Rabbi Anderson's Divrei Torah

Shabbat shalom! Like many Jews around the United States, I was shocked and horrified by the Squirrel Hill synagogue shootings in Pittsburgh in 2018, and I followed some of the news about the shooter’s long-delayed trial. Even if I hadn’t been interested, I couldn’t’ve missed the flurry of announcements a month ago, as the jurors – predictably – found Robert Bowers guilty, and then again two weeks ago, when the same jurors unanimously sentenced him to death.

While my friends, family, and acquaintances have some pretty diverse backgrounds and views, and I try to read a variety of news sources, this was a rare case where almost everyone who commented on the sentence, no matter their religious or political stance, agreed: if anyone deserved the death penalty, it was the Squirrel Hill synagogue shooter. Nobody doubted his guilt, and nobody was going to be sad about his death. Some people were against the death penalty on principle, but even they tended to point out – in this particular case – that life in prison was probably worse than dying. As long as the death penalty was on the books for federal crimes, at any rate, this verdict seemed fitting, and just.

When I read this week’s Torah portion, though, it made me think again. One of the unique teachings in Parshat Shoftim is its discussion of witness standards for capital crimes. In Etz Hayim’s translation: “A person shall be put to death only on the testimony of two or more witnesses; he must not be put to death on the testimony of a single witness. Let the hands of the witnesses be the first against him to put him to death, and the hands of the rest of the people thereafter. Thus you will sweep out evil from your midst” (Deut. 17:6-7).

While you might read these verses as applying only to the death penalty for idolatry, which immediately precedes them, rabbinic tradition viewed them as a general guide to not only witnessing but also to carrying out sentences in capital cases. The Talmud explains in some detail how the witnesses would participate in stoning, for instance, first the two witnesses, in order, and only then the rest of the onlookers.[1] One sage[2] even claims that if witnesses testify against a wrongdoer and then have their hands cut off, rendering them unable to administer the punishment themselves, the wrongdoer must go free; the Talmud then debates whether or not the Torah needs to be understood quite so literally, and, if so, whether the same problem exists if the witnesses lacked hands from the beginning of the trial. 

Are we supposed to take any of this seriously? There is an ongoing academic debate about whether or not rabbinical courts administering the death penalty ever existed, and if so, whether they followed any of the elaborate and frankly rather unworkable prescriptions of the Talmud, many of which would make capital punishment effectively impossible.[3] The rabbinic tradition itself does claim that these courts existed and imposed capital punishments, but always in some past era: even the Mishnah looks back to courts that supposedly existed in the time of the Second Temple. Certainly, the debate about how handless witnesses could execute criminals was a strictly theoretical multi-generational debate over how best to interpret the Torah, not a practical suggestion. Most of Jewish history has found Jews living under non-Jewish justice systems, with at best partial autonomy; in the few times and places when Jewish courts actually did have the authority to administer serious and possibly life-threatening punishments, they tended to avoid the death penalty, claiming along with Rashi that [Jewish] “courts do not administer real punishments in our time.”[4] Rare cases of court-sanctioned execution in medieval and early modern sources were always described as extra-halakhic, and in response to emergencies or as a protection against further death; they did not require or expect the witnesses to participate. Similarly, if we look at the one and only instance of the death penalty being used in the modern state of Israel, against the Nazi war criminal Adolf Eichmann, the trial took place in a secular courtroom, not a Beit Din, and the execution was conducted according to twentieth-century norms, not rabbinic procedure. The many witnesses against Eichmann had no involvement with his execution.

I for one have absolutely no interest in helping to stone idolaters, or trying to resurrect a rabbinic execution system, or engaging witnesses to a capital crime in the process of execution. None of that would satisfy our very real need for a just society. But the Torah does have something to teach us here, and it’s not confined to the world of the contemporary beit din. When the Torah asserts that the witnesses, and then “the rest of the people,” are responsible for executing the transgressor, it is making a powerful statement about our collective responsibility for the enactment and enforcement of justice. In the Torah, justice is always public; judicial decisions, including executions, happen outside the Tent of Meeting, or – in Deuteronomy, looking forward to the future  – “at the gates” of some unspecified Israelite city.  The entire Israelite people are part of these decisions, even if they have selected judges and officials to carry them out. Similarly, we are part of our own legal systems, Jewish or not, and we are responsible for trying to ensure that those systems actually do lead to just outcomes, whether that means voting, serving on juries, acting as witnesses, protesting against injustice, or simply participating in conversations about legal systems and judicial responsibilities, which are so much a part of both U.S. and Israeli news this summer. I don’t have easy answers for the questions raised by any of those conversations, but I think having them is important. Justice is important, here and now – and looking forward to the future.