Myth of the lenient rabbis and the death penalty

Editor’s note: Marvin Olasky’s cover story in the current issue of WORLD magazine focuses on what the Bible says about the death penalty and what life is like on death row. In a series of 10 columns here on wng.org (posted Oct. 7–18), Marvin addresses public policy issues involving deterrence, discrimination, and arbitrariness in capital punishment.

Since the New Testament does not lay out when the death penalty should be used, as the Old Testament does, some commentators look to what the Jewish consensus was during the time Christ walked on earth and the decades thereafter. We can derive some sense of that from the Talmud, composed during the first five centuries A.D., but the nuances are severe. Some write, “the Talmud says this,” but the Talmud doesn’t say anything. It’s a record of debates. It sometimes indicates majority and minority positions, but it’s often more about analyzing problems than solving them.

For example, death penalty opponents say that in Jesus’s time Israelites almost never proffered a death penalty. The Talmud quotes one rabbi saying a court that issues a death sentence once every seven years is “ruinous … destructive.” The discussion, swirling as Talmudic debates always did, then has a Rabbi Eleazar saying “once in 70 years,” and star Rabbis Akiva and Tarfon topping that by saying the Sanhedrin should execute no one. That’s where the coverage usually stops—but in the next line, Rabbi Shimeon Ben Gamaliel offers a deterrence argument, saying the loss of a death penalty means more innocent people will die.

Other debates in the Talmudic tractate Sanhedrin, which makes for fascinating reading: Some rabbis argued that a man who strikes his neighbor with iron or stone, or holds him down in fire or water so that he cannot rise, is guilty of murder—but if he pushes him into water or fire so that he could rise, but he dies, some said the pusher is innocent of murder. If the perpetrator incites a snake to bite a person and the victim dies, R. Jehuda would convict but most would acquit. If a person strikes his neighbor with a stone or with his fist so that the neighbor is expected to die, yet afterward he improves, but then grows worse and dies, several rabbis said the person is guilty, but Rabbi Nehemiah would acquit him, since other causes may have brought about death.

The tractate Sanhedrin also notes that Rabbi Jehuda would convict a person who intended to kill one person and missed, but fatally struck another; Rabbi Shimeon, though, would acquit. The rabbis also debated whether and when decapitation, strangulation, and burning should take the place of stoning: Rabbi Yoshiyah said strangulation was a more humane method, but Rabbi Yonasan and Rabbi Shimon suggested beheading.

Listen to Marvin Olasky discuss the death penalty on The World and Everything in It: