Daf Ditty Yevamot 7: Shabbat ‫ מצוה מת‬and Misas Bei Din

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The Gemara rejects this argument as well. Rav Shimi bar Ashi said: This tanna does not raise
the possibility that a court-administered death penalty might override Shabbat because a positive
mitzva comes and overrides a prohibition. Rather, he entertains this option because he learns
this by means of an a fortiori inference, and this is what he is saying: How do I establish the
verse:
,‫ ִכּי ֹקֶדשׁ ִהוא‬,‫ַהַשָּׁבּת‬-‫ ֶאת‬,‫יד וְּשַׁמ ְרֶתּם‬ 14 Ye shall keep the sabbath therefore, for it is holy unto
‫ָהֹעֶשׂה‬-‫ִכּי ָכּל‬--‫ מוֹת יוָּמת‬,‫ָלֶכם; ְמַחְלֶליָה‬ you; everyone that profaneth it shall surely be put to death;
‫ ְו ִנְכ ְרָתה ַהֶנֶּפשׁ ַהִהוא ִמֶקֶּרב‬,‫ָבהּ ְמָלאָכה‬ for whosoever doeth any work therein, that soul shall be
.‫ַﬠֶמּיָה‬ cut off from among his people.
Ex 31:14

“Everyone who profanes it shall surely be put to death” ?

This applies to other prohibited labors, except for court-imposed capital punishment.
However, it could be said that court-imposed capital punishment overrides Shabbat, by an a
fortiori inference:

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3
If the Temple service, which includes the sacrifice of offerings, is so severe that it overrides
Shabbat, as offerings were brought on Shabbat, and yet the halakha of murder overrides it, i.e.,
the obligation to execute a sentenced convict overrides the Temple service, as it is stated with
regard to one sentenced to death:

‫ ְלָה ְרגוֹ‬,‫ֵרֵﬠהוּ‬-‫ָיִזד ִאישׁ ַﬠל‬-‫ יד ְוִכי‬14 And if a man come presumptuously upon his neighbour, to
‫ִתָּקֶּחנּוּ‬ ,‫ִמְזְבִּחי‬ ‫ֵמִﬠם‬--‫ ְבָﬠ ְרָמה‬slay him with guile; thou shalt take him from Mine altar, that
{‫ }ס‬.‫ָלמוּת‬ he may die. {S}
Ex 21:14

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 “You shall take him from My altar, that he may die” then in the case of Shabbat, which is
overridden by the Temple service, is it not right that the halakhot of murder should likewise
override it?

§ The Gemara analyzes a puzzling statement in the above baraita. And what is the meaning of
the claim: Or perhaps it is only the case that capital punishments may be administered even on
Shabbat, which the tanna stated in an unexplained reversion to his previous suggestion? The
Gemara explains that this is what he is saying: The a fortiori reasoning can be refuted, as the
obligation to bury a corpse with no one available to bury it [met mitzva] can prove otherwise,
as the obligation to bury a met mitzva overrides the Temple service, and yet it does not override
Shabbat. The tanna then retracted his statement and said that one can claim that the burial of a
met mitzva overrides Shabbat by means of the same a fortiori inference: If the Temple service
overrides Shabbat, and the burial of a met mitzva overrides it.

The Gemara pauses in the middle of the a fortiori inference to explain this last point. This is
derived from the superfluous phrase “or for his sister” in the verse:

--‫ ְלָאִחיו וְּלַאֹחתוֹ‬,‫ז ְלָאִביו וְּלִאמּוֹ‬ 7 He shall not make himself unclean for his father, or for his
‫ ִכּי ֵנֶזר‬:‫ ְבֹּמָתם‬,‫ ִיַטָּמּא ָלֶהם‬-‫ל ֹא‬ mother, for his brother, or for his sister, when they die; because
.‫ר ֹאשׁוֹ‬-‫ ַﬠל‬,‫ָהיו‬y‫ֱא‬ his consecration unto God is upon his head.
Num 6:7

“He shall not make himself ritually impure for his father, or for his mother, for his brother, or for
his sister, when they die”, which is referring to a nazirite. This verse teaches that even a nazirite
on his way to sacrifice the Paschal lamb must render himself ritually impure to bury a met mitzva.
The Gemara resumes the a fortiori inference: If so, as Shabbat is overridden by the Temple
service, is it not right that the burial of a met mitzva should override it? Therefore, the verse
states:

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 ,‫ ְבֹּכל ֹמְשֹׁבֵתיֶכם‬,‫ְתַבֲﬠרוּ ֵאשׁ‬-‫ג ל ֹא‬ 3 Ye shall kindle no fire throughout your habitations
{‫ }פ‬.‫שָּׁבּת‬ ַ ‫ ַה‬,‫ְבּיוֹם‬ upon the sabbath day.'
Ex 35:3

“You shall kindle no fire throughout your habitations on Shabbat day”

This concludes Rav Shimi bar Ashi’s interpretation of the baraita, that the tanna suggested that a
court-administered death penalty might override Shabbat not because of the principle that a
positive mitzva overrides a prohibition, but due to a potential a fortiori inference. The Gemara
asks: And according to that which entered his mind at the outset, that the assumption of the
tanna was indeed based on the principle that a positive mitzva comes and overrides a
prohibition, what is the meaning of the clause: Or perhaps it is only the case that capital
punishments may be administered even on Shabbat, that the tanna said? How should the baraita
be explained according to the initial interpretation?

The Gemara explains that this is what the tanna is saying: It would have been possible to say the
following: How do I establish the verse:

,‫ ִכּי ֹקֶדשׁ ִהוא‬,‫ַהַשָּׁבּת‬-‫ ֶאת‬,‫יד וְּשַׁמ ְרֶתּם‬ 14 Ye shall keep the sabbath therefore, for it is holy unto
‫ָהֹעֶשׂה‬-‫ִכּי ָכּל‬--‫ מוֹת יוָּמת‬,‫ָלֶכם; ְמַחְלֶליָה‬ you; everyone that profaneth it shall surely be put to death;
‫ ְו ִנְכ ְרָתה ַהֶנֶּפשׁ ַהִהוא ִמֶקֶּרב‬,‫ָבהּ ְמָלאָכה‬ for whosoever doeth any work therein, that soul shall be
.‫ַﬠֶמּיָה‬ cut off from among his people.

Ex 31:14

“Everyone who profanes it shall surely be put to death” . This applies to other prohibited labors,
except for court-imposed capital punishment. However, court-imposed capital punishment
overrides Shabbat, as a positive mitzva comes and overrides a prohibition.

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Summary

Rav Avrohom Adler writes:1

Rav Simi bar Ashi said: The Tanna who used the verse to teach us that Beis Din may not perform
an execution on Shabbos did not need the verse because otherwise we would have thought that a
positive commandment overrides a prohibition even though it involves kares. Rather, the verse
was necessary, for otherwise we would have derived that Beis Din can execute a capital offender
on Shabbos through the means of the following kal vachomer: Avodah (service in the Beis
Hamikdosh) overrides Shabbos (the kohanim may perform the service on Shabbos), nevertheless,
execution overrides avodah (a kohen, who has committed murder and was sentenced to death, Beis
Din sends agents to bring him to be executed even if he wishes to perform the avodah); Shabbos,
which is overridden by the avodah, shouldn’t an execution certainly override it (Beis Din should
be permitted to perform an execution on Shabbos). This is why the verse “in any of your dwellings”
was necessary; teaching us the halacha that Beis Din may not perform the execution.

The Gemora concludes that there is no source to teach us that the positive commandment of yibum
will override the kares prohibition of taking his wife’s sister; nevertheless the verse aleha is
required to teach us that he may not. The Gemora explains: (One of the thirteen principles of
Biblical exegesis is as follows: Something that was included in the general rule, and departed from
that rule to teach something new, did not depart to teach only about itself, but rather to teach about
the entire general rule.) The Gemora cites an example where this principle is applied. It is written
[Vayikra 17:20]: A person who eats flesh from the shelamim offering while his tumah is upon him,
that soul shall be cut off from its people. Shelamim did not have to be mentioned separately, since
they are included in the general rule of sacred offerings; why then are they mentioned separately?
It is to teach us that only sacrifices brought to the altar are included in this rule, however animals
dedicated to the Temple upkeep are excluded, and they are not subject to the kares penalty if eaten
in a state of tumah.

The Gemora now explains how this principle is relevant to yibum. The prohibition of taking a
brother’s wife was included in the general prohibition of all arayos (forbidden relations), and it
was singled out in regard to yibum. This teaches us that just as this prohibition is permitted for the
sake of yibum, so too all other arayos will be permitted for the sake of yibum. The Gemora objects
to this comparison between the two cases: By the halachos of tumah, both the general rule (all
sacrifices) and the one singled out (shelamim) are dealing with prohibitions; whereas here by
yibum, the general rule (all arayos) is dealing with the prohibition and the one which is singled out
(brother’s wife) is permitted.

The Gemora states that this (the permissibility of yibum to a brother’s wife) is compared to a
different principle. (One of the thirteen principles of Biblical exegesis is as follows: Something
that was included in the general rule and departed to be treated as a new case; you cannot return it
to its general rule unless the Torah returns it explicitly.)

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http://dafnotes.com/wp-content/uploads/2015/08/Yevamos_7.pdf

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The Gemora cites an example where this principle is applied. It is written regarding a metzora
[Vayikra 14:13]: He shall slaughter the (asham) lamb in the place where one slaughters the chatas
and the olah, in a holy place. For the asham is like the chatas, for the kohen. What is this verse
coming to teach us? Was it not already stated regarding the law of the asham that it was required
to be slaughtered in the north?

The Gemora answers: Since this asham departed from other asham’s insofar as it requires the
placing of its blood on the right thumb and big toe of the metzora, one might think that it should
not require blood applications or the burning of its sacrificial parts on the altar. The Torah,
therefore, says: For the asham is like the chatas, teaching us that just like a chatas requires blood
applications and the burning of its sacrificial parts on the altar, so too, the metzora’s asham requires
blood applications and the burning of its sacrificial parts on the altar.

The Gemora concludes: Here also, by yibum, all arayos were prohibited and a brother’s wife was
excluded from the general rule and became permitted for the sake of yibum; only a brother’s wife
should be permitted, but all other prohibitions should remain prohibited even in a case of yibum.
Accordingly, why did the Torah require a verse prohibiting yibum with one’s wife’s sister?

The Gemora offers another reason why the verse aleha is required to teach us that he may not
perform a yibum on his wife’s sister. Perhaps we would have made a comparison to a brother’s
wife. Just like one can perform a yibum on his brother’s wife (even though, she should be
forbidden, if not for the mitzvah of yibum), so too, one can perform a yibum on his wife’s sister.

The Gemora asks: How can the two cases be compared? By a regular case of yibum, there is only
one prohibition, whereas here, there are two prohibitions? The Gemora answers: We might have
thought that once the prohibition of taking a brother’s wife has been lifted, so too, the prohibition
of taking his wife’s sister should also be lifted.

The Gemora asks: How do you know that this (when one prohibition is lifted, so too, another one
should also be lifted) is a valid principle? The Gemora answers: It was taught in a braisa: A metzora
whose eighth day (of purification) fell on Erev Pesach, but on that day had an emission of semen
(resulting in the fact that he now cannot enter the Temple Mount to complete his purification
process), and then immersed himself, the Chachamim said that although an ordinary tevul yom
(one who has immersed in a mikvah but still has tumah on him until nightfall) may not enter the
Temple Mount until nightfall, this one may enter in order to complete his purification process, thus
enabling him to bring his pesach offering. It is preferable for a positive commandment that involves
kares (pesach obligation) to override a positive commandment that does not involve kares (entering
the Temple Mount while being a tevul yom).

Rabbi Yochanan maintains that it is only Rabbinically forbidden for a tevul yom to enter the
Temple Mount. Ula said: Why do we allow this tevul yom to enter? He answers: Since we would
allow an ordinary metzora to enter the Temple Mount in order to complete his purification process,
we allow a metzora who has had an emission of semen to enter as well. This is used as support for
our logic regarding yibum. We might have thought that once the prohibition of taking a brother’s
wife has been lifted, so too, the prohibition of taking his wife’s sister should also be lifted. This is
why the verse aleha is needed to teach us that one cannot perform a yibum with his wife’s sister. (

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 IS IT PREFERABLE TO VIOLATE A TOLDAH RATHER THAN AN AV (FOR ONE
WHO IS DEATHLY ILL)?

The Tchebeiner Gaon (Dovev Meisharim, 3:82) inquires as to what the halacha would be in the
following case. We are permitted to desecrate Shabbos for one who is deathly ill. Is it preferable -
to perform a labor which is only a toldah, a derivative of the av melocha, the primary categories
of labor forbidden to do on Shabbos; or perhaps, there is no halachic difference since both are
Biblically forbidden?

He ruled on this issue and cited support from our Gemora. It was taught in a braisa: A metzora
whose eighth day (of purification) fell on Erev Pesach, but on that day had an emission of semen
(resulting in the fact that he now cannot enter the Temple Mount to complete his purification
process), and then immersed himself, the Chachamim said that although an ordinary tevul yom
(one who has immersed in a mikvah but still has tumah on him until nightfall) may not enter the
Temple Mount until nightfall, this one may enter in order to complete his purification process, thus
enabling him to bring his pesach offering. It is preferable for a positive commandment that involves
kares (pesach obligation) to override a positive commandment that does not involve kares (entering
the Temple Mount while being a tevul yom).

Rabbi Yochanan maintains that it is only Rabbinically forbidden for a tevul yom to enter the
Temple Mount. Ula said: Why do we allow this tevul yom to enter? He answers: Since we would
allow an ordinary metzora to enter the Temple Mount in order to complete his purification process,
we allow a metzora who has had an emission of semen to enter as well. Tosfos asks: Ula maintains
that a partial entry into an area which is forbidden to enter is regarded as a full entry. If so, why do
we limit this metzora, who is a tevul yom to insert his right ear, thumb, and big toe into the Temple
Courtyard, let him be permitted to enter entirely?

What would be the distinction? Tosfos answers: Entering completely into the Courtyard is
regarded as being more severe than a partial entry. The Torah forbids a tevul yom from entering
completely into the Courtyard explicitly, but a partial entry is only derived through the means of a
hekesh (a Midrashic juxtaposition). Although both prohibitions are Biblical, the one that is written
explicitly is stricter than the one which is merely derived from an exposition.

It emerges from here that a Biblical prohibition written explicitly is more stringent than one which
is only derived through an exposition. He therefore posits that it would be preferable to engage in
the labor which would only be violating a toldah rather than one which would constitute an av
melocha. This is because a toldah is not written explicitly in the Torah.

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Stolen Lulav

The Yerushalmi (Succah 11b) states that a stolen Lulav is invalid for use on Sukkos, and Levi
illustrates this by way of a Mashal to a man who served a meal to a king using the king’s own
food. The reaction to this is: “Woe to he whose defender has become his accuser”.

The Korban Edah explains that an attempt to garner merit thru the mitzvah of Arba Minim would
instead bring focus onto the sin of the theft. However, the Ramban comments on the word’s peri
eitz hadar that Adam HaRishon sinned with this fruit, and despite the argument that an accuser
cannot be a defender, once the fruit is combined with the other 3 Minim, it is acceptable. The
Gemara (Zevachim 88b) states that Bigdei Kehuna provide atonement. For example, a Kohen’s
Kesones (shirt) atones for murder.

The Kehilas Yaakov (1:19) cites his grandfather who derives from here that an accuser cannot be
a defender only applies to Avodah Zara and nothing else, as the verse states concerned dipping
Yosef’s shirt in goat’s blood, which is hardly an incident worth mentioning when seeking
atonement for murder, yet it works.

However, the Kehilas Yaakov notes the Gemara (Yevamos 7a) which states that a Kohen who
killed someone may not duchen, because an accuser cannot be a defender. Clearly, it applies to
bloodshed as well as Avodah Zarah! We also find other applications of this rule, such as the Be’er
Mayim Chaim’s opinion that Kayin did not perform Yibum with the widow of his brother Hevel,
because he himself had killed Hevel.

The Bikurei Shlomo (25:110) suggests that the rule of an accuser cannot be a defender may apply
exclusively to Avodah Zarah only where the underlying sin was done by earlier generations, or
ancestors. For this reason we still observe restrictions on gold during Yom Kippur, based on the
Avodah Zarah of the Egel HaZahav, many years ago, unlike the Kaparah of the Kesones, which
can still be effectuated, as it was not based on Avodah Zarah.

However, where a restriction is based on something which one did oneself, such as a Kohen who
killed, then the rule will apply in all areas as well. As such, it would not apply to peri eitz hadar
which was a nonAvodah Zarah act of Adam, but it would apply to a Lulav that one stole himself.

HOW THE "ASEH" OF YIBUM OVERRIDES THE "LO

TA'ASEH" OF "ESHES ACH"

Rav Mordechai Kornfeld writes:

The Gemara earlier (3b) teaches that the source for the rule that the Mitzvah of Yibum does not
override the prohibition of Arayos (other than that of "Eshes Ach") is the verse, "Aleha" (Vayikra
18:18). The Gemara there asks why a verse is needed to teach this; why would one have thought
that the Mitzvah of Yibum overrides the prohibition of Arayos?

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The Gemara commences a lengthy attempt to find a source that, in general, an Aseh overrides a
Lo Ta'aseh that has Kares, and thus the verse of "Aleha" is needed to teach that the Aseh of Yibum
does not override the Lo Ta'aseh of Arayos (which are punishable with Kares).

The Gemara concludes that an Aseh does not override a Lo Ta'aseh that has Kares. Consequently,
the Gemara searches for a reason for why one would have thought that the Mitzvah of Yibum
should override the Lo Ta'aseh of Arayos such that a verse is needed to teach that it does not
override the Lo Ta'aseh of Arayos.

Why does the Gemara not learn from the case of Yibum that an Aseh does override a Lo Ta'aseh
that has Kares? The Torah states that one is permitted to marry his brother's wife in order to fulfill
the Mitzvah of Yibum, even though marrying one's brother's wife ("Eshes Ach") is punishable
with Kares. The Gemara should learn from there that an Aseh does override a Lo Ta'aseh that has
Kares! Consequently, another verse ("Aleha") is needed to teach that in the case of Yibum with
any other Ervah, the Aseh does not override the Lo Ta'aseh that has Kares. Why does the Gemara
not give this answer?

TOSFOS (4a, DH Lo Ta'aseh) explains that nothing can be derived from the verse which teaches
that the prohibition of "Eshes Ach" is pushed aside for the Mitzvah of Yibum. Nothing can be
learned from there because the Mitzvah of Yibum can never be performed, under any
circumstances, without overriding the prohibition of "Eshes Ach." (This is called "Mitzvaso
b'Kach" -- the Mitzvas Aseh can be performed only by overriding a Lo Ta'aseh.) The Gemara
cannot derive from this case that in all other situations in which an Aseh conflicts with a Lo Ta'aseh
that has Kares that the Aseh overrides the Lo Ta'aseh, because in all other cases there are
circumstances in which the Aseh can be done without overriding the Lo Ta'aseh.

