Clemency in the Jewish Tradition

Print Friendly, PDF & Email

by R. Gil Student

In the United States, the President has the power to pardon someone convicted of a federal crime, freeing the individual from punishment. Similarly, many governors can pardon state crimes. This ability to grant clemency is not something that is intuitively necessary. If a court convicts and sentences a criminal, why should that work be overturned by a politician? Sometimes this is the more efficient solution to an obvious injustice, as opposed to a lengthy court procedure which would yield the same result. Other times, it is more efficient than creating new legislation, such as President Andrew Johnson’s pardon for all the traitorous soldiers of the Confederacy during the Civil War.

But there is another, more troubling, reason offered for the power of pardon by Andrew Hamilton in Federalist 74:

The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.

Later, Hamilton refers to the pardoner as a “dispenser of the mercy of Government.” Hamilton is not speaking about false convictions but about someone guilty and properly convicted. Even then, he believes that the government should have some way of showing mercy. There are degrees of guilt and someone low on the spectrum might be forgiven, in exceptional circumstances.

The Torah implicitly rejects the power to grant clemency.

Show no pity on him; you shall purge the guilt of innocent blood from Israel (Deut. 19:13)

This verse speaks specifically about murder cases. The court is instructed to carry out its death penalty despite the obvious case for mercy. Rashi (ad loc.), based on the Sifrei, explains: “You shall not say: ‘The first has already been killed. Why shall we kill the other one and then two Jews will be dead.'” I have heard this argument against capital punishment. Basically, there has been enough death why should we cause more of it?

The Torah, as expressed in this midrash quoted by Rashi, rejects this question. A convicted murderer must be punished appropriately. Ramban (ad loc.) explains the Torah’s rationale: “Mercy for murderers is [causes or leads to] further bloodshed by those murderers and by other criminals.” If we fail to punish criminals, we will enable their future crimes and will also remove the deterrent from other potential criminals. Mercy today yields cruelty tomorrow.

Ramban adds that this is a general rule, not restricted to capital punishments. Regarding the death penalty, with its finality, we are more more likely to find reasons to delay the punishment. That is why the Torah added this prohibition against showing mercy to someone convicted of a crime punished with the death penalty. But even for lesser crimes, we must administer the punishment despite our natural inclination toward mercy.

This might surprise some people who believe that the Sages of the Talmud added laws to make it almost impossible to convict someone. For example, witnesses must warn the criminal that what he is about to do is a crime punishable by execution and he has to respond verbally that he is doing it anyway (on this, see Mishneh Torah, Hilkhos Sanhedrin, ch. 12). However, traditional Jews believe that this is part of the Oral Torah, which was given together with, and as an explanation of, the Written Torah. The same Torah that commands us to execute the death penalty without mercy also greatly restricts the possibility of conviction. Those who reject this and believe that the Sages invented the limitations on conviction, effectively accuse the Sages of violating a biblical prohibition by showing mercy on people who would otherwise be convicted of capital crimes.

As we have seen, the Torah leaves no room for clemency. After conviction, the penalty must be administered without mercy. Does this mean we should oppose the pardon? Not necessarily. What follows are some thoughts from someone who has not studied American, an amateur at best. Please consider them raw thoughts and feel free to add your own.

Man-made laws suffer from greater limitations than divine laws. The Rambam (Moreh Nevukhim 3:34, 41) teaches that the Torah’s laws cannot account for every case, and therefore some people will suffer under the Torah (such as a classical agunah whose husband is missing). However, man-made laws are subject to great imperfection. Clemency is a guard against poor legislation that fails to consider the potential consequences. It allows for mercy when the law overreaches.

Additionally, we have to take into account not just differences between Torah and civil legislation but also judicial process. The Torah’s judicial process differs from most Western court systems in many ways, in particular a Jewish court almost never convicts a criminal case on a biblical level. The standard for evidence is very high, as we saw above regarding the warning requirement. In such a system, clemency for the rare convict would threaten to eliminate all punishment on a biblical level. American courts, on the other hand, convict and punish criminals frequently. Clemency has a much more limited impact on such a system.

About Gil Student

Rabbi Gil Student is the Editor of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student currently is serving his third term on the Executive Committee of the Rabbinical Council of America and also serves as the Director of the Halacha Commission of the Rabbinical Alliance of America. He serves on the Editorial Board of Jewish Action magazineand the Board of OU Press. He has published four English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

One comment

  1. We also believe that God evens things up in the end so while we try our best to get it right there is always a backup that doesn’t exist in secular systems.

Leave a Reply

Subscribe to our Weekly Newsletter


The latest weekly digest is also available by clicking here.

Subscribe to our Daily Newsletter

Archives

Categories