From Sanhedrin to Supreme Court: Israel’s +2,000-year-old Death Penalty Debate |
Countless individuals and organizations have rightfully condemned Israel’s heinous death penalty for terrorists law, the macabre celebration of which desecrated the Passover holiday that began just days after the Knesset passed it into law. The thousands of members of our group, “L’chaim! Jews Against the Death Penalty” in Israel and worldwide, have been part of a vast coalition sounding the alarm over this development since death proponents first proposed it. The efforts for L’chaim and other Jews and non-Jews of good conscience across the globe now turn to petitioning for the repeal of this monstrous law at the judicial level by the Supreme Court of Israel. As we do so, it seems fitting and helpful to pause for a moment to view the upcoming court hearings from the vantage point of their broader historical context.
The subject of the death penalty constitutes one of the most enduring topics for judicial debate in the history of ancient and modern Israel, spanning the millennia from the ancient rabbinic Sanhedrin to the current Supreme Court of Israel. Most of the issues argued before the original rabbinic court have since been resolved or are no longer the subject of debate. (The final setting of the formal Jewish calendar, for example, served as that Court’s final topic of discussion before it was dissolved.) Yet, just as the Sanhedrin hotly debated capital punishment roughly two millennia ago, so too now is the Supreme Court of Israel set to do so yet again. Rabbinical judges of the Sanhedrin approached the legality of executions from the framework of Halacha (Jewish law). In contrast, contemporary secular judges ostensibly do so from the viewpoint of modern Israeli law and ethics, which are, of course, informed by Jewish tradition.
The stakes could not be higher now for the land of Israel, and for Jews the world over. As this debate enters its latest chapter, civilized humanity is watching very closely to see if Israel will transcend the base, if understandable, urge for vengeance that ultimately fuels any call for the death penalty. In the wake of the horrific Hamas terrorist attacks of October 7, 2023, the deterrence delusion that proponents have used to justify the passage of this racist, dangerous, vengeful, and unjust death penalty law has once again reared its ugly head. It is now up to Israel’s contemporary High Court to redeem Israel, and Judaism as a whole, with unconditional repeal of this abject abomination.
Debating the death penalty in the Sanhedrin
The Great Sanhedrin was the most authoritative Jewish religious and judicial body in Israel during the Second Temple era, from the Hasmonean period (approximately 2nd century B.C.E.) until around 425 C.E., when the Romans ultimately disbanded it. It consisted of 71 members, including a president (nasi) and a vice-president (av bet din). It comprised chief priests, elders, and scribes (scholars), typically representing both Pharisee and Sadducee factions. Members were required to be sages with deep knowledge of Torah law, as well as possessing desirable qualities such as humility, respectability, and maturity.
The Sanhedrin held the authority to impose the death penalty, but utilized strict procedural safeguards that made executions extremely rare. A quorum of 23 judges was required for capital cases—a conviction required at least two eyewitnesses who had warned the perpetrator of the consequences immediately before the act. Circumstantial evidence was inadmissible. If a conviction was unanimous, it was sometimes overturned because a unanimous verdict indicated inadequate defense of the accused. According to the Talmud, the Sanhedrin ceased presiding over capital cases 40 years before the destruction of the Temple, as it had lost the authority to do so under Roman rule.
Even before beginning its own debates on the matter, the Sanhedrin already had much to consider regarding the death penalty, given inherited Jewish texts. The Torah lists nearly thirty capital offenses. The bar for some of these “sins” is exceptionally low – such as for “cursing” one’s parents, an infraction which, if in effect, would have led to this author’s own execution decades ago. The Torah also allows for various methods of state killing. Stoning (sekilah) was the most common method mentioned in the Torah for crimes like adultery, idolatry, or cursing parents. In reality, it involved pushing the condemned off a height, and if they survived, throwing stones at them until they perished. The biblical text also prescribes burning to death (sereifah) for offenses like incest or bestiality. Torah verses call for decapitation (herev) via the sword for crimes such as murder. Finally, the default method for when the Torah did not specify another was strangulation (chenek), preceded by burial up to the knees.