RAV ELCHANAN WASSERMAN Hy'd (in KOVETZ HE'OROS 9:1) explains that Tosfos
means to say that this is a Pircha to the suggestion that the law of "Aseh Docheh Lo Ta'aseh
she'Yesh Bo Kares" be learned from Yibum through a Binyan Av. That is, Yibum differs from all
other cases of an Aseh which conflicts with a Lo Ta'aseh that has Kares, because in the case of
Yibum the Mitzvah can never be done without overriding the Lo Ta'aseh. An example of such a
Pircha is found in Menachos (5b).

The YAD RAMAH (Sanhedrin 53b) suggests a different approach. Since Yibum can be done only
with an "Eshes Ach," it is clear that the Torah never prohibited "Eshes Ach" in the first place in a
situation of Yibum. (That is, the prohibition of "Eshes Ach" is "Hutrah" and not "Dechuyah.") This
is different from all other cases in which an Aseh overrides a Lo Ta'aseh, in which the Lo Ta'aseh
remains in force, but the Aseh is deemed more important and pushes it aside. In the case of Yibum,
there is no Lo Ta'aseh of "Eshes Ach" whatsoever. This is why the Gemara cannot derive from the
Mitzvah of Yibum that -- in all other cases -- an Aseh overrides a Lo Ta'aseh that has Kares.
That the prohibition of "Eshes Ach" is not present at all ("Hutrah") in a situation of Yibum is clear
from a number of laws of Yibum.

For example, the law is that when the surviving brother has lived with the Yevamah once and
thereby fulfilled the Mitzvah of Yibum, he is permitted to remain intimate with her ("Bi'ah

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Sheniyah"), despite the fact that she was once married to his brother ("Eshes Ach"). Clearly, the
prohibition of "Eshes Ach" is entirely rescinded in a situation of Yibum. In contrast, the Gemara
(20b) says that in a case in which the Yevamah is prohibited to the Yavam by a Lo Ta'aseh,
although the Mitzvah of Yibum overrides the Lo Ta'aseh the Yavam must divorce her immediately
after the act and he is not permitted to be with her again.

Similarly, the law is that if a Yavam divorces the Yevamah after he performs Yibum with her, he
is permitted to remarry her (as long as no other man has married her in the interim). If the Mitzvah
of Yibum merely suspends, temporarily, the prohibition of "Eshes Ach," then why is he permitted
to remarry her? The prohibition of "Eshes Ach" is present, and no Mitzvah is fulfilled by
remarrying her. The Yad Ramah explains that the Torah does not prohibit an "Eshes Ach" at all in
a situation of Yibum, and therefore she is completely permitted to him even after the Mitzvah has
been fulfilled.

(The Gemara itself demonstrates this difference between a prohibition which is suspended only
temporarily, "Dechuyah," and a prohibition which is absolutely annulled, "Hutrah." The Gemara
(7b) says, "Ho'il v'Ishteri, Ishteri" -- once the prohibition has become permitted, it becomes
permitted absolutely so that other prohibitions related to it also become permitted.)

The RAMBAN (in TORAS HA'ADAM, cited by the Kovetz He'oros ibid.), the RASHBA in
Kidushin (21b), the RITVA here, and the RA'AVAD in Tamid (end of 27a) also follow this
approach. They write with regard to Yibum and other Mitzvos that the annulment of a prohibition
which is "Hutrah" is permanent, while the annulment of a prohibition which is "Dechuyah" is only
temporary.

The Yad Ramah's understanding seems more logical that Tosfos'. Why does Tosfos consider
Yibum a case of an Aseh that overrides a Lo Ta'aseh? If Yibum is permitted only because the
Mitzvas Aseh overrides the prohibition of "Eshes Ach," why is the brother permitted to stay
married to his deceased brother's wife? Once he has lived with her for the first time, he has fulfilled
the Mitzvah of Yibum and there no longer is a Mitzvas Aseh to override the Lo Ta'aseh of "Eshes
Ach." He should be required to divorce her, as the Gemara says later (20b)! Moreover, according
to Tosfos, why is he permitted to remarry her once he divorces her? The prohibition of "Eshes
Ach" should prohibit him from remarrying her, since he will not fulfill any Mitzvah by doing so.
(See KEREN ORAH to 3b.)

Apparently, Tosfos understands that it is unacceptable to suggest that the prohibition of "Eshes
Ach" is "Hutrah" and does not apply at all to a Yevamah. It is clear from the Gemara that the
prohibition does remain, and it is suspended only at the moment the Yavam performs the Mitzvah
of Yibum. This is clear from the Gemara later (10b) in which Reish Lakish states that after one of
the brothers marries one of the wives of the deceased brother, the other brothers of the Yavam
remain prohibited to the other wives of the deceased with an Isur Kares, since the Torah never
removed the prohibition of "Eshes Ach" from them.

The opinion of Aba Shaul later in Yevamos (39b) provides further support for the view of Tosfos.
Aba Shaul maintains that one who performs the Mitzvah of Yibum with ulterior motives "is
considered as though he lives with an Ervah." If the Torah permits this woman to the Yavam and

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entirely annuls the prohibition of "Eshes Ach," why should the Yavam's motives affect the
allowance to marry her? She is not an Ervah at all!

For these reasons, Tosfos understands that Yibum is a case of "Aseh Docheh Lo Ta'aseh." The
reason why "Bi'ah Sheniyah" is permitted (and the Yavam is not required to divorce her
immediately after the first act), and the reason why he may remarry the Yevamah after he divorces
her, is because the Torah extends the allowance to marry the Yevamah after the initial suspension
of the prohibition through the Mitzvah of Yibum (see 8b, and TOSFOS DH Melamed). While the
initial act is one of "Dechiyah," afterwards the Torah removes the prohibition of "Eshes Ach"
entirely so that the Yavam may raise a family with his brother's wife.

The other Rishonim apparently disagree and maintain that the prohibition of "Eshes Ach" indeed
is removed from all of the other brothers at the moment their brother dies and Zikah begins.

Steinzaltz (OBM) writes:2

We have seen that the Gemara has been discussing at some length the classic rule of aseh dokheh
lo ta’aseh – that performance of a positive commandment can push aside a negative commandment
– of which the mitzvah of yibum (levirate marriage) is an example. One of the issues that comes
under investigation is whether we treat all prohibitions as being the same, or, perhaps, we
differentiate between ordinary prohibitions (those whose punishment is malkot – 39 lashes) and
those whose punishment is more severe (i.e. death penalties like karet or mitat bet din). The
Gemara concludes that the rule of aseh dokheh lo ta’aseh applies only to ordinary prohibitions and
not to more severe prohibitions.

In the course of the discussion it becomes clear that the Gemara perceives the rule of aseh dokheh
lo ta’aseh as being a hidush – a new or unexpected idea – since transgressing negative
commandments is seen as being more severe than transgressing positive commandments.

Rashi explains this assumption by pointing to the punishments meted out for each transgression.
Whereas a person who performs a forbidden act will receive punishment (most often, malkot),
someone who misses out on the opportunity to perform a positive commandment is not punished
at all.

A question raised in response to this argument is that we find, on occasion, forbidden acts that are
so severe that the transgressor does not receive malkot because it is not enough of a punishment to
offer atonement for such an act. Some point to the levels of atonement (hilukei kaparah) that are
needed for different types of transgressions as the source for this idea. The Rambam (see Hilkhot
Teshuva 1:4) teaches that someone who transgressed a positive commandment and repents is
forgiven immediately, whereas transgressing a negative commandment demands not only
repentance but also the power of Yom Kippur for atonement.

2
https://www.ou.org/life/torah/masechet_yevamot_27/

13
The Arukh la-Ner suggests that we distinguish between positive and negative commandments not
because of the punishment, but rather as a result of the severity of the action. Someone who misses
fulfilling a positive commandment has not actually performed a negative act, while someone who
has transgressed a negative commandment has done something significant.

The Gemara in Sanhedrin (36a) states, as a matter of fact, that it is prohibited for the court to carry
out capital punishment on Yom Tov.3

Rashi explains that this is evident because we know that there is no difference between the laws
of Shabbos and those of Yom Tov, other than that it is permissible to prepare food on Yom Tov.
In reference to Yom Tov, the verse states, “all labors shall not be done,” and this should therefore
include this function of Beis Din. Tosafos asks a powerful question based
upon our Gemara.

Had it not been for a verse to teach us otherwise, we would think that Beis din is allowed to execute
a criminal on Shabbos. The reasoning is clear that execution can even defer the service of the
offerings in the Beis Hamikdash, and the service itself is stronger than Shabbos, in that the laws
of Shabbos are deferred when the service is necessary. This results our concluding that the function
of Beis din is primary, and it would be permitted, had it not been for the verse of ‫תבערו לא‬, which
is written about Shabbos.

Accordingly, there is no such verse in reference to Yom Tov, and the halacha should therefore
allow Beis’s din to carry out an execution on Yom Yov, unlike Shabbos where we have a verse to
prohibit it. Tosafos answers that once we have a verse in reference to Shabbos, the logical approach
in dealing with Yom Tov becomes interrupted.

After we would conclude that Beis din can execute a criminal on Yom Tov, we would introduce
the law of Shabbos, and say that Shabbos is a ‫ פירכא‬,
where we find that the service can be done, but ‫ רציחה‬by Beis’s din is prohibited.

Aruch Laner answers that the Mishnah which Rashi quotes is the solution. The Torah associates
Shabbos and Yom Tov completely, with the exception of food preparations only. This means that
in all other areas, the laws are the same. Once we know, albeit based upon a special verse, that
Beis din may not execute a person on Shabbos, we automatically conclude that this is also
prohibited on Yom Tov, as well.

3
https://www.dafdigest.org/masechtos/Yevamos%20007.pdf

14
And Ulla said: What is the reason this is permitted? Since we allow the metzora to enter the
Courtyard despite his taraas we also allow him to enter despite his seminal emission.

Rema1 mentions different customs concerning the issue of whether women who are menstruating
enter shul and daven. He adds, however, that even according to the strict position it is permitted
for women who are menstruating to enter shul on Rosh Hashanah and Yom Kippur.

Rav Avrohom Avli Gombiner (2), the Magen Avrohom, adds that since they are permitted to enter
shul they are also permitted to daven. The rationale for this ruling is based on Ulla’s statement in
our Gemara, namely, once we override one prohibition we can override others as well.

Rav Moshe Sofer (3), the Chasam Sofer challenges the parallel. The case of the Gemara involves
two different prohibitions; both a metzora and one who experienced a seminal emission are
prohibited from entering the Courtyard, but there is only one act of entering into the Courtyard.
Consequently it is understood that since we override the restriction against entering the courtyard
for the metzora we override a second prohibition, one who experienced a seminal emission, with
the same act.

In the case of Magen Avrohom, on the other hand, entering the shul and davening are two different
activities. Our Gemara does not indicate that once one prohibited activity is permitted a second
activity will also be permitted.

Rav Yosef Chaim of Baghdad (4), the Ben Ish Chai, suggests an answer to Chasam Sofer’s
challenge. He writes that the same prohibition, the tumah of being a niddah, restricts a menstruating
woman from entering the shul and restricts her from davening.

Therefore, once that restriction is lifted, to allow her to attend shul on Rosh Hashanah and Yom
Kippur, she is also permitted to daven since she is davening in the same place at the same time she
is permitted to sit there.

Rav Ovadiah Yosef (5) cites an alternative resolution to Chasam Sofer’s challenge. The reason to
permit menstruating women into shul on Rosh Hashanah and Yom Kippur is that they would be
embarrassed and saddened if they were barred from entering shul when everyone else is there.
Along the same lines if they were restricted from davening when everyone else was davening there
would be the same concern, therefore, once they are permitted to enter shul they are permitted to
daven there as well.

15
On our daf we find that Shabbos is so stringent that even a ‫ מצוה מת‬does not override it. The
Chofetz Chaim, zt”l, was very emphatic about the importance of keeping Shabbos. He helped
many people who had difficulty with understanding the absolute inviolability of this mitzvah to be
able to put things into their true perspective.

Once, when the Chofetz Chaim was in Moscow to attend to yeshiva business, he heard about a
certain observant Jew who owned a factory that unfortunately did not close down until several
hours into Shabbos and which began work again the following day while it was still daylight.
When this wealthy factory owner came to greet him, the Chofetz Chaim related the following
parable: ”A certain non-Jewish peasant would sell the sacks of grain he had grown to a Jewish
wholesale merchant.

The way they kept track of how much grain had been brought in was to fill the scale over and over
again to its maximum capacity, as they marked a line on the wall to keep track of how many times
the scale had been filled. The scale held a total of sixteen kilograms, and when they multiplied this
number by the number of lines on the wall, they would determine the exact weight of the grain
being sold.

He continued, “One day, the peasant realized that if the Jew wanted to cheat him, all he would
need to do would be to erase some of the lines while he dragged in his sacks! So he insisted that
they change their method; the Jew would give the peasant a small coin to hold after each scale-
full. The Jew readily agreed. However, as the coins passed into the peasant’s hands, he foolishly
looked on it as an opportunity to pocket a little spare change at the Jew’s expense. Without
thinking, the peasant cheated himself out of the value of several scales-worth of grain!

The Chofetz Chaim concluded, ”Chazal tell us that in the merit of keeping Shabbos, Hashem
blesses our endeavors. When one steals an hour or two from his Shabbos observance in order to
make money, he is just like this foolish peasant. It’s like pocketing pennies and throwing away
thousands!”

16
Sara Ronis writes:4

The way the rabbis read the Torah can be exciting — and confusing. We might find ourselves
asking: How do they come to these unexpected readings? Do they have any rules at all for
interpretation?
If you find yourself thinking this very thing, you’re not alone. The rabbis of the Talmud themselves
had the same thought! That’s one reason why so many talmudic discussions revolve around
determining principles of biblical interpretation: which interpretations are allowed and which are
not — and why.

A few days ago, we discussed the principle of smuchim, or juxtaposition — and learned that two
adjacent verses that apparently have nothing to do with one another can be used to interpret each
other. Today’s daf discusses yet another method of interpretation: yotzeh min haklal, something
that stands out from a generalization. According to this principle, when a verse from the
Torah offers a statement about a general category of things, and then breaks out one example, the
specific example is meant to elucidate something about the general category.

Let’s look at an example of how this works. Leviticus 7:19–20 discusses the rules about who can
eat sacrificial meat, and in what state: “Flesh that touches anything impure shall not be eaten; it
shall be consumed in fire. As for other flesh, only one who is pure may eat such flesh. But the soul
that eats of the flesh of the sacrifice of peace-offerings that belong to the Lord, with his ritual
impurity upon him, that soul shall be cut off from his people.”

The first verse discusses the general category of all sacrificial meat, which should not be eaten if
it touches anything impure — nor should it be eaten by a person who is in a state of impurity. The
next verse is more specific, naming the meat of peace-offerings which, if eaten by someone in a
state of impurity, causes that person to be cut off.

But, of course, peace offerings are part of the general category of sacrifices — so what are we to
make of this general rule for sacrificial offerings followed by a sudden pivot to talking about a
singular kind of sacrifice?

Our daf explains:

And why were they (peace offerings) explicitly singled out? To draw an analogy between them
and to say to you: Just as peace-offerings are unique in that they are consecrated for the altar,
so too, (this halakhah that one who eats of them is liable to be cut off from his people) applies
to all food that is consecrated for the altar, to excludes that which are consecrated for the Temple
maintenance.

Breaking out this example allows the rabbis to see the Torah as distinguishing between food that
is dedicated to the altar as a sacrifice, and food that is dedicated to the Temple for maintenance
(which they could theoretically sell at the market and then use the proceeds for general Temple

4
Myjewishlearning.com

17
upkeep). Only eating the food dedicated to the altar while in a state of impurity makes one liable
for karet.

Of course, using this interpretive principle is a slippery slope. Does it mean that every time a
general case is followed by a specific example, that example teaches us something about the
general rule? After all, if so we might argue:

This case of a brother’s wife was included in the general category of all women with whom
relations are forbidden, and why was she singled out (in the case of yibbum)? To say to you:
Just as a childless brother’s wife is permitted, so too, all women with whom relations are
forbidden are likewise permitted.

If a brother’s wife, who is ordinarily forbidden, is made suddenly available for a sexual relationship
in the situation of yibbum, can we therefore assume yibbum will permit us to access other people
who are ordinarily forbidden to us? Can one, for example, marry their sister or daughter to perform
yibbum?

Absolutely not! The rabbis determine that the principle of yotzeh min haklal is not actually at play
here. Instead, this is an example of a different interpretive rule:

A matter that was included in a generalization but emerged to discuss a new matter.

In other words, sometimes a specific example is cited to teach us something true about all cases,
and sometimes it is just the opposite: to teach us something that does not apply to the general case.
In the case of yibbum — which suddenly makes a brother’s wife permitted whereas under ordinary
circumstances she would not be — there is no sudden license to transgress other forbidden sexual
relationships.

Today’s daf demonstrates that attempting to create rules for understanding how the rabbis derive
law doesn’t solve the problem of how complicated things are. In fact, when trying to impose
interpretive rules on the Torah, we end up with a new problem: knowing when each rule applies.
After all, if we get it wrong, we could accidentally marry our sibling!

Rabbi Johnny Solomon writes:5

In its pursuit of finding proof that a positive commandment (‫ )מצות עשה‬can override a negative
commandment (‫ )מצות לא תעשה‬carrying the punishment of karet (i.e. proof for the halachic
mechanics of the mitzvah of yibum), our daf (Yevamot 7a) invokes one of the thirteen principles
taught by R’ Yishmael that, ‫כל דבר שהיה בכלל ויצא מן הכלל ללמד לא ללמד על עצמו יצא אלא ללמד על הכלל‬
‫‘ – כלו יצא‬anything that was included in a general statement, but was then singled out from the
general statement in order to teach something, was not singled out to teach only about itself, but
rather to apply its teaching to the entire generality.’

5
www.rabbijohnnysolomon.com

18
For most of us, this rule is just a technical principle of Biblical exegesis. However, some years ago
I read a lovely story in R’ Pesach Krohn’s ‘In the Footsteps of the Maggid’ (pp. 255-256) offering
a very different and very powerful explanation of these words:

‘In the city of Ashdod stands a yeshiva elementary school for boys. It is housed in a beautiful
building which, in large part, was donated by a baal tzedakah (philanthropist) from Mexico R’
Henoch Abramczyk (nb. this is not his real name).

It took quite a while to complete this building, and when it was finally finished a chanukat habayit
(dedication ceremony) was held on a grand scale.

