Cruel and Unusual Punishment

One of the most repeated instructions in the Torah is that judges must do everything possible to provide equitable justice. In Deuteronomy 1, Moses reiterated this point once again, saying:

And I charged your judges at that time, saying: ‘Hear the causes between your brethren, and judge righteously between a man and his brother, and the stranger that is with him. You shall not respect persons in judgment; you shall hear the small and the great alike; you shall not be afraid of the face of any person…’ (Deuteronomy 1:16-17).

The command for equitable judgement resonates deeply in Western society, and yet the Hebrew Bible is often criticized for being harsh – particularly in modern times – because it allows for capital punishment. In fact, the means of capital punishment dictated by the Torah are four: strangulation, stoning, burning and decapitation. In the 21st century, these are all considered “cruel and unusual punishments,” which are illegal according to the Eighth Amendment of the United States Constitution: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

In ancient times, capital punishment was rarely implemented by Jewish courts because of the very complex rules of evidence that were required. So rare were executions that the sages noted that:

A Sanhedrin that effects an execution once in seven years is branded a ‘destructive tribunal.’ Rabbi Eliezer ben Azariah says once in seventy years. Rabbi Tarfon and Rabbi Akiva say, ‘Were we members of the Sanhedrin, no person would ever be put to death.’ Rabban Shimon ben Gamliel remarked [on Rabbi Tarfon and Rabbi Akiva’s comment], ‘And they would also multiply shedders of blood in Israel!’ (Makkot 7a).

Indeed, even where the courts were able to dictate sentences that included beatings, Rabbi Yochanan interpreted Deuteronomy 1:16, “And I charged your judges at that time,” as a “warning to them to use the rod and lash with caution” (Sanhedrin 7b).