As with any case of widespread interest to the public and to policymakers, the court received numerous "friend of the court" briefs on the topic. One was unique in the history of U.S. jurisprudence: An organization of Jewish lawyers used its brief to explain what Talmudic law would have to say about the case. "Not a single secular source is cited in it," Nathan Lewin, one of its authors, was quoted as saying. An excerpt of the brief follows:
Capital punishment is a penalty prescribed by Biblical law for the commission of offenses that violate ritual prohibitions (such as deliberate desecration of the Sabbath) as well as laws regarding interpersonal relationships (murder, kidnapping, incest). The Biblical text explicitly specifies two forms of execution: stoning (Exodus 17:4, 8:22; Numbers 14:10) and burning (Leviticus 20:14, 21:9). The oral tradition includes two additional means--strangulation and decapitation.
Although the Biblical text appears to contemplate frequent imposition of capital punishment, the weight of authority among rabbis of the Mishnaic period (1st-3rd centuries of the Common Era), who first committed to writing what had theretofore been transmitted from generation to generation as the Oral Law, clearly condemned frequent executions. The Mishna (a book of Talmudic law) in the tractate Makkoth (7a) declared:
The Sanhedrin (rabbinic court) that executes one person in seven years is called "murderous." Rabbi Elazar ben Azariah says that this extends to one execution in seventy years. Rabbi Tarfon and Rabbi Akiva say, "If we had been among the Sanhedrin, no one would ever have been executed." Rabbi Simon ben Gamliel responds, "Such an attitude would increase bloodshed in Israel."
This exchange among rabbis living in the first and second centuries reflects differences over the deterrent value of capital punishment that continue among legal scholars to this day. Some rabbis of the Mishnaic period (such as Rabbis Tarfon and Akiva) were unwilling to participate in a process that would take human life, while other rabbis (like Rabbi Simon ben Gamliel) believed that capital punishment had a deterrent effect that permitted it to be employed.
The infrequency of the death penalty was attributable to the meticulous application of stringent rules regarding the admissibility and sufficiency of evidence. A court of at least 23 judges would have to be satisfied, to a legal certainty, that the capital offense had been committed before the court could impose a death sentence. Since the testimony of two eye-witnesses was required, and the witnesses were subjected to searching and detailed interrogation by the court, there was rarely an instance when the evidence met the prescribed legal standard. See Maimonides, Mishneh Torah, Book of Judges, Sanhedrin, chapter XII.
By Talmudic prescription and the rulings of Jewish-law codifiers through Maimonides, the particular form of execution to be administered under Jewish law depended upon the nature of the offense. Each of these forms, however, had to be administered in the most humane manner possible.
This amicus brief does not address the question of whether all capital punishment should today be rejected as "cruel and unusual" punishment. That question is not before the Court in this case. Our brief addresses only the question whether the mode of execution employed by Florida renders capital punishment "cruel and unusual" in that State. This brief accordingly reviews rabbinic doctrines and discussion regarding the methods used in implementing the death penalty.
It is striking, we submit, that in prescribing methods for imposition of the death penalty almost two millennia ago, the rabbis of the Talmud were concerned about the same factors that have emerged from this Court's Eighth Amendment jurisprudence.
Primary concerns under Talmudic law are (1) the prevention of unnecessary pain and (2) avoidance of mutilation or dismemberment of the body. As discussed below, the four means of execution described in the Talmud were designed to utilize the most effective technology and scientific knowledge available at the time, to minimize the pain of the person who was being put to death, and to avoid mutilation of his or her body. The methods described in the Talmud, therefore, differ significantly from what is commonly assumed from a reading of the Biblical text.