At the chanukat habayit, numerous speeches were given by prominent Roshei Yeshiva,
mechanchim (Torah educators) and local political figures. However, it was the words of R’
Henoch, the Mexican baal tzedakah, that everyone was eager to hear. People wondered why did
he donate such an astronomical sum? What even in his life inspired him to sponsor the building
for this yeshivah?

What R’ Henoch said not only conveyed his humility and love for Klal Yisrael, but also portrayed
his ingenuity in the way he understood a maamar Chazal, a Talmudic teaching.

After delivering some introductory remarks, R’ Henoch related how he, along with his parents,
brothers and sisters, were taken by the Nazis from their home in Poland to concentration camps.
Over the next few years, under the ruthless and bestial rule of the Nazis, everyone in his family
was murdered – except him.

After the way he came to the United States and then went on to Mexico to rebuild his shattered
life.

R’ Henoch explained that it always plagued him that he, of all his family members, was the sole
survivor. The faces of his parents and siblings were always in his mind. They were gone and he
was alive. He had been spared – but why?

R’ Henoch revealed that gradually a thought dawned on him and then crystallized in his mind,
inspired by a Talmudic phrase that we recite every day at the conclusion of the Korbanot during
the Shacharit service.

The eighth rule in the beraita of R’ Yishmael is ‫כל דבר שהיה בכלל ויצא מן הכלל ללמד לא ללמד על עצמו‬
‫‘ – יצא אלא ללמד על הכלל כלו יצא‬anything that was included in a general statement, but was then
singled out from the general statement in order to teach something, was not singled out to teach
only about itself, but rather to apply its teaching to the entire generality.’

“If I was a member of the group,” said R’ Henoch, “but then the Ribbono Shel Olam singled me
out from among the group, He didn’t do it only for my benefit. He did it for the sake of the larger
entity. That entity is the entire Klal Yisrael, and there can be no more beneficial institution for Klal
Yisrael than a yeshivah for children, because teaching the children ensures our continuity. It is for
this reason that I sponsored the building of this yeshivah in the Holy Land of Israel.”’

19
Reflecting on R’ Henoch’s explanation of this principle, though many of us in this generation have
not had to contend with the kind of trauma he experienced, there are times when each of us are
given unique opportunities - which then lead us to consider why we have been given that particular
chance or opportunity.

And the answer that we learn from R’ Henoch is that when we find ourselves singled out, we
should recognise that we’ve been put in that place not only for us, but for others too.

David Feigen writes:6

If a ‫ מצוה מת‬is doche avoda and avoda is doche shabbos.

Shouldn’t ‫ מצוה מת‬be doche shabbos? …..Simple logic

If A is greater than B and B is greater than C

Logic dictates that A is greater than C.

Which means ‫ מצוה מת‬should be doche shabbos

‫הדר אמר קבורת מת מצוה תדחה שבת מק"ו ומה עבודה שהיא דוחה שבת קבורת מת מצוה דוחה אותה מולאחותו‬
‫שבת שנדחה מפני עבודה אינו דין שתהא קבורת מת מצוה דוחה אותה ת"ל לא תבערו‬

Then he argued: It might be inferred a minori ad majus that the burial of a meth mizwah should
supersede the Sabbath, [thus]: If the Temple service which super sedes the Sabbath is
superseded by the burial of a meth mizwah, by deduction from Or for his sister, how much more
should the Sabbath which is superseded by the Temple service be superseded by the burial of a
meth mizwah; hence it was explicitly stated, Ye shall kindle no fire. [etc].

Given that the above quote is but one step in a lengthy discussion, and the answer doesn't really
make so much sense out of context, perhaps a little more explanation is in order. At this point the
Talmud was explaining why the tanna would think that the verse that proscribes lighting fires on
Shabbat is necessary to tell us that execution does not override Shabbat. The reasoning is that we
could have argued that execution overrides Shabbat via a kal vachomer – if execution overrides
temple service and temple service overrides Shabbat then execution should surely override
Shabbat. The response to such an argument is that meit mitzvah also overrides temple service yet
does not override Shabbat, despite having the same kal vachomer. At this point the above quote
comes in to say that maybe in fact meit mitzvah should override Shabbat based on this very kal
vachomer (and therefore so would execution). The response to that is that the verse explicitly
proscribes lighting a fire.

As explained by R. Yom Tov Asevili in his commentary there, the point is that if the verse
explicitly precludes execution overriding Shabbat even though it has the kal vachomer of
6
https://judaism.stackexchange.com/questions/111114/why-doesn-t-mes-mitzvah-push-aside-shabbos

20
superseding temple service which itself supersedes Shabbat, then obviously the kal vachomer is
not valid. As such the same kal vachomer applied to meit mitzvah would necessarily be invalid as
well.

‫פי' ואשמועינן קרא דלא נעביד ההוא ק"ו ברציחה לדחות שבת ומינה שמעינן נמי לקבורת מת מצוה שלא תדחה‬
‫שבת בק"ו דהא ההוא ק"ו הא איכא למפרך ביה מרציחה שיש בה אותו ק"ו עצמו ואינו דוחה שבת‬

Mes Mitzvah in our time

Rabbi Elchonon Zohn writes:7

7
http://teamshabbos.org/wp-content/uploads/2015/12/Mes-Mitzvah-in-Our-Times-002.pdf

21
22
Rav Binyamin Tabory writes:8

8
https://www.etzion.org.il/en/halakha/studies-halakha/philosophy-halakha/vayakhel-punishment-shabbat

23
In reference to Shabbat, besides the general prohibition “you shall not do any work (melakha)” (Ex. 20:10),
the Torah also writes specifically, “You shall not kindle a fire in any of your dwellings on the Shabbat
day” (Ex. 35:3). The Talmud (Sanhedrin 35b) records a debate regarding the implication of this reiteration.

Some rabbis thought that the prohibition of lighting a fire was singled out in order to teach that violating
this melakha incurs only lashes, whereas all other intentional violations of melakha carry either the death
penalty or karet (spiritual excision). The Gemara refers to this position by the term “havara lelav yatzat” –
burning was singled out to teach that it is merely a negative prohibition, as opposed to a capital offense.

Others thought that a single melakha was spelled out in order to teach that each melakha is an independent
prohibition. The legal implication of this is that if one were to violate several melakhot unintentionally in
one lapse of knowledge (i.e., without remembering in between violations that these acts were forbidden),
he would be obligated to bring a korban ḥattat for each melakha he had violated. (However, in a case of an
intentional violation there is no relevance to this principle, as one cannot be put to death twice.) The Gemara
refers to this position as “havara leḥallek yatzat” – burning was singled out to teach that each melakha is a
separate entity.

In addition to the above derivations, the Gemara propounds that the phrase “in any of your dwellings”
indicates that the courts may not carry out capital punishment on Shabbat. The exact nature of this rule,
though, is unclear. One possibility is that the Gemara was simply negating a possible assumption one might
have made. One might have thought that the mitzva to “expunge the evil from your midst” (Deut. 13:6,
inter alia; a general directive to rid society of criminals) overrides Shabbat, just as some other mitzvot do.
For example, the Temple service is permitted on Shabbat despite the various acts of melakha that are
involved. Therefore, it was necessary to teach that the mitzva to execute criminals does not take precedence
over Shabbat.

According to this view, the verse does not introduce a new prohibition: it simply indicates that the original
prohibition remains in effect. This is similar to the rule that building the Temple does not override Shabbat,
derived from the verse “Guard My sabbaths and fear My Temple” (Lev. 19:30). There, the verse does not
introduce a new prohibition: it just clarifies that the normal prohibitions of Shabbat remain in effect even
in light of the mitzva to build the Temple.

However, the Yerushalmi (Sanhedrin 4:6) derives from this verse that courts may not adjudicate cases on
Shabbat, implying that this is a more expansive prohibition, independent of whether melakha is performed.
Yet many commentators assume that the general prohibition to judge on Shabbat is not biblical, but rather
a rabbinic injunction meant to prevent people from writing.

Maimonides in Sefer HaMitzvot (Lo Taaseh 322) enumerates an independent prohibition. He says that it is
forbidden to punish sinners on Shabbat. He explains that the derivation from the verse about fire teaches
that it is forbidden to administer the capital punishment of sereifa, burning, on Shabbat. From there we
extrapolate that it also is prohibited to carry out any of the other capital punishments.

In Hilkhot Shabbat (24:7), Maimonides expands this prohibition to include lashes, as well. The Magen
Avraham (Oraḥ Ḥayim 339:3) asks why administering lashes should be forbidden: unlike capital
punishment, this does not necessitate violating Shabbat. He suggests that perhaps lashes are forbidden
because they might cause a wound, which is a melakha. Some suggest that inflicting a wound while
administering lashes is inevitable (though not specifically intended), and thus forbidden as a pesik reisha –
the rule that prohibits doing any action that will inevitably cause melakha to be violated. (The
supercommentaries on the Magen Avraham offer other suggestions as to why administering lashes would
or would not entail melakha.) In any case, the Magen Avraham clearly thought that there was no separate

24
prohibition, but rather the derivation simply taught that the mitzva to punish criminals did not override
Shabbat.

The Minḥat Ḥinnukh agrees with the Magen Avraham and asks why Maimonides counted this as a separate
mitzva. If only punishments that include melakha are forbidden, there should be no reason to count a
separate prohibition. However, Maimonides seems to have felt otherwise, assuming that the prohibition to
administer punishment on Shabbat was independent of whether melakha was violated. As we have noted,
this position can be seen in the Yerushalmi, as well.

While the above Aḥaronim rejected this position of Maimonides, others accepted it. The Avnei
Nezer (Responsa, Oraḥ Ḥayim 46, par. 5) rules in accordance with Maimonides and expands on his
position, claiming that it is biblically forbidden to excommunicate someone on Shabbat, as
excommunication is a form of punishment. He also notes that Maimonides’ position emerges clearly from
the Yerushalmi. However, in response to the question he was asked, he offers a fascinating limitation of
this prohibition. He had been asked whether a scholar could excommunicate someone who had disgraced
him. The Avnei Nezer claims that such a person is defined as a heretic and is thus legally defined as lower
than a non-Jew. The prohibition to punish on Shabbat seems to only apply to Jews. Thus, in such a case it
would be permitted to excommunicate the person in question.

In addition to excommunication, there are other in-between cases where one must inquire whether they are
included in Maimonides’ prohibition to administer punishment on Shabbat. For example, in many cases we
are allowed to use force and administer lashes to someone who is refusing to perform a mitzva he is
obligated to perform. We are even allowed to hit him “until his soul departs” (Ketubbot 86a). The Peri
Megadim (in his introduction to Hilkhot Shabbat) is unsure of whether this is considered a punishment, and
therefore whether it would be permitted on Shabbat. (Obviously, if one believes that there is only a
prohibition to carry out punishments that include melakha, the relevant issue will be whether these blows
will cause a wound, not their possible status as punishment.) The Shibbolei HaLeket cites a responsum from
Rabbi Sherira Gaon that forbids incarcerating a criminal on Shabbat, even in a holding cell, as this violates
the prohibition above. (From context, this is clearly limited to cases where the criminal poses no danger to
the public.)

The Sefer HaḤinnukh explains the reason for this prohibition:

God wanted to give honor to the day, so that all people will find rest on it, even sinners and convicted
criminals. It is like a king who invites all his subjects to a feast one day and does not prevent anyone from
coming in. [Only] after the holiday will he exact justice. The same is true of God, who commanded us to
sanctify and honor the day so it will be good for us and benefit us.

Courts and punishments on Shabbos

25
Rav Yaakov Goldstein writes:9

Court hearings:[1] Court cases involving monetary matters are not adjudicated on Shabbos.[2]

Punishments and imprisonment:[3] Punishments are not delivered on Shabbos [and in certain
cases it is a Biblical prohibition to do so[4]].[5]

[Some Rishonim list this prohibition as one of the 365 negative commands, in addition to the
other commands listed regarding Shabbos.[6] Accordingly, Chazal state that the punishment of
Gehennam ceases over Shabbos.[7]]

Therefore, it is forbidden to capture and incarcerate [i.e. arrest] a criminal who is liable for
punishment [see Q&A] in order so he does not run away, [and one desires to hold him until his
due punishment is met].

This applies even if the criminal may become a fugitive if the incarceration is delayed. Rather,
if he runs away we have no responsibility.[8] Certainly it is forbidden to give lashes on
Shabbos.[9]
May a Beis Din accept testimony on Shabbos?[10]

No, unless it involves a Mitzvah purpose, such as for the sake of an Aguna.

May a Beis Din send a warning to a litigant on Shabbos?[11]

No.

May a judge look into the Halachic ruling for a current case on Shabbos? [12]

Yes, as this is no different than him learning Torah.

May a litigant organize his claims on Shabbos?[13]

It is proper to avoid doing so.

Q&A on imprisonment

May one imprison a man who desires to leave his wife an Aguna?[14]

9
https://shulchanaruchharav.com/halacha/courts-and-punishments-on-shabbos/

26
 One may arrest a man on Shabbos if he is trying to leave his wife an Aguna.

May one arrest a man who has perpetrated crimes against society, such as robbery, abuse, bodily injury

Yes.

Is there a prohibition involved in trapping humans, such as locking a child in his room, or a lunatic in h

There is no trapping prohibition involved in trapping humans.[16] One may thus lock a child in his room if ne
his wife an Aguna.[18] However, there are Poskim[19] who question that perhaps the trapping prohibition app
would otherwise run away from society. In any event, it is forbidden to arrest an individual on Shabbos [unle
bestow punishments on Shabbos, irrelevant of the trapping issue.[22]

Disciplining children on Shabbos:

It is permitted to discipline or punish children on Shabbos.[23]

One may thus lock a child in his room for disciplinary purposes.[24]

Nonetheless, it is possibly even Biblically forbidden to hit or spank a child if doing so can cause a bruise

to the child.[25] Furthermore, it is not in the spirit of Shabbos to show anger or fury,

or give punishment even for the sake of Chinuch, as learned from the reason why the Torah prohibited

a Beis Din from giving punishment on Shabbos.

The Torah desired that Shabbos be a day of rest for all, even those who deserve punishment,

and hence one is to abstain from punishing or showing any anger on Shabbos to the utmost extreme.[26]

[1] Admur 339:3; 306:27; Michaber 339:4 and Mishneh Beitza 36b “We do not judge on Shabbos”

[2] The reason: This is due to a decree one may come to write down the details of the hearing. [Admur ibid; M”A 339:3; Beitza
37a] Now, although the Sages permitted communal matters to be done on Shabbos and did not suspect of the above decrees,
nonetheless, judging on Shabbos is complete Rabbinical prohibition [i.e. Shvus], and a complete Rabbinical prohibition is never
permitted even for communal purposes. [Admur 306:27]

[3] Admur 339:3;

27
[4] M”A 339:3; Rambam Shabbos 24:7; Minyan Hamitzvos 322; Sefer Hachinuch Mitzvah 114; Yerushalmi brought in Chinuch
ibid; Elya Raba 339:15; Kaf Hachaim 339:15; See Minchas Chinuch ibid that this command contains Sekila/Kareis/Chatas

The source: This is learned from the verse “Lo Sivaru Eish”, which is understood to mean that one may not give the capital
punishment of burning on Shabbos, and the same applies to other punishments. [Rambam ibid; Chinuch ibid]

What punishments are included in the Biblical prohibition: Some sources imply that only capital punishment is included in the
Biblical prohibition. [See Chinuch ibid] Other sources imply that all punishments that contain Shabbos’s desecration are Biblically
forbidden on Shabbos, and thus possibly even lashes are included. [M”A ibid that so is implied from Rambam in Minyan Hamitzvos
ibid and Shabbos 106; Sanhedrin 35; See Machatzis Hashekel ibid] Although perhaps from the word Moshvoseichem one can learn
that all forms of punishment are included in the Biblical prohibition. [M”A ibid; Implication of Rambam 24:7; See Chinuch ibid]

When the Biblical prohibition applies: The Biblical prohibition only applies to a Beis Din and only in Temple times. [Chinuch ibid]

[5] Admur ibid; M”A 339:3; Rambam 24:7

The reason: As Hashem desired for everyone to find rest and peace on Shabbos, even the Reshaim. [Sefer Hachinuch; Elya Raba
339:15; M”B 339:13; Kaf Hachaim 339:15]

[6] Rambam Minyan Hamtzvos 322; Sefer Hachinuch Mitzvah 114; Maggid Mishneh on Rambam ibid

[7] Admur 295:1; Bach 297; Mateh Moshe in name of Rokeiach brought in Shaar Hakolel 31:1; Mordechaiy Pesachim 105; Tosafus
Beitza 33b ru[7] 473:6

[8] Admur ibid; Rama 339:4; Beis Yosef 263; Shivlei Haleket 60 in name of Rav Sharira Gaon

[9] Admur ibid; Rama 339:4; Beis Yosef 263; Shivlei Haleket 60 in name of Rav Sharira Gaon

The reason: As this is included in the prohibition against giving judgment. [Implication of Admur ibid in parentheses; Rama ibid]
Alternatively, some Poskim suggest that perhaps giving lashes is Biblically forbidden because it may cause a wound, which is a
Biblical prohibition, and is thus included in the Biblical prohibition against giving punishment. [Rambam 24:7 as explained in M”A
ibid; M”A 278:1 in name of Turei Even 40 and Rashal regarding a fight that this applies even according to Rebbe Shimon who
holds Eino Tzarich Legufa is exempt; P”M 339 A”A 3] However, in truth, perhaps it is only a Rabbinical prohibition, as it is a
Melacha She’eiyno Tzarich Legufa and one has no intent to make a wound. [See Machatzis Hashekel on M”A ibid that he has no
intent to make a wound; P”M ibid that the above Biblical prohibition only applies according to opinion of Eino Tzarich Legufa
Chayav; Admur 316:16 regarding trapping]

[10] Aruch Hashulchan 339:11

[11] Aruch Hashulchan 339:11

[12] Aruch Hashulchan 339:11

[13] Aruch Hashulchan 339:11

[14] Shvus Yaakov 1:14; Birkeiy Yosef 339:2; Shaareiy Teshuvah 339:3; M”B 339:14; Kaf Hachayim 316:27

[15] Aruch Hashulchan 339:11; Tzitz Eliezer 11:23

28
[16] Implication of Admur 339:3, Rama 339:4; Beis Yosef 263; Shivlei Haleket 60 in name of Rav Sharira Gaon in which no
trapping prohibition is mentioned for the reason in why it is forbidden to jail a person on Shabbos; Avnei Nezer 189:22 that is no
trapping prohibition by an adult however regarding a child he leaves this matter in question; Piskeiy Teshuvos 316:23

Other opinions: Some Poskim question that perhaps there is a trapping prohibition involved in trapping humans. [Makor Chaim
316; See Piskeiy Teshuvos ibid footnote 220]

[17] Tzitz Eliezer 15:41 brought in Piskeiy Teshuvos 316:23

[18] Shvus Yaakov 1:14; Birkeiy Yosef 339:2; Shaareiy Teshuvah 339:3; M”B 339:14; Kaf Hachayim 316:27

[19] Avnei Nezer ibid based on Tosafus Menachos 64a

[20] And accordingly it would remain forbidden to lock a child in his room. However Tzitz Eliezer writes that a child is in fear of
his parents and is thus in any event already considered like trapped and there is thus no problem in locking him there.

