April 25, 2013 2:36 am at 2:36 am #951522squeakParticipant
No response. OK, so I’ll just say my piece then.
The death penalty is an expedient method of punishment that not only ensures the guilty person will not commit the crime again, but also prevents him/her from connecting with and influencing others. An added benefit is that it is a no maintenance dispensing of punishment. Maintaining jails is difficult, costly, and potentially risky (holding masses of dangerous people on leashes). Only a very leisurely society (such as ours) can even afford to allow capable people to become jailers, who do nothing but hold criminals at bay. An agrarian society would starve.
Therefore, jail should be looked at as an unhappy compromise between light punishment (monetary fines or forced service) for criminals who are no danger to society and maximum punishment (death) for those who deserving of that extreme. The only question is how do we decide what type of criminal is one that we will give the maximum punishment. We probably should not execute someone who can be rehabilitated into society, or someone who did not have the capacity to understand his/her own crime. But it seems like you believe no type of criminal is deserving- I say then you are wrong. Some criminals should be executed rather than preserved.
Agreed in any case that the US system for capital punishment is today 100% flawed and lives up to none of its purpose. I wonder can capital punishment be rehabilitated?April 25, 2013 3:10 am at 3:10 am #951523Daniel RosenMember
Rabbi Akiva still intended that murderers would be indirectly killed by locking them away and starving them before giving them barley that would expand their stomach and kill them. Thus, there would be a deterrent against murder. In no way did R’ Akiva mean that there should be no deterrent against murder.April 25, 2013 5:34 am at 5:34 am #951524
Somebody once suggested to me that Rabbi Akiva and Rabbi Tarfon thought that they would have educated the public sufficiently that no one would commit a capital crime.As for acting naturally,Rav Kook says in “Orot” that we were given the Taryag mitzvot and non-Jews the Sheva Mitzvot (or according to some opinions also the mishpatim) because these are the natural ways of life for Jews and non-Jews. It follows that we should obey natural law as it was conveyed by Hashem.April 25, 2013 2:23 pm at 2:23 pm #951525
Popa has really expressed it well, IMO. The bottom line is that I have no wish to keep murderers alive. They do not deserve the gift of life, the free medical care, room, and board (even though it is is a terrible place). They deserve to be in the same type of dark, cold box in which what is left of their victims innocently and undeservedly resides. A person who would even THINK of setting off a bomb, does not even deserve that much.
A cousin of mine in E”Y once said that every Muslim terrorist who is caught should be executed and wrapped in pigskin or fed to pigs. Perhaps THAT would be a deterrent to that particular group. (They can’t get to Paradise and their 72 ladies in that case).
I apologize if I am coming off as bloodthirsty. I used to be a more politically-liberal thinker. Then I grew up.April 25, 2013 3:43 pm at 3:43 pm #951526nfgo3Member
Oomis: There is no reference to Torah in your comment. Torah ought to guide us on the question of capital punishment.
As for your proposal to defile bodies of Muslim terrorists: consider what effect, if any, Arab defilement of Israeli soldiers has had on the IDF, the settlers, and the Israeli population. If anything, it has inspired all these groups to strengthen their resolve to remain in Israel (state, or E’Y, as applicable). So your behavioral approach to the death penalty question is flawed, and your Torah approach is missing or unstated.April 25, 2013 3:49 pm at 3:49 pm #951527dellsMember
The purpose of executing murderers is justice for society, not revenge.April 25, 2013 3:59 pm at 3:59 pm #951528gavra_at_workParticipant
Hi Joe.April 26, 2013 1:03 pm at 1:03 pm #951530
I wonder if you have ever considered what would be the consequences for Jews worldwide (especially in Muslim countries, but also in Western countries with strong Arab or Muslim minorities) should your misguided plan be implemented. Or is that an intended consequence of your plan, to make life impossible for Jews outside the Medinat?
I would also like to ask what you propose to do, when it comes to the consequences for the Medinat itself, given that we can expect the Arab citizens, the PA citizens, and the citizens of the neighbouring countries will “react” to your proposal. Are you going to demand that, after having been kicked out by the countries we lived in for centuries (and losing whatever belongings we have there) we “donate” our children’s life to the IDF so that they may R”L suffer a futile death?
Finally, given that your proposal is unlikely to pass unnoticed in the international community, I wonder if you would be delighted in the event R”L the hospital and police services of countries worldwide would deliberately make sure that Jews who are determined (by their legal systems) to be guilty of something and die in custody, should suffer autopsies and afterwards be cremated.
Thank you for clarifying for all readers the difference between Torah and Zionism. That is the same difference between Zaka respectfully washing and recomposing every deceased, including the terrorists, and the proposal you stated.April 26, 2013 9:17 pm at 9:17 pm #951531
“A cousin of mine in E”Y once said that every Muslim terrorist who is caught should be executed and wrapped in pigskin or fed to pigs. Perhaps THAT would be a deterrent to that particular group. (They can’t get to Paradise and their 72 ladies in that case).”
For Daniela and NFGo, please re-read the first few words of that sentence I wrote. MY ISRAELI COUSIN (not I), told over that proposal to me, it MOST CERTAINLY is not my own thought or idea. It is not even HIS original idea, either, having been discussed in E”Y by many frum and not frum people. I have heard of this idea here in the USA from many other sources, including rabbonim. I do NOT propose it be carried out. But I do believe that if the Arab cowards THOUGHT it would be, perhaps that would be a deterrent, because they believe they cannot go to their gan eden with pig on them. So maybe they would think twice about terrorist activities that could get them caught. (Wouldn’t help with homicide bombers, though).
