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The talmudic discussion suggested that the penalty be avoided by asking questions of the witnesses till some confusion arose.”!
These brief statements against the death penalty, as well as others which sought to void it in the case of the rebellious son, do not change the basic tenor of the talmudic discussion. The death penalty remained part of the legal system and could be used when jurisdiction was provided.
The use of imprisonment was expanded and we learn of separate prisons for Jews and non-Jews .” It continued to be used to hold suspects for trial and convicted criminals until their punishment. It was also used to force individuals to obey the will of the court.53 Furthermore, it was used to sentence a murderer who could not be convicted for technical reasons and for repeat offenders who were not discouraged by whipping. Such prisoners could be fed bread and bad water or barley water, which would lead to their death.
The effort of this literature to clearly delineate the rights and prerogatives of various courts collapsed when the original system of ordination upon which all of this was based vanished. This occurred in the third or fourth century.” The literature took it for granted that the authority of the court remained intact despite the lack of ordination. Theoretically, the death penalty was no longer possible, but it continued to be used.
As we look at the Babylonian and Jerusalem Talmud from the point of view of punishment and punitive theory, we see that both added an enormous amount of detail which we have made no attempt to present here. For every biblical law there are dozens of cases, exceptions, peripheral elements, objections both real and theoretical. In addition, the crimes covered were increased as the Biblical laws were too skeletal and because the civilization or the country in which the people now lived had changed. New social and economic conditions had to be met. The basic types of punishment remained the same. Capital punishment may have diminished, but that is far from certain, and it was not eliminated.
Fines were a method of punishment expanded by the Tal mud ; they went beyond compensation for damage actually suffered. In most cases the amount of the fine was fixed by law and meant that a system was created. Fines could be imposed for many crimes and a very long list existed. Even when the legal right to impose a fine was weak, it could be upheld through custom and the need of the time.”