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January 18, 2008

Rachel Biale, The Jewish News Weekly

Last week the U.S. Supreme Court heard oral arguments on a question we must all consider: Can lethal injection inflict “unnecessary and wanton pain” and thus be tantamount to torture?

Many rabbis and leaders in the Bay Area Jewish community have argued against the death penalty altogether, regardless of execution procedures, using religious teachings and values to support their position. Some, such as Rabbis Alan Lew, Lavey Derby and David Cooper, have been longtime outspoken opponents and have attended protest vigils at San Quentin executions.

These leaders cite Jewish teachings on the sanctity of life, and the idea that saving one life is like saving the whole world. They often quote a famous passage in the Talmud: “A Sanhedrin that executes a person once in seven years is a murderous one.”

Rabbi Eliezer Ben Azariah topped that by saying, “Once in 70 years.”

Rabbis Tarfon and Akiva said, “If we were members of a Sanhedrin, nobody would ever be put to death.”

But the question put before the U.S. Supreme Court — and one that likely won’t be answered until this summer — is not generally about the death penalty, but rather about the legality of a specific method of execution: lethal injection.

Proponents of lethal injection argue that it is the most “humane” way we have of carrying out the death penalty (in legal terms, this means not inflicting “unnecessary and wanton pain”). Opponents hold that there is good reason to believe the executed may be suffering great pain but cannot communicate it, because a paralytic agent is used in the procedure. The paralytic drug is used to prevent convulsions, the expulsion of body fluids and other involuntary functions that would make viewing the execution intolerable to some and very disturbing to all.

A Talmudic discussion of execution of a pregnant woman is surprisingly relevant to this discussion:

“When a [pregnant] woman is about to be executed, one does not wait for her until she gives birth; but if she has already sat on the birth stool, one waits for her until she gives birth … Rav Judah said in the name of Samuel: If a woman is about to be executed, one strikes her against her belly so that the child might die first, to avoid her being disgraced.” (Arakhin 7a-b)

The discussion here (most probably a completely theoretical one, as there is no evidence that Jewish courts meted out capital punishment in the rabbinic period) seems gruesome and inhumane, but it reveals a surprising angle of compassion. Two questions arise about the text: One, why not wait until the woman has given birth? And two, what is the nature of her disgrace that it should warrant feticide?

First, the rabbis’ view is that making the condemned woman (or anyone sentenced to death) await her execution, possibly for months, until she delivers the baby is a form of inui hadin — or, causing suffering in the course of meting out judgment. In other words, sitting and waiting for your execution would cause excruciating

emotional pain. Such additional suffering — beyond the stipulation of the punishment — is considered a form of torture and is prohibited.

The ruling that the fetus should be killed before the execution may seem gruesome and bizarre, but there too the rabbis’ goal is to avoid unnecessary pain to the woman. They have a notion that an “undignified death” would cause the woman suffering as well. The disgrace of giving birth while being executed (the rabbis probably imagine a public hanging) would be emotionally torturous.

If the rabbis are willing to put aside the potential life of the fetus (only a potential life, for while in utero, the fetus is considered “its mother’s thigh”) to save the woman disgrace and emotional suffering, certainly they would oppose inflicting physical pain. To allow people being executed in our country today to suffer possibly severe pain (and the anguish of anticipating it) would, according to the rabbis’ view then, be a form of torture. President Bush has assured us that “we do not torture.” I have my doubts, but, certainly, we should not torture.

Rachel Biale is the Bay Area regional director of Progressive Jewish Alliance, which, along with other social justice issues, works against the death penalty.