An AJR Retrospective on Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures (Oxford UP, 2006).
Fentanyl is a synthetic opioid that is one hundred times more potent than morphine and fifty times more potent than heroin.[1] First introduced in the 1960s for intravenous anesthesia, fentanyl has become the drug most commonly associated with overdose deaths. Fentanyl is also, as of a year ago, the drug used in lethal injection. When Nebraska executed Carey Dean Moore on August 14, 2018, it became the first state to use fentanyl in the drug cocktail. The irony of using fentanyl was not lost on Robert Dunham, executive director of the Death Penalty Information Center, who observed that “at the same time that the Justice Department and states are talking about how dangerous fentanyl is and how it’s created a national public health emergency… states are now turning to it as a supposedly safe way of killing prisoners.”[2]
The ironies of criminal execution were my interest in Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures, my 2006 study of the early rabbinic laws of capital punishment. One chapter deals with the apologetics of past scholarship on the subject, another with the Mishnah’s ritual of execution, a third and fourth with the key players in that ritual, the next with how the Rabbis subvert Roman forms of punishment, and a final chapter with how the Rabbis’ representation of execution compares with that in early Christian martyrdom narratives. My concern throughout was the criss-crossing between criminal execution and other cultural currents such as can be found in Nebraska’s recent execution, where one of the most pressing crises facing the country – the opioid epidemic – meets one of its most contentious moral questions, capital punishment.
Other features of the Nebraska case help to illustrate the themes of my book. Nebraska faced enormous hurdles in putting Mr. Moore to death. The state contacted at least forty suppliers and six other states before it was able to find a pharmacy willing to sell the drugs in the execution protocol. Two companies that make the drugs sued the state, saying that use of their products for execution would damage their reputation. Nebraska’s governor, Pete Ricketts, used $300,000 of his own money to get the death penalty added to a general election ballot in order to overturn the legislature’s prior ban. Nebraska’s Roman Catholic bishops, adhering to the current Pope’s opposition to capital punishment, tried to dissuade the Catholic governor from moving forward. The nearly forty-year narrative from the sentence of death in 1979 to the pronouncement of death in 2018 demonstrates that resistance to capital punishment plays an integral role in its exercise, as does the ever-present threat of failure that constitutes part of the ritual of punishment.
I drew these ideas – that resistance to punishment is built into its practice, and that ritualization is highly fragile and fraught and at the same time indispensable to the exercise of authority – from eclectic sources that span Foucault’s Discipline and Punish, Robert Cover’s “Violence and the Word,” Catherine Bell’s Ritual Theory Ritual Practice, and James Scott’s Domination and the Arts of Resistance. I used these ideas to challenge the long-held view that the rabbis are opposed to capital punishment, which finds support in the oft-quoted statement attributed to Rabbi Akiva and Rabbi Tarfon in Mishnah Makkot 1:10 that had they served on the court no one would ever have been executed. My research began with the simple observation that if the Rabbis had opposed execution they would not have produced an elaborate ritual for performing one. Even if the Rabbis never carried out the procedure outlined in Mishnah Sanhedrin or imagined that they would, they must have created the halting, haunting ceremony that begins at the courthouse and ends with the criminal’s burial with some set of interests in mind. Those interests became my own as I set about reading this ancient ritual script.
Some of the themes that emerged from my reading will always be essential to the study of the Rabbis. First and foremost is the extraordinary exegetical creativity that the Rabbis bring to the Bible. The closest the Bible comes to a ritual of execution is in Deuteronomy, which calls for witnesses to take the lead in a communal stoning intended to extirpate evil and stir fear (Deut. 13:7-12, 17:2-7, 21:18-21). The Mishnah’s step-by-step procedure is unprecedented, as is its menu of four execution methods: stoning, burning, decapitation, and strangulation. A second theme is the Rabbis’ thorny relationship to Roman culture. Several elements of rabbinic execution reflect an incursion of Roman life into rabbinic thinking: a debate about whether to perform decapitation “the way that the kingdom (empire) does”; features of the rabbinic procedure such as suspense and stripping that echo Roman spectacles of punishment; the Mishnah’s ranking of execution methods by severity, mimicking Roman penal schemes. A third theme is the interaction between Rabbis and Christians. Rabbinic and Christian representations of capital punishment operate as inverses of each other: rabbinic judges mete it out, while Christian martyrs face it. Execution offered a new way of looking at some of these very old questions in the study of rabbinics. Scholarship in years since -- Azzan Yadin-Israel on midrash, Seth Schwartz and Hayim Lapin on Romanization, Michal Bar Asher Siegel on Christianity – have continued to address these essential questions.[3]
An approach I took that was relatively untested was ritual studies. The problem of its applicability to rabbinic literature is formulated succinctly by Mira Balberg: “our object of study is not rituals but texts.”[4] I grappled a great deal with this problem but less so with another one Balberg mentions, which is that “almost everything is a ritual” in the world of the rabbis.[5] Why call anything a ritual when everything is? Those of us interested in the Mishnah’s “ritual narratives” (a term coined by Naftali Cohn) – e.g., the Passover sacrifice in Pesahim 5:5-6, the festivities of Sukkot in Sukkah 4-5, the burning of the red heifer in Parah 3 – don’t have to worry too much about this problem, however, since these sections of Mishnah, with their you-put-your-right-hand-in, you-put-your-right-hand-out sequences, beg for distinctive treatment.[6] Balberg, Naftali Cohn, and Ishay Rosen-Zvi have done for their mishnaic rituals – sacrifice, Temple rituals, and Sotah, respectively – what I tried to do for execution.[7] Nevertheless, the execution ritual raises singular questions due to its conceptual independence from the Temple as well as location outside of it.
