There is not the slightest doubt that throughout the historical period when the Bible was composed that capital punishment was an accepted and indeed commonplace fact of life. Not only does the Bible authorize capital punishment, but prescribes and demands it for many offenses. Lift a stone on the Sabbath? The Torah requires a death sentence. Commit adultery? Death to all parties. And adultery is hardly the only sexual offense for which the death penalty is meted out–incest, bestiality, male homosexual relations. Leviticus 20 details all these and adds such things as consulting with a ghost–some sort of communion with a supernatural being. Apparently seeking your fortune from a Gypsy could be a capital crime in the eyes of Leviticus. Oh, and be careful what you say to your parents, insulting one is another capital crime. All this is in Leviticus 20, but there are references to the necessity for capital punishment in every book of the Torah and throughout the rest of the Hebrew Bible.
One might have expected change with the introduction of Christianity, after all, it would not be any kind of exaggeration to suggest that the most infamous case of capital punishment in human history is the execution of the man Christians claim was the Messiah, the anointed of God and later celebrated as God’s son. But nowhere do we find any suggestion that the execution of Jesus was anything but the legitimate exercise of government power. As described in the Gospels, Jesus was accused of a capital crime, received a fair trial by the standards of his time, and executed according to the dictates of the law. But far from resulting in any condemnation of capital punishment, nations adopting Christianity accepted capital punishment for an ever widening set of infractions. In nineteenth century England, wags noted that spectators who came to see the public hangings of pick-pockets often discovered that their own pockets had been picked.
The history of capital punishment takes a major turn with the meditations of the post-Biblical rabbinic movement. It is easy to say that this resulted from the fact that Jews by and large ceased to be self-governing in the wake of the destruction of the Temple in Jerusalem. If a Jew were charged with a capital crime, they would be at the mercy of a non-Jewish legal entity. Confronted with what were almost certainly many executions for such crimes as “blasphemy”–or simply because gentiles wished to confiscate their belongings–such circumstances might well lead to a questioning of the fairness of capital punishment.
But how could the rabbis of that post-Temple era question the legitimacy of capital punishment? Did we not begin this discussion by noting that capital punishment is quite literally demanded by every book of the Torah?
What we find is that they found a weak spot in the logic of capital punishment: the legitimacy of the courts which are required to mete out the sentence. How does anyone know that one of the enumerated crimes has occurred? In most cases, it could only happen by the testimony of witnesses. In various texts the rabbis found ways to undermine relying on such testimony. They enacted such protections as requiring the testimony of at least two eyewitnesses to a capital crime. They admonished the witnesses that they could themselves be charged with a capital crime if they lie or distort the truth. And in one text they declared that any court which sentenced more than one person to death within 70 years is a homicidal court and must be disbanded (Makkot 7a).
The modern State of Israel has experienced a wide variety of crimes which surely merit the death penalty, but Israel has executed just one person in the more than 70 years of its existence: Adolph Eichmann.
Most western democracies and many American states have outlawed the death penalty out of a recognition that certainty will always elude us. But elsewhere in the world, and among many US states, the death penalty remains. As I write this, two Americans have been executed in two different states who may very well have been innocent of the crimes for which they were convicted. And a man in Texas is awaiting execution for a crime he almost certainly did not commit.
This barbarism simply must end.