Daniela, the rest of your post, while I believe well-intentioned, just made no sense to me, in respect to my own post. I get the sense that you must be very young, with the youthful exuberance often shown by those who have not lived long enough years to refrain from reactive and combative dialogue while trying to make your case. What you expressed so articulately but also in my humble opinion a little misguidedly, had nothing to do with my post whatsoever. Honestly.
Perhaps if you re-read what I wrote, rather than mistakenly infer what you think I was saying, you will realize I was not proposing anything. I am just not a naive little girl anymore, as I once was in the liberal days of my own youthful exuberance. I am very sorry that you got the wrong idea from my words. I should have chosen them more carefully, apparently.April 27, 2013 10:28 pm at 10:28 pm #951532
Thank you, oomis, for your flattering words, but I have not been young (much less “very young”) since a long time.
I had already read you attribute the opinions to an Israeli cousin of yours. Two questions remain: why you decided not to challenge his position (possibly you agree with him, if it weren’t for the detail you do not believe it would be a “deterrent”? am I misunderstanding your clarification?) and why you decided to post such a statement in public, in fact, presenting it as an opinion shared by a sizeable number of Jews, including – according to you – some (unnamed) rabbis.
Torah allows killing either in immediate self-defence or, under precise conditions which nowadays it’s questionable if they ever can be fulfilled even for nonjews, within the framework of death penalty. The person condamned to death, gentile or Jew, is executed immediately to minimize their suffering and then the body is treated with the respect which is owed to every human body. I happen to find it very strange that a Rabbi would state something against Torah. Stating that “Jews” would approve, much less suggest, desecrating human remains, sounds to me eerily similar to a blood libel, if I may say.
You are correct however, it is not your cousin’s original idea. Large-scale desecration of deceased Muslims enemies was pioneered by mussolini and graziani in Libya and later adopted by hitler in his north african campaign. They even made sure to hang any enemies who were still alive or who were sentenced to death, before dirtying the deceased with pig’s carcasses, because according to Muslim beliefs, strangulation or hanging prevents the soul from exiting through the throat.April 28, 2013 1:54 am at 1:54 am #951533I can only tryMember
The defilement of Jewish war casualties and captives by Arabs outrages us, but doesn’t cause us to reconsider anything. Even in cases where there is nothing left of the physical body, such as Holocaust victims R”L, the neshoma remains and the olam ha’emes and techiyas ha’maisim will be forthcoming.
The defilement of terrorists’ bodies is morally repugnant to our sense of decency. Simply to abuse the bodies of one’s enemies to degrade them instead of giving postmortem respect goes against our humanity. But that isn’t what “oomis” is suggesting.
Terrorists, especially suicide bombers, are largely inspired (or if you prefer, brainwashed) to act based on the premise that after they die committing their action they will find themselves in whatever their version of heaven and the afterlife are. AFAIK, they also believe that being buried with a pig’s carcass will prevent their heavenly ascension. I wonder myself what Israel’s reason is for not threatening to bury every suicide bomber or other terrorist who dies in an attack with a pig carcass. It actually seems more fair to me than demolishing the houses of relatives.
Are there factors I’m not considering? Definitely. I’m sure Israel, which must actually contend with terrorism, has considered this and rejected it for a reason.
My post to “nfgo3” applies to you as well.April 28, 2013 4:20 am at 4:20 am #951534
The “precise conditions” to which you refer only apply to a din Tora. The secular authorities (Rambam Hilchot Rotzeach 2:4 and Hilchot Melachim 3:6) or an official bet din acting under emergency powers (Shulchan Aruch Choshn Mishpat 2:1) may execute criminals without regard to these procedural rules (see Shemuel Bet 1:10-16).This is necessary when there is disrepect for the law in order to preserve public safety and order (Ran Derasha 11, Maharal Chiddushei Aggadot Makkot 7a). Thus, Rav Moshe rules (Iggerot Moshe Choshen Mishpat 2:68) that if someone takes murder lightly due to his cruelty or there is a general disregard for this heinous crime the authorities are obligated to institute the death penalty.Obviously this should be done as quickly as possible but not so quickly as to chance doing an injustice (Rambam Hilchot Sanhedrin 13:1).
As for maiming bodies of those executed, this is a very severe step which should only be taken in an extreme situation after serious deliberation. However, if the authorities deem necessary it would appear that it is permissible (see Shemuel Alef 18:25-27). It should be recalled that after Eichmann ym”s was executed his body was cremated and the ashes scattered over the Mediterranean Sea in order to prevent his grave from becoming a shrine for his followers.April 28, 2013 5:15 am at 5:15 am #951536
ICOT – “What are your thoughts about executing Tsarnaev?”
Who cares? All I know there are a lot of people sitting in Jail who killed a lot more than this guy did!April 28, 2013 10:25 am at 10:25 am #951537
I am well aware there are halachot (let me stress, halachot) in regards to people who present a danger. The last time I know these questions being non-theoretical was in Europe during WW2.
