Death Penalty: Punishment, Warning, Atonement?

"Who sheds the blood of man, let his blood be shed by man ... ". This is a literal translation of the first clause of Genesis IX, 6, which continues as follows: “ … for in the image of G-d He made man.”

The great Jewish commentator Rabbi Shelomo ben Yitzchak (universally known by his initials as Rashi) adds:

If there are witnesses [to the deed], you should put him to death, and why? Because "in the image of G-d.”

The English language refers to a conviction in a capital case as the “death penalty.” According to the American Heritage Dictionary, the word “penalty” is derived through Old French from the Latin word poena, meaning “punishment,” and in fact means:

A punishment established by law or authority for a crime or offense.

Is that an accurate portrayal of a death sentence? The purpose of punishment is to correct or change bad or destructive behavior. One slaps a toddler’s hand and says “No!” when seeing him reach for the pretty flame on the gas stove because he might seriously hurt himself if he is not prevented. The lesser pain is intended to prevent the much graver circumstances of the action being prevented.

This is the intended purpose of fines and periods of incarceration, evident from terms such as “House of Corrections” or “penitentiary” (in which the word “penitent” can be discerned). Convince the miscreant that he has done wrong, hope he will change his ways and become a productive citizen.

Death does not do that. Carried out, a death sentence is rather final. There is no longer any chance to correct one’s behavior; one is not going to behave in any fashion ever again. The one thing a death sentence prevents is any further activity, good or bad, by the condemned.

Even the allegedly salutary effect of pour encourager les autres, providing an example to anyone else contemplating a crime so heinous as to incur a sentence of death, is sharply vitiated in the American system by the endless appeals permitted. These extend the period between the passing of the sentence and its execution over many years. As one prosecutor in a state which mandates death sentences in certain instances remarked to me, a death sentence is more often a sentence to die of old age.

Even some conservative-leaning legislators are re-examining the idea of the death sentence, the most recent example occurring in Nebraska, where the unicameral state legislature overrode a gubernatorial veto to abolish the death penalty. An article in the May 30 issue of the Economist (admittedly, a left-leaning publication) read:

 A growing number of Republicans have recently taken up the cause of banning the death penalty in Nebraska and other states. They argue that it is inefficient because it does not deter murderers, more expensive than imprisonment for life thanks to the costly trials and lengthy appeals, and at odds with Christian morality.

I’ll let other people address the question of “Christian morality,” but since the Hebrew Bible clearly requires a death sentence under the proper circumstances for various crimes, it is obviously not contrary to Jewish morality. If death is not a penalty, a punishment, then what is its precise purpose?

One certain purpose is that of azhara, of warning or admonition. If the likelihood of such a sentence being imposed and executed promptly is rather high, it should give pause to anyone considering the premeditated commission of any crime sufficiently heinous.

However: the primary purpose, as implied by the verse quoted at the outset of this article, is the Jewish concept of kappara, usually translated as “atonement, expiation.”

Death is the ultimate expiation for sin (cf. e.g. Pesachim 69b and Avoda Zara 46a in the Talmud, inter alia). As the great rabbinical scholar S. R. Hirsch explains in his commentary on the written Torah, the reason for the institution of an animal sacrifice for a hattath or “sin offering” is precisely that the sin was occasioned by abdication of control over one’s physical, “animal” nature. The animal is mercifully “brought close” (the literal meaning of the Hebrew word most commonly translated as “sacrifice”) instead of oneself.

But this applies to sin, chét’ in Hebrew, a word which carries a root meaning of “miss the mark, fail to hit the target” (cf. e.g. its use in Judges XX,16). Something which can be corrected through recognition of error and the determination to do better.

There is no way to reinstate a human life, to replace the tzelem Elo-him, the “image of G-d” which the murderer has erased from the world. The crime can be expiated only by erasing the murderer’s own now terribly distorted likeness of G-d from the world. And if the murderer takes advantage of his remaining time on Earth to contemplate what he has done and truly repent for his crime, he will accept the justice of the sentence, and it will serve as his kappara.

Thus, pace the muddled thinking of some latter-day conservatives, most recently in Nebraska, the Biblical death sentence is the direct result of the precious value of every human life, every tzelem Elo-him, and lies at the very heart of the concept of morality.