Torah commentary: the death penalty

P A R A S H A T H A S H A V U A H Devarim 5760 Deuteronomy 1:1 - 3:22

The text of the parashah and haftarah is available online. Visit: http://learn.jtsa.edu/topics/parashah/5760/devarim.shtml

This week's commentary was written by Rabbi Joshua Heller, director of distance learning and educational technology at JTS.

Next week, Jews around the world will observe Tisha B'av, mourning the destruction of the First and Second Temples and commemorating many other tragedies of Jewish history. The literary centerpiece of the holiday is the book of Lamentations, Eikha, which mourns the destruction of the First Temple in Jerusalem and the exile of the Jewish people from its land. The book's refrain is the word "Eikha," asking the question "How could it be?"--"How could it be that the teeming city lay desolate, that God rejected God's people?" (Lam 1:1, 2:1, 4:1, 4:2)

Devarim, the Torah portion this week, contains a premonition of that sentiment of doom. Moses proclaims what would seem to be wonderful news, or at worst a mixed blessing: the Jewish people have grown so numerous that Moses no longer has the stamina to serve as its sole judge and dispense justice to the whole nation.

Rabbinic legend explains that with each legal case, the parties multiplied witnesses and arguments, and brought new evidence after the cases would have appeared to have been closed, so that the only way to hear them all was to appoint judges and leaders who could share the burden. Our reading of the situation, however, is transformed from one of administrative overload to one of religious pathos when Moses uses this the striking, tragic word, asking "Eikha-- How can I bear unaided the trouble of you, and the burden, and the bickering?" (Deuteronomy 1:12) Our musical tradition accentuates the negative connotation of the word, as that single verse is read in the same uniquely haunting melody reserved for the mournful book of Eikha. There is, as we will see, a special significance to the link between the "Eikha" of this parasha and the "Eikha" of Tisha B'av.

The word "Eikha" by its very meaning suggests the asking of a rhetorical question. The listeners and readers of the book were keenly aware of the devastation its author described, and he did not provide detailed answers to the question of "why." Even though certain national tragedies defy full explanation, those who heard his lamentation had previously heard many prophetic warnings about Israel's
misdeeds, whether ritual, moral, or political, which led it to destruction.

For the sake of later generations, the sages of the Talmud (B.T. Yoma 9b) felt it necessary to state the specific reasons why each destruction befell the Jewish people, and those reasons still resonate today. The reason for the destruction of the Second Temple was baseless hatred among sects within Judaism. The reasons for the destruction of the First Temple seem more distant: "Why was the First
Temple destroyed? Because of idolatry, sexual impropriety, and bloodshed ... the spilling of innocent blood." Worship of material things, and the desanctification of human physical relationships, are still with us. Unfortunately, our American society bears, as well, the stain of the spilling of innocent blood, in the execution of those who may not have received their proper day in court.

One need only open a newspaper or watch televised news to read with regularity about those who are freed from death row or long prison terms, because new evidence comes to light, or alternatively, cases where evidence which might prove innocence is not considered because incompetent counsel did not present at the time of an initial trial. Most people convicted of crimes are guilty, and I have no illusions about the fact that lately, some with cynical motives have adopted a vocal stance on this issue primarily because it advances a particular political agenda. Nonetheless, the fundamental question of justice involved transcends any current political battle. Indeed, it is this very question which caused Moses to initiate the word "Eikha."

Moses, in this week's Torah portion, recounts that he faced the possibility of an overloaded judicial system in which not every plea could be heard and considered, in which one side might bear an unfair advantage, where a party might return the next day with new evidence, which he would be unable to hear. Moses described it using the rhetorical terminology of Eikha, which for us is loaded with all the poignancy of a civilization in ruins, and he responded to his question of "Eikha?"--"Where is justice?" by creating a system of judges, and giving them guidelines to ensure that all parties were represented appropriately and treated fairly, no matter what their social position. It is as if Moses recognized that indeed, innocent blood spilled by the courts is the first sign of a society headed towards the destruction of "Eikha."

Those who take the Jewish tradition as their ethical compass may have honest disagreements over the moral and social appropriateness of capital punishment in our modern society. Rabbinic law never struck it from the books completely, only setting such strict guidelines that it would in practice be quite difficult to impose in all but a few of the most clear-cut cases. Our sages recognized the need for the strict rule of law, but they furthermore recognized that any human court is fallible, so they declared that even as the condemned is led to the place of his execution:

"If someone at the court says, 'I can argue in his defense' flags are waved and the horseman rides out to stop them. Even if he himself says 'I can argue in my defense,' they return him to the courts, as many times as are necessary, as long as there is any substance to his claim." (M. Sanhedrin 6:1).

American law is not Jewish law, nor is it the place of the Jewish community to attempt to impose the rabbinic rules of evidence and argumentation onto secular society. We are, however, bound to learn and to teach the lessons of our tradition, and our history, and we have learned that a society which ignores evidence of innocence before applying punishment cannot be a just society. One of the most powerful lessons of the Torah, and of Tisha B'av, is that any society which forsakes real justice for the sake of administrative expediency or political maneuvering will find itself asking the plaintive question: "Eikha."

May this be the last year we must ask that question. Shabbat Shalom.

Rabbi Joshua Heller