Equating cremation of eichmann (which I have no idea if it was done seeking daas Torah, and quite frankly I doubt it) which has no negative connotation for their ideology (many nazis chose cremation for themselves in their will, and I do not recall eichmann protesting it during the trial) with desecration of human bodies which sometimes had to take place in order to safely eliminate evidence after a person had to be assassinated, with a hypotetical deliberate desecration of bodies, speaks for itself. Moreover, the assumption that such a step would scare the aspiring terrorists into becoming meek lambs and fear the might and strength of the Jews, also speaks for itself. What will realistically happen, everywhere in the world, we all know. And, sorry to break the bubble, terrorists are not exclusively motivated by their fantasies of young ladies in the afterlife. They are prepared to do what they do because they believe that is the right thing to do.
Public safety and order, if that is the high priority of the Israeli government, should indeed be implemented, but the statistics on violent crimes and those on vicious crime, somehow tell me that if there were miracolously a peaceful solution of the Arab problem, this would not turn the country into a paradise, would it.
Finally I am well aware of the correspondence between Rabbi Moshe Feinstein and Ronald Reagan on the subject of death penalty in USA. We do not know if nowadays Rabbi Feinstein would pasken the same way (I am sure we all remember the first death penalty trials i.e. frank coppola etc. where the legal debate was not superficial, attorneys studied the papers and the sentence was not written before the trial even started), what we do know is that at this time, multiple poskim in USA say it’s forbidden for observant Jews to be on juries when the death penalty is involved – period.April 28, 2013 2:14 pm at 2:14 pm #951538
1. What do you mean “The last time I know these questions being non-theoretical was in Europe during WW2”? B’h the opinion of ora is at least asked in both the US (where Orthodox Jewish groups and individuals submit amici curiae briefs that are accepted and some Supreme Court justices have quoted Chazal and poskim) and Israel (where Jewish law has official status as a source andis frequently quoted in court decisions). This obligates us to clarify these questions on a practical basis.
2. I did not write that bodies should be maimed only that it is permissible. I added that “this is a very severe step which should only be taken in an extreme situation after serious deliberation”.
3. Just as a point of information, the letter was most liely written to then NY governor Hugh Carey. Rav Moshe called him “sar hamedina” and not “hanasi”. At the time there was a move in the NYS legislature to reinstitute it which Carey vetoed. I do not recall any meausre being discussed at the Federal levl at that time.April 29, 2013 3:08 pm at 3:08 pm #951539
ICOT – You get it. Thank you. I would never advocate for violence (except in immediate necessary defense), but the THREAT alone of this type of action could prove to be a deterrent to jihadist fanatics, ACCORDING TO ISRAELIS WITH WHOM I HAVE SPOKEN, INCLUDING MY RELATIVE, to those who believe their violence will send them right to Paradise. If they believed they might never get to paradise, they might think twice before blowing themselves up in order to get there.
And that is ALL I was saying, they are not my own original thoughts, neither do I have any reason to apologize for or challenge my cousin for expressing his opinion. I do not live in E”Y, and I don’t know, Daniella, if you do either, but I have long ago learned never to judge the opinions held by people who live with this threat on a daily basis. It is easy for any of us to be arm-chair philosophers, but Israel does not need either my opinions or directions on how best to conduct its own safety protocols.April 29, 2013 3:54 pm at 3:54 pm #951540
OOmis – Learning Torah is the best protection and the Israeli Gov. is now abandoning their protection. They are throwing the Jews there to the wolves by trying to force people out of Yeshivos.April 29, 2013 4:23 pm at 4:23 pm #951541
Health, so why was the Aguda atzeret cancelled for security reasons? For that matter, why does Rambam say that all go out to a milchemet mitzva?April 29, 2013 6:34 pm at 6:34 pm #951542
Avi K -“Health, so why was the Aguda atzeret cancelled for security reasons?”
Sorry, not part of the Aguda. Call up the Moetzes and ask them.
“For that matter, why does Rambam say that all go out to a milchemet mitzva?”
This ain’t a Michemess Mitzva or even Rishous. Stop confusing the Rambams with what goes on nowadays.April 29, 2013 6:40 pm at 6:40 pm #951543
Health, we are not at all in disagreement about the importance of learning Torah in E”Y or anywhere else. But when E”Y is under fire the entire country needs to be prepared to defend itself. Somr feel the best way is by learning, but in practical terms, if that were the sole way, Hashem would not have sent Am Yisrael into battle at ANY time. He would have instructed them to sit down with Moshe Rabbeinu and learn. But that is not what He did, because we always have to put our own hishtadlus into the things we want to hold onto in order to merit having those things. Those who are old, weak, very young, ill, or who should do nothing else but sit and learn to actually fight in a war, can still man the offices, etc., of those who are fighting for their safety or help in other non-combative ways. Their participation can free up others to actually do the combat aspect of the milchemes mitzvah.April 30, 2013 2:24 am at 2:24 am #951544
OOmis -“But when E”Y is under fire the entire country needs to be prepared to defend itself. Somr feel the best way is by learning, but in practical terms, if that were the sole way, Hashem would not have sent Am Yisrael into battle at ANY time.”
Look once upon a time Klal Yisroel had Yichidim OTD, nowadays we have millions of Chilonim. At the very least the Chilonim can be doing army service while the Charedim sit and learn. I feel really bad for these Chilonim if they continue on their path that they are on. They think they are going to control the Charedim -the only thing that’s gonna happen is they are going to invoke the wrath of Hashem.April 30, 2013 3:01 am at 3:01 am #951545batsevenParticipant
Doesn’t the Torah give capital punishment to those who kill others?
