Posts Tagged ‘prison’
Death penalty
1. The victims’ families in a murder case that concluded today have called for the reintroduction of the death penalty.
2. Jewish law and thought supports the notion of a death penalty. The Torah prescribes death as a penalty for a number of wrongs, including murder. And the executive powers of a Jewish King includes powers of taking life.
3. The executive imposition of a death penalty can be justified in Jewish law by the need to deter others from a particular course of action. Of course, modern research sheds considerable doubt on the deterrent effectiveness of a death penalty, and that research would have to be taken into account in any modern re-application of the Jewish criminal code following the rebuilding of the Temple and the re-establishment of the Sanhedrin.
4. The judicial death penalty as prescribed by the Torah is not, however, expressly linked to deterrence. Rather, it is part of the Jewish notion of kapparah – atonement – that a person needs a way to purge himself or herself of the spiritual damage self-inflicted by the commission of a wrong. In some cases, such as a wilful murder, giving up one’s life in this world may be the only effective way of moving in spiritual purity to life in the next.
5. The possibility of a miscarriage of justice is one which worries Torah judges and scholars to such an extent that the Jewish applied criminal laws are a mass of complexity, designed to make the execution of an innocent person a practical impossibility. An uncorroborated confession is insufficient, for example, there being many cases in which an inbalanced person will confess to a crime he or she did not commit. Indeed, it could almost be said that the Jewish death penalty is “voluntary”, in the sense that there are so many opportunities for a defendant to oppose technical obstacles – such as objecting that he or she was not given an intelligible warning of the possible punishment before the commission of the crime – that one cannot see that anyone would actually be killed without in effect co-operating in the process.
6. Clearly, that is the essential issue, to ensure that there is no possibility of miscarriage of justice: easier said than done – no kind of evidence is unimpeachable, whether it be fifty witnesses who may all have conspired together or a DNA sample that may have been deliberately or inadvertently contaminated.
7. But, of course, it is a mistake to think that we need worry less about miscarriages of justice so long as we do not have the death penalty: imprisoning a person is potentially completely ruining their lives – and indeed the spiritual damage may in some cases be worse than that caused by the death penalty: which is why prison is not an approved Torah punishment, although it can be used as a preventative technique.
Innocent or mostly innocent?
- In a recent criminal trial in America attracting considerable media interest, the defendant was acquitted; but his acquittal was accompanied by some public speculation that he may have been guilty of offences despite the fact that the prosecution had failed to prove its case in respect of the charges preferred.
- The Jewish approach to a situation like this is clear.
- The secular rule against double jeopardy, a person being tried more than once for the same crime, is found, but with variations, in Jewish law. In particular, while we will always reopen a criminal matter to turn a guilty verdict into an acquittal, we will not reopen an acquittal.
- Once a person’s acquittal is recorded, he must be allowed to function, in the same way as any other person, without aspersions being cast against him extra-judicially and in a manner which carries neither accountability or responsibility. So a former juror, or any other person, who accuses an acquitted defendant of wrong-doing is exposed to the same potential liability in Jewish law for defamation, and has to abide by the same laws of permitted speech, as apply in relation to anyone else.
- However, it can of course in theory happen that a defendant is acquitted for technical reasons, while the court is satisfied beyond doubt that he was guilty of a crime. In secular law, for example, there can be technical reasons for the inadmissibility of evidence whose veracity nobody doubts. And in Jewish law there may, for example, be a family relationship between the only two available witnesses which prevents the evidence of both being admitted; or there may have been a deficiency in the terms in which the requisite warning was administered.
- In such a case Jewish law allows the court to impose whatever measures – including imprisonment – it considers necessary for the protection of society. Anyone who believes that the verdict may leave unanswered questions of public safety is therefore able to apply to the courts for relief: but not to indulge in private extra-judicial accusations.
- In this way the Torah gives unlimited powers to the judicial institutions to preserve the rule of law and to protect the public, while at the same time ensuring that individuals have their liberty and reputation protected from interference otherwise than in accordance with due judicial process.
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