Such was the Biblical Jewish understanding of the “eye for an eye.” Rabbinic commentators and members of the Sanhedrin, however, engineered strict judicial conditions to ensure that no innocent person was put to death (i.e., requiring two witnesses, warnings, and specific court processes). This extremely high bar made executions exceedingly rare in practice, with the authority to apply them ceasing after the Second Temple’s destruction. Effectively, rabbinic Judaism placed so many prodigious safeguards as to render the death penalty virtually impossible to enact. In a striking example, the very phrase “eye for an eye” in Rabbinic parlance actually referred to financial compensation for the value of said eyes. In this historical context, the lex talionis was intended to curtail, rather than augment, the collective bloodlust of expansive vengeful massacres that societies practiced in response to killings in ancient times — and still all too often today.
Arguably, the most famous Talmudic depiction of the Sanhedrin’s wrestling with this issue can be found in the following words of Rabbi Eliezer ben Azariah, Rabbi Tarfon, and Rabbi Akiva:
“A Sanhedrin [Rabbinic court] that affects an execution once in seven years is branded a destructive tribunal. Rabbi Eliezer ben Azariah says: once in 70 years. Rabbi Tarfon and Rabbi Akiva say: Were we members of a Sanhedrin, no person would ever be put to death. [Thereupon] Rabban Simeon ben Gamaliel remarked, they would also multiply shedders of blood in Israel!” (Mishnah, Makkot 7a).”
Indeed, there were dissenters — like Rabban Simeon ben Gamaliel above — who were pro-death, citing similar deterrence factors and other now antiquated notions of “justice.” Posterity can forgive them for their views, which reflect the understanding of their times, including in the realm of deterrence. They were not privy to recent meta-studies that have concluded that when it comes to deterrence, there is no demonstrable link between the presence or absence of the death penalty and murder rates. Meanwhile, the well-documented “barbarization effect” that the death penalty has on any jurisdiction in which it is enacted primes that environment for further acts of violence. For this reason alone, most traditional Jewish arguments for the death penalty no longer apply in our world.
Centuries later, one of the most renowned rabbinic commentators to subsequently weigh in on the issue of the death penalty was the Rambam, Rabbi Moses ben Maimon (1135-1204). Maimonides, as he is often called, was a Sephardic Jewish physician and philosopher who became one of the most prolific and influential Torah scholars of the Middle Ages. Choosing to focus on the inevitable reality of the execution of innocents, he wrote the following of capital punishment in Sefer HaMitzvot, Prohibition 290: “It is better to acquit a thousand guilty persons than to put a single innocent one to death.” Like his Sanhedrin predecessors, Maimonides, too, clearly erred on the side of caution when it came to the use of the death penalty.
Still, despite all these lofty concerns, by not entirely abolishing capital punishment, rabbinic authorities left the door open to the Pandora’s Box that is capital punishment, effectively kicking the can down the road for future generations. Opportunistic politicians seeking to capitalize on natural bloodlust have seized upon this mistake. Hence, National Security Minister, and ardent death penalty adocate, Itamar Ben-Gvir has succeeded in enacting in the Knesset his pet death penalty legislation that, contrary to previous Jewish judicial precedent, will maximize state murders in Israel. Ben Gvir, of course, believes that the Torah and Jewish tradition greenlight his sadistic approach to “justice.” His conclusion is patently false, as many progressive and orthodox rabbinic leaders arguing against the death penalty have demonstrated. Adherents to Ben Gvir’s exercise in collective vengeance delude themselves with the disproven fallacy of deterrence, which closes their eyes to the fact that the opportunity for the death penalty would only incite and invite the creation of more shaheeds – martyrs – among would-be terrorists.
In light of the Knesset’s recently adopted legislation, Israel and the Jewish world are consequently yet again at square one on this issue, roughly two thousand years later. Preparations are now underway once again for renewed judicial debate over this longstanding issue for Jews and Israel in the form of its latest iteration: Israel’s 2026 death penalty for terrorists law. It is up to the modern Supreme Court to stop it.
Petitioning the Supreme Court of Israel for the repeal of the death penalty law
While both hold the position of the highest court in the land of Israel, the current Supreme Court is far removed from the ancient Sanhedrin. While informed by Jewish tradition, it is beholden to secular law (the Basic Laws of Israel). When full, its membership reaches 15, though some positions may be vacant at any given time. As of late 2025, Yitzhak Amit serves as President and Noam Sohlberg as Deputy President. A Judicial Selection Committee consisting of three Supreme Court justices, two cabinet ministers (including the Minister of Justice), two Knesset members, and two Israeli Bar Association representatives elects new appointments to the Court, which requires 7 of 9 votes. Candidates must have either 5 years of experience as a district court judge or 10 years of senior legal experience (advocacy, teaching, or public service). Justices serve until they reach the mandatory retirement age of 70. The court sits as the High Court of Justice (first instance) and the highest appellate court. Cases are usually heard by panels of three judges, or by an uneven number of judges in more important cases.