If that is what the Torah decides is befitting, then it must be so.April 30, 2013 5:55 am at 5:55 am #951546
Health, what about Chareidim who don’t sit and learn but are just registered?April 30, 2013 6:18 am at 6:18 am #951547
Avi K -“Health, what about Chareidim who don’t sit and learn but are just registered?”
It depends on whether they hold going to the army is Mutter. If they hold it’s Mutter -then let them share the burden.
If they hold going is Ossur -then read my last post above to OOmis.April 30, 2013 7:23 am at 7:23 am #951548
The Rambam writes in Sefer Hamitzvohs that the posuk that says v’naki v’tzadik al ta’harog is an issur to use circumstantial evidence in death penalty cases, even when its 100% clear from the evidence that he did. He says that the reason for this is that if we use circumstantial evidence then this will lead down a slippery slope where the evidence that we use will be less than 100% and then less than even that and that one day and innocent man will end up getting executed. He writes that its better for a thousand guilty to go free than to kill one innocent man.
Now the Rambam is talking about a system that demands that the court be positive that the person is guilty, and even so he says that we may come to use evidence that does not prove guilt 100% and take this evidence to show that it is 100% sure that he did it and that there is no doubt as to his guilt.
In America however the court does not have to find at all that they are positive that he did it. They don’t even have to find that they are “fairly certain” that he did it. The standard in american courts is that its “beyond a reasonable doubt” that he did it. Legal scholars say that this means about 75% sure.
So the issue with capital punishment in America is not whether a murdered should put to death, which is a mitzvah for bnai Noach.
The problem is that they put people to death even though they admit that they are not certain that he did it.
And the fact is that over the past 2 decades with DNA evidence it has been found that hundreds of people who were on death row did not do it. And had it not been for this evidence they would have been executed.
But the problem was more than just these cases where it has been proven that the person was innocent. There are cases upon cases where the prosecution withholds evidence, that is they had a witness that said that he saw the accused at another place at the time of the murder for example, and doesn’t tell the defense about it and so again an innocent man is sent to his death.
There are many cases in which the jury that convicted finds out that they had been misled by not hearing the full evidence and they write letters that had they known the facts they never would have convicted. But its extremely hard to overturn a jury verdict, and in almost all such cases the person is put to death.
There is one story that illustrates this kind of thing perfectly. A man was charged with killing a cop in a supermarket parking lot at night. The prosecution found this man had a .22 caliber gun and the cop was shot with a .22. They also provided a single witness, a woman who was standing 60 feet away and said that she could identify him because she saw him for no longer than 2 seconds. Based on this evidence he was sentenced to death.
Once he was on death row better lawyers started to look into his case. They found that the .22 that he had was proven by ballistics not to have been the murder weapon, a fact the prosecution didn’t tell the jury. They also identified other witnesses. 2 of them said that it was too dark to see the shooter’s face but that he was very tall, no less than 6’1. The person that was convicted was 5’6. The other 2 witnesses were both standing about 30 feet away, allot closer than the woman that identified him from 60 feet away and they said that from 30 feet it was impossible to tell.
The jury convicted based on the .22 gun that they were not told was not the murder weapon, and a single witness that was contradicted by 2 others that said he was too short and another 2 that said that it was too dark to see from even 30 feet.
When the jury heard of the full evidence they signed a letter saying that had they heard all of the evidence they would not have convicted and asked that the state not execute this man because of their verdict.
This case was in Texas and the man on death row appealed to then governor George W Bush to let the new evidence be heard. Bush refused and sent him to his death.
So the main issue with the death penalty is that they don’t require that there be proof that it is certain that he did it and also that the way the system is set up many innocent people are put to death. Allowing innocent people to be put to death, the way that Bush did, with a person that had 2 witnesses that said that he could not have done it, is murder itself.April 30, 2013 2:53 pm at 2:53 pm #951549
1. Rambam is talking about a bet din sitting as a regular (non-emergency) court. It does not apply to the secular authorities or a bet din using emergency powers. I refer you to my previous posts, which included references to Mishna Tora and the example of David HaMelech having the ger Amaleki summarily executed on his confession alone – which is inadmissible in a regular bet din proceeding.
2. The question of prosecutorial misconduct is a technical question, not a philosophical question – which is the topic of this thread. It certainly must be addressed in a manner that will root it out (as well as defense misconduct). I find it extremely strange that Bush refused to grant a new trial – and that the decision was his and not that of a court. I also find it extremely strange that the many appellate options, both to state and Federal courts, available were not used. On the Federal level (and I assume that the Boston Marathon case inspired this thread) the precautions are greater.The protocols for approving pursuit of the death penalty are quite rigorous (they appear on-line in the DOJ publication “The Federal Death Penalty System)and include the appointment of an experienced death penalty defender to the defense team IF the request for pursuing the death penalty is approved.April 30, 2013 8:24 pm at 8:24 pm #951550
Health: My Israeli relatives are all frum, AND they served in the army, as well as learned. It can be done. I hear your point, however.April 30, 2013 10:57 pm at 10:57 pm #951551
The Rambam is explicitly not talking about a bais din. The torah already says that a person shall be put to death only on the testimony of 2 witnesses, see the Ramban on the sefer hamitzvohs. The Rambam is talking about a case where its not bais din, such as Dovid. And Dovid killed not on circumstantial evidence but on an admission which is 100%. The gemora says that a Ben Noach is put to death on the testimony of one witness, and this is because he is testifying that he is 100% sure.
