John Allen Muhammad, known as the D.C. Sniper, will be executed tonight in Virginia. Muhammad, along with his protégé Lee Boyd Malvo, murdered 10 and terrorized millions for weeks, until he was captured in the fall of 2004. And when he dies tonight, there will likely be those outside the prison cheering the fact that “he’s getting what he deserves” and an equal number of people protesting his “murder” by the state.
Are either of them right? Is there a Jewish approach to the death penalty? The short answers are, respectively, no and yes.
From a Jewish perspective, those who cheer the justice that Mr. Muhammad will receive through the tip of a needle are potentially correct about this being what he deserves. They are however almost certainly wrong that he should get it. Jewish tradition is not shy about declaring that many transgressions are deserving of the death penalty, but is equally powerful in its stance against its being carried out.

Despite the Hebrew Bible’s teaching that many acts (and I mention these, in this context, as examples for historical purposes only) ranging from murder to witchcraft, and adultery to homosexuality, merit death at the hands of the court, there is only one case of a person being executed in the entire Five Books of Moses. The rabbis of the Mishnah (Makkot 1:10) teach that a court which executes even once in seven years is a “terrorist court”, and according to Rabbi Eliezer ben Azariah, the number is once in seventy years.
Even more interestingly, the rabbis teach in the tractate Sanhedrin, that a unanimous court can not impose the death penalty. That’s right, the only court which is absolutely prohibited from carrying out a death sentence is the one which most of us assume is the one which should i.e. one in which all judges agree that it’s the right thing to do.
The rabbis accept that there may be times when it has to happen, but can not accept that any decision so momentous and complex should be seen the same way by everybody. If that happens, the rabbis tell us, we must be missing something and therefore can not execute the offender. Moreover, the system described by the rabbis makes it impossible to hide behind popular opinion.

The judges who vote for execution stand alongside those who vote against it and, because they will continue to work together, must acknowledge that among those they respect are people who think that they were dead wrong about the conclusion which they reached. Can the same be said about either group which will be outside the prison tonight?
Will either group admit the partial truth, or potential truth, embedded in the ideas of the group they oppose? If not, we are likely to continue ping-pong’ing along as a nation divided between two opposing groups, neither of whom can address the real issues of justice and compassion and how a legal system must hold those values in relationship.
Overwhelmingly, Jewish tradition seems to value the idea of the death penalty as a moral statement, even as it resists its imposition on ethical grounds. While that might not be the position we should adopt as a nation, it’s surely an interesting basis upon which to talk about what will happen to John Muhammad at nine tonight.