Sunday, October 24, 2010

Distinctions in Death Penalty Sentencing in Sanhedrin 67


 
Tractate Sanhedrin, folio 67a-b of the Babylonian Talmud contains a discussion of the proper death penalty for a person who is found guilty of inciting others to idolatry and for a sorcerer.

Before going further into this discussion, some background on the death penalty is required.

In ancient Israel, stoning was the customary mode of execution. According to Josef Blinzler, “stoning became the regular mode of execution because the participation of the community was more possible than with any other form of execution.” Blinzler adds that the Old Testament “very often explicitly call[s] for… those who carry out the punishment [to] appear as ‘the whole community.’” It was necessary to involve the community in an execution because the whole community was thought to be responsible to God for the crime committed by the person being executed.

Blinzler, quoting I. Benzinger and Kurt Latte, says, “‘The whole community participates in the stoning as a way of riddling itself with guilt.’ ‘By showing his horror at the deed through casting his stone and dissociating himself from the perpetrator, each individual hoped to escape the vengeance of the gods who could visit unexpiated sins on the whole community.’” Blinzler also points out that it may be that the crime was perceived as directed at all the people, and not only at Yahweh, and therefore must be punished by as many people as possible, in order to “bring home to each individual in a particularly impressive and vivid way the reprehensibility of certain failings.”

According to Rabbi Richard A. Block, there is also “support for the notion that capital punishment was preventative. Since capital punishment was held to expiate the crime, it was also said to be in the interest of both society and the defendant.”

Considering that, according to Scripture, several explicitly mentioned types of incest, homosexuality, bestiality, blasphemy, several types of idolatry, profaning the Sabbath, cursing one’s father or mother, beguiling others to idolatry, sorcery, and being stubborn and rebellious are all deemed punishable by death, it would seem that the death penalty would be administered too frequently to be considered fair.

However, although the rabbis disagree on whether the death penalty should ever be imposed, “the anonymous mishnah, which presents the authoritative position, holds that the death penalty should be imposed infrequently, not never.”

David Novak describes the practice of hatra’ah, or ‘forewarning,’ which consists of the witnesses informing the criminal that he is about to commit a crime proscribed by the Torah, its punishment, the status of the victim, and the criminal telling the witnesses that he is going to commit the crime anyway. This was done to ensure that the criminal was compos mentis. It effectively made capital punishment very rare, as hatra’ah alerted the criminal to the presence of witnesses, and made it unlikely that the criminal would proceed with the crime.

Josef Blinzler explains why, according to Scripture, stoning has to be carried out outside the camp or the city. He quotes Rudolf Herzel in doing so: “[Taking the guilty party outside the house for the stoning] only became natural when, in accordance with the original intention of stoning, there was a desire to give the accused and condemned man the possibility of fleeing.” This explanation is one of several cited by Blinzler, including that people and property may be hurt if the stoning were to take place in the home, and so “the city should not be polluted by the corpse of the executed person.”

There are more specific accounts of execution in Scripture, but it is debatable whether these accounts were written as regulations concerning how the executions should take place or instead as descriptions of how the executions normally take place.

Chapter 6 of Sanhedrin gives an account of execution by stoning in which several steps are taken in a certain order, and each step is only necessary if the previous step does not cause the death of the accused person. The witness throws the accused to the ground, then witness by witness drops a stone on his heart. If this does not cause his death, he is stoned by all the people, after they all place their hands on him.

Chapter 7 of Sanhedrin gives accounts of execution by burning, beheading, and strangulation. To begin either, the people set the convicted “in dung up to his knees,” and then they put “a towel of coarse stuff within a towel of soft stuff,” and wrap it around his neck. They then pull on the ends of the towel.

R. Judah says, “If thus he died at their hands they would not have fulfilled the ordinance of burning.” This means that, as with the procedure of stoning, the burning or beheading is only necessary if the convicted does not die from the strangulation. According to Rabbi Richard A. Block, “Of the four [methods of execution], strangulation was preferred by rabbis because it was the one that did least injury to the body.”

If burning is necessary, two witnesses pull the ends of the towels until he opens his mouth, and a wick, or a strip of lead, is kindled and thrown into his mouth, burning his entrails. According to R. Judah, if beheading is necessary, it is to be done by placing the convicted’s head on a block, and the beheading performed with an axe, as the Roman method of using a sword is “shameful.”

