The jury’s decision to execute Dylann Roof for killing nine unarmed people in a historically black Charleston church may create its own problems for the state of South Carolina.
As recently as last year, Bryan Stirling, director of the South Carolina Department of Corrections, was deprived of the means to prepare a lethal injection cocktail, pending a review of midazolam, a sedative that was the subject of a contentious 2016 Supreme Court case. That case closely mirrored an 1,800-year-old talmudic precedent, that sheds light on whether Roof’s execution would serve justice.
In Glossip v. Gross, the petitioners claimed that midazolam, even if properly administered, does not reliably cause unconsciousness before the lethal drugs themselves are injected. In several cases, prisoners regained consciousness during executions and appeared to choke, writhe and exhibit great pain for extended periods of time, violating the Eighth Amendment’s protection against cruel and unusual punishment. Justice Samuel Alito, though, noted that midazolam is currently the only drug available to states wishing to execute prisoners by lethal injection and the lack of alternative is critical. He wrote that “because capital punishment is constitutional, there must be a constitutional means of carrying it out.”
In a blistering dissent, Justice Sonia Sotomayor responded that even if capital punishment is constitutional in theory, there are times when there is no way to apply it in practice such that it would not be cruel and unusual. The lack of alternatives does not make what remains any less cruel or unusual, nor does it permit the suspension of the Eighth Amendment.
Sotomayor’s argument closely follows several third-century talmudic sages as they grappled with the Deuteronomic laws of the Wayward & Rebellious Son (Ben Sorer Umoreh) and the Wayward City (Ir HaNidachat). The first case deals with a young man who consistently refuses his parents’ discipline and instead engages in gluttony and idleness. His parents take him before the judges of the town, and he is executed. (Deuteronomy 21:18-21) Rabbi Simeon, bothered by the moral implications of the law, explains: “It never happened and never will happen. Why then was this law written? — That you may study it and receive reward.”
The second case deals with an Israelite city that turns to idolatry. In retribution, the inhabitants are to be annihilated before the city is razed to the ground. (Deuteronomy 13:13-19) Again, the rabbis state that this never actually happened — and, in fact, they interpreted the laws so as to make their application nearly impossible beyond “study it and receive reward.”
One sage, though, Rabbi Yonatan, claimed that these laws actually were applied — and that he himself had visited the grave of a Wayward & Rebellious Son and the ruins of a Wayward City. Like Alito, perhaps Rabbi Yonatan felt that a law on the books must have a practical application. However, Rabbi Yonatan’s is a minority viewpoint. The overwhelming weight of the rabbinic legal tradition comes down against the notion that these laws were never carried out, and certainly not by the talmudic period.
Similarly, though the Bible prescribes capital punishment for many offenses, and the rabbis discussed at length their laws and procedures, the dominant sense in the Talmud is that the death penalty was applied sparingly — if at all. “A court that puts a man to death once in seven years is called murderous. Rabbi Eleazar ben Azariah says ‘Or even once in 70 years.’” (Makkot 1:10)
There is some controversy as to what reward the talmudic sages thought there might be for studying morally troubling laws that would never be applied to real-life situations. Some say that the value is Torah study for its own sake, so the content is actually beside the point. Others explain that the dire consequences of these laws would provide a deterrent by demonstrating their seriousness to those who might stray. However, as Justice Antonin Scalia noted in his concurring opinion, a punishment that is deliberately never applied is no deterrent at all.
For me, the “reward” is appreciating the motivating spirit of our canonical texts and the ever-sharpening sense of morality with which we read them - what Justice Ginsburg calls their “growth potential.” It is inspirational to see how we transcend troubling laws written into our foundational texts, understanding that they are monuments to different points in our living traditions. The laws governing the owning of slaves, for example, while practical for the sages of the Talmud, have long ago joined the ranks of those that we “study to receive reward.”
Justices Scalia and Alito argued that the death penalty must be constitutional because it is specifically prescribed by law as the punishment for treason. Justices Stephen Breyer and Ruth Bader Ginsburg countered that, as currently practiced, the death penalty may be cruel, unusual and unconstitutional. The Jewish tradition dealt with similar questions centuries ago and concluded on the side of progress. Dylann Roof was sentenced to death, but, hopefully, the American legal tradition will choose life.
Avraham Bronstein is the rabbi of The Hampton Synagogue, in Westhampton Beach, New York. Follow him on Twitter @AvBronstein