EXOD594 Is the fight option ever legitimized in Judaism? Many will point to the source "an eye for an eye" to prove that one may react to violence with violence. However, according to all the commentaries as well as to the Talmud (Bava Kama 84a), the clear meaning of the verse is to pay back money for any bodily damage.

SHOW FULL EXCERPT

EXOD591 (Continued from [[DEUT619]] Deuteronomy 13:7 friend BLOCH 141). An analysis of the concept of compassion in Judaism is incomplete without a discussion of the areas in which the Bible calls for stern justice. We must also explore such biblical injunctions as the expulsion of the indigenous Canaanites from Palestine and the eradication of the Amalekites, which appear unduly harsh by the standards of enlightened civilized behavior. Why does the Bible tolerate capital punishment and war? How does one explain the law of the blood-avenger (Numbers 35:21) or the so-called lex talionis [this verse]? The answer to these questions rests on two assumptions. (1) Some biblical moral perceptions were not intended to establish a permanent normal ethical behavior. They were merely responses to the temporary exigencies of a particular moment. [2) Biblical ethical values are expressed in terms comprehensible to primitive man, who was heir to long-established, ancient concepts of morality. New ethical concepts, designed to raise the moral level of human behavior, can be effective only if they do no violence to the generally accepted values of society at any given stage of man's development. New standards must be endowed with elasticity that permits them to keep pace with the growth and progress of civilization. This view is correlated to the talmudic maxim: "The Torah adopted language which is understandable to human beings" (Berachot 31b). In its brighter connotation, the teaching of ethics was linked to man's capacity of understanding and acceptance. Each stage of human advancement permits an upgrading of moral perceptions by an evolutionary process.

SHOW FULL EXCERPT

EXOD592 (Continued from [[NUM408]] Numbers 35:19 death BLOCH 65-6). The lex taionis ("an eye for an eye") has been singled out as a classic example of biblical harshness. The criticism of this law that appears in the New Testament (Matthew 5:38-42) has given it a wide prominence which no anti-Pentateuchal polemicist has dared ignore. It is incontrovertible that the mutilation of the human body is repugnant to modern minds. Yet, even while rejecting the practice of an eye for an eye, the law of a life for a life was never put in question by critics of the lex talionis. Is the taking of a life less cruel than the taking of an eye? Is capital punishment more acceptable because the executed criminal is buried and forgotten, while a maimed criminal survives as a visible monument to society's barbarism? Was the lex talionis ever practiced in ancient Israel? The answer is no. Ancient Middle Eastern nations supported the lex talionis as a punishment which fits the crime. The Babylonian and Assyrian codes approved of it. The inclusion of this law in the Pentateuch [this verse] did not shock the ancient Hebrew. On the contrary, its omission would have puzzled him. However, while the law was left intact, it was, to all intents and purposes, voided by an alternative option, the payment of damages, which was the case in all tort actions. The provision for the payment of damages was attached to the law prescribing the punishment of the owner of a goring ox which killed a human being. The owner's negligence carried the death penalty (Exodus 21:29). However, he was permitted to redeem his life by the payment of damages (Exodus 21:30). That the alternative of payment of damages applied to all cases of tort is made clear in Numbers (35:31), which singles out murder as a crime that cannot be expiated by the payment of damages.

