or extremely-conveniently-passing snake is required to uphold natural justice in the world, when halacha falls short and requires passivity. A famous line in the mishnah says that a court that executes one person in seventy years is considered destructive, and most of us feel comforted by the knowledge that Jewish tradition – despite the Torah – has worked to delimit and render impossible the circumstances that permit capital punishment.

For when a snake is not available, but a murderer has gone unpunished on account of some technicality, Maimonides – the doctor – came up with a unique solution in his Mishneh Torah. The murderer is to be fed bread and water until he aches, and then barley until his stomach ruptures. The Shulhan Aruch also says that capital punishment could be imposed without clear testimony at times of rampant sinfulness.

All this is gruesome enough. And yet it takes on an even darker tinge in the context of Jewish-Christian relations, with the need for the last two thousand years to prove Jewish innocence over the charge of killing Jesus. Showing that the rabbis were clearly against capital punishment from early on helped to defend against the accusation that it was a Jewish court that killed Jesus. But in her recent book, “Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures”, Beth Berkowitz argues against the common understanding of the rabbis being against the death penalty. Rather, she sees the rabbis as creating complex rituals of execution in imitation of the Romans, in order to give credence to rabbinic power in the context of Roman political and cultural domination. Talking about capital punishment – when it is not in your power to enact it – is your way of looking strong.

This, I feel, is also true of modern-day right-wing tabloids like the Sun newspaper in the UK, who are always happy to produce a poll showing that the majority of Brits would like to bring back hanging. It used to be that you could sleep well in bed at night, knowing that no politician in their right mind would want to bring back capital punishment, however much they postured and wanted to look strong. These days, with the rise of populism, I, for one, sleep much less well in bed at night. And my dear Noam is not solely to blame for that.

We may have been somewhat simplistic in claiming that Jews have always been against capital punishment, although we find support for that in our texts. And I may be simplistic – and quite wrong – in thinking that you, the members of our minyan, are, like me, against capital punishment today. But I hope that the world is not turning back on what I think is progress this last fifty years, to abolish capital punishment, and that the injustices that haunt me – the “Let him have it”s – do not haunt future generations as well.

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