[21]
Rav SZ”A in Yesodei Yeshurun, brought in Piskeiy Teshuvos 316:3

[22] Admur 339:3; In Yesodei Yeshurun, in name of Rav SZ”A they mention that arresting a person never involves the trapping
prohibition as they do not run away from society to be considered a trapping needed creature.

[23] Setimas Hapoksim as the above prohibition is only in reference to a Beis Din, or community, punishing or incarcerating an
individual, and not to a parent who does so for educational purposes.

[24] Tzitz Eliezer 15:41 brought in Piskeiy Teshuvos 316:23

The trapping prohibition: There is no trapping prohibition involved in trapping humans. [Setimas Hapoksim in 339; Piskeiy
Teshuvos 316:23] One may thus lock a child in his room if needed. [Tzitz Eliezer 15:41 brought in Piskeiy Teshuvos 316:23]

Other opinions: Some Poskim question that perhaps the trapping prohibition applies to a child. [Avnei Nezer 189:22 based on
Tosafus Menachos 64a]

[25] Some Poskim suggest that perhaps giving lashes is Biblically forbidden because it may cause a wound, which is a Biblical
prohibition, and is thus included in the Biblical prohibition against giving punishment. [Rambam 24:7 as explained in M”A ibid;
M”A 278:1 in name of Turei Even 40 and Rashal regarding a fight that this applies even according to Rebbe Shimon who holds
Eino Tzarich Legufa is exempt; P”M 339 A”A 3] However, in truth, perhaps it is only a Rabbinical prohibition, as it is a Melacha
She’eiyno Tzarich Legufa and one has no intent to make a wound. [see Machatzis Hashekel on M”A ibid that he has no intent to
make a wound; P”M ibid that the above Biblical prohibition only applies according to opinion of Eino Tzarich Legufa Chayav;
Admur 316:16]

[26] Piskeiy Teshuvos 339:7

29
 Not Putting Criminals to Death on Shabbat
R. Gidon Rothstein writes:10
Sefer Ha-Hinuch has only one mitzvah for Parshat Va-Yakhel, a prohibition against a court
carrying out the death penalty on Shabbat. The Torah’s “wasting” one of the 613 on such a specific
detail suggests this prohibition has an important message, although I avoid delving into such
theological issues in this venue [in brief, I think whatever we find the prohibition to be tells us that
kind of activity is antithetical to Shabbat; spoiler alert, if we conclude all judging is prohibited, it
suggests Shabbat is a day for courts to step back from their working to keep society on its proper
path. For them, that too is “rest” required on Shabbat.]

In addition, this fairly narrow prohibition reminds us of the Torah spreads its presentation of
Shabbat over many obligations and prohibitions. To get a full picture of Shabbat as the Torah set
it up, we must see all of those. Here, we will see just the one.

Reasons Fire Was Singled Out

Rambam gives the source verse for the idea in Prohibition 322, Shemot 35;3, lo teva’aru esh be-
chol moshevoteichem be-yom ha-Shabbat, literally, you shall not burn fire in all your dwelling
places on the Sabbath day. The verse cannot mean regular fire, Sefer Ha-Hinuch points out,
because Shemot 20;10 covers it, the prohibition on melachah, creative activity, in general.

Sanhedrin 35b has ways to solve the problem, citing a Mishnaic debate: R. Yose thought the Torah
singled out hav’arah, burning, to teach it was “only” a lashes prohibition, not a capital crime, and
R. Natan held it establishes hilluk melachot, the principle that violations of any type of Shabbat
prohibition count separately from those of any other type. A Jew who plants and cooks on Shabbat

10
https://www.torahmusings.com/2022/02/not-putting-criminals-to-death-on-shabbat/

30
would be liable for death twice or, more practically, two hata’ot, two sin offerings, when done be-
shogeg, without realizing they were prohibited on Shabbat.

Rambam pauses to say halachah rejected R. Yose’s view, and accepted R. Natan’s.
Rather than leave it there, the Gemara notes a phrase it thinks obligates another inference. The
verse rules out burning fire in our moshavot, residential areas. Shabbat prohibitions apply
everywhere, not just our moshavot, making the phrase stick out. The Gemara therefore
says this verse was about something true only of moshavot, places Jews live, and it assumes it
means the court system (a reminder Jewish cities were expected to have functioning courts, it was
for this Gemara a defining factor of moshevoteichem).

Burning to Death As Paradigm for All Death Penalties

Still, the verse speaks of fire, would seem to disallow only serefah, burning a convicted criminal
to death (really, pouring boiling lead down his/her throat). Mechilta points out burning was bi-
chlal hayetah, one among four forms of death penalty, and we have a principle called kol davar
she-hayah bichlal, etc., when the Torah singles out one of a group for some rule, the rule applies
to the whole group. (This is one of the thirteen hermeneutical principles, ways to derive accurate
new ideas from the Torah, taught by R. Yishma’el, that we recite daily just before Pesukei de-
Zimra.) When the Torah disallows serefah on Shabbat, it means all forms of death penalty.

At the end of the paragraph, Rambam throws in Yerushalmi Sanhedrin 4;6, which also cited this
phrase to assert this rule. He does not tell us why he quoted it and does not mention what could
have been a very good reason, that Yerushalmi took be-chol moshevoteichem to anchor a gezerah
shavah to courts, where the same phrase appears. A gezerah shavah is a more formal type
of halachic reasoning, usually a matter of tradition rather than derivation, less reliant on
the halachic intuition that seems to be the foundation of the Bavli’s version.

Or For Punishment in General

If that was why he quoted it, Rambam would be shoring up our acceptance of this prohibition,
letting us know there is a strong tradition the phrase means what the two Talmuds say. As Minhat
Hinuch notes, he also may have quoted Yerushalmi because of a more substantive change he
codifies in Laws of Shabbat 24;7 (Sefer Ha-Hinuch does not mention it), the prohibition extends
to all judgment on Shabbat, including lashes.

Magen Avraham (Minhat Hinuch gave the reference) 339;3 wondered about Rambam’s inclusion
of lashes, because he thought Sefer Ha-Mitzvot included only punishments that are themselves
Shabbat-prohibited acts (like burning), as in the Bavli. He floats the idea lashes always makes
bruises (or draw blood, although he does not say that), which would violate Shabbat.

He also can imagine—it’s a bit odd he says it as a possiblity, because Sefer Ha-Mitzvot explicitly
quoted it from the Yerushalmi, and he has quoted the Sefer Ha-Mitzvot—that the extra words of be-
chol moshevoteichem included all kinds of judgment. Magen Avraham seems to have
read danin in the Yerushalmi to mean only capital cases. (Monetary cases are not allowed on
Shabbat either, but as a rabbinic rule, lest the court record it in writing, out of habit.)

31
Consequences for Courts and Other Instances of Punishment

Sefer Ha-Hinuch points out a surprising result: should a court punish on Shabbat in any way that
itself violates Shabbat, the judges—or whoever carries out the punishment– could be subject to
the death penalty (if they were warned by two witnesses and rejected it).

[This seems to me an area we do not consider enough, how easily halachah imagines even highly
religious and authoritative people acting, certain of their correctness, in the face of warnings, yet
be violating the Torah at a very high level. Tanach is rife with it, too, since few prophets were
heeded, and they were addressing the highest echelons of society. It is a reminder of the importance
of epistemic humility, a phrase I just saw in a book, the care with our confidence, to step gingerly
into our certainties.]

Peri Megadim adds a wrinkle. The prohibition talks of court judgment, he wonders about other
types, with two examples: 1) we usually think of rodef in the context of potential murder, that
bystanders are allowed to prevent the murderer with lethal force if necessary. The idea applies
equally to preventing coerced arayot activity, where a man is about to rape a woman prohibited to
him at a karet or capital level.

R. Yehudah thinks that, too, is a matter of saving lives, lest the woman resist enough for him to
kill her; the Rabbis inSanhedrin73b, however, say it is to save her from pegimah, from
the halachic damage of having been defiled in this way (regardless of her blamelessness). Peri
Megadim suggests that might be a kind of judgment and therefore part of our prohibition, that we
may not stop such rodefim on Shabbat if it requires Shabbat violation.

He is more certain kana’in may not act on their righteous outrage over a Jew’s public sexual
relations with a non-Jew on Shabbat, although that may be independent of this prohibition.

[By attaching it to this discussion, Peri Megadim sounds like he thinks kana’in pog’in bo is a sort
of judgment, an extension of the court system, the kanai allowed to mete out punishment. I could
have imagined rejecting the idea for the more basic reason a private citizen is not allowed to violate
Shabbat to stop a hillul Hashem, a sacrilege of Gd’s Name. The idea of the kanai ever being
allowed to take the law into his own hands came from an halachah le-Moshe mi-Sinai, with no
indication it pushed aside Shabbat. Peri Megadim seems to assume it is a judgment, and therefore
might have been allowed, but for this special prohibition.]

Aruch Ha-Shulhan, As Promised

I said last time we would do Aruch Ha-Shulhan before Minhat Hinuch, so here goes, from Orah
Hayyim 339;10 (it’s brief, and I cheated a bit, because it was Minhat Hinuch who pointed me
to Magen Avraham and Peri Megadim, so next time as well, we’ll see Aruch Ha-Shulhan first, Gd

32
willing). He takes for granted that lashes cause bruising, with more confidence than Magen
Avraham. In that reading, as we saw, monetary cases are not done on Shabbat because of a rabbinic
decree to avoid writing.

He then goes to our Yerushalmi’s view no din may be judged. He sees it as the reason the
Sanhedrin would convene elsewhere than their usual court on Shabbat (they would teach and
discuss Torah, not rule on specific cases). He does not say it, but I think he means Yerushalmi’s
version gives a Biblical reason to rule out monetary cases, since those too are judgments,
and Yerushalmi’s gezerah shavah speaks of all dinin.

In din, judgment, he includes sending a warning (he does not clarify the warning; I think he means
a summons to court), as well as taking testimony (with or without a verdict), treating both as acts
of judgment despite their lack of conclusion. Should an eyewitness be leaving town, he permits
speaking about the issue.

Rema was sure courts could not take someone into custody on Shabbat, did not think the possibility
s/he might flee, and escape was sufficient to overcome the rule against acting in judgment on
Shabbat. To avoid the person sinning again, authorities can hold him in a house (guarding him in
a non-jail is not as obviously a court judgment, I think he means).

As a throwaway, Aruch Ha-Shulhan allows communally needed announcements on Shabbat.

How far we have come, from burning as a specific form of capital punishment, to any involvement
in court proceedings including, Aruch Ha-Shulhan says, a litigant preparing his claims. On the
other hand, a Torah scholar who serves as a judge may on Shabbat consider the issues of a case,
because for him, it is Torah study. Even so, the court members should not sit in their usual place—
regardless of whether they are just studying Torah together—presumably because that looks too
much like judging.

A Brief Note on Tehumin

I had worried I wouldn’t have enough material to fill this space and peeked at the previous mitzvah
in the Sefer Ha-Mitzvot, where Rambam has the idea of tehumin, a prohibition against travelling
too far from one’s residence on Shabbat (within whatever counts as one connected area, there are
no distance limitations on travel). In Sefer Ha-Mitzvot, Rambam seems to think 2000 amot is a
Biblical Shabbat limit. By the time he wrote Mishneh Torah, he conceded it was rabbinic, but
claimed twelve mil (24000 amot) was de-oraita.

We need not spend much time on it, though, because Ramban disagrees, reads the Gemara to
present Biblical tehum as a lone view of R. Akiva, not accepted le-halachah. If so, a future
Sanhedrin could decide we follow Ramban, make the whole topic rabbinic, prone to review and
adjustment from time to time.

Two insights into Shabbat this week, the Torah’s telling courts to refrain from judgments on
Shabbat, and the possibility tehum restrictions are rabbinic and malleable.

33
 Shabbat and Capital Punishment
R. Ruth Adar writes:11

Parashat Vayahkel-Pekudei begins with an alarming statement:

Moses then convoked the whole Israelite community and said to them: These are the things that
the LORD has commanded you to do: On six days work may be done, but on the seventh day
you shall have a sabbath of complete rest, holy to the LORD; whoever does any work on it shall
be put to death.

You shall kindle no fire throughout your settlements on the Sabbath day. – Exodus 35:1-3

After this bombshell, Moses continues to tell the Israelites the directions for building the
Tabernacle without saying anything more about Shabbat or capital crimes. What?!

Commenters including Sarna point out that this brief mention of the regulations of Shabbat echoes
a longer passage about Shabbat in Exodus 31: 12-18. Both passages about the Sabbath stand paired
with passages about the building of the Tabernacle. The text is making two points here:

1. Keeping Shabbat is very important, more important than any work, even such work as the building
of a sanctuary for God.

11
https://coffeeshoprabbi.com/2018/03/07/shabbat-and-capital-punishment/

34
2. Jews have two holy sanctuaries: one in space and one in time. Our sanctuary in space was the
Temple in Jerusalem. Our sanctuary in time is Shabbat. This juxtaposition in Torah is the source
for the “cathedral in time” in Abraham Joshua Heschel’s poetic The Sabbath: Its Meaning for
Modern Man.
As for the death penalty:

We have an account in Torah of a man who was executed for violating the Sabbath. In his case:

Once, when the Israelites were in the wilderness, they came upon a man gathering wood on the
Sabbath day. Those who found him as he was gathering wood brought him before Moses,
Aaron, and the whole community. He was placed in custody, for it had not been specified what
should be done to him. Then the Eternal said to Moses, “The man shall be put to death: the
whole community shall pelt him with stones outside the camp.” So the whole community took
him outside the camp and stoned him to death—as the Eternal had commanded Moses.
– Numbers 15:32-36

Notice that this is much later – in Numbers! – and yet “it had not been specified what should be
done to him.” Rabbeinu Bachya suggests that they were waiting to see precisely what sort of death
penalty was required, since there were four possibilities. Only when Moses consults with God do
they learn that the punishment is stoning. Whatever is going on here, Moses and the Israelites gave
this matter great seriousness, wanting direct confirmation from God before proceeding.

Many centuries later, the rabbis would write down their understanding of the rules they had
received from God for capital punishment. They had strict requirements for it, without which the
sentence could not be carried out:

1. There must be 2 eyewitnesses to the crime who were willing to testify.

2. Those witnesses must be willing to participate in the execution.
3. Those witnesses must have warned the accused before the crime that he was about to commit a
capital crime.
4. Valid witnesses must be adult Jewish males not related to the defendant or one another.
5. The court had to consist of 23 learned rabbis.
6. Each witness must be examined separately. If there were any discrepancies in their testimony, no
matter how minor, the court must acquit.
And then in Sanhedrin 17a, we get yet another requirement:
Rav Kahana says: In a Sanhedrin where all the judges saw fit to convict the defendant in a case of
capital law, they acquit him. The Gemara asks: What is the reasoning for this halakha? It
is since it is learned as a tradition that suspension of the trial overnight is necessary in order to
create a possibility of acquittal.

The rabbis seemed to feel that if the court was unanimous, then there was so much emotion running
high that it was inappropriate to go forward with a conviction; best to sleep on it. The rabbis were
worried that a unanimous court had something wrong with it – vengeance, perhaps?

35
At any rate, we learn from all of this that in our tradition, while the Written Torah appears to speak
lightly of execution, in fact the Oral Torah – the larger context of tradition – is extremely cautious
about capital punishment, so cautious that it is hard to see how they ever managed to convict
anyone of a capital crime. (It is also worth noting that after the Romans took control of Judea in
63 BCE, the Sanhedrin no longer had the power to carry out such a verdict. The whole discussion
was theoretical.)

At any rate, don’t panic at the beginning of Exodus 35. While the peshat [simple meaning of the
verse appears to say that people should be executed for violating the Sabbath, our tradition does
not advocate capital punishment.

That said, there are parts of the soul that come to life when we keep Shabbat, and that cannot
survive without it:

Judaism and the Death Penalty; Of Two Minds but One Heart

Judaism and the Death Penalty; Of Two Minds but One Heart

36
Nathan J. Diament writes:12

FIRST PRINCIPLES

If one can be certain of anything in a discussion of Judaism’s views regarding capital punishment,
especially those held in a public forum, it is that the following statement in the Mishna (Makkot
1:10) will be quoted:

A Sanhedrin that executed [more than] one person in a week is called a “murderous” [court]. Rabbi
Elazar ben Azarya states: “[More than] one person in 70 years [would be denoted a murderous
court].” Rabbi Tarfon and Rabbi Akiva state: “If we had been members of the Sanhedrin, no
defendant would ever have been executed.”

While this passage properly finds its way into all discussions of the Torah’s approach to the death
penalty, other Mishnaic statements of equal authority with different perspectives seem to be often
overlooked. In fact, the very Mishna quoted above gives the last word to R. Shimon ben Gamiliel,
who responds that had they indeed ensured that the death penalty would never be carried out, R.
Tarfon and R. Akiva “would have been increasing the murderers in Israel.”

In the complete Mishnaic citation we see our tradition grappling with the core question that
confronts every society which contemplates utilizing capital punishment as a component of its
criminal justice system — how can a society protect human lives with an institution that itself
takes human life? To answer this question, we must turn to another Mishna. Sanhedrin 4:5 states:

Man was created single [in the person of Adam], to teach you that anyone who eliminates one
person in Israel, the Torah considers it as though an entire world has been eliminated; and anyone
that sustains one person is Israel, the Torah considers it as though an entire world has been
sustained….And [man was created single], to proclaim the greatness of the Holy One; a person
can mint many coins with one mold, and they will all be identical in appearance; and the King of
Kings….made all of mankind from the mold of Adam the first, and no one person is identical to
the other. Thus, each individual person must say “for me was the world created.”

Among the Torah’s seminal and timeless gifts to the world — a world that has seen societies that
have endorsed everything from ancient child sacrifices to false gods to modern campaigns of ethnic
cleansing — is this teaching of the infinite value of each human life.

What is most striking, however, about this critical Mishna is the context in which the lesson is
presented. These noble words are in answer to the Mishna’s question of ketsad me’aymin et ha-
edim — how does the court instill awe and fear into witnesses in capital cases so that they will
testify truthfully? The very passage that proclaims our recognition of the value of each life is
presented and utilized in the capital case! Moreover, instilling fear into witnesses is but one of the

12
This article appears in TRADITION 38:1, Spring 2004: 76-82. https://advocacy.ou.org/judaism-and-the-death-penalty-of-two-
minds-but-one-heart/

37
many procedural safeguards required in capital cases. Other well-known safeguards include
requirements for two simultaneous witnesses to the crime who were not only viewing the
perpetrator but also saw each other and had time to properly warn the perpetrator of the nature of
his crime and punishment prior to his committing the act.

