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Thought for the Day: Capital Punishment in the Torah

I heard recently that in Texas one is more likely to be executed than to die in a plane crash.  An obvious ringing endorsement of the safety policies of the FAA.

Regardless of one's personal feelings about capital punishment (and regardless of the RAC's flagrant denial of textual, philosophical,and historical evidence to the contrary; ie, proof by "la la la la la... I can't hear you"), the Torah certainly mandates capital punishment action under appropriate circumstances.  The circumstances?  Let's take murder, for example.  The would be murderer needs to be warned by two kosher witnesses that they see him and his intended victim clearly and that murder is a crime punishable by hereg ("beheading").  Shabbos or publicly serving a false god; same drill, but the penalty is death by s'kila ("stoning").  Then, within three seconds or so (toch k'dei dibur), the would be criminal must reply that he understands and is none the less proceeding, then perform the heinous in sight of the witnesses.

Receiving a warning (hasra'ah) is a necessary condition to the court being about to administer the death penalty.  Moreover, if the warning is inaccurate, the court will also not administer the death sentence.  For example, if the would be Shabbos violator is warned that his offense will incur a punishment of chenek, which considered a gentler form of execution than s'kila, he will also not be executed.  In that case, one could argue that had the m'chalel Shabbos known that he was going to be dropped off a two story platform on his head instead of merely strangled by two people pulling a rope tight around this nick... well, then, he certainly would have thought twice.  Just for reference, the generally accepted order order of severity (from worst to easiest) is: s'kila, s'reifa, hereg, chenek.  (There is some discussion about s'kila vs s'reifa and hereg vs chenek; you may want to investigate further on your own or with a loved one.)

This makes the two executions at the end of parshas Emor difficult to understand. We have two criminals, one a Shabbos violator, the other cursed using HaShem's name.  However, the nation did not yet have clarity on the appropriate punishments.  They had clarity that the Shabbos violator was to be executed, but were not clear on whether he should  he get hereg (the default) or s'kila (since there is a scriptural connection between Shabbos violation and avoda zara).  For the blasphemer, on the other hand, they didn't even know if he was to be executed!  How in the world was appropriate has'ra'ah (warning) given?

The Da'as Z'keinim has a hard time with the execution of the m'chalel shabbos, but basically concludes that hasra'a is not a "miranda rights" incantation; it is simply to ensure that the perpetrator understands the severity of the crime.  Therefore, for example, a talmid chacham does not require has'ra'a; he knows precisely how bad the crime is.  (I can't answer why a nice Jewish boy is letting himself get mixed up in something that bad.  Kasha af a ma'aseh.)  Certainly that generation -- the dor dei'a (the generation who stood at Har Sinai) -- knew the severity of the crimes.

The execution of the blasphemer, on the other hand, is much easier in the view of the Da'as Z'keinim.  The fact that they didn't know whether his was to be executed for his crime or not was not due to a worry that his crime did not warrant the death penalty.  There was no doubt at all that cursing HaShem with the sheim ha'm'forash (the explicit name) deserved the highest level of punishment.  Their doubt was that perhaps his crime was so bad that he didn't deserve the karpara that execution by beis din affords.

This world is a transitory state and nothing but a preparation for our real and permanent life in the world to come.  Trials, tribulations, and even punishments are part of that preparation.


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