Shoftim: Does Judaism Condone The Death Penalty?

What kind of evidence is required under Torah law to enforce the death penalty?
 If two witnesses are enough to establish guilt in death penalty cases, why does the Torah mention a third witness?

Table for Five: Shoftim

In partnership with the Jewish Journal of Los Angeles

 Edited by Salvador Litvak, the Accidental Talmudist

By the mouth of two witnesses, or three witnesses, shall the one liable to death be put to death; he shall not be put to death by the mouth of one witness.

-Deut. 17:6

Rabbi Shlomo Yaffe, Congregation Bnai Torah

The Torah states that two witnesses are sufficient to establish fact, so why does the Torah mention “Three”? The third adds nothing. Regarding establishment of fact, Rav Safra said (TB Yoma 83A) “two are like a hundred.”

Once we have two properly vetted and thoroughly examined witnesses, a fact is established. More witnesses add nothing – legally – to the assumption of fact created by the two.

Why then does the Torah discuss the “Third Witness?” Rabbi Akiva suggests (TB Makot 5B -Mishnah) that where the witnesses are found false and are penalized by having to suffer the penalty they sought to impose on another through their perjury, the third witness is equally liable to this penalty.

Rabbi Akiva then says (and one can learn a moral from this halakha), “If the verse punished one who associates with transgressors like transgressors, all the more so will God pay a reward to one who associates with those who perform a mitzva like those who perform the mitzva.”

There is an incredibly important lesson here, that humanity has yet to learn: Attaching oneself to evil, benefiting from its practitioners, or simply failing to act against those who do evil makes one a complete partner in that evil – which ultimately consumes both the evildoers, their enablers, and their beneficiaries in the fires they have kindled.

Conversely, enabling, participating, and supporting even just by advocacy and approval for those do “deeds of goodness and kindness” makes one a participant and partner in those virtuous acts.

David Sacks, Weekly Podcast is Spiritual Tools for an Outrageous World

When I grew up, I never associated Judaism with capital punishment. And yet, it seems to be all over the place. It’s kind of scary when you think about it.

Does Judaism really believe in giving the death penalty for so many things, is that really our religion, or is there something else going on here? The quick answer is that the death penalty was almost never given. The amount of evidence required for it was way too high. In fact, the Mishnah states that a Jewish court that executed one person in seventy years, was considered bloodthirsty.

But if the death penalty was almost never given, then why does it appear in the text so often?

The simple reason was to create a deterrent. Once people understood the severity of the punishment, they’d be too afraid to commit the act.

But I think something deeper is going on here. I think G-d tells us about a punishment that He’s unlikely to enact because He wants us to keep the mitzvah… but He wants us to do it from the standpoint of love, not fear.

Or put another way… our goal is not just to escape punishment. Our goal is to be the best version of the people we were created to be.

So keep the Torah. Not because something bad will happen if you don’t. Keep it because it’s the Jewish way to come closest to One who loves you the most.

Sarah Pachter, Author and Lecturer

Ramban asks: If two witnesses suffice, of course three witnesses suffice! Why would the Torah state the obvious? He explains that this pasuk warns the court to ask as many witnesses as possible because truth can only be found through multiple investigations.

Chizkuni states that the Torah does not rely on one eye witness because sight is subjective.

In courts today, witnesses have given false testimony by “remembering” details like the appearance of criminals or “seeing” large objects which did not exist.

Isaac Lidsky lost his vision as a young man. As his sight began to deteriorate, his brain compensated by filling in the gaps, sometimes to his detriment. One day, he dodged what seemed to be a branch flying towards him. Afterwards, he realized there was no branch. His mind had created it.

Science claims we do not see with our eyes, rather with our brain. Our eyes intake 2 billion signals per second. The rest of the body inputs only 1 billion per second. The visual cortex of the brain, ⅓ of its mass, uses memory and experiences to interpret signals. This clouds our perception.

We don’t trust the eyewitness account of one person because even someone with perfect vision answering truthfully cannot possibly provide the full picture. The Torah always knew that sight is subjective. We need at least two perspectives to confirm data in a halachic court. There is always another perspective to consider. We should never be in a rush to judge someone else.

Chaya Lester, Psychotherapist & Author

Jonathan Swift in Gulliver’s Travels introduces the Houyhnhnm, a race of highly rational, highly righteous, horses. They’re unable to comprehend that one could speak lies, “the thing which was not”.

Would that we could live in the Houyhnhnm’s world. But the fact is, lies are common fare in our reality; more common than we dare fathom.

For those of us accustomed to truth telling, lies seem inconceivable. But that is exactly where a liar’s power lies. We get caught off guard by lies’ inconceivability.

‘How could anyone in their right mind make up a thing which is not?!’ And yet, the liar is not in their right mind. Their mind has gone wrong. From childhood wounds or genetic disposition, whatever the recipe may be, the liar’s mind has been warped.

We’re not speaking here of the occasional white lie. We are speaking of those big hairy dark lies. The kind that can kill.

That is precisely what this week’s verse is pointing to; the danger of a lone witness. We must not receive their testimony on the off-chance they may lie. As inconceivable as it may be. We must conceive of it. And guard against it mightily.

Judaism is skilled at building fences around the things that deserve protecting…like a person’s life.

To be a houyhnhnm in a human world is dangerous indeed. Building suspicious fences is an act of righteousness, a guard against the ‘things which are not’.

Rabbi Nicole Guzik, Sinai Temple

I’m always stunned by the following words in airports and train stations: if you see something, say something. Clearly this refers to witnessing deplorable behavior including theft or physical harm. But what if it also meant: say something if you witness verbal or emotional abuse? Or say something when you witness an act of joy or wonder? Our society is not built upon this premise. Rather, we insist that everyone looks down, minding their own business.

The Torah offers a different perspective. We are meant to testify for and against each other. Not in order to create a culture of mistrust. But rather, to create a culture in which we hold each other accountable. A healthy community notices the harm we enact and should also notice moments of positive impact.

Sforno, an Italian commentator on the Torah explains that when even one testimony disqualifies a claim against an alleged perpetrator, the remainder of the testimonies, no matter the number of witnesses, are thrown out. We aren’t looking at each other in order to scrutinize and attack. We should be looking at each other to raise and lift up. But is anyone looking?

Very few of us live alone. We share synagogues, schools, parks, theaters, places of gathering. All opportunities to raise our eyes and voices in an effort to witness the ways we are trying to thrive in this world.

See something, say something. Maybe next time, someone will notice you.

With thanks to Sarah Pachter, Chaya Lester, Rabbi Nicole Guzik, Rabbi Shlomo Yaffe, and David Sacks

Image: Execution of Lady Jane Grey by Paul Delaroche 1834

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