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Capital Punishment and Curbing Crime

Masay (Numbers 33-36 )

by Rabbi Boruch Leff

You would get the impression from a few verses in Parshas Masay that the Torah takes the crime of homicide very seriously. No less than 29 verses (35:6-34) discuss the various consequences of all kinds of murder, both intentional and unintentional. In Parshas Shoftim there are another 13 verses that address the same subject, as well as more individual verses throughout the Torah. Murder is a cardinal sin and needs to be punished severely.

Yet, we find a fascinating, seemingly contradictory, series of statements in the Mishneh Makkos 7a:

A Sanhedrin (High Court) that executes once in seven years is called a destroyer. Rabbi Elazar ben Azariah says: Once in 70 years. Rabbi Tarfon and Rabbi Akiva say: Had we been on a Sanhedrin, no one would ever have been executed. Rabbi Shimon ben Gamliel says: They would then have increased the number of murderers in Israel."

(Tosafos Yom Tov commentary explains that Rabbi Shimon ben Gamliel was concerned with murder more than other sins because it is the most destructive one. His point though applies to increasing all other types of sins besides murder as well.)

Strange. There is no other word to describe the feeling one gets when reading this Mishneh. At the maximum, a High Court was not expected to execute any criminal, even for capital offenses, more than once every seven years, and even that is considered too often. Even Rabbi Shimon ben Gamliel, while criticizing Rabbis Tarfon and Akiva as being too lenient, agrees with that.

The Bartenura commentary explains the basic rationale of this Mishneh as encouraging judges to examine carefully and decide slowly, so that they could find a method to exonerate the accused. We don't wish to kill even a criminal, unnecessarily.

But what then are we to do with all of the verses in the Torah delineating all the capital consequences and punishments of transgressions? The Torah was not simply wasting its time in an exercise in futility. So why does the Torah list and threaten numerous punishments if they are not easily designed ever to be carried out?

The answer is this. The mark of social stability, morality, and lack of crime within any society is not necessarily based on the number of criminals who are actually convicted. What matters most is not how many arrests we make but the very fact that we put a law on the books and make a statement of what our values are. It is of utmost importance for a society to prohibit and make adultery illegal. Whether it is practical or possible to enforce such a law is irrelevant. We need to make the strong declaration that adultery is patented evil, regardless. We must make statements explaining our values.

Murder is unacceptable and deserving of death, whether we are able to punish all murderers or not.

We may think that it doesn't matter very much when we firmly state our morals even without the ability to carry out punishment. But it matters very much. The difference is the entire pulse and tone of our society. Children grow up with a sense of right and wrong in their outlooks and understanding when we clearly and cogently state our morals and values. If society has no stated values, the child will experiment with anything and everything and walk down immoral paths.

There is no real way that any society can eliminate crime strictly through carrying out punishments. Shoplifting, drugs, muggings, or murder will never be curbed unless society expresses how it feels about crime. A society must look with contempt at a thief, with horror at a murderer, with total intolerance at a rapist, in order to work toward eliminating all of them. But if criminals do not get these feelings from society but, on the contrary, receive understanding and compassion from the justice system due to their 'unfortunate upbringing,' this guarantees that not only will it not curb, but it will actually encourage more crime.

We cannot impose discipline from without. We can only do so from within. When a child shoplifts we must look at him with revulsion and scream, "You thief! How could you?" If children continuously receive these reactions, they will not shoplift. But if we merely tell them, "You better not do that because you don't want to get a criminal record," it won't make the slightest impression upon anyone to avoid it. We must strongly frown upon all crimes and not give it the slightest degree of acceptance.

In societies where values are clearly expressed, crime will truly be minimal. In societies where this is not done, crime will be an ongoing problem. Thus, the Torah constantly describes all of the serious consequences of murder, theft, and all transgressions.

It is irrelevant whether or not punishments will actually be carried out. But it is of utmost significance to state the severity of the punishments, which apply to the crimes.

We should support capital punishment for severe crimes such as murder, because we need to instruct all members of society that taking someone's life warrants the forfeiting of the murderer's own life. If the fact remains that capital punishment does not curb murder in the United States, it is only because society does not show enough outrage at the criminal but rather seeks to understand with tolerance, the criminal's motive and rationale.

Yes, it is possible to be too tolerant, at times. Compassion for criminals is one such example. We can never allow our contempt for immoral acts to be weakened. If we do so, we risk sacrificing the entire moral fabric of society and we guarantee that crime will exist perpetually.

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