The Israeli Supreme Court has historically maintained a strict stance against the death penalty, which the modern state of Israel inherited not only from the aforementioned Jewish tradition but also from British Mandate emergency regulations for crimes like murder, treason, and illegal weapons. The Knesset abolished capital punishment for murder in 1954. Nazi mass murderer Adolf Eichmann, a key Holocaust architect, was sentenced to death against staunch opposition for crimes against humanity, marking the only civilian execution in Israel’s history. Still, the death penalty remained for Nazi collaborators, genocide, and treason. As such, Nazi death camp guard John Demjanjuk (aka “Ivan the Terrible”) was sentenced to death for war crimes in 1988. The Supreme Court, however, overturned his conviction upon appeal in 1993. The only other Israeli execution in the modern era occurred in its military, which executed army officer Meir Tobianski for treason in 1948, only to exonerate him of all charges posthumously. One can only imagine what Maimonides and the members of the Sanhedrin would have said in response to Tobianski’s wrongful execution.
Heeding Judaism’s trajectory toward death penalty abolition
The above trajectory from the Biblical times, when insulting one’s parents was a capital crime, to the Sanhedrin’s prodigious limiting safeguards and the modern Supreme Court of Israel’s attitude demonstrates an evolution toward abolition. Current Supreme Court justices must heed this trajectory now. In considering this law, they would do well to remember the words of their predecessor Justice Haim Herman Cohen (1911-2002). At the founding of the state of Israel in 1948, Cohn was asked to help create its legal system, which he did by combining Jewish, Ottoman, Roman, and British legal traditions. An ardent opponent of capital punishment, including cases against terrorists, he resigned as state attorney to avoid having to serve as a prosecutor in the 1961 death penalty trial of Adolf Eichmann, against which he famously stated: “We cannot uproot evil by recycling it through us.” Cohn was appointed to the Israeli Supreme Court in 1960 and served for 21 years, including a period as the court’s deputy chief justice. He founded the Israeli branch of Amnesty International and was the first president of the Israeli Association of Civil Rights. His books included “The Trial and Death of Jesus” and “Human Rights and Jewish Law,” and he received the Israel Prize in 1980.
In his 1994 essay, “The Values of a Jewish and Democratic State,” Cohn wrote the following about the death penalty:
“The prohibition against harming human life, as a foundational principle of public law, means first and foremost the prohibition against imposing the death penalty. Human life – meaning the life of a murderer or a traitor as well. The fact that a murderer took human life does not justify taking his, neither by the state nor by anyone else…The sages of the Mishnah did everything in their power to ensure that no offender would be put to death…Not only has the death penalty ceased to be a Jewish value, but one could argue that the rejection of the death penalty has itself become a Jewish value. And this rejection is also a distinctly democratic value.”
Israeli legal analyst Yuval Yoaz recently offered some of the most salient comments on Cohn’s unambiguous words. Writing in the Times of Israel, Yoaz stated: “Ultimately…the death penalty law for Palestinians convicted of deadly acts of terror must be struck down by the High Court not just because it fails the proportionality test, but because it contradicts the very values of the State of Israel, both as a Jewish state and as a democratic one.”
The targeting of Jews in the Shoah should also serve as a resounding reminder to the current Israeli justices of the Supreme Court of what can happen when human rights violations are met with silence. Human rights icon and death penalty abolitionist Elie Wiesel comprehended this all too well. Of the death penalty, Wiesel famously concluded that “death should never be the answer in a civilized society.” He also poignantly wrote: “I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.”
Wiesel’s charge reminds us of the danger of silence in the face of all human rights violations, including the death penalty. Given the evolving nature of Jewish law over the millennia, and the fact that over seventy percent of civilized nations have abolished capital punishment as a blatant human rights violation, the time has come for Israel to abolish the death penalty without exception. The Supreme Court’s repeal of Israel’s repeal of the current death penalty law would mark the first necessary step in this existentially vital process. After debates spanning thousands of years from the ancient Sanhedrin to the present, it is high time for Israel to decide this matter, once and for all.
Cantor Michael J. Zoosman, MSM, BCC
Co-Founder: L’chaim! Jews Against the Death Penalty
Advisory Committee Member: Death Penalty Action