How can you possibly allow putting a person to death if you are not certain that he is guilty.
As to Bush, the man’s name was Gary Graham, and he did this while he was running for president which shows that he understood that people in America would not at all be troubled with his refusal to simply allow the new evidence to be heard. The reason that it was up to Bush was that the courts did not hear this evidence and so there was no basis for an appeal. The only way to save him was if these witnesses were allowed to be heard and this required a new trial. So it was up to Bush to use his power as governor to order a new trial.
Under the law you cannot appeal a jury verdict. That is the jury decides questions of fact and you cannot appeal their finding of the facts, even of the whole world thinks they were wrong.
The only basis for an appeal is if there was a legal mistake in the trial, such as certain evidence should not have been admitted, or that new evidence was discovered that was not known of by either side after the trial. And even if new evidence is discovered there is a time limit, which varies based on jurisdiction, as to how long after the trial it may be the basis for an appeal. That is if there is clear evidence that he was not guilty that came up 8 years later he cannot appeal based on that.
A court case is also a game. For example if the defense knew of a witness, or 5 witnesses but failed to ask them to testify, its too late and the man on death row cannot appeal that these are 5 witnesses that say that he didn’t do it.
As to the supreme court they have held that “actual innocence”, that is that there was no problem with anything the court did but that he claims that he was in fact innocent, is not a grounds for appeal.They allowed a man in Georgia to die recently despite the fact that every single witness recanted and said that the police threatened them that they will arrest them for crimes they committed.
The supreme court also held in a case in Alaska that a prisoner does not have the right to demand to get access to the DNA evidence that is in the possession of the state.
As for rooting out prosecutorial misconduct the supreme court recently sent a very strong message to prosecutors who are contemplating withholding evidence. An innocent man that sat in prison for 22 years till he was exonerated due to prosecutorial misconduct sued that prosecutor for the 22 years of his life that he lost. The court ruled that as a government official he has immunity and cannot be sued. So the court sent a message to every prosecutor that you will get away with it.
So if you want to address a philosophical question about capital punishment you should describe exactly how this punishment will be decided on. In America when people speak of capital punishment they are referring to the capital punishment that the courts order.
PS I went to Law SchoolMay 1, 2013 6:44 am at 6:44 am #951552
1. ?????? ??”? ??? ???????? ??? ????? ?????? ????? ???? ???? ?????? ??? ???? ?? ????. ??? ????? ??? ?????? ????? ????? ?????? ???? ???? ???? ??? ????? ????? ???? ????? ????? ????? ?????? ????? ????? ???? ???? ????? ?????? ???? ????? ???? ???? ?????? ???? ?????? ?????? ??. ??? ?? ????? ?? ??????? ???????? ?? ?? ???? ???? ??? ???? ?? ???? ?????? ???? ??????. ???? ?????? ????? ???? ????? ?? ???? ???? ????? (?????’ ??) ???? ????? ?? ????? ?? ?? ????? ???. ???????? ???? ????? ???? ??? ????? ????? .
Mitza (Lo Taaseh) 290 is that we should not reach a verdict by estiamtion even close to the truth such as where a pursuer chases someone into a house and the victim is found dying and his enemy is found over him with a bloody knife (this similar to the story of Shimon ben Shaatch in Sanhedrin 37b). The Sanhedrin shall not kill him on circmstantial evidence as there are not two witnesses who testify that they saw the killing as the Slomo HaMelech warns “do not kill one who innocent and righteous as I will not justify an evildoer” and the Mechilta says “and he pursues his fellow to kill him”.
Thus we see that Rambam is only referring to a bet din in a non-emergency proceeding (see Hilchot Sanhedrin 20:1 where he specifically says that this applies to a bet din).On the other hand, in Hilchot Sanhedrin 24:4 he says
?? ???? ??? ?????? ?? ????? ?????? ????? ?????? ?? ????? ?????? ???? ??? ????? ?? ???? ???? ??? ????? ???? ?????, ????? ?????? ??? ??? ????? ??? ???? ?? ??? ????? ????? ???? ??? ?? ????? ???
A bet din may flog one who is not liable to be flogged and kill one who is not liable to the death penalty, not to be over on Tora but to strengthen it, being they saw that people take it lightly. They should fence in and strengthen the matter as seems necessary to them? Rav Moshe (Iggerot Moshe Choshen Mishpat 2:68) extends this explicitly to a secular court.Form the story of David HaMelech and the ger Amaleki we see that the government may even execute a person on the sole basis of his confession despite what Rambam says in Hilchot Sanhedrin 18:6 (see Hilchot Melachim 3:9 with Or Sameach and Responsa Chatam Sofer Orech Chaim 208). For a wider discussion see ??? ????? ? ?? (in Hebrew) available on-line.
2. Regarding Graham, Harris County prosecutors filed an affidavit signed by the bailiff who escorted Graham from the courtroom after his death sentence, who heard him say, “Next time, I’m not going to leave any witnesses.” A prosecutor filed an affidavit stating that the bailiff related the comment to him within minutes of the time it was allegedly made.
Harris County District Attorney Johnny Holmes noted that Graham’s case was reviewed 35 times by the courts and that his conviction was never overturned. The Supreme Court rejected Graham’s appeal in May.
3.Prosecutors have been disbarred for misconduct.The general (but not absolute) immunity is necessary as otherwise nobody would want to be a prosecutor (as in Illinois nobody wanted to be a gyneclogist until the law was changed). Chazal also discuss various immunities that were given for this purpose. A cynic would say that their misconduct is balanced by defense misconduct.