Judaism, it seems, is of two minds about capital punishment. But we can discover where the heart
of our tradition lies in one more halakha.

While the Torah prescribes a strict regime of procedural safeguards before one of the four
biblically authorized methods of capital punishment may be imposed, the rabbis recognized that
there would be cases in which it was known beyond doubt that a particular person had committed
a murder, but one of the biblically required procedural elements was absent. What then? Would a
murderer roam free? No. As stated in Mishna Sanhedrin (9:5), the perpetrator would be placed in
jail and, essentially, be put to death by malnutrition.

The key to our understanding can be found in Maimonides’ codification (Rotse’ah 4:9) of this
ruling:

This procedure [of confinement and death by malnutrition] is not done to perpetrators of other
capital crimes [procedural requirements are lacking]….because even though there are sins more
severe than murder, they do not cause the destruction of the world’s stability and order in the
manner of murder; even [the cardinal sins of] idolatry, incest and violating Shabbat are not equal
to murder. For these sins are between man and God, but murder is a sin against fellow man and
anyone who commits this transgression is completely evil and all the good deeds of his entire
lifetime cannot outweigh this sin nor rescue him from judgment….

Murder is not only a sin against the victim and his or her Creator. Murder, in the Jewish view, is a
sin against society, for it tears at the foundation stone upon which an orderly, productive, and
moral society must be built — the dignity and equal worth of each of its members.

The foregoing discussion, as is often the case, is one in which the halakhic system does not offer
a one-sided view of an issue but reflects the Divine nature of God’s creation in incorporating and
balancing multiple and competing values that are inherent to any human challenge. While
recognizing there might be multiple means to fulfill a single goal, in its heart, Judaism is devoted
to championing each human life as unique and sacred.

MODERN PERSPECTIVES

The challenge here, as with many other issues of this sort, for Orthodox Jews committed to the
principle that the Torah’s teachings are timeless and relevant to all societies in which we find
ourselves, is determining how we might realize these ideals, and perhaps advocate for them in our
milieu, the Diaspora of the United States.

An interesting point of departure for considering this question is a letter obtained by an officer of
the Orthodox Union from R. Ahron Soloveichik in the mid-1970s, at a time when apparently the

38
OU was considering what position to voice in a domestic debate regarding capital punishment.1
R. Soloveichik wrote:

[I]t is irresponsible and unfair to submit a statement in favor of capital punishment in the name of
Orthodox Jewry. In my humble opinion, from a Halachik point of view, every Jew should be
opposed to capital punishment. It is true…that the Torah recognizes capital punishment. However,
the Torah delegates the authority to mete out capital punishment only to Sanhedrin, not to anyone
else. Even Sanhedrin are [sic] not able to mete out capital punishment if there is no Beis
Hamikdash.

B’zman she’yesh kohen makriv, yesh nefashot, b’zman she’ayn kohen makriv, ayn nefashot. Even
capital punishment among B’nei Noach cannot be meted out when there is no kohen makriv.

The letter continued to state:

If a Sanhedrin carried out one execution in seven years it is characterized as a murderous

Sanhedrin. Rabbi Akiva and Rabbi Tarfon say that if they had been in Sanhedrin, no person would
have ever been executed. . . .

There are several responses to R. Soloveichik’s strong declaration. First, R. Soloveichik gives no
weight to R. Shimon ben Gamliel’s “last word” and instead takes his hashkafic cues from the
“once-in-seven years” pronouncement. But there is a more fundamental means of respectfully
disagreeing with R. Soloveichik’s reasoning. The pesukim from which the principle of bizman
she-yesh kohen makriv is derived is clearly speaking to the functioning of the Jewish court system
and its use of the death penalty.

If there arise a matter too hard for you in judgment, between blood and blood [dam le-dam],
between plea and plea [din le-din], and between stroke and stroke [nega la-nega], even matters of
controversy within your gates; then you shall arise and go unto the place which the Lord your God
shall choose. And you shall come unto the priests the Levites, and unto the judge that shall be in
those days; and you shall inquire; and they shall declare unto you the sentence of judgment
(Devarim 17:8-9).

The Torah’s linkage of issues of dam, din, and nega for determination by arbiters sitting in “The
Place” and connected to kohanim can only be understood as relevant to the Jewish legal system.
These components are not relevant to the administration of a justice system by a non-Jewish state,
one of the basic sheva mitsvot benei Noah every society is required to undertake.

This peshat, although not explicitly stated, is harmonious with a 1981 responsum of R. Moshe
Feinstein.2 Asked by an unidentified (American?) government official, denoted by R. Moshe as
“sar hamedina,” for the Jewish view on capital punishment, R. Moshe concisely but
comprehensively summarizes the procedural and substantive elements of the Torah’s capital
system. In the synopsis, R. Moshe does not reference the Mishna regarding the “murderous
Sanhedrin” at all. He does cite the principle of not hearing capital cases without the Bet Hamikdash
standing, but clearly indicates its relevance is only to Jewish courts:

39
It is not possible to adjudicate capital cases except when the Bet Hamikdash is standing and the
Sanhedrin of 71 sits in the lishkat hagazit, and that is why we have not adjudicated capital cases
even in countries wherein there was permission from the sovereign for the Jews to adjudicate for
themselves under Torah law.

In consonance with the peshat from Devarim, R. Moshe clearly restricts the limitation upon capital
punishment of a functioning Mikdash to the adjudication of such cases by the Jewish community
operating a halakhic legal system.

To further emphasize this point, R. Moshe goes on to state in the responsum that “all of this” —
all the principles he summarizes in the responsum including the requirement of two witnesses,
hatra’a, a standing Mikdash — only applies

…when the prohibition against murder has not been rendered null; but for someone who murders
people because for him the prohibition against murder has become meaningless, and similarly
when the number of murderers has become many [due to the prohibition becoming ignored], we
apply [capital punishment] in order to deter murder for to do this is to save society.

One could opt to interpret this final point to allow for Jewish communities to impose capital
punishment when murder is rampant, but one need not go this far. Clearly, R. Moshe is speaking
to a general society, one in which the inquiring sar ha-medina serves, to allow capital punishment
when murder is common.

Nevertheless, concluding that the peshat of the pesukim and relevant halakhic sources permit us
to support the utilization of capital punishment in the general society in which we live need not
compel us to blindly support the manner in which capital punishment is implemented. In fact, we
can contribute to society at large by advocating that some of the basic principles contained in
Judaism’s capital punishment system ought to inform, if not be incorporated into, general society’s
system. To wit: the many safeguards halakha demands in a capital case — two uncontroverted
witnesses, mental capacity, and knowledge aforethought by the perpetrator, intense investigation,
and cross examination, etc., — clearly argue that, whether by using these specific safeguards or
others, a capital justice system must have processes that yield a high level of certitude that a person
sentenced to death is in fact guilty of the crime and deserving of the punishment.

CONTEMPORARY RELEVANCE

In the context of the United States, serious questions have been raised in recent years as to the
accuracy and fairness of this nation’s capital punishment systems.3 Perhaps best known is a U.S.
Department of Justice study released in 2000 that found substantial disparities in federal death
sentences.4 Additionally, for many years there have been persistent questions as to whether racial
bias plays a role in the capital punishment system inasmuch as a majority of death row defendants
over the years has been comprised of racial minorities.5

Clearly, one cannot defend a capital system that might have such shortcomings on the basis of
halakha’s general acceptance of capital punishment. But one need not demand that capital
punishment be abolished either. Indeed, in light of the fact that we, tragically, live in a society

40
wherein heinous murders regular occur, one may suggest that abolishing capital punishment
altogether would be at odds with the wisdom of Yahadut.

What would be most appropriate, in light of the serious questions raised and halakha’s clear
demand for a capital punishment system that is administered with fairness and accuracy, would be
for Orthodox Jews and their spokesmen to advocate for a moratorium on all capital punishment
pending the implementation of appropriate reforms.

CONCLUSION

This brief essay has outlined the dimensions of our tradition’s discussion of the processes, utility,
and values associated with a capital punishment system that are highly relevant to the
contemporary debates over these very issues. As is often the case, the Torah does not offer a
onesided view of an issue but reflects the Divine nature of God’s creation in incorporating and
balancing the competing values that are inherent to any human challenge. While recognizing there
might be multiple means to fulfill a single goal, in its heart, Judaism seeks to achieve the single
goal — fostering a world in which each human life is protected as unique and sacred.

NOTES
1. Letter to David Luchins on file with the Orthodox Union.
2. Iggerot Moshe, Hoshen Mishpat II, pp. 293-294.
3. One must be mindful that the United States does not have a single, unified criminal justice system. In addition to the federal
government, each of the fifty states and the District of Columbia has its own criminal code and procedures. Most criminal
prosecutions, including murder prosecutions, are brought under state laws before state courts. A majority of states have
provisions for capital punishment as part of their criminal justice code, but, beyond minimal requirements set by the U.S.
Supreme Court, there is considerable variance among the states with regard to parameters under which, and the frequency with
which, capital cases will be brought.
4. Survey of the Federal Death Penalty System, accessible at: https://www.justice.gov/archives/dag/survey-federal-death-penalty-
system
5. The Supreme Court addressed issue in the case of McClesky v. Kemp, 481 U.S. 279 (1987).

41
Jack B. Weinstein writes:13

When we examine capital punishment from biblical to present times, we see a radical change in
attitudes (sometimes with backsliding that goes on for centuries). Then it was accepted. Now there
is a general detestation of capital punishment among political leaders and jurists in Western nations
¯- except in the United States. (As in the United States, however, public opinion polls in Europe
and Canada generally favor the death penalty.) Here it is both prevalent and imposed with
sometimes inadequate protections against irreversible mistakes.

In the Torah (Deuteronomy, 22:18-21) appears a powerful biblical deterrent against talking back
to your mom or pop:

13
https://deathpenaltyinfo.org/stories/death-penalty-the-torah-and-today

42
In those days when your mother said, “Wait until Poppa comes home, and I tell him you won’t
listen to me,” well, you really had something to worry about.

This ancient biblical rule was, curiously, probably a protective development. Your father could
not literally kill you on his own (as he probably could have under Roman law). As I read the
passages, both mother and father had to agree on the punishment of death and then it had to be
approved by the elders (presumably after a hearing). Note, too, that a daughter was not so
punishable.

Rashi (the great medieval scholar), in his Commentaries (Vol. 1, pp.105-106) (Silberman Ed.
5733), explains that the theory is that such a son would ultimately commit a capital offense, so he
was being punished prospectively. But protective procedures were devised. Three witnesses to the
rebelliousness other than the parents were needed, and the son had to remain refractory after public
admonishment by the parents. Even then, he would first be lashed to ensure he understood his
peril. To bring the death penalty upon himself, the son would have to continue to show his
grossness by eating huge amounts of meat and drinking enormous amounts of wine to prove that
sooner or later, as a glutton, he would squander his father’s wealth and, without money, stand at
the crossroads and rob people. So reads Rashi.

The biblical capital penalty was so hedged with procedural restrictions that execution, as the
Jewish law developed, became next to impossible. A confession was banned because, as
Maimonides put it:

43
 cited in Miranda v. Arizona, 384 U.S. 436, 459 n.27 (1966)

One ancient rabbi termed a Sanhedrin that permits even one execution in 70 years “murderous,”
and another rabbi said, “If we had been among the Sanhedrin, no one would have been executed.”
Limitation on capital punishment was accomplished by meticulous application of rules governing
admissibility and sufficiency of evidence.

The idea, put forward in a recent brief of Jewish scholars to the Supreme Court, that stoning was
less cruel and unusual than the electric chair (and therefore killing by electrocution was outlawed
by the Eighth Amendment to the Constitution) is not very persuasive. An observer of a recent
stoning to death in Afghanistan by the Talibans, with people actually throwing stones at the
defendant, reported that the person being killed lived for an hour and suffered terribly. It was,
however, probably less painful and mutilating than burning at the stake or being cast alive into a
funeral pyre ¯ punishments of other cultures. Nor would the rabbis have tolerated mutilation by
pulling a person apart by being tied to wild horses ¯ another cultural achievement of medieval
Europeans.

Jewish stoning appears to have been accomplished by pushing the defendant from a high platform
to a stone floor so that his fall would result in instantaneous death. (This does not impress me as
sufficiently compassionate.)

The point, however, is that the Bible’s rule was an advance over the cruelty and lack of restraint
of earlier times. Rabbis of the Talmudic period insisted that death be quick, relatively painless,
and not mutilating. In later times, exclusion from the Jewish community, as in Spinoza’s case,
seems to have been the maximum religious penalty.

In Israel, only genocide and a few other crimes are capital. Adolph Eichmann is the only person
who has been executed. In the European Community, capital punishment is now outlawed.

In our circle of nations, only in the United States and Japan is capital punishment still available.
The European Constitutional Court has declared our procedures cruel and unacceptable.

I oppose capital punishment for reasons both personal and theoretical. There is no convincing
statistical analysis showing it has any more deterrent value than life imprisonment. This is what
you would expect since almost no murders are accomplished by people who calmly weigh the risk
of against the possible benefits of whatever skullduggery they are involved in at the time they kill.

44
The U.S. Supreme Court outlawed capital punishment some years ago on the ground that the
charge to the jury and other procedures provided inadequate protections. Furman v. Georgia , 408
U.S. 238 (1972). Some 25 years ago they allowed it again with some protection. Gregg v. Georgia,
428 U.S. 153 (1976). Justice William Brennan and Justice Thurgood Marshall dissented. They
concluded that procedural devices could never be protective enough ¯- a view that I find
persuasive. Ultimately, Justice Harry A. Blackmun reached this conclusion as well. Callins v.
Collins , 510 U.S. 1141, 1143 (1994) (Blackmun, J., dissenting from denial of certiorari).

Since the Supreme Court allowed reinstatement, most states have adopted capital punishment. The
numbers executed in some states seem appalling. Our own Governor has fretted because our
district attorneys have not, in his opinion, used the death penalty enough. We do, however, in New
York, have an excellent, well-funded defense structure, so miscarriages of justice are less likely
than in some other states.

Even if you accept the premise that there should be capital punishment, the present procedures do
not, as the Sanhedrin and the Rabbis required, ensure near certainty of guilt. Certainty is never
possible.

Studies at Columbia Law School show in many capital cases a shoddy defense and a careless and
opportunistic prosecution. Some mistakes are caught in appeals and habeas corpus proceedings,
but new laws have so restricted these corrective avenues that they are not working well.

In any event, well paid defense counsel quickly appointed with adequate funds for investigation is
the best procedural protection. In a few states like New York, and in the federal courts, there is
such a safeguard but even here the numbers suggest a racist and a geographical pattern for applying
the death penalty, based on idiosyncratic prosecutors and a local thirst for blood.

Perhaps the Leo Frank miscarriage of the 1920s (resulting in the ultimate lynching of a New York
Jew managing a factory in Georgia) would no longer take place, but the underlying bloodthirsty
attitudes against some minorities continue. It is significant that the courageous Georgia governor,
who stayed the planned legal execution of Mr. Frank before he was kidnapped and lynched, was
driven out of public life. Only recently has Georgia belatedly recognized its error after an old man,
then a boy, publicly admitted he saw the events and they did not involve Mr. Frank. With an
Orthodox Jew now nominated for vice president, we have come a long way in this country.

45
But a time for a pause and reconsideration is required. Recently it was provided by the Governor
of Illinois and our President, who stayed all executions in their spheres.

The present procedural situation is intolerable. Because the polls show a majority of people favor
capital punishment, neither of the leading presidential candidates are likely to rectify the situation.
Jews have been burned at the stake by Catholics, hacked to death by the Cossacks and gassed by
the Nazis. Should we not be less likely to embrace capital punishment and more likely to insist on
the most stringent procedural protections where the death penalty is possible?

What can we say of all this? Conditions change. Our view of what is required of a humane and
caring people should change with the times. What was required and permitted in biblical times is
not necessarily what decent people should approve of today. The argument that “the Torah says
it, therefore it is right for us,” is no excuse for unnecessary cruelty and inhumanity. We can and
should reject capital punishment.

Those who merely take a cursory glance at the Torah, with its numerous transgressions seemingly
carrying a sentence of death, miss the point. They fail to recognize that capital punishment in late
biblical times was exceedingly rare because of vast procedural protections limiting (if not
eliminating) its application. Perhaps a coda about the United States is required stating that if we
must have the death penalty, we too must provide many more procedural protections than currently
exist.14

14
Jack B. Weinstein is a senior U.S. District Court judge in the Eastern District of New York.

46
 CAPITAL PUNISHMENT IN JEWISH LAW AND ITS

APPLICATION TO THE AMERICAN LEGAL SYSTEM: A

CONCEPTUAL OVERVIEW

P R O F E S S O R S A M U E L J . L E V I N E W R I T E S : 15
I. Introduction
In recent years, a growing body of scholarship has developed in the United States that applies
concepts in Jewish law to unsettled, controversial, and challenging areas of American legal
thought.1 While some scholars endorse the application of Jewish legal theory to American
law,2 others are more cautious.3 One area of Jewish legal thought that has found prominence in

15
https://lessons.myjli.com/crime/index.php/lesson-2/capital-punishment-in-jewish-law-and-its-application-to-the-american-
legal-system-a-conceptual-overview/

47
both American court opinions4 and American legal scholarship5 concerns the approach taken by
Jewish law to capital punishment.

One aim of this Essay is to discuss the issue of the death penalty in Jewish law as it relates to the
question of the death penalty in American law, a discussion that requires the rejection of simplistic
conclusions and the confrontation of the complexities of the Jewish legal system. For example, it
is not uncommon to find both proponents and opponents of the death penalty attempting to support
their respective positions through citations to sources in Jewish law.

Such attempts, however, often fail to consider the full range of Jewish legal scholarship, relying
instead only on sources that appear superficially to favor one position over the other.6 Thus,
another goal of this Essay is to present a general and balanced overview of Jewish law with respect
to legal and historical attitudes towards the death penalty. More specifically, this Essay focuses on
the conceptual underpinnings behind pertinent Jewish law, considering the potential relevance and
effect of those conceptualizations on American legal thought.

Part II of this Essay discusses the United States appellate court case of Hayes v. Lockhart7 which
refers to the death penalty in Jewish law. This case reflects some of the methods employed by
members of the legal community who seek to support their positions on the death penalty by
referring to Jewish law. Part III takes a close look at the death penalty in the Written Torah, which
is often cited by those favoring capital punishment. Part IV examines the complex position taken
by the Oral Torah towards the death penalty as reflected in the Talmud and other rabbinic sources.
This Essay concludes that any meaningful application of Jewish law to the death penalty debate is
impossible without an accurate and complete analysis and understanding of Jewish law in its
proper context.