Also relatively untapped was the problem of rabbinic authority and its relationship to law and violence. That problem has since been taken up by others: Rosen-Zvi, Devora Steinmetz’s study of talmudic capital punishment, Chaya Halberstam’s of law, truth, and doubt.[8] My own interest was in the dynamics of victimization. How might one grasp the dialectic between violence against Jews and violence by Jews, or as David Biale put it, between power and powerlessness in Jewish history?[9] That question is more than tinged by the modern events in which Jews have played both sides. Foucault’s genealogy of punishment, which traces an evolution but not progression from the spectacles of the monarch to the panoptic prison, remains an important methodology for exposing norms that naturalize power and rituals that reinforce but also sometimes destabilize it.
I would do some things differently now were I doing it again. Rather than consign the rabbinic execution ritual to the realm of text, as though text and performance are separate, I would consider rabbinic execution to be a product of textual performance, drawing on the work of Martin Jaffee and Elizabeth Shanks Alexander.[10] I would pay more attention to the shifts between past and present tenses and to the temporal settings within Mishnah Sanhedrin, following Sarit Kattan Gribetz’s and Lynn Kaye’s work on rabbinic temporalities.[11] I would pay more attention also to the architectural dimensions of the execution ritual, inspired by the work of Gil P. Klein.[12] One theme I addressed that I would like to explore further is family. The relatives of the murder victim and of the condemned man are a nagging presence in these texts, as are family bonds more generally in rabbinic literature, as shown by the recent work of Marjorie Lehman and Jane Kanarek on mothers and Haim Weiss and Shira Stav on absent fathers.[13] Something I would like to see more of are “micro-readings” of individual rabbinic passages, along the lines of my chapter on Mishnah Sanhedrin Six.[14] Small-scale studies with big implications are good for teaching since the classroom conversation can coalesce around a single text.
At the core of my book was reflexivity – reflexivity regarding current scholarship, past scholarship, my own scholarship, and the Rabbis themselves. This is not the same as relevance, since the goal is not to make the past seem similar to the present but to keep the tension alive between them. A fentanyl injection is nothing like rabbinic stoning, nor does big pharma’s lawsuit and the Nebraska bishops’ objection resemble the herald’s call for exonerating evidence that delays a rabbinic execution. The expansion of the carceral state makes prison, which occupies a barely noticeable role in rabbinic literature, a far more widespread and serious social problem in the U.S. than is capital punishment.[15] Yet the infiltration of contemporary concerns into the study of ancient texts is unmistakable, inevitable and, in my view, desirable, since the juxtaposition between the two brings to light ideological incoherencies in both. The irony of the state using fentanyl to execute a man while trying to prevent thousands of others from overdosing on it, a Catholic governor who flouts the Pope, and an evangelical activism that wants embryos saved but full-grown men killed, evokes and echoes the irony of the rabbinic court adopting a Roman execution method, the rabbinic judges doubting their capacity to determine truth while shutting down dissent, and the Mishnah showcasing a ritual for execution at the same time as declaring it tyrannical and reckless.[16] Rabbinics scholarship that keeps one eye on the ideological ironies of our own era and the other on those in rabbinic literature, and believes both the Rabbis and ourselves to be fully capable of spotting these ironies and identifying the conflicts that give rise to them, remains my aim.
The intriguing ironies of rabbinic thinking about animals are my most recent interest. The overlap between animals and the death penalty is greater than one might think. Greta Olson looks at the animal metaphors used for prisoners and suspected terrorists – they are “savage,” “beastly,” “wild” – and the impact on their treatment.[17] Karen Morin links the disciplinary regimes used for animals with those used for people, juxtaposing the slaughterhouse with death row in her study of carceral spaces.[18] Justin Marceau turns the critique of carcerality back on animal activists who, Marceau observes, rely paradoxically on regressive policies of incarceration to enforce their vision of animal liberation.[19] Intersections between criminality and animality are to be found also in rabbinic literature, which addresses the role played by animals in Roman spectacles of punishment. The Rabbis discuss at one point whether the “stadium ox” deserves punishment for the homicide he commits in the arena (Mishnah Bava Qamma 4:4). The criminal culpability of animals was a broader concern of the Rabbis, going back to the Bible, which features animal penalties for homicide and bestiality.
Intersection between criminality and animality is found too in the Nebraska execution with which I began. Carey Dean Moore requested that his twin brother David be present at his execution. Reflecting with regret on their earlier days, David remarked, “Back then we were both animals. We weren't fit to be allowed in society, I guess.”[20] David Moore’s remark speaks to larger questions of law and authority, crime and punishment, humans and animals, and inclusion and marginalization. These questions are ones, I hope, that will continue to drive ancient Judaism scholarship in the coming years.
