THOUGHTS ON THE PARASHAH
Rabbi Evan Hoffman – Congregation Anshe Sholom
Parshat Kedoshim – פרשת קדשים
May 11, 2019 – ו אייר תשעט
Loving the Neighbor on Death Row
“Love thy neighbor as thyself (Leviticus 19:15)” ranks high among the greatest ethical dicta propounded in human history. Rabbi Akiba regarded it as the primary principle of the Torah (Sifra Kedoshim 2). Fostering good relations between neighbors is key to maintaining a peaceful and charitable society. A narrow exposition of the verse could have limited its applicability to the interactions between upstanding citizens or religiously observant Israelites (see, for example, Baba Metzia 59a and the exegetical interpretation of Leviticus 25:17). Yet the sages preferred an expansive application of “love thy neighbor” such that it extended to society’s treatment of even its worst criminals.
No specific manner of execution is mandated by Scripture for many capital crimes. “He who strikes his father or his mother shall be put to death (Exodus 21:15).” How? “If a man commits adultery with a married woman, the adulterer and the adulteress shall be put to death (Leviticus 20:10).” Again, how? The Oral Law teaches that in both these cases, as well as in other cases where Scripture does not specify the method of execution, the malefactor is killed by strangulation. The halakhic Midrash presents several Tannaitic theories about why strangulation, as opposed to any of the other three methods of execution, was chosen as the default method of capital punishment. Rabbi Josiah explains that the court is forbidden to be stricter with the prisoner than is legally required. Therefore, in the absence of detailed instructions, the court has no choice but to carry out the death sentence by the mildest possible method of execution, namely, strangulation (Sifra Kedoshim 10). The Scriptural basis for this soft-hearted policy is “love thy neighbor as thyself,” interpreted to mean that, when given wide latitude by the text’s ambiguity, the court must select the most favorable or beautiful death for the convict (Mekhilta d’Rashbi 21).
Rabbi Judah and the sages disputed the proper technique for beheading (Mishnah Sanhedrin 7:3). The sages posited that beheading is to be performed with a sword swung at the front of the neck. Rabbi Judah posited that the executioner uses an ax and strikes at the back of the neck. Rabbi Judah justified his view by citing “love thy neighbor” and the need for a favorable method of killing (Tosefta Sanhedrin 9:11). Rashi explained that Rabbi Judah considered it distasteful for the body of the condemned to collapse from a standing position upon the severing of the head. The sages responded that nothing is more repulsive than an ax to the back of the neck, since an ax is not as sharp as a sword and will not yield a clean and swift cut (see Ketuboth 37b). Alternatively, Rabbi Judah objected to the use of a sword because that is how the heathens fell their victims, and to copy their practices would be a violation of “do not follow in their laws (Leviticus 18:3).” The sages deflected that argument by noting that beheading is mandated by the Torah and so it cannot be said that that practice is borrowed from the gentiles (Sanhedrin 52b). The Midrash comments that one might have thought that a murderer should be executed by using the same sort of implement with which he committed his crime, even if that implement is not as lethal and would prolong the execution. To dispel that notion, an unidentified Tanna cited “love thy neighbor” to support the view that the execution must be as favorable -- meaning as rapid and painless -- as possible, and therefore ought to be performed with a sharp sword (Mekhilta d’Rashbi 21).
In most cultures, death by fire meant being burnt at the stake. Rabbi Elazar ben Zadok reported having witnessed such a burning of a kohen’s licentious daughter. The sages rejected his testimony, either because he was a minor when the event occurred (Tosefta Sanhedrin 9:11), or because the court in question was deemed inexpert or sectarian (Mishnah Sanhedrin 7:2). The halakhic method of burning, analogous to the deaths of Nadab and Abihu or of the assembly of Korach, does not destroy the body as would conventional burning at the stake. Rather, a lethally hot substance is poured down the criminal’s throat such that death occurs without external disfigurement (Sanhedrin 52a). Rav Mathnah ruled that molten lead is used for this purpose. The Talmud then questions why boiling water is not used. Answer: “Love thy neighbor” is a mandate for inflicting the most favorable death possible, and molten lead down the gullet induces a more rapid fatality than would the use of plain hot water (Pesahim 75a).
Rabbi Judah and the sages disagreed about the extent to which the court dresses those about to be stoned. Rabbi Judah said that the condemned are stripped naked save for a small frontal loincloth for men and a slightly larger loincloth for women. The sages ruled that men are stoned in a state of undress while women are stoned while fully clothed (Mishnah Sanhedrin 6:3). The Talmud concludes that both opinions are consistent with the interpretation of “love thy neighbor” mandating a more favorable death. The Tannaitic dispute is about what is more important to a condemned person in his or her final moments: a rapid and less painful death or preserving dignity by avoiding public nudity. Rabbi Judah considered the avoidance of physical pain to be the highest priority and so he ruled that, regardless of gender, criminals are stoned while wearing as little as possible without exposing the genitalia. The sages considered the embarrassment factor to be paramount, and so women were to be stoned while clothed even though that could prolong the execution and increase physical pain (Sotah 8b).