SHOW FULL EXCERPT

EXOD597 See [[LEV945]] Leviticus 24:19 so shall COHON 193

SHOW FULL EXCERPT

EXOD596 Problems in Applying the Death Penalty. It is inaccurate to claim that the death penalty represents the Torah prescription of an “eye for eye, tooth for tooth” and “life for life.” (Exodus 21:23-27). The truth is that the death penalty is imposed in such an arbitrary manner that there is no guarantee that it will be imposed only on those who actually deserve it. Prosecutors have enormous discretion. Defendants who have committed heinous killings may receive reduced sentences because their testimony is needed against co-defendants. However, the two biggest factors at play in deciding who will be subject to the death penalty are geographic location and race. In some large jurisdictions, there are so many killings that a number of those who kill in a manner that would result in the death penalty elsewhere do not end up facing the death penalty. On the other hand, small, rural jurisdictions are notorious for being particularly aggressive in seeking the death penalty. A defendant who robs and kills a convenience store owner may face the death penalty in one town and only a life sentence in another. However, race is the biggest elephant in the room. Although the Supreme Court has refused to strike down the death penalty as discriminatory per se, it has repeatedly recognized that racism pervades the criminal justice system. [There are many ways this racism is evidenced in the criminal justice system. First, there are a disproportionate number of people of color who are criminal defendants. For example, although Black Americans make up only 12.7% of the US population, they make up 48.2% of all adults in prisons and jails. Second, people of color tend to be targeted by law enforcement. Because of racial profiling, Blacks and Hispanics are substantially more likely to be stopped by the police. For more information regarding racism in the criminal justice system, see “Factsheet: How is the Criminal Justice System Racist?” Defending Justice: An Activist Resource Kit, Public Research Associates (2005). Available at http://www.publiceye.org/defendingjustice/pdfs/factsheets/10-Fact%20Sheet%20-%20System%20as%Racist.pdf; note: link inoperative when access attempted on 5/11/2021-AJL] Studies show that a person who kills a white victim is almost four times more likely to receive the death penalty than a person who kills a non-white victim. At least 55% of inmates currently sitting on death row are minorities. [Death Penalty Information Center, “Facts About Death Penalty,” Oct. 15, 2008 Available at http://www.deathpenaltyinfo.org] More subtle racism also influences the system. Nearly every year, the Supreme Court decides a case in which prosecutors have intentionally sought to dismiss minorities from juries in death penalty cases in attempt to keep away potentially sympathetic jurors. Thus, the death penalty is not applied on an even playing field. If a minority defendant is on trial, the field is tilted toward a capital verdict. The death penalty is also a very expensive proposition. The cost of keeping an inmate incarcerated for life is significantly less than that of prosecuting a capital case through the appellate process. Capital defendants are entitled to two sets of everything--two sets of lawyers, two stages of a trial (the guilty phase and the penalty phase), and two sets of appeals (direct appeals and habeas corpus proceedings). If voters just voted based on their pocketbooks, they would outlaw the death penalty tomorrow. Because of these necessary procedural guarantees, some jurisdictions have tried to contain costs by paying capital defense lawyers rock bottom salaries. For example, in Alabama, a lawyer handling a death penalty case is paid less than $2,000 to investigate and prepare a capital case, including the preparation of a post-conviction appeal. If the lawyer spends a minimum of 500 hours on the capital case, he or she then earns $4 per hour. As they say, “You get what you pay for.” Unfortunately, this means that poor defendants are much more likely to receive the death penalty just because they do not have the resources to defend their case. (By Laurie L. Levenson, "Judaism and CriminalJustice"

SHOW FULL EXCERPT

EXOD598 The Goals of Punishment. Classically, the meting out of punishment in American criminal law is based upon four purposes: retribution, deterrence, incapacitation, and rehabilitation. Not all of these rationales work in every case, but they are the building blocks of criminal law. A simple example will demonstrate how these purposes of punishment are used in sentencing a defendant to prison. 1. Retribution. Imagine a bank robber is charged with threatening a teller with his gun and taking $500 from a bank. He is apprehended and convicted. Why put him in prison? First, we punish him because he broke the rules. In its simplest sense, retribution is encapsulated in the phrase, “You did the crime, now you must do the time.” In other words, the defendant “deserves” to be punished because he violated society's laws. By punishing the defendant, we reaffirm society’s values. While retribution is a key theory of punishment, there are problems with it, just as there are with the other theories behind punishment. At its essence, it is a theory based on the need for vengeance. Even if the defendant promises not to commit any other offences, and we are confident that he will not, we still punish him because he owes a debt to society. Retribution, as a theory, thus assumes that all of society's laws are fair and that, morally, the defendant deserves to be punished. However, what if the bank robber committed the crime because he needed the money to buy food for his children? Are we confident enough in the fairness of society's laws to claim that the defendant deserves to be punished because of his actions? There are many inequities in our society and we are always at risk of punishing people for violating rules they had no say in creating. Additionally, retribution assumes that the defendant can “pay society back” for his crime by being incarcerated. Sending our bank robber to prison will not reimburse the bank for his crime. Neither will capital punishment bring a murder victim back to life or make the victim's family whole again. The Torah’s insistence on an “Eye for eye, tooth for tooth” and “life for life” (Exodus 21:23-27) is a reminder that punishment should be proportional, but it is folly to believe that punishment will make a victim whole. Finally, there are practical reasons why retribution is problematic. America has been on a crusade to incarcerate criminal offenders. Right now, there are over 2.3 million Americans in prison. [Report of Pew Center on the States (Feb. 28, 2008). Available at http://www.pewcenteronthestates.org]. The United States has less than 5% of the world's population, but almost a quarter of the world's prisons. China, which is four times more populous than the United States, is a distant second, with 1.6 million of its people in prison. The cost of incarcerating America's defendants in the state and federal prisons is more than $60 billion [U.S. Department of Justice, Bureau of Justice Statistics (2005), “Direct expenditure for each of the major criminal justice functions.” available at http://www.ojp.usdoj.gov/bjs/glance/exptyp.htm] Even if we believe that it is appropriate to punish every person for his or her misconduct, the reality is that we cannot afford to do so. (By Laurie L. Levenson, "Judaism and CriminalJustice"