II. Hayes v. Lockhart—A Case in Point

The 1988 case of Hayes v. Lockhart8 offers one example of the injection of Jewish Law into the
death penalty debate and illustrates how either side can use Jewish Law to support their respective
position. This case illustrates the failure of both sides to appreciate fully the complexity of the
Jewish legal system with respect to capital punishment.

In Hayes, the United States Court of Appeals for the Eighth Circuit considered the habeas petition
of a defendant who had been convicted of capital felony murder and sentenced to death. During
his rebuttal argument at the penalty phase of the trial, the prosecutor referred to a Biblical verse
stating, “he that strikes a man, and he dies shall surely be put to death.”9 Although the majority did
not “condone the prosecutor’s remarks,” it found that the defense counsel’s failure to object to the
remarks did not constitute ineffective assistance of counsel.10

In a dissenting opinion, Judge Bright described the case as involving “a prosecutor’s overzealous
and unprincipled pursuit of the death penalty and defense counsel’s passive response.”11 Judge
Bright characterized the prosecutor’s “selective quoting” from the Bible as “not only incendiary,
but also misleading.”12 Judge Bright also asserted that “[i]n fact, the Old Testament does not
advocate the death penalty. Rather, ancient Jewish law abhors the death penalty and sets forth such

48
a multitude of procedural barriers as to render execution, in the words of Gerald Blidstein, ‘a virtual
impossibility.” ’13

The prosecutor’s reliance on the Biblical verse to support the implementation of the death penalty
in the United States was indeed problematic and misplaced. As Judge Bright correctly noted, the
prosecutor’s citation to the Biblical text without further reference to its foundation in Jewish law
resulted in an incomplete and inaccurate interpretation. Thus, Judge Bright’s emphasis on the need
to consult the work of Jewish legal scholars is instructive, but his brief discussion of the issue is
incomplete. The Talmud clearly details the painstaking procedural safeguards that were required
to be observed before the death penalty could be carried out.14 Nevertheless, it is evident from
Biblical, Talmudic, and post-Talmudic sources that capital punishment was, at times, an actual
element of the authority of both the judiciary and the king.15

Perhaps more problematic than the failure of both the prosecution and the appellate judges in
Hayes to fully investigate the role of the death penalty in Jewish law was the apparently
unquestioned notion that the resolution of the religious issue should influence the approach to
capital punishment in the United States. One problem is the reliance on an entirely different legal
and religious system to help resolve a question of American jurisprudence. The problem arises
even though it is not unusual for courts to turn to other legal systems, including the Bible, for
guidance in taming unsettled areas of law, particularly those with profound moral
implications.16 Indeed, the inclusion in this Symposium of a panel relating to the approaches taken
to the death penalty by Catholic and Jewish law reflects an assumption that these approaches are
somehow relevant to American law.

Another deeper problem lies in the apparent attitudes of the prosecution and Judge Bright in Hayes.
There seems to be a disturbing lack of sophistication in the supposition that a simple historical
determination of the frequency of death penalty sentences in the Jewish legal system should
determine how Jewish law would prescribe death sentences in the American legal system. Such a
supposition ignores the fact that Jewish laws are premised on diverse underlying conceptual
foundations, some of which may be applicable to American law and others which are rooted in
religious principles foreign to American jurisprudential thought. Part III and Part IV examine more
closely these conceptual foundations in an attempt to arrive at a more nuanced application of the
approach to capital punishment in Jewish law.

III. Capital Punishment in the Written Torah

The fundamental source of all Jewish law is the Written Torah—the Five Books of Moses. As the
prosecutor in Hayes observed, the Torah does prescribe the death penalty for murder. In fact, those
seeking a legal text that incorporates capital punishment as part of the legal system can readily
look to the text of the Torah for support, because it contains numerous references to the death
penalty. In his Code of Law, Moses Maimonides, the Medieval legal authority, documented the
various offenses subject to the death penalty according to the Torah, counting a total of thirty-six
such offenses.17

Despite the availability of the death penalty for the crimes enumerated in the Torah, reliance on
the text of the Torah to support the implementation of the death penalty in the United States is

49
tenuous at best. First, the very fact that the Torah prescribes the death penalty for numerous
offenses other than murder represents a fundamental difference between the law of the Torah and
American law. Serving as a basic religious document as well as a legal document, the Torah
consists not only of civil law but also of ritual law, in addition to historical narrative that pervades
and unites the text. The religious nature of the Torah is dramatically illustrated by many of the
offenses deemed punishable by death, including for example, various forms of idolatry and
violation of the Sabbath. In fact, the majority of capital offenses listed in the Torah relate to purely
religious matters, with relatively few involving actions that would be considered criminal in the
United States.18 Thus, the religious objectives of the legal system manifested in the Written Torah
make it an unlikely model for American jurisprudence.

One of the central functions of capital punishment in the Biblical justice system was to provide a
means for the offender to atone for the capital offense.19 The concepts of repentance and atonement
are central to Jewish religious thought and practice.20 Even those who commit the most grievous
sins have the opportunity and obligation to repent from those sins.21 Those who commit capital
offenses thus receive the harshest of punishments, partly because only such a harsh punishment is
considered sufficient to merit complete spiritual atonement.22 Although the processes of
repentance and atonement are inherent parts of Jewish legal system, that is clearly not the case in
American penal law. Various rationales have been offered to support the use of the death penalty
in the American criminal justice system, none of which justifies the death penalty on the grounds
of repentance. The notion of repentance would presumably be regarded as an unacceptable
introduction of a purely religious motive into a criminal penalty.23 Any such theory would likely
be discredited as a violation of the Establishment Clause, or as a legally improper reliance on
religious concepts that have no proper place in American legal thought.24

Second, and perhaps more fundamentally, reliance on the text of the Torah to support the death
penalty in American law assumes that the text of the Torah is a complete depiction of the Jewish
legal system. Such an assumption overlooks another basic premise of Jewish legal and religious
thought, which is that as a written text the Torah must be contextually interpreted in order to be
understood and applied to a living society. Under Jewish legal theory, in conjunction with the
Written Torah, G-d gave to Moses at Mount Sinai an Oral Torah different from, but equal in
authority to, the Written Torah. The Oral Torah was orally transmitted from generation to
generation and ultimately compiled as the Talmud. Thus, it is difficult and can be misleading to
envision the Jewish legal system based solely on the Written Torah.25 The law relating to capital
punishment is a prime example of the need to consider both the Oral and Written Torahs because
the Written Torah provides broad principles, and the Oral Torah provides most of the legal details
that determine the practical application of the law.

IV. Capital Punishment in the Oral Torah

As Judge Bright accurately observed in Hayes v. Lockhart,26 “selective quoting” from the text of
the Torah to suggest that the ancient Jewish law supports the use of the death penalty is
“misleading.”27 Judge Bright further noted that the failure to refer to the Oral Torah ignores the
“multitude of procedural barriers” set forth in the Oral Law which render the imposition of the
death penalty a rare event.28 Such safeguards were implemented throughout the Jewish criminal

50
justice process, including during the apprehension of the individual, the introduction of evidence
at trial, the deliberations, the rendering of a verdict, and post-verdict proceedings.29

The Talmud describes at considerable length the various safeguards to be carried out. Among the
most noteworthy safeguards, and perhaps those which most contribute to the infrequency of actual
judicial imposition of the death penalty, are: (1) in the process of the apprehension, there must be
at least two witnesses who observe the defendant while observing each other;30 (2) the defendant
must be told in advance of the illegality of the offense; (3) the defendant must immediately declare
an intention to commit the offense anyway; and (4) must immediately carry it out.31 Throughout
the introduction of evidence, each of the witnesses is rigorously cross-examined while being
repeatedly reminded of the grave nature of the proceeding and the dearness of the human life at
stake.32

During the deliberations, any feasible argument for acquittal must be considered by the court, even
if the argument was developed by students, who are not allowed to present arguments for
conviction.33 If a guilty verdict is found to be erroneous, the ruling is reversed, while an erroneous
acquittal cannot be reversed.34 After a guilty verdict is returned, messengers are dispatched to
announce the verdict and call on anyone who can provide exculpatory information; the court then
reconvenes to consider any exculpatory information, including claims made by the
defendant.35 These and numerous other safeguards produced a criminal justice system in which
the death penalty was implemented somewhat infrequently—certainly not with the frequency that
might be suggested by reading the Written Torah alone.

Perhaps the most dramatic and famous expression of the reluctance of ancient Jewish legal
authorities to implement the death penalty is found in a Talmudic dialogue between several Rabbis
that transpired shortly after the destruction of the Temple in Jerusalem, a time when courts no
longer had the authority to adjudicate capital cases.

Without attributing the statement to any particular individual, the Talmud first asserts that a court
which implements the death penalty once in seven years is a violent court.36 The Talmudic
discussion continues with the opinions of authorities who found even rare use of capital
punishment to be far too frequent. One such authority is Rabbi Eleazer ben Azaria, who insists that
a court that imposes the death penalty even one time in seventy years is a violent court.37

The Talmud further documents the views of Rabbi Tarfon and Rabbi Akiva, who declare that, had
they been members of a court with the authority to adjudicate capital cases, there would never have
been an execution.38 Neither Rabbi Tarfon nor Rabbi Akiva explains the precise reason for his
absolute opposition to capital punishment, however, the approach appears to be abolitionist in
spirit. The discussion concludes with a retort by Rabbi Simeon ben Gamliel that a total abolition
of the death penalty would increase the number of murderers.39 This response seemingly argues
that the death penalty serves in some way as a deterrent to murder and that the abolitionist approach
would impede this deterrent effect; the result would be an increase in murders.

Despite the obvious parallels to the current debate over the death penalty, a meaningful application
of the views presented in the Talmud requires further analysis of the rationale underlying the
various positions, including careful consideration of their religious bases. The abolitionist views
of Rabbi Tarfon and Rabbi Akiva, in particular, demand careful examination, because they are

51
sometimes cited in contemporary American legal scholarship to support the abolitionist approach.
Indeed, Judge Bright’s reference to the “virtual impossibility” of an execution in ancient Jewish
law40 coincides with the views of Rabbi Tarfon and Rabbi Akiva. It is unlikely that the reluctance
of other Rabbis to invoke the death penalty, even one time in seven years or in seventy years,
necessarily meant that the practice of execution was nearly extinct.

Scholars have suggested a number of theories to explain the abolitionist positions of Rabbi Tarfon
and Rabbi Akiva.41 One theory is that Rabbi Tarfon and Rabbi Akiva were concerned with the
abiding possibility of human error, despite the numerous and elaborate safeguards already
observed as standard procedure in capital cases.42 Such concerns certainly resonate throughout the
abolitionist movement in the United States.

Other scholars suggest that these Rabbis were opposed to capital punishment not only because of
the practical uncertainties involved, but because they were opposed to execution in principle, even
when the defendant was unquestionably guilty.43 According to this theory, the Rabbis felt an
overriding concern for the sanctity of human life that outweighed any justification for
implementing the death penalty. Again, such an approach has been adopted by modern
abolitionists who likewise value human life so highly as to preclude the killing of anyone, even
proven murderers.

Yet, while the concept of the sanctity of human life certainly has an ethical basis not necessarily
rooted in religion, Rabbi Tarfon and Rabbi Akiva likely argued from a decidedly religious
perspective, which again raises the question of the propriety of utilizing their opinions to decide
legal issues in the United States.44

Moreover, the views of Rabbi Tarfon and Rabbi Akiva are not representative of the whole of
Jewish law; rather, their opinions are two among many and did not represent the opinions of
mainstream Jewish legal authorities. Thus, Judge Bright’s statement regarding the “virtual
impossibility” of an execution in ancient Jewish law reflects a minority opinion.45 In fact,
Professor Blidstein, on whose article Judge Bright’s statement was based, deemed Rabbi Akiva to
be “the final expositor of a muted tradition.”46

Blidstein further observed that Rabbi Simeon ben Gamliel, who contested the views of Rabbi
Tarfon and Rabbi Akiva, “was probably not alone in protesting this virtual abolition of the death
penalty. His is merely the clearest voice.”47 The view of Rabbi Simeon ben Gamliel appears to
find support in other rabbinic statements, which dispute the overriding concerns that motivated
Rabbi Tarfon and Rabbi Akiva. For example, the Rabbis of the Talmud comment on the Biblical
verse which instructs that in executing a murderer, “do not pity him.”48 According to the Rabbis,
this verse was a response to those who would oppose the execution of a murderer on the grounds
that, because the victim is already dead, the taking of another life serves no purpose.49

As Blidstein explains, “[h]owever generous the motive, the perversion of justice is evil, its
motivation misguided. The Rabbis feared that true love of humanity could only be undermined by
indiscriminate recourse to ‘mercy,’ which, as Rabbi Simeon ben Gamliel pointed out, would deny
an innocent society the concern shown the criminal.”50

52
Similarly, those opinions which decried the use of the death penalty even one time in seven years
or in seventy years do not necessarily support opposition to the death penalty in the United States.
It is evident that Rabbis who made such statements, despite registering their disapproval of the
common use of the death penalty, were not confessed abolitionists. At best, to incorporate such
views into American jurisprudence would be to suggest that the current number of executions in
the country as a whole—and in the State of Texas in particular—should decrease considerably to
prevent the development of “violent courts” in the United States.

Even this modest hypothesis, however, is an inconclusive inference from the statements of the
Rabbis. Although their views appear to be based purely on the number of executions that take
place, the Rabbis’ primary concerns might instead be with the number of executions relative to the
general population. Consider that the Jewish population in the land of Israel at that time was
probably no larger than a few million;51 thus, the Rabbis’ statements criticized the execution of
one out of a few million individuals every seven or seventy years.

A proportionate analysis in the United States, a nation of nearly three hundred million people,
would result in the condemnation of the execution of approximately one hundred people every
seven or seventy years. Although this analysis still supports a suspension in the current pace of
executions, the resulting criticism of the current system is somewhat muted. Another relevant
consideration is that the Rabbis issued their opinions in the context of a society that was probably
not plagued by the level of violence currently experienced in United States.52 Had they been
theorizing in a more violent society, the Rabbis may have approved of larger number of executions.

Conversely, the intense degree of violence that has permeated the United States may ultimately
provide the most convincing argument that Jewish law would not support this nation’s
implementation of the death penalty. The Talmud indicates that forty years prior to the destruction
of the Second Temple in Jerusalem, the Sanhedrin—the High Court—moved from its location near
the Temple in order to negate its own authority to adjudicate capital cases.53

According to the Talmud, upon the proliferation of capital offenses, the Court recognized that it
could no longer judge these cases properly and subsequently decided not to render death sentences
any longer.54 Despite the mainstream acceptance of capital punishment, the Rabbis evidently
believed—and acted accordingly—that if capital offenses are committed to such an extent that
courts lose their ability to properly adjudicate such cases, then the death penalty should be
suspended.55 It follows from this view that the proliferation of murders in the United States
mandates at least a temporary cessation of capital punishment.56

Finally, two factors remain that could complicate any attempt to oppose the death penalty by
reference to Jewish law. Both factors involve fundamental components of the Jewish legal system
that do not have parallels in American law. The first factor, as previously stated, concerns the
uniquely religious considerations that often underlie principles in the Jewish criminal justice
system.57

The willingness of Jewish legal authorities to limit the use of the death penalty was based, at least
in part, on an abiding trust in G-d as the ultimate arbiter of justice. The Talmud relates the belief
that even when the High Court ceased to adjudicate capital cases, the Heavenly Court continued
to mete out the death penalty through a variety of apparently natural or accidental events.58 In

53
contrast to the belief in an ultimately Divine form of justice, the United States criminal justice
system is premised on the principle that the nation’s courts are the final forums of justice.59 Hence,
the view towards man-made justice in the United States is fundamentally inconsistent with the
religiously-based aspects of Jewish law that allow for the limitation or abolishment of capital
punishment.

The second factor complicating the use of Jewish law to oppose the death penalty is that Jewish
law provides for extrajudicial imposition of capital punishment.60 For example, the Talmud
instructs that if the “needs of the hour” so demand, a court may issue a capital sentence without
invoking the ordinary evidentiary and procedural safeguards. The Talmud also permits, under
extraordinary circumstances, the imposition of the death penalty for offenses that are not ordinarily
considered capital offenses.61 In addition, if a murderer is not subject to the death penalty through
the usual judicial process, then the King has the prerogative to execute the murderer based on
“societal need” and “the needs of the hour.”62

The very fact that Jewish law authorizes multiple means for imposing capital punishment weakens
modern attempts to rely on Jewish law to oppose the death penalty.63 It is clear that the extrajudicial
imposition of capital punishment is extraordinary even within the Jewish legal system and has no
parallel in American law.

The existence of extrajudicial alternatives to the judicial imposition of capital punishment probably
provided a measure of assurance to some of those authorities who limited the judicial enforcement
of the death penalty.64 If so, it is perhaps less certain that these authorities provide support for
modern opponents of capital punishment in the United States, where there are no extrajudicial
means for imposing capital punishment.

V. Conclusion
Any student of the law who studies the Jewish legal system and the American legal system will
observe many parallels in both substance and methodology. As a result of these parallels and the
apparent similarities in the moral beliefs found in Jewish tradition and American society, some
legal scholars look to Jewish law to help resolve complex issues in American law, particularly
those with deep moral implications.

Inasmuch as the death penalty persists as one of the most complex and controversial moral
questions in American legal thought, it is not surprising that courts and legal scholars have turned
to Jewish law for guidance. Unfortunately, however, references to Jewish law in the area of the
death penalty are often incomplete and inaccurate. A prudent application of Jewish law to the
modern death penalty requires a complete analysis of the Jewish legal system in its proper context.
In particular, one must acknowledge, appreciate, and understand the interaction between
fundamental legal and religious principles that are central to Jewish law in order to make
meaningful and illuminating comparisons and contrasts between the Jewish and American legal
systems.

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Endnotes
1. See Samuel J. Levine, Jewish Legal Theory and American Constitutional Theory: Some Comparisons and Contrasts, 24
Hastings Const. L.Q. 441, 442-43 nn.3-11 (1997) (citing sources which apply Jewish law to American legal theory);
Suzanne Last Stone, In Pursuit of the Counter-Text: The Turn to the Jewish Model in Contemporary American Legal
Theory, 106 Harv. L. Rev. 813, 814 (1993) (discussing the use of Jewish law in American legal scholarship).

