Sunday, December 18, 2005

Death Penalty

Over at Cross Currents, Toby Katz wrote a post about the recent execution of Stanley Tookie Williams titled "Tookie — goodbye and good riddance." In the comments, I objected to taking this tone about his execution. I mistakenly thought that Tookie was one of the many "born again" death row inmates who regretted his crime. If that were the case, and he was a repentant sinner, then our attitude to him should be different.

The Gemara (Makkos 13b) is clear that someone who is due to be punished by a beis din and repents is still punished. However the question is raised why that is the case. R. Yosef Engel (Gilyonei Ha-Shas, ad loc.) brings two general approaches to this:

1. If the criminal really did do teshuvah then he should not be punished. However, it is simply impossible for any human to conclusively know the truth so we cannot exempt him from punishment.

2. We limited humans can only do mishpat because we can never know the full context of a person's actions, given his experiences, his upbringing, his frame of mind, etc. That is why we cannot exempt a repentant criminal from punishment; we can only take into account the facts. But God works based on hessed and will take into account a person's full context, including any later teshuvah (I believe that this is how the Maharal, cited by R. Engel, phrases this concept).

My dear friend, R. Daniel Z. Feldman, directed me to a responsum by the Kozhoglover Rav, R. Tzvi Hirsch Frimer (in whose memory floor 5a of the YU library is dedicated), in his Eretz Tzvi (vol. 2 p. 167). He takes the first view, that teshuvah cannot forestall a beis din's punishment because true repentance cannot be ascertained by humans.

He also pointed out to me the responsum by R. Nosson Gestetner (Le-Horos Nassan, vol. 9 kuntres va-hai bahem), where R. Gestetner rules that while teshuvah might not stop the punishment, it does have other practical implications. For example, if a repentant criminal whose execution is imminent should fall ill on Shabbos, the Shabbos must still be desecrated to save his life.

What's my point?

Just because someone has committed a crime and will be/has been executed does not mean that he is worthless. If he has truly repented then we must have compassion and maybe even respect for him. Summarily dismissing him is simply wrong. Note that this does not undermine the court's need to punish someone for his crime.

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