While the Old Testament prescribes the death penalty for many offenses, Talmudic requirements rendered its application extremely rare. In general, Talmudic tradition required:
- Two witnesses to the actual offense
- The perpetrator had to have been warned the action carried the death penalty
- The perpetrator had to exhibit knowledge that the act carried the death penalty
- Mere confession was not enough; witnesses were needed, and circumstantial evidence was not permitted
It was quite rare for a case to fulfill all of those requirements, and thus the application of the death penalty was almost non-existent. In essence, when the Old Testament prescribes the death penalty for an offense, it was understood to show the seriousness of the offense. In fact, one a conversation recorded in the Talmud, one rabbi says, “A Sanhedrin that puts a man to death once in seven years is called a murderous one.” To which another rabbi replies, “Or even once in seventy years.”
So, while the death penalty was occasionally used, the Talmudic literature is uncomfortable with it and even discusses banning its use. One scholar in the Talmud is quoted as saying: “If we had been in the Sanhedrin, no death sentence would ever have been passed.”
The Talmud also discusses in detail the forms of capital punishment for a rebellious child but then declares: “It never happened and it never will happen.”
It is important to remember that while the Scriptures attach a death penalty to certain offenses, it was never understood as an absolute requirement. As such, the punishment could be lesser if the Sanhedrin decided so. This was seen as following the example of God, who did not take the life of Cain after he murdered Abel but permitted him to be exiled with a mark of protection from the vengeance of others.
Ancient society was without any kind of real investigative tools available to it and no real way to maintain a prison system, which, if they had had, probably would have been a fate worse than death. The ancient world was one where “Might makes right,” and a society whose members had no fear of serious punishment for certain crimes would eventually descend into chaos.
The ancient laws of the Old Testament are from a brutal time in human history. They were put in place as potential punishments for what were considered very serious crimes, but their existence was mainly meant to highlight the seriousness of the offense and not be an actual blueprint for action.