At the beginning of folio 67a-b, Mishnah declares that a person who is found guilty of inciting others to idolatry “is brought to Beth Din and stoned.” Gemara explains that the person is only stoned because he is a layman, and that if he is a prophet, he is strangled. According to the Rabbis, prophet or not, a person who leads people astray is to be stoned and not strangled. The next Mishnah quote says that a sorcerer is liable to death if he actually performs magic, but he is not liable to death if he merely creates illusions.

Next, Gemara goes much deeper into discussion of the death penalty as the phrase “thou shalt not suffer a witch (to live)” is put under much scrutiny.

R. Jose the Galilean says that this phrase’s similarity to “thou shalt not suffer anything that breatheth (to live)” means that the punishment for sorcery is “the sword,” meaning beheading.

If the purpose of the death penalty is to remove from society those who have committed the gravest offenses, why is it necessary that there be a preferred method of execution for different types of people and for different crimes?

Chapter 7 of the Babylonian Talmud tractate Sanhedrin, in listing the four types of capital punishment that could be inflicted by the court, reveals that there is a descending order of gravity for the methods of execution: burning, stoning, strangulation, beheading. This may be a reason for differentiating the methods and a basis for deciding when each method is appropriate.

R. Akiba likens the phrase “thou shalt not suffer a witch (to live)” to “there shall not a hand touch it, but he shall surely be stoned, or shot through, whether it be beast or man, (it shall not live),” so he believes this similarity calls for the convicted to be stoned or shot through.

So why is being “shot through” not viewed as a separate method of execution from being stoned, as different as are strangulation, beheading, and burning?

Josef Blinzler offers the explanation that the phrase “stoned or shot through” unites the two methods of death because, since the stones and arrows are both thrown, and the person “is shot” by both objects. He mentions specifically Exodus 19.13, in which “Going on the mountain was strictly forbidden to everyone. Anyone who transgressed the command could only be got at by throwing stones or shooting arrows at him…”

R. Jose the Galilean contends that R. Akiba’s analogy is false because he wrongfully compares “thou shalt not suffer (to live)” with “it shall not live,” when R. Jose has made an analogy between ‘Thou shalt not suffer (to live)’ written in two verses.”

Because R. Akiba draws an analogy between two verses referring to Israelites, he disagrees with R. Jose the Galilean’s analogy because he believes it compares Israelites to heathens, “in whose case only one death penalty is decreed.”

Does this mean that when a heathen is sentenced to death, it is always by stoning? According to Scripture, “if a heathen committed adultery with a betrothed maiden, he is stoned; with a fully married woman, he is strangled,” so the way a heathen is executed is therefore subject to debate and not restricted to stoning.

R. Judah says of Ben ‘Azzai’s argument, “Shall we, because of this proximity, exclude the former from the easier death implied by an unspecific death sentence changing it to stoning?”, and takes the position that “as the ob and yidde’oni were singled out so that other sorcerers may be assimilated to them,” because they were stoned, all sorcerers are stoned.

This reference to “an unspecific death sentence” makes it necessary to ask when the method of execution is specified. According to Josef Blinzler, when the Old Testament calls for execution for a crime without specifying the mode of execution, it is assumed that the convicted is to be stoned.

On the contrary, Walter Jacob says that, in accordance with new rules, “Strangulation was used for all crimes in which no other death penalty was specified; it was considered the most humane method of execution.”




Bibliography

1. Blinzler, Josef. “The Jewish Punishment of Stoning in the New Testament Period.” The Trial
of Jesus. Ed. Ernst Bammel. Naperville, Ill.: Alec R. Allenson Inc., 1970. 147-161.

2. Block, Rabbi Richard A. “Capital Punishment.” Crime and Punishment in Jewish Law: Essays
and Responsa. Ed. Walter Jacob and Moshe Zemer. New York / Oxford: Berghan Books, 1999. 64-73.

3. m. Sanhedrin 7

4. Novak, David. “Can Capital Punishment Ever Be Justified in the Jewish Tradition?” Religion
and the Death Penalty: A Call for Reckoning. Ed. Erick C. Owens, John D. Carlson, and Eric P. Elshtain. Grand Rapids, Michigan / Cambridge, U.K.: Wm. B. Eerdmans Publishing Co., 2004. 31-47.

5. m. Sanhedrin 6

6. b. Sanhedrin 67a-b

7. b. Sanhedrin 57b

8. Jacob, Walter. “Punishment: Its Method and Purpose.” Crime and Punishment in Jewish Law:

Essays and Responsa. Ed. Walter Jacob and Moshe Zemer. New York / Oxford: Berghan Books, 1999. 45-63.



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