In Parshat Emor, meaning “say,” God has Moses convey even more instructions for the Israelites. These include special rules for priests; timelines for Pesach, the omer offering, Shavuot, Rosh Hashanah, Yom Kippur, and Sukkot; and last, punishments for crimes such as blasphemy, murder, and bodily harm—the first two of which are prescribed the death penalty. 

Chapter 24, the final chapter of this Torah portion, tells the story of a man who, amidst a fight, “pronounced the Name [of God] in blasphemy.” ¹ God tells Moses to have him stoned to death, and the parshah ends with the carrying out of this execution:

Moses spoke thus to the Israelites, and they took the blasphemer outside the camp and pelted him with stones. The Israelites did as Hashem had commanded Moses. ²

Thousands of years later, this incident can be difficult to think about. Even the traditional interpreters understand that this doesn’t line up with our current sensibilities. The Renaissance-era Italian commentator Ovadiah ben Jacob Seforno implied that the Israelites were somewhat reluctant to carry out the punishment. He wrote: “They did not stone him as an act of revenge, or because they hated the individual being stoned; they did it merely in order to fulfill God’s commandment.” ³

But this sentiment goes back to far before the Renaissance. The Mishnah, in Tractate Makkot, recounts a discussion among first-century rabbis. It says: 

A Sanhedrin (high court) that executes a transgressor once in seven years is characterized as a destructive tribunal [or a bloodthirsty court] … Rabbi Elazar ben Azarya says: [This applies] to a Sanhedrin that executes a transgressor once in seventy years. Rabbi Tarfon and Rabbi Akiva say: If we had been members of the Sanhedrin, we would have conducted trials in a manner whereby no person would have ever been executed. ⁴

This is not because the rabbis wished to overturn the laws of the Torah, but because other Torah values, such as the preservation of life, must be held in tension with the prescription of the death penalty, which was intended in part to also preserve life. ⁵

Rambam (Maimonides), in his Sefer HaMitzvot, instructs us to avoid potentially executing an innocent person “even when [their guilt] is almost certain.” ⁶ He directs our attention to the commandment in Exodus chapter 23, “Keep far from a false charge; do not bring death on those who are innocent and in the right, for I will not acquit the wrongdoer.” ⁷

It makes sense that, in very limited cases in the Torah, the death penalty would be prescribed. The presence of God was clear to all, and God Godself was the one to tell Moses that the death penalty was needed for a specific person. The norms God was establishing needed to be reinforced to have the power to last in perpetuity. 

Yet, already by the time of the early rabbis, it was understood that we could not sustain absolute justice as in the days of Moses. So the rabbis established an extraordinarily high standard of evidence, making it virtually impossible for the human court to ever execute someone.

In adopting that approach, they too would increase the number of murderers among the Jewish people. The death penalty would lose its deterrent value, as all potential murderers would know that no one is ever executed. ⁸

We should sympathize with the Torah’s idea that the death penalty is indeed warranted in principle. Responding to the “anti-execution” rabbis in the Mishnah discussion from earlier, Rabban Shimon ben Gamliel, another early sage, said: 

But as we get further and further from the Biblical era, it becomes more and more imperative that we distance ourselves from taking into human hands a form of justice that was originally used at the direct discretion of God. 

While the application of the death penalty as prescribed in the Torah has necessarily changed over time, the instruction the Torah presents is timeless. In Tractate Sanhedrin, Rabbi Shimon asserts that there can never actually be a “stubborn rebellious son,” the type of whom the Book of Deuteronomy demands the execution. Still, he finds meaning in the commandment, saying: 
Of course, our lives should still be driven by the biblical ethos. And while these punishments were perhaps a product of the ancient world, the problem was not the idea that existed then, but the decline in total clarity as we’ve been further removed from the Biblical period. So we’ve been tasked since then with coming up with alternatives. 

There has never been a stubborn and rebellious son and there will never be one in the future. And why, then, was the passage relating to a stubborn and rebellious son written in the Torah? So that you may expound upon new understandings of the Torah and receive reward for your learning. ⁹

Today, especially in the United States, biases, racial injustices, and oftentimes a low bar for testimony can lead to false convictions of capital crimes. A 2014 study made a “conservative estimate” that 4.1% of death-sentence convictions were erroneous. ¹⁰ 

Dr. Martin Luther King Jr. gave his thoughts on the death penalty in a 1957 article called “Advice for Living.” He wrote that “Capital punishment is against the best judgment of modern criminology and, above all, against the highest expression of love in the nature of God.” ¹¹

And there remains a lively debate about the one time that the state of Israel used the death penalty, when Adolf Eichmann, the man most responsible for the Holocaust, was hanged in Israel in 1962. 

The philosopher and Holocaust survivor Hannah Arendt, in her book Eichmann in Jerusalem: A Report on the Banality of Evil, explained her ambivalence ¹² about the Eichmann trial. Ultimately, she concluded that a just judge would have told Eichmann: 

Just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations—as though you and your superiors had any right to determine who should and who should not inhabit the world—we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang. ¹³

Eichman’s execution, then, is to be viewed as the exception. It stands to reason that the same Talmudic rabbis who opposed the death penalty would allow for it in this case. 

The legal systems in America, Israel, and elsewhere would benefit from the lessons of the Jewish tradition, that while the death penalty is often theoretically warranted, it is virtually never wise to use it.