On Capital Punishment, SCOTUS Is Behind The Times -- And The Talmud

Justices Scalia and Alito argued that the death penalty must be constitutional. But Justices Breyer and Ginsburg countered that, as currently practiced, the death penalty in its totality may likely be cruel, unusual, and wholly unconstitutional.
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When the Supreme Court considers reinstating the death penalty against Jonathan and Reginald Carr, whose sentences were overturned by the Kansas Supreme Court, they will be considering some technical aspects of the case. Defense lawyers for the two brothers, convicted for a grisly series of four murders in 2000, have maintained that they should have been given separate trials to determine who was most responsible, as opposed to the joint trial they received. The Court, though, will likely not be considering the potential method of execution, lethal injection, in light of its ruling last term in Glossip v. Gross. In that case, the Court held that the sedative midazolam, despite a record of painful and prolonged executions, did not meet the standard of "cruel and unusual punishment" proscribed by the Eighth Amendment.

Glossip was noteworthy for the passion it evoked from the bench, with four justices passionately reading opinions back and forth. It also showed how, in this case, the Supreme Court is out of step with history - and Talmudic precedent.

In his majority opinion in Glossip, Justice Samuel Alito noted that midazolam is currently the only drug available to states wishing to execute prisoners by lethal injection, as the petitioners, who faced lethal injection in Oklahoma, had not demonstrated the availability of an alternative. The lack of alternative was critical, as he wrote, "because capital punishment is constitutional, there must be a constitutional means of carrying it out."

In a blistering dissent, Justice Sonia Sotomayor pointed out that, given Alito's logic, the state might then be allowed to burn the inmates to death, so long as the petitioners had not specifically demonstrated an alternative; clearly, the Eighth Amendment should prevent this. Therefore, she concluded, even if capital punishment is constitutional in theory, there are times when there is no way to apply it in practice such that it would not be cruel and unusual. The lack of alternatives does not make what remains any less cruel or unusual, nor does it permit the suspension of the Eighth Amendment.

Justice Sotomayor's argument tracked closely with that of several third-century talmudic sages as they grapple with the Deuteronomic laws of the Wayward and Rebellious Son and the Wayward City. The first case deals with a young man who consistently refuses his parents' discipline and instead engages in gluttony and idleness. His parents take him before the judges of the town, and he is executed (Deuteronomy 21:18-21). Rabbi Simeon, perhaps bothered by the moral implications, explains, "It never happened and never will happen. Why then was this law written? -- That you may study it and receive reward."

The second case deals with an Israelite city that turns to idolatry. In retribution, it is to be razed to the ground, its inhabitants annihilated (Deuteronomy 13:13-19). Again, the rabbis state that this never actually happened -- and, in fact, they interpreted the laws in such a way as to make their application nearly impossible beyond the understanding "that you may study it and receive reward."

One sage, though, Rabbi Yonatan, claimed that these laws actually were applied -- and that he himself had visited both the grave of a Wayward and Rebellious Son and the ruins of a Wayward City. Perhaps, like Justice Alito, Rabbi Yonatan felt that a law on the books must have a practical application. However, Rabbi Yonatan is a minority viewpoint.

The overwhelming weight of the Jewish tradition comes down against the notion that these laws were ever carried out, and certainly not such that there was any trace of them by the talmudic period. In a similar fashion, despite the many offenses for which the Bible prescribes capital punishment, and the many long discussions of their laws and procedures by the rabbis, the dominant sense in the Talmud is that the death penalty was to sparingly applied -- if at all. "A court that puts a man to death once in seven years is called murderous. Rabbi Eleazar ben Azariah says 'Or even once in 70 years'" (Makkot 1:10).

There is some controversy as to what reward the talmudic sages thought there might be for studying these morally troubling laws that would never be applied in real life. Some explain that the potential consequences would provide a deterrent against bad behavior. However, as Justice Antonin Scalia noted in his concurring opinion, a punishment that is deliberately never applied is no deterrent at all -- in fact, it may even be the opposite.

I would argue that at least part of the benefit is in appreciating the developing sense of morality with which we perceive the world. There is value in seeing troubling laws written into our foundational texts and understanding that they are a monument to a different point in our living traditions.

The laws governing the owning and maintenance of Canaanite slaves, for example, while practical for the sages of the Talmud, are now theoretical, having long ago joined the ranks of those that we "study to receive reward." The laws concerning the eradication of the nation of Amalek were theoretical for the sages of the Talmud, but were very practical for the Biblical kings a thousand years earlier. For me, much of the reward of study is the feeling of gratitude for how far we have come, and the renewed sense of purpose and mission as I envision an even more just and ethical future.

Justices Scalia and Alito argued that the death penalty must be constitutional because it is specifically prescribed by the Constitution, as the punishment for treason. Despite this, Justices Breyer and Ginsburg countered that, as currently practiced, the death penalty in its totality may likely be cruel, unusual, and wholly unconstitutional - thinking may well impact the Court's decision to revisit the Carrs' case. The Jewish tradition dealt with similar questions centuries ago and concluded on the side of progress. Hopefully, the American legal tradition will eventually come around as well.

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