Gerald Blidstein concluded, that“Jewish law abolished capital punishment in fact not by denying its conceptual moral validity but rather by allowing it only this conceptual validity?” I had this view in mind earlier when I referred to the“conventional wisdom.” This claim builds on a host of talmudic rules of evidence and criminal procedure, chief among them hatra’ah, the requirement that a person be warned, just prior to the crime and in the presence of two witnesses, that he is liable to be executed should he commit the act,” which warning must be acknowledged immediately and unequivocably.'® Some authorities went so far as to insist that the warning include the manner of execution." At trial, the witnesses were to be examined closely? and separately.?! Inconsistencies in their testimony, even about matters immaterial to the crime itself, barred the imposition of the death penalty.?2
Do these rules prove that the rabbis supported capital punishment in theory, but abolished it in practice? I believe that they do not, for several reasons. Firstly, their effect is not to eliminate capital punishment, but to restrict it to cases where there is clear, convincing, and uncontradicted evidence of guilt, criminal intent, and premeditation. Moreover, the rules were not enforced inflexibly. Thus, for example, scholars could be executed without hatra’ah. Since“warning is only a means of deciding whether one has committed the crime willfully or not,”? it was unnecessary when willfulness could be inferred from a defendant's presumed knowledge of the law. Jewish tradition also allows batei din to impose extraordinary punishment and disregard normal evidentiary and procedural rules as an emergency measure.”
Secondly, Jewish courts lost their authority to impose capital Punishment after the destruction of the Temple in 70 C.E.,® and, €ven presuming that these restrictions predated that event, there 1s scant evidence that they were ever employed in a functioning Jewish criminal justice system. In addition, as we shall see, when Jews regained that authority in later times and other places, they imposed capital punishment notwithstanding these seemingly insurmountable barriers. Thus, like the talmudic descriptions of €xecution methodology, the Talmud ’s stringent procedural and evidentiary rules are to be regarded as largely theoretical, not as evidence of actual practice.
Thirdly, recognizing the detrimental effect on justice and Social welfare that might occur if imposing capital punishment