4. I also went to law school and took law courses in HS and college.May 1, 2013 10:46 am at 10:46 am #951553
See the Ramban on that Ramban who asks that since the torah requires 2 witnesses for death penalty cases why would the torah need a 2nd law that we can’t use circumstantial evidence. The accepted pshat in the Rambam is that he is not referring to a death penalty issued by a bais din, but to any judgement that is made in regard to killing somebody. See the Rambam in H’ Rotzeach 4:8 that if the requirement of 2 witnesses is not properly met, then bais din causes his death. This too is only done based on testimony for 2 witnesses and not on circumstantial evidence.
And the same goes for executing somebody who is not chayev misah, that these actions cannot be based on circumstantial evidence. And the same is true for what a king uses to establish the facts. And this is why the Torah must warn against the use of circumstantial evidence, even if its 100%.
My main point from the rambam was that the Torah prohibited using evidence that is 100% because that will lead to a slippery slope where they start to use evidence that only proves it at 90% and then 80% and as a result of using such evidence an innocent man will be killed. So we see from the Rambam that using beyond a reasonable doubt will result in the killing of an innocent man, and on this he says that its preferable that 1000 guilty go free than to kill 1 innocent man, so this is not to be done.
In any case according to the Torah there is no such thing as killing a person if there is even a shadow of a doubt. Beyond reasonable doubt means that we cannot say for sure, and the torah does not recognize that a person can be guilty because there is a 75% chance that he did it.
In the Graham case an appellate court ordered the lower court to rehear the case because there was allot of evidence that was not heard. The lower court refused. None of the courts used that affidavit to decide the matter because it is hearsay and the right to confront ones accuser, and he was not executed based on that. And 2 witnesses against the bailiff is still at a minimum a matter for the jury to decide as to whether this creates reasonable doubt, in particular when the bailiff didn’t even say this under oath. And Bush too did not mention that claim in why he wouldn’t grant relief.
The fact that the case was reviewed 35 times by different courts proves that appeals do not deal with the issues of actual guilt or innocence and are not a guard against killing the innocent. The biggest issue, that 2 witnesses said that it was not him was never dealt with in any of those 35 reviews, and this is because grounds for appeals are very limited. Its all a show of fooling around with silly technicalities so that they can say (or believe) that they couldn’t find a single ground to overturn the verdict.May 1, 2013 4:31 pm at 4:31 pm #951554
Yitz, see Hilchot Melachim 3:10 that the government can execute people without these evidentiary rules and even without clear evidence and even someone who is not liable to the death penalty such as an enemy who killed inadvertently in order to fix the world.He can even kill many in one day and leave them hanging for many days in order to instill fear and break the hand of evildoers. He can eevn execute people for minor offenses if need be (ibid Halacha 8). I refer you again to Shmuel Bet 1:10-17. As for the slippery slope argument, this is a logical fallacy. You can say that if one is allowed to kill an animal for food he will come to kill a human for fun. It simply does not hold water.May 2, 2013 2:23 am at 2:23 am #951555
Avi, I am not talking about 2 witnesses, I am talking about circumstantial evidence. And the Rambam says that we are not allowed to use that because, as he explicitly says, we will accept lower and lower percentages and we will eventually kill an innocent man. So this isthe whole point of the Rambam, how he understands the Mitzvah of ???? ????? ?? ?????. The Rambam makes the argument of a slippery slope as to why we can’t use circumstantial evidence that is 100% because we will then come to use 80% and 80% cannot be used because that will inevitably kill an innocent man. So he says that the problem with 100% is that it will lead to 80%. And the problem is that since 80% is certainly not acceptable, we may not even use 100% because it may lead to 80%. And 80% means killing an innocent man one day.
So 1. according to the Rambam even 100% circumstantial evidence may not be used even in the case of a king (and surely not 80%) but we need proof (Dovid in that case with the ger amaleiki was relying on proof from his statement), and 2. The bigger point as it relates to capital punishment in America, there is absolutely no suggestion anywhere in the Torah, or in morals, that a person can be put to death if we have any doubt as to his guilt. And the Rambam does not say this at all. See the Ohr Sameach on the Rambam in Melachim who does not understand how the king can rely on 1 witness in a matter of life and death, even though this is not a bais din. He says that this is learned from the fact that a ben noach can be put to death based on 1 witness. So even though this is not a bais din it is clear that we can only put a person to death if we are certain of his guilt.May 2, 2013 6:23 pm at 6:23 pm #951556
Yitz, once again Rambam is referring to a bet din, not a government court. He says so explicitly (Hilchot Melachim 3:10). As for the rules pertaining to Noahide courts, I suggest that you read Rav Bleich’s comprehensive article on capital punishment in Noahide lawt in volume 2 of “Contemporary Halachic Problems”. You might also read Iggerot Moshe Choshen Mishpat 2:68. Nowhere does he limit the requirement to following Tora evidentiary rules – and he knew full well that American courts do not.May 3, 2013 6:14 am at 6:14 am #951557
Avi, Lets just talk about the Rambam in sefer hamitzvohs that says that using circumstantial evidence that is not 100% but 80% (i believe that reasonable doubt is legally about 70%) will lead to the killing of innocent men, and its to prevent the use of such evidence that the torah says ???? ????? ?? ?????, do not kill an innocent man.
