The Misguided Reliance in American Jurisprudence on Jewish Law to Support the Moral Legitimacy of Capital Punishment

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I. INTRODUCTION

The debate over capital punishment in the United States, particularly during the last quarter century, has engendered emotional diatribe regarding not only the constitutionality of the death penalty but also its inherent legitimacy within the spheres of natural law, religion, and societal morality. Few issues trigger ethical questions that transcend mere written law to a greater degree than does capital punishment, as the interest at stake, human life, is that which we deem to be the most valuable.

In the context of advocating the death penalty, attorneys, politicians and judges have at times cited the Bible to support the moral legitimacy of capital punishment. While these statements correctly reflect the text of the Bible, they are deceptive and misrepresent the actual historical practice under Jewish law.

This Note first summarizes the current legal status of capital punishment in American law. After providing examples of the reliance on the Bible in American jurisprudential discussions of capital punishment, the Note introduces the general sources of Jewish law and examines the biblical origins of the death penalty. It then discusses the rabbinical barriers to imposition of the death penalty established through interpretation, a general reluctance to impose capital sentences in Jewish law, and the numerous procedural and evidentiary barriers set up by the rabbis. The Note concludes that an extreme reluctance to impose the death penalty, combined with the array of barriers, rendered capital punishment virtually nonexistent in practice under Jewish law. The American legal system has generally ignored this reality, resulting in misrepresentations of the actual practice under Jewish law.

II. BACKGROUND

Death penalty boosters have long attempted to superimpose the norms of the Jewish legal system onto American jurisprudence.(1) This section first summarizes0 the historical development and current legal status of capital punishment under American law and then provides examples of how the state, on occasion, relies on Judeo-Christian religious authority to support imposition of the death penalty in a particular case.

A. Capital Punishment in American Law

In Gregg v. Georgia,(2) the Supreme Court held that the death penalty is not inherently cruel, and thus does not constitute a per se violation of the Eighth Amendment of the United States Constitution.(3) This decision clarified an area of law that had been rendered murky by the Court's decision in Furman v. Georgia,(4) in which each of the nine Justices wrote a separate opinion. The Gregg Court justified Georgia's punishment scheme, in part, on the death penalty's long history of acceptance both in the United States and in England,(5) and out of respect for the legislative decisions of states that had enacted capital punishment statutes.(6)

The Court subjected the constitutionality of capital punishment to certain limitations,(7) but stated that the requirement that the death penalty "not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance."(8) Today, thirty-eight states and the federal government have death penalty statutes,(9) and in 1993 there were more than 2800 prisoners on death row.(10) The willingness of states to impose capital punishment can be attributed in part to the perception that it is sanctioned by Jewish law.

B. Misguided Reliance on Jewish Law, The Bible, And The Talmud In American Death Penalty Jurisprudence

Assertions that biblical law supports the legality of the death penalty arise most frequently in the arguments of prosecuting attorneys to juries in capital cases. The North Carolina Supreme Court recently upheld as proper the following admonition to the jury by a prosecutor: "Well the Bible . . . says an eye for an eye and a tooth for a tooth. …