SHOW FULL EXCERPT

EXOD599 The initial question that must be asked of any criminal justice system is: "What gives us the right to punish?" After all, in the early biblical stories, it is God who metes out punishment. God expels Adam and Eve; God curses Cain (Gen 4:10-11). One could argue that God acts as a model for the authority in any society; what God can do, so can the controlling powers of a community. But Judaism does not rely on the power model for justice. Rather, justice derives from covenant--the social contract individuals have with God and with each other. Thus, the key laws governing the criminal justice system are set forth in Exodus and Deuteronomy after Jews have become a people. They are no longer governed by the laws of a foreign ruler. They must have laws by which they can govern themselves. There were many models of criminal justice they could have chosen. Some were as simple as allowing victims' families to avenge the blood of their loved ones. But that is not a criminal justice system; that is human behavior and emotions unchecked by society or legal system, barely distinguishable from the way animals react when one of their own is injured. Judaism seeks to elevate a criminal justice system. It is not reactive; it is proactive. The goal is to control aberrant behavior and provide a society where accountability is based on reason and moral imperatives, not just emotional reaction. The right to punish derives from the natural right of members of the community to protect their community. Retribution (driving from "retribuo" -- Latin for "I pay back") authorizes punishment as a way to repair the harm an individual has caused, not just to another individual, but to society by undermining its laws. Because an individual has accountability for his actions, he is obliged to acknowledge transgressions and, to the extent possible, repair the damages caused not only to the direct victims of his actions but also to the moral fabric of society. It is, of course, a separate matter to define what kind of punishment will serve these goals. The famous lex talionis, "eye for eye, tooth for tooth," [this verse], encapsulates Judaism's approach to punishment. Punishment should be in direct response and proportional to the harm caused. While the rabbis later converted this biblical demand into a system of monetary compensation [M. Bava Kamma 8:1], the principle remains the same. (By Laurie L. Levenson, "Judaism and CriminalJustice"

SHOW FULL EXCERPT

EXOD593 Although "An eye for an eye" does mandate punishing a person who maims another (Jewish law did not enforce this verse literally…), what is in frequently noted is that it limits the retribution which can be taken. For example, "An eye for an eye" forbids taking two eyes for an eye, even though people who avenge themselves on another often exact a far worse vengeance then the suffering that was inflicted upon them. ... Even though the language of the biblical verse seems definitive, the Rabbis understood it as meaning that on moral grounds, someone who intentionally blinds another deserves to lose his sight. But the court exacts only financial compensation, lest it commit the greater injustice of killing the offender while blinding him. "An eye for an eye" therefore establishes two biblical principles of justice: Evil must be punished, but punishment must be proportionate to and not exceed, the offense.

SHOW FULL EXCERPT

EXOD595 It was taught in the school of Chezkiah: "An eye for an eye" -- and not an eye and a life for an eye [i.e., "An eye" must refer to monetary payment; for if "eye" is taken literally, the extraction of the eye might result in the taking of the life, and this is proscribed by Scripture] (Kethuvoth 38a)

SHOW FULL EXCERPT

EXOD600 See [[EXOD401]] Exodus 20:10 slave BLOCH 58-59

SHOW FULL EXCERPT