So whoever the court is, using such evidence will kill innocent men and the reasoning of the torah, ???? ????? ?? ????? applies to any just person. And again I want to point out that there is never an example anywhere in torah of using anything other than proof. Beyond a reasonable doubt is not proof, but a probability, and there is no such suggestion anywhere in the torah.
I did not read what Rabbi Bliech writes, I know only that the only example of proof that the gemora says is used by a ben noach is a witness who is saying that he 100% sure, and since he is believed this is proof.
In Massachusetts they drafted a capital punishment bill a while back that required that the standard of proof for this penalty be “certainty”. That is something that should be adapted by all states. All states have criteria for who gets the death penalty and it makes no sense that they don’t add this to those criteria.
Another issue with capital punishment in America is felony murder which is 1st degree murder and is often the kind of murder for which the death penalty is imposed. A classic case of felony murder is if 2 people rob a store and one of them kills the clerk even of the other person didn’t even know that he had a gun he is guilty. A case that i recall was a homeless man who was sleeping in an abandoned building and he lit a fire to keep warm. The fire got out of control and a firefighter died fighting the fire. Even though the death of the fire fighter was not his fault, since he was in the building illegally even if the fire starts by mistake, under the law its considered arson. So he was convicted of felony murder because the statute does not require that he cause the death, it requires only that the death shall be a result of the felony.
Felony murder is not murder at all and so execution for this is flat out state sanctioned murder.May 3, 2013 11:42 am at 11:42 am #951558
1. There is no such thing as certainty. In any case,Rambam states (Hilchot Melachim 3:10) that the king (= government) may execute murderers without clear proof in order to fix the world according to the needs of the time.
2. In general, a Noahide is not executed for shogeg but the goel hadam may kill him (ibid 10:1). However, there are circumstances where he is close to meizid and executed (ibid). Felony murder may well be close to meizid. The case of the fire is even more severe as starting a fire is like shooting arrows. One who starts it is liable as if he did the deed with his own hands (Shulchan Aruch Choshen Mishpat 418:17). As fora Jewish criminal, the right of a court in chutz l’Aretz to punish him is dependent on whether we consider it to be a Noahide court of a court of a partnership between Jews and Noahides (see Rav Shachter’s article on tax evasion available on-line) and if we consider it to be a Noahide court if a Noahide government court may punish Jewish criminals (the main opinion seems to be yes – cf. Rabbi Bleich’s article I mentioned). There are also opinions that government officers are like the goel hadam (ibid), which would add to the heter. An Israeli court may certainly execute him if the government would decide that the times require it (Rambam Hilchot Rotzeach 2:4 – whether the times require it is a question, Rav Yisrael Rosen says yes, Rav Aviner says no).May 3, 2013 12:40 pm at 12:40 pm #951559notasheepMember
I am coming in the middle of a thread here but would just like to say my piece:
Here in England there is a real shortage of prison space. Criminals such as serial murderers and rapists and paedophiles are therefore often let out of prison early with ‘time off’ their sentences for good behaviour whilst in prison. These people then go on to re-offend. This is a regular occurrence, but England do not have the death penalty. I feel that for deliberate, pre-meditated murder and similar crimes we should have capital punishment since this would prevent such individuals from being released back into civilian communities.May 3, 2013 8:55 pm at 8:55 pm #951560
Recidivism is a terrible thing.May 3, 2013 11:05 pm at 11:05 pm #951561Shev16Member
We can all agree that a killer whose guilt is established with certainty that he pulled the trigger (or stuck in the knife, etc.) should carry an automatic death penalty in all 50 States. Once convicted he should be executed forthwith, without requiring any further sentancing by either judge or jury.May 5, 2013 9:23 pm at 9:23 pm #951562
The definition of certainly in regard to this bill is what people believe about something. Its about how they would rate their conclusion. And people reach a conclusion on which they say “I am certain of this”. People talk like this, “i am certain of this and don’t have a shadow of a doubt”
As to the case of the fire the only reason that it was felony murder was because of a technicality, that since he was trespassing it is legally arson, which is a felony. A person in his own home, or in the public domain that is just as negligent in the fire breaking out is not considered a murderer because he did not commit a felony. In addition if the resulting fire was a misdemeanor there would be no murder charge. This is not based on logic, its more of a penalty.
You citation of starting a fire with his own hands is for civil liability. But for purposes of murder the gemora in sanhedrin 78b says that he must have intention to kill. There is no intent to kill in felony murder.
As for the Rambam he starts with saying anyone who murders people etc. if he means without clear proof then how to we know that he murders people. He goes on to say that or if he did without warning and “even” with a single witness. If he means in the beginning that we are not even sure that he did it that would be a much bigger chidush than a single witness (as I noted earlier the Ohr Sameach has a problem with how can we take a life based only on 1 witness. He would certainly be troubled more by how to we take a life of a possibly innocent man)
I think that he means ???? as in clear seeing. That means that they are certain that it was him, for example they saw through ?????? which means that they can confirm that it was him based on certain identifying features that they saw, but they did not have a clear look at his face which would not be a valid sighting in hichlcohs eidus. And this is what ??? ????? ????? means (reb akiva eiger says that eidus requires an identification based on seeing the person’s face.) This is the same rambam that says using 80% evidence amounts to inevitably killing an innocent man, and there is no reason that this shouldn’t apply to any sort of execution. Ask a big talimd chochom what he things the rambam means and see what he holds, because its beyond contemplation that the rambam is allowing the killing of a man who man be innocent.