2. See David R. Dow, Constitutional Midrash: The Rabbis’ Solution to Professor Bickel’s Problem, 29 Hous. L. Rev. 543,
544 (1992) (stating that “the normative ontology of the systems of Jewish and American law are so nearly identical that
the Judaic resolution of certain theoretical difficulties can be wholly transplanted to the American domain”); Irene
Merker Rosenberg & Yale L. Rosenberg, Guilt: Henry Friendly Meets the Maharal of Prague, 90 Mich. L. Rev. 604,
614-15 (1991). In this Article, Irene, and Yale Rosenberg note:
To be sure, Jewish law may be considered irrelevant to American constitutional analysis, separated as the two systems
are not only by millennia, but by religious, cultural, social, and economic differences …. That American law does not
accept an omniscient and omnipotent G-d … does not, however, preclude comparison of the two legal systems. This
country is in many ways religiously oriented, and, in any event, moral and ethical beliefs … surely pervade our society
…. Furthermore, the differences between Jewish and American law should not obscure their similarities …. Indeed,
Jewish law is a fundamental building block of Western civilization. Consciously or not, the United States has adopted
basic concepts of Jewish criminal procedure …. Moreover, the Supreme Court itself has referred to Jewish law in
support of some of its most important rulings.

3. See, e.g., Steven F. Friedell, Aaron Kirschenbaum on Equity in Jewish Law, 1993 BYU L. Rev. 909, 919 (book
review) (observing that “Jewish law has policies and purposes that are unique and that make the application of Jewish
law in a modern legal system difficult”); Suzanne Last Stone, In Pursuit of the Counter-Text: The Turn to the Jewish
Model in Contemporary American Legal Theory, 106 Harv. L. Rev. 813, 893-94 (1993) (warning that American
theorists “should be cautious not to derive too many lessons from the counter-text of Jewish law,” because “Jewish law
is not only a legal system; it is the life work of a religious community. The Constitution, on the other hand, is a political
document.”).
Despite the inherent differences between a religious legal system and a secular one, some conceptual similarities
between American law and Jewish law allow for a meaningful comparison of the two systems. See Samuel J. Levine,
Jewish Legal Theory and American Constitutional Theory: Some Comparisons and Contrasts, 24 Hastings Const. L.Q.
441, 444 (1997). This Essay focuses on the conceptual similarities between the American and Jewish legal approaches
to the death penalty and emphasizes the limitations on such comparisons due to the lack of parallels between religious
bases of Jewish law and the American legal system. As Bruce S. Ledewitz and Scott Staples have explained:
[S]imply incorporating Talmudic practice in the American legal system would not be coherent or possible. Nor would it
make sense to grant normative supremacy to the Talmud, per se. The two systems are different; the two societies are
different.
So, why compare them? The Talmud is a legal system that aspired to reflect G-d’s purpose in the world. If such a
system could confidently put men and women to death, then perhaps so can we. If, on the other hand, the Rabbis of the
Talmud agonized over execution, limited its reach, and sought to excuse where possible, perhaps we need to imitate
their voices.
Bruce S. Ledewitz & Scott Staples, Reflections on the Talmudic and American Death Penalty, 6 U. Fla. J.L. & Pub.
Pol’y 33, 37-38 (1993).

4. See Daniel A. Rudolph, Note, The Misguided Reliance in American Jurisprudence on Jewish Law to Support the Moral
Legitimacy of Capital Punishment, 33 Am. Crim. L. Rev. 437, 439-41 nn.11-21 (1996) (discussing American court
opinions which employed Jewish law).

5. See generally Steven Davidoff, A Comparative Study of the Jewish and the United States Constitutional Law of Capital
Punishment, 3 ILSA J. Int’l & Comp. L. 93 (1996); Bruce S. Ledewitz & Scott Staples, Reflections on the Talmudic
and American Death Penalty, 6 U. Fla. J. L. & Pub. Pol’y 33 (1993); Daniel A. Rudolph, The Misguided Reliance in
American Jurisprudence on Jewish Law to Support the Moral Legitimacy of Capital Punishment, 33 Am. Crim. L. Rev.
437 (1996); Aaron M. Schreiber, The Jurisprudence of Dealing with Unsatisfactory Fundamental Law: A Comparative
Glance at the Different Approaches in Medieval Criminal Law, Jewish Law and the United States Supreme Court, 11
Pace L. Rev. 535 (1991); Kenneth Shuster, Halacha as a Model for American Penal Practice: A Comparison of
Halachic and American Punishment Methods, 19 Nova L. Rev. 965 (1995).
In a recent debate at Georgetown University Law Center entitled “The Modern View of Capital Punishment” the
moderator, Professor Samuel Dash, started the discussion with references to the Torah and the Talmud, and observed
that “[t]he debate we are going to hear today on the death penalty began many years ago, actually in Biblical times …

55
 and that debate is still here today.” Alex Kozinski et al., The Modern View of Capital Punishment, 34 Am. Crim. L.
Rev. 1353-54 (1997).

6. A number of works written in English provide helpful and stimulating discussions of Jewish law as it relates to capital
punishment. See generally Basil F. Herring, Jewish Ethics and Halakhah for Our Time: Sources and Commentary 149-
73 (1984); Emanuel B. Quint & Neil S. Hecht, 1 Jewish Jurisprudence: Its Sources and Modern Applications 154-63
(1980); Adin Steinsaltz, The Essential Talmud 163-74 (Chaya Galai ed., 1976); Gerald J. Blidstein, Capital
Punishment—The Classic Jewish Discussion, 14 Judaism 159 (1965); Aaron Kirschenbaum, The Role of Punishment
in Jewish Criminal Law: A Chapter in Rabbinic Penological Thought, 9 Jewish L. Ann. 123 (1991); Moshe Sokol,
Some Tensions in the Jewish Attitude Toward the Taking of Human Life: A Philosophical Analysis of Justified
Homicide in Jewish Legal and Aggadic Literature, 7 Jewish L. Ann. 97 (1988).

7. 852 F.2d 339 (8th Cir. 1988).

8. 852 F.2d 339 (8th Cir. 1988).

9. Hayes, 852 F.2d at 356 (Bright, J., dissenting) (quoting the prosecutors reference to biblical passages). The prosecutor
appears to have been referring to Exodus 21:12.

10. See id. at 346.

11. Id. at 353.

12. Id. at 356.

13. Id. at 356 n.8 (quoting Gerald J. Blidstein, Capital Punishment—The Classic Jewish Discussion, 14 Judaism 159, 165
(1965)).

14. See infra-Part III.

15. See infra notes 47-49, 62-64 and accompanying text. In fact Professor Blidstein observes in the Talmud “expressions of
opposition” to a “virtual abolition of the death penalty.” Gerald J. Blidstein, Capital Punishment—The Classic Jewish
Discussion, 14 Judaism 159, 165 (1965). Blidstein further notes that “[i]n practice,” post-Talmudic legal authorities
“found the abolition of capital punishment … impossible to maintain.” Id. at 170 n.23.

16. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 192 (1986) (noting references to common law and early colonial law);
Roe v. Wade, 410 U.S. 113, 160 & n.57 (1973) (observing that Stoic and Jewish faiths believe life begins at birth);
Miranda v. Arizona, 384 U.S. 436, 458 n.27 (1966) (commenting on influence of bible in development of analogue to
right against self-incrimination).

17. 3 The Code of Moses Maimonides (Mishneh Torah), Book 14, The Book of Judges, Laws Concerning the Sanhedrin
and the Penalties Within Their Jurisdiction 15:13, at 44 (Julian Obermann et al. eds. & Abraham M. Hershman trans.,
1949).

18. See Leviticus 20:1-27; Numbers 15:32-36.

19. As Basil F. Herring has stated, “the evil is removed not only from the people of Israel but from the sinner in addition.”
Basil F. Herring, Jewish Ethics and Halakhah for Our Time: Sources and Commentary 157 n.7 (1984). Herring quotes a
contemporary scholar who writes that, “Notwithstanding the high regard for man, the cherished value of every unique
individual, and the great love that we have for every individual made in the image of G-d, even those condemned to
death … nonetheless an evil man cannot be permitted to remain alive, for by his death he gains atonement, even as he is
removed from life.” Id. (quoting B. Rabinowitz-Teomim, Mishpetei Nefashot be’Din ha-Sanhedrin u-ve’Din ha-
Malkhut, ha-Torah ve’ha-Medinah 48-50 (1952)). See also Kenneth Shuster, Halacha As a Model for American Penal
Practice: A Comparison of Halachic and American Punishment Methods, 19 Nova L. Rev. 965, 974 n.60 (1995)
(discussing the role of Halachic punishment in the expiation of sin).

56
20. See 3 The Code of Moses Maimonides (Mishneh Torah), Book 1, The book of Knowledge, Laws of Repentance
(Moses Hyamson trans., 1981); Joseph D. Soloveitchik, On Repentance (1984).

21. See 3 The Code of Moses Maimonides (Mishneh Torah), Book 1, The book of Knowledge, Laws of Repentance 1:1, at
81b-82a (Moses Hyamson trans., 1981).

22. Indeed, after a conviction on a capital offense, the process of capital punishment includes a mandatory confession as
part of the process of repentance and atonement. See 3 The Code of Moses Maimonides (Mishneh Torah), Book 1, The
Book of Judges, Laws Concerning the Sanhedrin and Penalties Within Their Jurisdiction 13:1, at 36 (Moses Hyamson
trans., 1981).

23. See Bruce S. Ledewitz & Scott Staples, Reflections on the Talmudic and American Death Penalty, 6 U. Fla. J.L. &
Pub. Pol’y 33, 37 (1993) (citations omitted). As Ledewitz and Staples explain:
The American death penalty differs from that of the Talmud in that it is part of a secular criminal justice system …. the
death penalty shows that at least in some contexts, a culture either has a religious perspective or it does not. An
important part of the Talmudic death penalty—some say it overriding purpose—was to attain atonement for the
condemned through a trial …. The Talmudic death penalty is unfathomable apart from atonement and ritual.
The American death penalty does not have and cannot have, given the assumptions of our constitutional order, any
focus on ritual and atonement. It would probably be reversible error for a jury even to consider that by condemning a
defendant to death, they might be guaranteeing to him “a portion in the world to come.”

24. In recent years, a number of courts have rejected references to religious and Biblical sources in relation to the death
penalty. See Bruce S. Ledewitz & Scott Staples, Reflections on the Talmudic and American Death Penalty, 6 U. Fla.
J.L. & Pub. Pol’y 33, 37 n.22 (1993) (citing cases in which references to religion are rejected); Daniel A. Rudolph, The
Misguided Reliance in American Jurisprudence on Jewish Law to Support the Moral Legitimacy of Capital
Punishment, 33 Am. Crim. L. Rev. 437, 438-39 (1996).
For discussions of the place of religion in public spheres, including law and politics, see generally Stephen L. Carter,
The Culture of Disbelief: How American Law and Politics Trivialize Religion (1993); Kent Greenawalt, Private
Consciences and Public Reasons (1995); Kent Greenawalt, Religious Convictions and Political Choice (1988); Michael
J. Perry, A Review of Religion in Politics: Constitutional and Moral Perspectives (1997); Frederick Schauer, May
Officials Think Religiously?, 27 Wm. & Mary L. Rev. 1075 (1986); Ruti Teitel, A Critique of Religion As Politics in
the Public Sphere, 78 Cornell L. Rev. 747 (1993).

25. For discussions of the history, structure, and methodology of the Jewish legal system, including the relationship
between the Written Torah and the Oral Torah, see generally Irving A. Breitowitz, Between Civil Law and Religious
Law: The Plight of The Agunah in American Society 307-13 (1993); Menachem Elon, Jewish Law: History, Sources,
Principles 228-39, 281-399 (Bernard Auerbach & Melvyn J. Sykes trans., 1994); David M. Feldman, Birth Control in
Jewish Law: Marital Relations, Contraception and Abortion 3-18 (1968); Aaron Kirschenbaum, Equity in Jewish Law:
Halakhic Perspectives in Law 289-304 (1991); Menachem Elon, The Legal System of Jewish Law, 17 N.Y.U. J. Int’l
L. & Pol. 221 passim (1985); Samuel J. Levine, Jewish Legal Theory and American Constitutional Theory: Some
Comparisons and Contrasts, 24 Hastings Const. L.Q. 441, 444-47 (1997).

26. 852 F.2d 339 (8th Cir. 1988).

27. Hayes, 852 F.2d at 356 (Bright, J. dissenting).

28. Id. at 356-57 n.8.

29. See Donald L. Beschle, What’s Guilt (or Deterrence) Got to Do with It? The Death Penalty, Ritual, and Mimetic
Violence, 38 Wm. & Mary L. Rev. 487, 508 (1997) (stating that “[t]he procedural demands necessary to sustain a
capital sentence [in ancient Israel] were increased to a level that would [[[have] put the Warren Court to shame,” and
citing observers who “have noted that this same phenomenon has become manifest in contemporary Israel,” including
“the recent remarkable restraint of Israeli appellate courts in freeing John Demanjanjuk, accused of atrocities during
World War II”).

30. See 3 The Code of Moses Maimonides (Mishneh Torah), Book 1, The book of Judges, Laws Concerning Evidence 4:1,
at 89 (Julian Obermann et al. eds. & Abraham M. Hershman trans., 1949).

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31. See 3 The Code of Moses Maimonides (Mishneh Torah), Book 1, The book of Judges, Laws Concerning the Sanhedrin
and Penalties Within Their Jurisdiction 12:1-2, at 34 (Julian Obermann et al. eds. & Abraham M. Hershman trans.,
1949)

32. See id. 12:3, at 34-36.

33. See id. 10:8, at 30.

34. See id. 10:9, at 30-31.

35. See id. 13:1, at 36-37.

36. See 4 The Babylonian Talmud, Seder Nezikin, Tractate Makkoth 7a, at 35-36 (I. Epstein ed. & H.M. Lazarus trans.,
1935).

37. See id.

38. See id.

39. See id.

40. See supra notes 10-12 and accompanying text.

41. For a philosophical approach to the debate that attributes absolutist positions to Rabbi Tarfon and Rabbi Akiva and a
consequentialist position to Rabbi Simeon ben Gamliel, see Moshe Sokol, Some Tensions in the Jewish Attitude
Toward the Taking of Human Life: A Philosophical Analysis of Justified Homicide in Jewish Legal and Aggadic
Literature, 7 Jewish L. Ann. 97, 102-05 (1988).

42. See Basil F. Herring, Jewish Ethics and Halakhah for Our Time: Sources and Commentary 156 (1984). For references
to similar concerns in contemporary American legal scholarship, see Kenneth Shuster, Halacha as a Model for
American Penal Practice: A Comparison of Halachic and American Punishment Methods, 19 Nova L. Rev. 965, 975
n.68 (1995).

43. See Basil F. Herring, Jewish Ethics and Halakhah for Our Time: Sources and Commentary 156 (1984); Gerald J.
Blidstein, Capital Punishment—The Classic Jewish Discussion, 14 Judaism 159, 164 (1965).

44. In addition, some Medieval Jewish legal authorities interpreted the abolitionist views of Rabbi Tarfon and Rabbi Akiva
as referring only to periods of proliferation in murders; according to these authorities, under ordinary conditions these
Rabbis would not support an abolitionist approach. See Basil F. Herring, Jewish Ethics and Halakhah for Our Time:
Sources and Commentary 156 (1984).

45. In addition to authorities who openly dispute the views of Rabbi Tarfon and Rabbi Akiva, a Talmudic discussion of the
different opinions suggests that a majority of Rabbis disagreed with the approach of Rabbis Tarfon and Akiva. See 4
The Babylonian Talmud, Seder Nezikin, Tractate Makkoth 7a, at 35-37 (I. Epstein ed. & H.M. Lazarus trans., 1935).

46. Gerald J. Blidstein, Capital Punishment—The Classic Jewish Discussion, 14 Judaism 159, 165 (1965).

47. Id.

48. Deuteronomy 19:13.

49. See Midrash Tannaim (commenting on Deuteronomy 19:13) (cited in Basil F. Herring, Jewish Ethics and Halakhah For
Our Time: Sources and Commentary 152 (1984)).

50. Gerald J. Blidstein, Capital Punishment—The Classic Jewish Discussion, 14 Judaism 159, 167 (1965).

58
51. See 13 Encyclopedia Judaica 871-72 (1971) (estimating the Jewish population in the Land of Israel “shortly before the
fall of Jerusalem” in 70 C.E. at “not more than 2,350,000-2,500,000” and noting that after the fall of Jerusalem,
“[u]nquestionably the total number of Jews rapidly declined”).

52. Professors Ledewitz and Staples suggest that “[t]he differences between Israel in the period of time before the
reduction of the Talmud and America today are obviously great …. The most significant difference between ancient
Israel and modern America is the level of violence.” See Bruce S. Ledewitz & Scott Staples, Reflections on the
Talmudic and American Death Penalty, 6 U. Fla. J.L. & Pub. Pol’y 33, 36 (1993).

53. See 4 The Babylonian Talmud, Seder Nezikin, Tractate Abodah Zarah 8b, at 42 (I. Epstein ed. & A. Cohen trans.,
1935).

54. The precise rationale for the Sanhedrin’s actions remains nebulous. See id.; Aaron Kirschenbaum, The Role of
Punishment in Jewish Criminal Law: A Chapter in Rabbinic Penological Thought, 9 Jewish L. Ann. 123, 141 (1991);
Bruce S. Ledowitz & Scott Staples, Reflections on the Talmudic and American Death Penalty, 6 U. Fla. J.L. & Pub.
Pol’y 33, 36 (1993).

55. Basil F. Herring has cited the view that “when the crime rate increases, indicating that the deterrent function of the
death penalty is irrelevant, there is even more reason to oppose its implementation.” Basil F. Herring, Jewish Ethics and
Halakhah for Our Time: Sources and Commentary 161 (1984).

56. Professors Ledewitz and Staples reason that “[i]f we are to have a death penalty at all, with over 20,000 homicides a
year, it must be a massively widespread penalty compared to that of Israel.” Bruce S. Ledowitz & Scott Staples,
Reflections on the Talmudic and American Death Penalty, 6 U. Fla. J.L. & Pub. Pol’y 33, 36 (1993). They conclude
that “[t]he Rabbis of the Talmud could not have accepted the routinization of the death penalty necessitated by such
large numbers.” Id.

57. See notes 20-26 and accompanying text.

58. See 3 The Babylonian Talmud, Seder Nezikin, Tractate Sanhedrin 37b, at 235-36 (I. Epstein ed. & Jacob Shachter
trans., 1935); see also Aaron Kirschenbaum, The Role of Punishment in Jewish Criminal Law: A Chapter in Rabbinic
Penological Thought, 9 Jewish L. Ann. 123, 138-41 (1991).

59. See Irene Merker Rosenberg & Yale M. Rosenberg, Guilt: Henry Friendly Meets the Maharal of Prague, 90 Mich. L.
Rev. 604, 614-15 (1991) (contrasting the American criminal justice system’s approach to guilt with the Jewish legal
system’s underlying assumption that “in any case of acquittal of the factually guilty, G-d will ultimately assess
culpability correctly and completely and punish accordingly”). Despite this contrast, the authors cite a number of
similarities between the two systems and endorse “meaningful comparison of the Jewish and American views on
factual and legal guilt.” Id. at 616; see also supra note 3.

