The Death Penalty: From Jealous Rage to Dubious Deterrence

Sources from essay by Rabbi Ronald Stern
in The Social Justice Torah Commentary

This cannot be our Torah! That's not what our people practice or believe! After all, this same Torah teaches; "Let no one be found among you who consigns a son or daughter to the fire, or who is an augur, a soothsayer, a diviner, a sorcerer, one who casts spells, or one who consults ghosts or familiar spirits, or one who inquires of the dead. For anyone who does such things is abhorrent to the Eternal" (Deuteronomy 18:10-12). Is this strange sotah ritual not a spell of some kind? Is the priest not attempting to divine the truth from the woman through the ritual? And yet, this particular rite and its apparent magic are not only permitted but prescribed.

-Rabbi Ronald Stern

Taking another look at the sotah ritual, we may consider the possibility that it is actually a form of ancient satire to critique a common practice. Perhaps the late author, acutely aware of the Deuteronomic prohibition against the use of magic, knows that the ritual is specious at best.' By prescribing an ineffective and elsewhere prohibited ritual--which would, on some level, restore the relationship--the source writer is suggesting that retributive femicide arising from spousal jealousy is ridiculous and contrary to God's will. Surely the outcome of drinking the solution in the bowl would be a minor stomachache at worst and easily foreseeable. Thus, the account in Numbers serves a dual purpose: on one hand acknowledging an ancient ritual that ultimately sought to preserve a marriage and a life, while on the other pointing out that such magical rituals, when examined carefully, are contrary to the more contemporary Deuteronomic theology that prohibits magic. Interestingly, the Talmud parses and expands on the administration of the ritual in a way that seeks to reflect the Creator's perfect administration of justice. The effect is to essentially obviate the ritual by establishing such a high bar of prerequisites for witness testimony that the wife's guilt is nearly impossible to affirm. Ultimately, the Talmud's requirement for due process had the effect of making honor killings unfathomable in a Jewish context.

-Rabbi Ronald Stern

Jewish tradition's ambivalence is reflected in the United States as well. Our country's on-again, off-again, on-again relationship with the death penalty displays a core discomfort. The truth is that in its application in the United States, there are many reasons why the death penalty is both ineffective and counterproductive. Over the forty-four years since the death penalty has been reinstated in the United States, 1,516 people have been put to death by state governments. This number pales in comparison to the number of homicides in that period, with 16,214 reported in 2018 alone. Arguments that it serves as a deterrent are undermined by the evidence that states with the death penalty have a consistently higher murder rate than do states without it.

Does it serve justice? To the contrary, the data suggests that Blacks are far more likely to be charged with capital murder in all circumstances–and, should the victim be white, the likelihood of a capital charge increases significantly. That significant numbers of death row inmates have been exonerated upon review of their cases through the efforts of justice-seeking experts indicates that the state may execute the innocent. Could we stomach an expanded use of the death penalty, bringing with it the likelihood of many more innocent being put to death as a result of the proven failure of our justice system to protect the falsely accused?

Though the Torah prescribes stoning or impaling on a stake as a means of execution, we moderns would judge those methods to be inhumane. We live under the illusion that we have achieved progress, yet current mechanisms are equally vile...

Capital punishment in the United States today is administered no more justly than the sotah ritual. Much as women were singled out for punishment for adultery, people of color and the poor face discrimination in the application of the death penalty.
If the trajectory of resistance to the indiscriminate use of this vile practice reflected in Rabbinic writings is our inheritance, the flaws of our current society are our possession. We must endeavor to fashion a world in which one human being's death at the hands of another is not only a rare crime, but also abhorred by individuals and the state in the pursuit of justice.

-Rabbi Ronald Stern

Discussion Questions by Ariel Tovlev

1. What was the sotah ritual for, and how was it performed? What are your initial thoughts about the sotah ritual?

2. Rabbi Stern offers two potential alternative readings of the sotah ritual: to de- crease femicide and to critique the use of magic. What are the rationales for these alternative readings? Do you agree or disagree?

3. How does Rabbi Stern connect the sotah ritual with the death penalty? What are Rabbi Stern’s arguments against the death penalty? Do you agree or disagree? If you agree, what actions can be taken to end the practice of capital punishment?