Dr. Beth Berkowitz is the Ingeborg Rennert Chair of Jewish Studies at Barnard College. Her most recent publication is Animals and Animality in the Babylonian Talmud. New York: Cambridge University Press, 2018.
[1]https://www.drugabuse.gov/publications/drugfacts/fentanyl
[2] https://www.npr.org/2018/08/14/638250649/nebraska-prepares-to-carry-out-first-execution-using-fentanyl
[3] Azzan Yadin-Israel, Scripture and Tradition: Rabbi Akiva and the Triumph of Midrash (Philadelphia: University of Pennsylvania Press, 2014); Seth Schwartz, Were the Jews a Mediterranean Society?: Reciprocity and Solidarity in Ancient Judaism (Princeton: Princeton University Press, 2010); Hayim Lapin, Rabbis as Romans: The Rabbinic Movement in Palestine, 100-400 CE (New York, NY: Oxford University Press, 2012); Michal Bar-Asher Siegal, Early Christian Monastic Literature and the Babylonian Talmud (New York, NY: Cambridge University Press, 2013); Michal Bar-Asher Siegal, Jewish-Christian Dialogues on Scripture in Late Antiquity (New York, NY: Cambridge University Press, 2019).
[4] Mira Balberg, “Ritual Studies and the Study of Rabbinic Literature,” Currents in Biblical Research 16, no. 1 (2017): 78.
[5] Balberg, 75.
[6] Naftali S. Cohn, The Memory of the Temple and the Making of the Rabbis (Philadelphia: University of Pennsylvania Press, 2013), 4–11.
[7] Mira Balberg, Blood for Thought: The Reinvention of Sacrifice in Early Rabbinic Literature (Berkeley: University of California Press, 2017); Cohn, Memory of the Temple; Ishay Rosen-Zvi, The Mishnaic Sotah Ritual: Temple, Gender and Midrash (Leiden: Brill, 2012).
[8] Devora Steinmetz, Punishment and Freedom: The Rabbinic Construction of Criminal Law (Philadelphia: University of Pennsylvania Press, 2008); Chaya T. Halberstam, Law and Truth in Biblical and Rabbinic Literature (Bloomington, IN: Indiana University Press, 2010).
[9] David Biale, Power & Powerlessness in Jewish History: The Jewish Tradition and the Myth of Passivity (New York, NY: Schocken, 1986).
[10] Martin S. Jaffee, Torah in the Mouth: Writing and Oral Tradition in Palestinian Judaism, 200 BCE-400 CE (New York, NY: Oxford University Press, 2001); Elizabeth Shanks Alexander, Transmitting Mishnah: The Shaping Influence of Oral Tradition (New York, NY: Cambridge University Press, 2006).
[11] Cohn, Memory of the Temple, 6–8.
[12] Gil P. Klein, “Torah in Triclinia: The Rabbinic Banquet and the Significance of Architecture,” Jewish Quarterly Review 102, no. 3 (2012): 325–370; Gil P. Klein, “Forget the Landscape: The Space of Rabbinic and Greco-Roman Mnemonics,” Images 10, no. 1 (December 14, 2017): 23–36, https://doi.org/10.1163/18718000-12340080.
[13] Marjorie Suzan Lehman, Jane L. Kanarek, and Simon J. Bronner, eds., Mothers in the Jewish Cultural Imagination, Jewish Cultural Studies, volume 5 (Oxford; Portland, OR: The Littman Library of Jewish Civilization, in association with Liverpool University Press, 2017); Haim Weiss and Shira Stav, The Return of the Missing Father: A New Reading of a Chain of Stories from the Babylonian Talmud (Shuvo Shel Ha-Av Ha-Neʻedar: Ḳeriʼah Meḥudeshet Be-Sidrat Sipurim Min Ha-Talmud Ha-Bavli) (Jerusalem: Bialik Institute, 2018).
[14] On the technique of “micro-reading” see Beth A. Berkowitz, Animals and Animality in the Babylonian Talmud (New York, NY: Cambridge University Press, 2018), 19–21.
[15] Even if the same Jim Crow racist logic lies behind both; see Melynda J. Price, At the Cross: Race, Religion, and Citizenship in the Politics of the Death Penalty (New York, NY: Oxford University Press, 2015).
[16] That is Jastrow’s definition for hovlanit, the term used in Mishnah Makkot 1:11 to criticize a court that executes too frequently.
[17] Greta Olson, Criminals as Animals from Shakespeare to Lombroso (Boston: De Gruyter, 2013).
[18] Karen M. Morin, Carceral Space, Prisoners and Animals (New York, NY: Routledge, 2018).
[19] Justin Marceau, Beyond Cages: Animal Law and Criminal Punishment (New York, NY: Cambridge University Press, 2019).
[20] https://journalstar.com/news/state-and-regional/nebraska/brother-of-death-row-inmate-carey-dean-moore-he-would/article_444bb976-bf7f-5611-bf13-370c757acfb0.html