Thoughts on the Death Penalty

Recently, I've seen ads for rallies and protests against the "racist" death penalty. Usually it's the far-lefties, the "free Mumia abu-Jamal" crowd. So I brushed off the protests as typical radical-left nonsense. After all, one of my rabbeim ripped Mario Cuomo ten new ones for being anti-death penalty. (This was the pre-Giuliani era; crime was a hot-button issue.) And of course, a quick peek at parshas mishpatim tells us simply that if one person kills another, we've gotta kill the murderer.

But later on, I started thinking about those gemaras in Makkos, where there's a machlokes whether anyone ever received the death penalty from Beis Din. And how according to R' Elazar ben Azaria, if Beis Din killed once every seventy years, that Beis Din was referred to as a "bloody beis din."

Clearly, life is precious. And that's a big part of the reason why, at one point, I was thinking that maybe the Bill O'Reilly approach to the death penalty makes the most sense.

In a nutshell, O'Reilly proposes as follows:

Killers, rapists, drug kingpins and terrorists should all be subjected to life in prison without parole in a federal work camp. This special prison system would be run military style and be located on federal land in Alaska. It would be in effect a gulag.

Here the worst criminals in the country would be banished and forced to labor eight hours a day, six days a week in the harsh climate. They would be denied television, computers, exercise equipment (as if they'd need it) and most other "comfort" items. Their mail would be screened, and they would only be allowed a few visitors per year.

If the criminal did not cooperate with the work detail, his food rations would be cut, and he would be placed in solitary confinement.

Ideally, I think O'Reilly's proposal is a great one. The problem is, practically, the liberal judges and special-interest groups will have none of this. If they went all crazy over Gitmo, how do you think they'd respond to this? And even if, at some point, Congress had the guts to pass such a law, as soon as the Dems would take over Congress or the presidency, they would close up shop. Or just leave it to the lefties on the courts. Maybe they would even grant these rodents parole, and have them walk the streets.

Besides, there are two factors that have to be considered from a frum standpoint.

The halachos of murder by a Ben Noach differ from Jews. They don't require hasra'ah, for example. And according to some, abortion by a Ben Noach would be tantamount to murder, which is not the case for Jews (except perhaps by partial-birth abortions). So perhaps one can derive from here that the standards for the death penalty are much different in their cases. The chareidim would probably say that it's because goyim are evil, but I'm not gonna go there right now.

Also, the gemara says that where murder is rampant, the death penalty was to be given out more often in order to scare off potential murderers, and to let them know that Beis Din means business. Here too, though, what does that mean, that murder is rampant? In the Dinkins era, certainly murder was rampant. Thank God, things have quieted down since then. In which case, perhaps the standard has to change. But how quiet does it have to be to go back to a "higher-standard" death penalty? Where does one draw the line?

Besides, the whole concept of giving the death penalty more often as a deterring measure is also a bit troublesome. What if it turns out someone incorrectly received the penalty, and wouldn't have been killed under the "higher-standard" regime? Do we say he has to "take one for the team," so to speak, and be killed as a lesson for potential murderers? How do you explain that to his family? Hard to understand that one.