The Death Penalty and Capital Punishment

(10) If someone whose judgement was final [sentenced to death], and ran away but came back to the same Beit Din, we do not re-evaluate his old judgment. Any time that two witnesses came and say, "We testify that this person had a judgement passed against him in a certain court," so and so were the witnesses, we execute him [the defendant on this testimony]. A Sanhedrin [highest court, charged with deciding cases and appeals that had national significance. It was comprised of 71 scholars who had received the full traditional rabbinical ordination, and its decisions fixed Jewish practice for subsequent generations]that would execute somebody once in seven years would be considered destructive. Rabbi Elazar Ben Azariah says: "Once in seventy years." Rabbi Tarfon and Rabbi Akiva said: "If we were on the Sanhedrin , nobody would have ever been executed." Rabban Shim'on Ben Gamliel said: "They too would have increased violence in Israel."

(1) They would examine [the witnesses] with seven inquiries: "In which week?", "In which year?", "In which month?", "On which day of the month?", "On which day [of the week]?", "At which hour?", and, "In which place?". Rabbi Yose says: "On which day?", "At which hour?", "In which place?", "Do you recognize him?", "Did you warn him?". For one who worships idols: Whom [i.e. which idol] did he worship?", "How did he worship it?".

(2) The more one examines [the witnesses], the more he is praiseworthy. Once, Ben Zakkai examined regarding the stalks of figs. What is the difference between inquiries and examinations? [If in response to] inquiries one [witness] says, "I do not know," their testimony is nullified. [If in response to] examinations one [witness] says, "I do not know," and even if two say, "We do not know," their testimony stands. Both [with respect to] inquiries and examinations, when [the two witnesses' responses] contradict one another, their testimony is nullified.

The 290th prohibition is that we are forbidden from punishing someone based on our estimation [without actual testimony], even if his guilt is virtually certain. An example of this is a person who was chasing after his enemy to kill him. The pursued escaped into a house and the pursuer entered the house after him. We enter the house after them and find the victim lying murdered, with the pursuer standing over him holding a knife, with both covered with blood.

The Sanhedrin may not inflict the death penalty on this pursuer since there were no witnesses who actually saw the murder.

The Torah of Truth (Toras Emess) comes to prohibit his execution with G‑d's statement (exalted be He), "Do not kill a person who has not been proven guilty."

Our Sages said in Mechilta: "If they saw him chasing after another to kill him and they warned him, saying, 'He is a Jew, a son of the Covenant! If you kill him you will be executed!' If the two went out of sight and they found one murdered, with the sword in the murderer's hand dripping blood, one might think that he can be executed. The Torah therefore says, 'Do not kill a person who has not been proven guilty.' "

Do not question this law and think that it is unjust, for there are some possibilities that are extremely probable, others that are extremely unlikely, and others in between. The category of "possible" is very broad, and if the Torah allowed the High Court to punish when the offense was very probable and almost definite (similar to the above example), then they would carry out punishment in cases which were less and less probable, until people would be constantly executed based on flimsy estimation and the judges' imagination. G‑d (exalted be He), therefore "closed the door" to this possibility and forbid any punishment unless there are witnesses who are certain beyond a doubt that the event transpired and that there is no other possible explanation.

If we do not inflict punishment even when the offense is most probable, the worst that could happen is that someone who is really guilty will be found innocent. But if punishment was given based on estimation and circumstantial evidence, it is possible that someday an innocent person would be executed. And it is preferable and more proper that even a thousand guilty people be set free than to someday execute even one innocent person.

Similarly, if two witnesses testified that the person committed two capital offenses, but each one saw only one act and not the other, he cannot be executed. For example: One witness testified that he saw a person doing a melachah on Shabbos and warned him not to. Another witness testified that he saw the person worshipping idols and warned him not to. This person cannot be executed by stoning.

Our Sages said, "If one witness testified that he worshipped the sun and the other testified that he worshipped the moon, one might think that they can joined together. The Torah therefore said, 'Do not kill a person who has not been proven guilty.'"

(10) The king has the right to execute a killer, even when there is no clear proof (against him) or no warning was given him or even if there was only one witness. He may execute someone who killed accidentally out of hatred. He may do so for purposes of establishing Public Order, as is necessary depending on the prevailing circumstances. He may even execute many people on one day and hang them and leave them hanging for many days in order to instill fear and crush the hands of the wicked of the world.

(10) If someone whose judgement was final [sentenced to death], and ran away but came back to the same Beit Din, we do not re-evaluate his old judgment. Any time that two witnesses came and say, "We testify that this person had a judgement passed against him in a certain court," so and so were the witnesses, we execute him [the defendant on this testimony]. A Sanhedrin [highest court, charged with deciding cases and appeals that had national significance. It was comprised of 71 scholars who had received the full traditional rabbinical ordination, and its decisions fixed Jewish practice for subsequent generations]that would execute somebody once in seven years would be considered destructive. Rabbi Elazar Ben Azariah says: "Once in seventy years." Rabbi Tarfon and Rabbi Akiva said: "If we were on the Sanhedrin , nobody would have ever been executed." Rabban Shim'on Ben Gamliel said: "They too would have increased violence in Israel."