This past Pesach (Passover), my wife, daughter, and I attended a Seder at a women’s prison. Actually, the name of the institution is a “correctional facility.” As we waited to go through security at the entrance, we discussed whether imprisonment for non-violent crimes is humane and effective. I mentioned that in law school, I learned that there are three purposes of incarceration: punishment, correction, and deterrence. The punishment aspect in America is limited by the Eighth Amendment’s ban on “cruel and unusual” punishment.
I’m not aware of anything in Torah she’bichtav (the written Torah) that prohibits “cruel and unusual punishment.” But one of the interesting things in this week’s Torah portion, Emor, is its punishment provisions – and what they say about Judaism itself, and as compared with some other religions.
This Torah portion mandates stoning to death as the punishment for murder, for profaning the name of G-d, and for adultery (a priest’s daughter who committed harlotry was to be burned). The Torah portion also states (Leviticus 24:19-20) “As he has done, so shall it be done to him.” This is one of Torah’s repetitions of the famous principal of “lex talionis,” setting the punishment for acts of violence as “an eye for an eye, a tooth for a tooth.” (Also, see, Exodus 21:23 and Deuteronomy 19:21).
For a number of reasons, including these passages, the G-d of Torah has been described by some in other religions as a G-d of vengeance, whereas they have described the G-d of their scripture as a G-d of love. This characterization has been broadened throughout the past 2,000 years to characterize Judaism itself as a religion of strict law and punishment, unfavorably contrasted to their religion of one of mercy and forgiveness.
The language of these Torah verses certainly does seem to require capital punishment and infliction upon the guilty party of the same physical injury he committed. Yet, there is no record of a single instance where a Jewish rabbinical court ever carried out either execution or such actual in-kind retaliation! Jewish tradition all but unanimously interpreted the “an eye-for-eye” language as referring to financial compensation.
Former British Chief Rabbi J.H. Hertz called this one of the paradoxes of history. He noted:
On the one hand, Judaism, the so-called religion of ‘strict justice,’ rejected the literal application of the law of retaliation and knew neither torture in legal procedure nor mutilation as a form of punishment. In Christian lands, on the other hand, mutilation and torture are well-nigh the indispensable accompaniments of justice from the middle of the thirteenth century down to the middle of the eighteenth, and in some countries to the middle of the nineteenth and beyond.
To this I would add that, in some, if not all, Moslem lands, capital punishment, maiming, and corporal punishment are still part of the judicial system.
My point is not to speak negatively about other religions, but rather to point out that Judaism is indeed a religion and tradition of uncommon mercy. Punishment in Judaism seems to be mostly or entirely about eliminating evil, providing deterrence and encouraging correction, not exacting pain or retribution. We have not only adopted an virtual prohibition against “cruel and unusual punishment,” we have demonstrated a more general aversion to punishment for punishment’s sake.
We can therefore be justly proud of our merciful tradition, and consider this one important area in which we serve as a light to the world.
Shabbat shalom.
P.S. On the morning I gave this D’var Torah to my community in Jerusalem, I woke up early to finish it. I did not take time to scan the news headlines. After I finished my remarks, several people approached me to say how upset they were that, the day before, the brother and accomplice of Israeli Prime Minister Yizhak Rabin, z”l’s murderer had been set free from prison after sixteen years in solitary confinement. He emerged defiant and entirely unrepentant. Those who approached me felt that his punishment did not fit his crime; his sentence had been much too light, and even that he should have been executed. The mercy that Judaism mandates be shown for the guilty can be very painful for the victims and society!