60. See Aaron M. Schreiber, The Jurisprudence of Dealing with Unsatisfactory Fundamental Law: A Comparative Glance
at the Different Approaches in Medieval Criminal Law, Jewish Law, and the United States Supreme Court, 11 Pace L.
Rev. 535, 545-51 (1991).

61. See 3 The Babylonian Talmud, Seder Nezikin, Tractate Sanhedrin 46a, at 303, 72a, at 488-89 (I. Epstein ed. & H.
Freedman & Jacob Shachter trans., 1935). For discussions of the court’s exigency jurisdiction, see Basil F. Herring,
Jewish Ethics and Halakhah for Our Time: Sources and Commentary 158-59 (1984); Emanuel B. Quint & Neil S.
Hecht, 1 Jewish Jurisprudence: Its Sources and Modern Applications 139-213 (1980); Aaron Kirschenbaum, The Role
of Punishment in Jewish Criminal Law: A Chapter in Rabbinic Penological Thought, 9 Jewish L. Ann. 123, 132-35
(1991).

62. See Maimonides, Code of Law, (Mishneh Torah), Book 14, The Book of Judges, Laws of Murder 2:4 (Julian
Obermann et al. eds. & Abraham M. Hershman trans., 1949); see generally J. David Bleich, Jewish Law, and the
State’s Authority to Punish Crime, 12 Cardozo L. Rev. 829 (1991); Arnold N. Enker, Aspects of Interaction Between
the Torah Law, the King’s Law, and the Noahide Law in Jewish Criminal Law, 12 Cardozo L. Rev. 1137 (1991).

59
 63. See Aaron M. Schreiber, The Jurisprudence of Dealing with Unsatisfactory Fundamental Law: A Comparative Glance
at the Different Approaches in Medieval Criminal Law, Jewish Law, and the United States Supreme Court, 11 Pace L.
Rev. 535, 545-51 (1991).

64. See Aaron Kirschenbaum, The Role of Punishment in Jewish Criminal Law: A Chapter in Rabbinic Penological
Thought, 9 Jewish L. Ann. 123, 141 (1991) (asserting “[o]nly the exigency jurisdiction of the courts … remained to
cope with the proliferation of murderers, plunderers, and men of violence”).

PARTICIPATING IN THE AMERICAN DEATH PENALTY

Jeremy Kalmanofsky writes:16

16
https://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/2011-2020/cjls-onesh-mavet.pdf

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 Protesters calling for an end to the death penalty unfurl a banner before
police arrest them outside the U.S. Supreme Court in Washington January 17,
2007.

Does death penalty meet Jewish values?

A spate of planned executions in Arkansas rekindles the debate

DANIELLE ZIRI writes:17

Although a large portion of the US Jewish community is opposed to the death penalty, an issue
that has recently been making headlines following cases in Arkansas, the concept of capital
punishment has its roots in the Bible and is mandated by the Torah, New York rabbis told The
Jerusalem Post on Wednesday.

The issue has sparked debate again in April after the State of Arkansas announced plans to execute
eight inmates on death row by the end of the month, when the state’s stock of a lethal injection
drug expires.

17
https://www.jpost.com/diaspora/does-death-penalty-meet-jewish-values-488384

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On Monday, the Supreme Court blocked two of the executions, just hours before they were
scheduled to take place. These would have been the state’s first executions in over a decade. The
legal battle over the fate of the death row inmates is ongoing.

Orthodox Rabbi Allen Schwartz of Congregation Ohab Zedek on the Upper West Side told
the Post that while the Torah calls for the death penalty for many violations, it is used very
carefully, and more as a deterrent.

“It says that if a Jew was put to death once in 70 years, that is considered a bloody century,” he
said. “It was rarely ever promulgated.”

While in the texts, crimes like adultery and violation of Shabbat were punishable by death, today
the sentence is mainly reserved for murder.

“It is clearly the worst of all sins,” Schwartz said. “The people in Arkansas who are on death row
are there for taking life, not for egregious drug sales. The country would not kill Bernie Madoff
for stealing 65 million dollars.

He’ll spend the rest of his life in jail but they’re not gonna kill him for that.”

Rabbi Mark Wildes of the Manhattan Jewish Experience, a community for young Jews in New
York, added that in order to carry out an execution, “Jewish law requires so much of the
prosecution that it is almost impossible to carry out the death penalty in practical reality.”

Wildes said from a Jewish point of view, the evidence against the defendant in a death row case
needs to be very conclusive, to the point that there is no doubt the person has committed the crime.

“To favor the death penalty as Jews, the American legal system would need to require the
prosecution to provide more evidence than the current American system requires, to ensure a
higher level of certainty that the defendant had in fact committed the crime,” he said.

But according to Schwartz, while capital punishment could be debated for sins other than murder,
“the taking of a life is something so egregious that there is no punishment that can atone for such
a sin.”

“For people who kill others... there is only one approach that mankind has to have to this, and it
says so again and again in the Torah,” he told the Post. “If Jews are saying they are categorically
against the death penalty, I don’t know if that’s a Torah value.”

Nevertheless, the risk of executing an innocent person shouldn’t be taken lightly, the rabbis agreed.

“There is no threshold for even one out of a thousand people killed without deserving it,” Schwartz
stated. “You don’t want to get the death penalty wrong, but when it’s unequivocal that this person
took life, you have unequivocal evidence, then Judaism is also unequivocal about that.”

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In addition, Judaism strongly focuses on the idea of teshuva, repentance for one’s sins, an idea that
often seems to be in conflict with the finality of capital punishment.

“Judaism believes in giving as many opportunities as possible for the convicted to repent,” Wildes
pointed out. “There really is no idea of punishing for the sake of punishing in Judaism – it’s all
part of enabling the convicted person to be restored spiritually and ethically.”

Although repentance is an indispensable part of the rehabilitative process, Schwartz believes it can
still go hand in hand with execution.

“If someone unequivocally committed murder, part of his teshuva is being killed,” he said.

If the executions in Arkansas are carried out after all, they would be a major step back in the US.
According to data published last week by Amnesty International, the number of executions has
significantly declined in the country in recent years.

In 2016, only 20 executions were carried out in the US, the country’s lowest number since 1991.

For the first time in 10 years, the US was also not one of the five biggest executioners, falling to
seventh place. Most executions took place in China, Iran, Saudi Arabia, Iraq, and Pakistan – in
that order.

Death Penalty

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 The question we need to ask about the death penalty in America is not whether
someone deserves to die for a crime. The question is whether we deserve to kill.

The death penalty in America is a flawed, expensive policy, defined by bias and error. It targets the
most vulnerable people in our society and corrupts the integrity of our criminal justice system. From
police officers to family members of murder victims, Americans are recognizing that the death
penalty does not make us safer.18

EJI provides legal assistance to people on death row, many of whom are innocent or wrongly
convicted. We provide representation at trial, on appeal, and in postconviction proceedings to people
facing execution. We have documented widespread racial bias in the administration of the death
penalty and we challenge racial discrimination in jury selection, sentencing, and throughout the
system. We protect vulnerable people facing execution, including people with mental illness who
are uniquely at risk, and we produce reports about capital punishment and the ways in which public
safety can be undermined by relying on this expensive and flawed punishment.

Innocence and Error

Our death penalty system treats you better if you’re rich and guilty than if you’re poor and innocent.
As a result, a stunning number of innocent people have been sentenced to death.

186
186 people have been exonerated and released from death row since 1973.1
1,543
1,543 people have been executed in the U.S. since 1973.2
1 in 9
For every nine people executed, one person on death row has been exonerated.
The same factors drive wrongful convictions in non-capital cases and death penalty cases, including:

• erroneous eyewitness identifications

• false and coerced confessions
• inadequate legal defense
• false or misleading forensic evidence
• false accusations or perjury by witnesses who are promised lenient treatment or other
incentives in exchange for their testimony.
In death penalty cases, perjury/false accusations and official misconduct are the leading causes of
wrongful convictions.3 A record 111 exonerations in 2018 involved witnesses who lied on the stand
or falsely accused the defendant. In 50 of these cases, the defendant was falsely accused of a crime
that never happened.4

18
https://eji.org/issues/deathpenalty/#:~:text=In%20death%20penalty%20cases%2C%20perjury,leading%20causes%20of%20wro
ngful%20convictions.&text=A%20record%20111%20exonerations%20in,a%20crime%20that%20never%20happened.

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Misconduct by police or prosecutors (or both) was involved in 79% of homicide exonerations in
2018. Concealing evidence that casts doubt on the defendant’s guilt is the most common type of
misconduct, which includes police officers threatening witnesses, forensic analysts faking test
results, and prosecutors presenting false testimony.5

Official misconduct is more common in death penalty cases, especially if the defendant is Black.
Data shows that 87% of Black exonerees who were sentenced to death were victims of official
misconduct, compared to 67% of white death row exonerees.6

A person doesn’t have to be innocent to be wrongly sentenced to death. The intense pressure to
obtain a death sentence and the political stakes for police, prosecutors, and even judges can cause
serious legal errors that contribute to wrongful convictions and death sentences. In Alabama alone,
over 160 death sentences have been invalidated by state and federal courts, resulting in conviction
of a lesser offense or a lesser sentence on retrial.

Inadequate Counsel
The death penalty is mostly imposed on poor people who cannot afford to hire an effective lawyer.

Inadequate legal assistance, racial bias, and prosecutorial indifference to innocence make Mr.
Hinton’s case a textbook example of injustice.

The failure to provide adequate counsel to capital defendants and people sentenced to death is a
defining feature of the American death penalty. Whether a defendant will be sentenced to death
typically depends on the quality of his legal team more than any other factor.

Some lawyers provide outstanding representation to capital defendants. But few defendants facing
capital charges can afford to hire an attorney, so they are appointed lawyers who are frequently
overworked, underpaid, and inexperienced in trying death penalty cases.

Capital cases are especially complex, time-intensive, and financially draining. Lawyers representing
indigent capital defendants often face enormous caseloads, caps on fees, and a critical lack of
resources for investigation and expert assistance. Too often they fail to adequately investigate cases,
call witnesses, and challenge forensic evidence.7 Capital defense lawyers have slept through parts of
trial, shown up in court intoxicated, or done no work to prepare for sentencing.8

Few states provide enough funding for capital defense counsel, and most death penalty states don’t
require lawyers to meet the minimum training and experience guidelines set by the American Bar
Association.9

Inadequate defense lawyers contribute to wrongful convictions and death sentences, and by failing
to object at trial, they make it harder to correct errors on appeal. After that first appeal, there’s no
right to counsel. That leaves people sentenced to death with little hope for relief in postconviction
proceedings, where they have to present new evidence and navigate complicated procedural rules.10

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Racial Bias
People of color are more likely to be prosecuted for capital murder, sentenced to death, and executed,
especially if the victim in the case is white.

Lynching in America
The death penalty is a direct descendant of racial terror lynching.

The death penalty in America is a “direct descendant of lynching.” Racial terror lynchings gave way
to executions in response to criticism that torturing and killing Black people for cheering audiences
was undermining America’s image and moral authority on the world stage.11

By 1915, court-ordered executions outpaced lynchings for the first time. Two-thirds of people
executed in the 1930s were Black, and the trend continued. African Americans’ share of the South’s
population fell to just 22% by 1950, but 75% of people executed in the South were Black.12

In 1972, the Supreme Court struck down the death penalty because it looked too much like “self-
help, vigilante justice, and lynch law.”13 “If any basis can be discerned for the selection of these few
to be sentenced to die,” the Court wrote in Furman v. Georgia, “it is the constitutionally
impermissible basis of race.”
Southern lawmakers accused the Court of “destroying our system of government” and quickly
passed new death penalty laws. “There should be more hangings. Put more nooses on the gallows,”
proponents of Georgia’s new law insisted. “It wouldn’t be too bad to hang some on the courthouse
square and let those who would plunder and destroy see.”14 The Supreme Court upheld Georgia’s
new death penalty statute in 1976,15 and racial bias in the death penalty persisted.

A decade later, the Court considered statistical evidence presented in McCleskey v. Kemp showing
that Georgia defendants were more than four times as likely to be sentenced to death if the murder
victim was white than if the victim was Black. The Court accepted the data was accurate, but it
refused to reverse the death sentence because it concluded that racial bias in sentencing is “an
inevitable part of our criminal justice system.”16
41%
African Americans make up 41% of people on death row and 34% of those executed,17 but only
13% of the population is Black.18
8 in 10
More than 8 in 10 lynchings between 1889 and 1918 and legal executions since 1976 have occurred
in the South.19
75%
75% of executions for murder were in cases with white victims.20
Race still influences who is sentenced to death and executed in America today. The data in Georgia
has actually gotten worse: people convicted of killing white victims are 17 times more likely to be
executed than those convicted of killing Black victims.21

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Race and the Jury
Nearly 150 years after Congress passed the Civil Rights Act of 1875 to eliminate racial
discrimination in jury selection, people of color continue to be excluded from jury service because
of their race.

In capital trials, the accused is often the only person of color in the courtroom. Illegal racial
discrimination in jury selection is widespread, especially in the South and in capital cases—
thousands of Black people called for jury service have been illegally excluded from juries.

Southern lawmakers today invoke “states’ rights” to defeat anti-discrimination bills just like they did
to block federal anti-lynching laws. And regional data demonstrates that the modern death penalty
in America mirrors the racial violence of the past.22

Arbitrariness
The death penalty is supposed to be reserved for the most culpable. Instead, it's inflicted on the most
vulnerable.

In 1976, the Supreme Court reinstated capital punishment so long as it is imposed only on people
who “deserve” it. The Court has since barred the death penalty for certain groups of people who are
not culpable enough to “deserve” execution.
44
At least 44 people with intellectual disability were executed before the Supreme Court banned
such executions in 2002.23
366
366 people who were children at the time of their offense were executed before such executions
were banned in 2005.24
20%
Mental health experts estimate at least 20% of people on death row today have a serious
mental illness.25

Intellectual Disability
In 2002, the Court in Atkins v. Virginia barred the execution of people with intellectual disability
because they “do not act with the level of moral culpability that characterizes the most serious adult
criminal conduct” and because “their disabilities in areas of reasoning, judgment, and control of their
impulses [can] jeopardize the reliability and fairness of capital proceedings.”26

But because the Court “le[ft] to the State[s] the task of developing appropriate ways to enforce the
constitutional restriction,” some states created narrow definitions that permit the execution of people
who meet the clinical criteria for intellectual disability.27

Children

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Three years after Atkins, the Court applied the same reasoning in Roper v. Simmons to bar the
execution of children because “juvenile offenders cannot with reliability be classified among the
worst offenders.”28

“Their own vulnerability and comparative lack of control over their immediate surroundings mean
juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in
their whole environment.”
When Roper was decided, 71 people were on death row for juvenile crimes. Two-thirds were people
of color, and more than two-thirds of the victims were white.29

Mental Illness

Executing people with mental illness presents the same concerns about culpability and reliability
that led the Court to bar the death penalty for children and people with intellectual disability. People
who have a mental illness or disability that significantly impairs their cognitive or volitional
functioning at the time of the offense should be exempted from capital punishment because they do
not act with the level of moral culpability that characterizes the most serious adult criminal conduct.

People with mental illness are more vulnerable to police pressure, are less able to give meaningful
assistance to their counsel and are typically poor witnesses. People who have a mental illness that
causes delusions are more likely to insist on representing themselves at trial; they are prone to
outbursts in front of their juries, and some are so heavily medicated that they appear to have
no remorse.30

There’s a greater risk that people with mental illness will be executed without review of their
convictions or sentences even though the law forbids executing people who are mentally
incompetent. Nearly 10% of the people executed since 1976 have been so-called “volunteers” who
gave up their appeals,31 and over 75% of those who waive their appeals suffer from documented
mental illness.32

Mental health experts estimate at least 20% of people on death row today have a serious
mental illness.33 At least 10% of the people currently sentenced to death nationwide are military
veterans, many of whom suffer from documented trauma disorders.34

EJI believes that executing people with mental illness is cruel and misguided. Rather than executing
people who are themselves victims of trauma, violent injury, or disease as a symbol of society’s
moral outrage about violent crime, we should dedicate our resources to providing mental health care
and support that would actually reduce violent crime in our communities.

Public Safety
The death penalty is a barrier to effective crime prevention. It does not make us safer.

Deterrence

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After more than three decades of research examining whether the threat of a death sentence deters
people from committing aggravated murders, there is no reliable evidence that the death penalty
deters murder or that it protects police. The National Research Council of the National Academies
concluded that studies claiming the death penalty has a deterrent effect are
fundamentally flawed.35 Studies have shown that murder rates, including murders of police officers,
are consistently higher in states that have the death penalty, while states that abolished the death
penalty have the lowest rates of police officers killed in the line of duty.36

Geographical Arbitrariness
The likelihood of a death sentence or execution depends more on the county where the crime
happened than the severity of the offense. Only 2% of the counties in the U.S. have been responsible
for the majority of cases leading to executions since 1976. And only 2% of the counties are
responsible for the majority of today’s death row population and recent death sentences. But all state
taxpayers have to bear the substantial financial costs of death penalty cases in the handful of counties
that cling to this outdated and ineffective policy.37

Cost
The death penalty is far more expensive than a system in which life imprisonment without parole is
the maximum sentence. Sophisticated studies at the state level show that the death penalty costs
taxpayers more than life without parole.38 Republicans leading a movement for abolition in some of
the most conservative states in the country have condemned the death penalty as an expensive
government program that is ineffective in deterring crime.39

Distraction
The death penalty draws attention away from effective public safety policies and distorts elections
of judges and prosecutors by privileging “tough on crime” rhetoric and candidates. A nationwide
survey of police chiefs put the death penalty last among their priorities for reducing violent crime—
below increasing the number of police officers, reducing drug abuse, and creating a better economy.
Surveyed law enforcement officials said they did not believe the death penalty is a deterrent to
murder, and they rated it as one of most inefficient uses of taxpayer dollars in fighting crime.40

Decline

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Use of the death penalty and public support for it are declining. New death sentences have remained
near record lows since 2015 after peaking at more than 300 per year in the mid-90s. Executions have
declined significantly over the past two decades.41

Eleven of the 23 states that have abolished the death penalty have done so since 2004: New
Jersey (2007), New York (2007), New
Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013), Delaware (2016), Washingt
on (2018), New Hampshire (2019), Colorado (2020), and Virginia (2021). In 2019, California
joined Oregon (2011) and Pennsylvania (2015) in imposing a moratorium on executions.
Public support for the death penalty has been waning steadily—a record low 49% of Americans
said they supported the death penalty in 2016.42

And the near-universal opposition to capital punishment among 2020 Democratic presidential
candidates signifies a major shift from 1992, when Bill Clinton left the campaign trail to oversee an
execution in Arkansas. “Smart on crime” policy solutions, including alternatives to the death penalty,
are edging out the rhetoric of “tough on crime” even in very conservative states.43

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