Should We Be Executing People?

Real questions, submitted by actual OU Torah followers, with their real answers. NOTE: For questions of practical halacha, please consult your own rabbi for guidance.

Q. How do you explain all the places where the Torah says someone “shall be put to death?” Are we really supposed to kill all the people who do these things?

A. When it says that a person who does such-and-such "shall die," it refers to execution by the courts. Only the court was empowered to execute, not individuals, and we don't currently have a Sanhedrin empowered to do so, which included convening in the "Chamber of Hewn Stone" of the Temple. (In fact, the Sanhedrin left the Chamber of Hewn Stone forty years before the Temple was destroyed specifically so that they wouldn't have to judge capital cases.) Even when we did have a court so empowered, execution was extremely rare.

In order to be liable to execution, an offender had to be warned that he was about to commit a capital offense. He then had to be obstinate (or stupid) enough to go ahead and do it anyway, in front of not one but two witnesses. Even if he did so, there's a fairly long list of people who couldn't testify against him, including relatives, unrepentant sinners, professional gamblers and others.

Let's say that someone did commit a capital offense in front of valid witnesses. The court procedures favored the defendant. For example, the high court was 71 judges. They could acquit based on a simple majority (36 to 35) but they needed at least two judges more to convict (37 to 34). In the case of a hung jury (36 to convict, 35 to acquit), they would deliberate. Those who voted to convict could change their votes to acquit but those who voted to acquit couldn't change their votes to convict. There are other ways in which the process favored acquittal over conviction (and execution). The Talmud tells us that any Sanhedrin that executed two people within a 70-year span was considered a “bloody court.”

So execution was a possibility but it was rarely practiced. It was really intended more as a deterrent. In the absence of a Sanhedrin, sitting in the appropriate Temple chamber, execution isn't even an option for us today.

Rabbi Jack's latest book, Ask Rabbi Jack, is now available from Kodesh Press and on Amazon.com.