The argument for beyond a reasonable doubt is that innocent men will in fact be punished but this is the price of law and order, because if we demand certainty then almost all criminals will get away. The argument is not that if its beyond a reasonable doubt then it is certain that he is guilty.
This is a very valid point if there is to be law and order, but it is not necessary to execute people who may not be guilty so as to have law and order.
In a nutshell your opinion is that its okay to execute people who may in fact be innocent for the sake of law and order, even though life without parole is punishment enough as far as people not getting away with their crimes.
However the Torah in does not permit the killing of innocent men, and the Rambam calls this killing a ??? ?????. (you keep saying that the halachs is in regard to a bais din. However there is abslotely no logic in limiting this reasoning to a bais din, and that in other types of justice killing a ??? ?????, by killing a person who may be innocent is okay.
I think that I explained my position as clearly as I can, so I will leave it at this. However I want to leave you with one final thought to contemplate. If you got into a situation where it was beyond a reasonable doubt that you murdered somebody and you know that you didn’t do it. When they strap you down to execute you would you feel that an injustice is being done, or would you tell yourself that you accept your fate because since they decided that occasionally killing an innocent man is necessary, then justice is in fact being done in executing you for something that you didn’t do. I don’t think that you would. So why are you advocating that others be subjected to this fate.May 6, 2013 7:44 am at 7:44 am #951563
1. The Ran says (Derasha 11) that hakpada on Tora evidentiary will lead to anarchy. Therefore , it is necessary to establish a government that will enact those laws that it deems necessary to keep public order. In fact, it can even impose the death penalty for minor offenses such as not going to where he is told to go or violating house arrest if he does so out of rebellion(Rambam Hilchot Melachim 3:5).
2. It is true that felony murder is not murder under Tora law but the government certainly has the right to consider it murder (ibid Halacha 10). The example of fire, while it is only a civil liability under Tora law, is, in my opinion, apt.Damaging by fire is liek damaging with one’s own hands. The fact that it is not a capital offense if he did not intend to murder (although he may well be considered close to meizid and thus he is thrown to the mercy of the goel hadam – and there is an opinion that a government officer has the din of goel hadam).
3. I disagree with your definition of ??? ????? ????? . It is certainly not the peshat. David HaMelech had both the ger Amaleki and two brothers who admitted killing Ish Boshet summarily executed (not even a trial) on their confession alone (Shmuel Bet 4:13) despite what Rambam says in Hilchot Sanhedrin 18:6 that we do not punish people on their confessions (not even malkot) as this may be the way out for someone who wants to die to commit suicide.
4. Even under Tora standards an innocent man might be executed. Navot was, in fact, executed according to the testimony of two witnesses. Ramban says (Devarim 19:19) that if Hashem allowed it the defendant must have been liable to the death penalty for something. In the case of Gary Graham that you once cited, as a Noahide he was certainly liable to the death penalty for his various crimes. This, of course, is not our cheshbon, but it seems that the POSSIBLY innocent men executed were guilty of various crimes for which they should have received the death penalty.May 6, 2013 1:44 pm at 1:44 pm #951564gavra_at_workParticipant
I am pro capital punishment. They should rehabilitate these criminals by hanging them (the capital punishment) until within half an inch of their lives. Then force them (with a new identity, so their former selves are practically dead) into doing something useful to society, like running the post office.
Problem is getting a good hangman, and Daniel ‘One Drop’ Trooper is already taken.May 6, 2013 4:32 pm at 4:32 pm #951565
I did some further research and Rambam seems to say explicitly (Guide 3;40) that the government may execute people according to circumstantial evidence. This is also Rabbi Bleich’s interpretation (“Contemporary Halachic Problems” v. 2 p.365). On page 362 he also quotes Rav Tzvi Hirsch Chajes (Torat Nevi’im ch. 7) as saying that the government may even execute people according to estimation and that this appears to also be the view of the Chatam Sofer (Responsa Orech Chaim 208). He also quotes Rav Chajes as saying that rebels may even be executed for minor infractions as I previously posted to prevent a breakdown of law and order. This is his slippery slope.
As for injustices, how would you feel if c”v a loved one was murdered and the killer was set free because of lack of certainty such as the absence of witnesses (such as the case of Shimon ben Shatach and the man who chased his fellow into a ruin and came out with a bloody sword)?May 7, 2013 6:14 pm at 6:14 pm #951566
Avi K -I happen to agree with you, but there could be a Machlokes acc. to Halacha. But what I don’t understand is the liberal POV, not acc. to Halacha, how they can be against Capital punishment in every single case? After reading about the case in Cleveland about the 10 year old kidnappings and Not wanting these guys killed is something I can’t possibly understand. Maybe these Libs should look in the mirror and see if they actually see a Human?!?!May 8, 2013 1:25 pm at 1:25 pm #951567notasheepMember
GAW – why didn’t I think of that? Now you get the point and not me…
On the other hand, they could always be offered to leave via the door…May 8, 2013 2:50 pm at 2:50 pm #951568just my hapenceParticipant
notasheep – Only after they have seen the spoon…March 15, 2018 6:13 pm at 6:13 pm #1491502
I’m for killing a killer! They just gave parole to a Cop Killer. Even if you believe in life imprisonment – it
shows these liberals can’t be trusted! We need a Dealth Penalty.
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