The sages understood death by stoning to mean that the bound prisoner is first pushed off a high perch. Only if the fall proves non-fatal do the executioners then hurl stones at the prisoner to complete the execution. The platform from which the prisoner is pushed is two stories high (Mishnah Sanhedrin 6:4). Noting that, for other halakhic purposes, a fall from the much lower height of ten handbreadths is considered potentially fatal, the Talmud wonders why it is necessary to push the offender from a height of two stories. Answer: Scripture’s exhortation of “love thy neighbor” requires the court to push the offender from a height that is likely to bring about immediate or rapid death. Shoving the offender from too low a height would likely result in the condemned’s suffering in agony while being pelted with stones. Yet, according to that logic, it would be appropriate for the court to push the offender from whatever height necessarily results in a deadly fall, which might well be greater than two stories. The Talmud explains that that is not done because a fall from higher than two stories results in horrific disfigurement of the body upon its hitting the ground (Baba Kamma 51a). Concern for a favorable death is balanced by a desire to have an intact corpse available for dignified burial.
The Eighth Amendment to the Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” A basic assumption of all death penalty jurisprudence is that the manner of execution may not inflict unnecessary pain, torture, or lingering death; the protocol must have as its aim merely the extinguishment of life. In Furman v. Georgia (1972), the Supreme Court invalidated existing death penalty statutes because their discriminatory application violated the Eighth Amendment. In Gregg v. Georgia(1976), the Court held that the death penalty is not per se unconstitutional and that it could be reinstated if statutory changes were made to obviate Eighth Amendment concerns.
In recent decades, lethal injection has been the preferred method of execution in most states. Possibly this is so because it is less gruesome to the onlookers than are electrocution, hanging, gas chamber, and firing squad. Also, there is the belief, whether justified or not, that the prisoner suffers much less from the drug cocktail than from high voltage, a noose, poison gas, or a barrage of bullets. In Baze v. Rees(2008), the Supreme Court ruled that administration of the standard three-part drug cocktail of sodium thiopental, pancronium bromide, and potassium chloride was constitutional. Chief Justice Roberts stated that Kentucky’s lethal injection protocol did not violate the Eighth Amendment because there was no “substantial” or “objectively intolerable” risk of severe harm. Moreover, the state had no obligation to consider an alternative method of execution suggested by the prisoner unless that method could be easily implemented and it substantially reduced the risk of severe pain.
In reaction to the Supreme Court’s ruling in Baze, pharmaceutical companies refused to supply state penal authorities with sodium thiopental. Wardens around the country were forced to use alternative ingredients of dubious effectiveness in their lethal injection cocktails. The state of Oklahoma substituted midazolam, with occasionally disastrous results. The matter returned to the Supreme Court in Glossip v. Gross (2015). Writing for the Court, Justice Alito noted: “Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, it necessarily follows that there must be a constitutional means of carrying it out. And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”
Some might argue that the Supreme Court’s arguably relaxed attitude toward death penalty protocols runs afoul of the Talmud’s extension of “love thy neighbor” to include protections for inmates on death row. Yet it seems to me that the Court’s rulings are largely consistent with Talmudic law. Citing the double expression מות יומת, the Midrash Halakhah teaches that if the court is unable to execute an offender in the manner appropriate for his particular offense – possibly because of physical resistance by the prisoner – then the prisoner can be slain by any means, not excluding even more severe methods of execution (Mekhilta and Baba Metzia 31a).
One critical distinction must be drawn, however, when comparing modern American death penalty jurisprudence with the sages’ exegesis of “love thy neighbor” as it relates to capital offenders: Whereas Supreme Court Justices deal only with justiciable cases affecting the lives of actual people awaiting execution, the sages dealt in abstractions only. By the Tannaitic and Amoraic periods, Jewish courts had long since ceased hearing capital cases. That was true, in large measure, because as an ethno-religious minority lacking sovereignty, the Jews were barred by their Roman overlords from hearing such cases. But even beyond that political consideration, most of the members of the rabbinic class looked askance at capital punishment and were quite content to legislate it nearly out of existence (Mishnah Makkot 1:10). In that Judaic spirit, the Modern State of Israel, whose 71st birthday we celebrate today, has limited the imposition of capital punishment to those convicted of crimes against humanity or of crimes against the Jewish People. We pray for a world in which there are no such persons.