When the Going Gets Rough, the Punishment Gets Rough: b.Sanhedrin 46

Today’s daf continues to address stoning issues, opening with a series of exercises in talmudic logic, which are jarring because of the crass material they are applied to. The mishna posits that people who are stoned to death are hung later, and we are offered two different treatments of this rule. Rabbi Eliezer’s logic: a verse calls for hanging those who curse God (Deuteronomy 21:23) and, since the punishment for blasphemy is stoning, it follows that those who are stoned are later hung. Other rabbis’ logic: The blasphemer denies the principle of belief, and as such is hung, but people who have not denied the principle of belief are not hung after their execution.

This disagreement is an opportunity for understanding logical principles: The rabbis used a principle called כְּלָלֵי וּפְרָטֵי, generalization and distinction, whereas Rabbi Eliezer relied on the principle of רִיבּוּיֵי וּמִיעוּטֵי, amplifications and restrictions. For the rabbis, the issue of denying the principle is a detail that requires limiting the rule to that specific transgression; for Rabbi Eliezer, however, the distance between the generalization and the detail means that the detail does not apply and therefore all those who are stoned should be hung.

This is followed by other demonstrations of similar interpretive principles on the same issue. For example, the words ״וְתָלִיתָ אֹתוֹ״ (and you shall hang him) is taken by sages to mean that hanging is only for men (him, not her), and by Rabbi Eliezer to mean that the man is to be hung naked (just him, without his clothes). The rabbis agree with Rabbi Eliezer, but derive the idea that women should not be hung from the verse ״וְכִי יִהְיֶה בְאִישׁ חֵטְא״ (and if a man, as opposed to a woman has committed a sin). This leads the sages to debate whether the hanging-after-stoning procedure befits the scenario of a rebellious child (בֵּן סוֹרֵר וּמוֹרֶה).

It’s worth pausing briefly to explain that the issue of the rebellious child, and the atrocious capital punishment the bible has in store for him, is something that bothered generations of biblical exegetes, to the point that it’s been interpreted in absurdly restrictive ways to ensure that no one walks away from reading biblical verse thinking that children should be put to death. So the sages’ conversation about this is purely theoretical, an exercise in logic, even though the raw material they use is beyond disturbing (one has to wonder whether these conversations actually took place, and if so, if they troubled any of the speakers and listeners).

Anyway, back to the rebellious child’s hanging-after-stoning. According to Reish Lakish, that the verse uses the term אִישׁ (man) means that children are to be excluded. But Rabbi Eliezer thinks that the mention of the word חֵטְא (sin) implies that the rebellious child was to be included in the hanged-after-stoning category.

At this point, the page moves on to the question whether a court may pronounce two death sentences on the same day. The sages discuss a supposed historical precedent in which Shimon ben Shatah ordered the hanging of eighty women on the same day, and Rav Hisda explains it away hypertechnically: all the women were executed in the same manner, and thus it was one death sentence (but for multiple people). A more precise restatement of Rav Hisda’s principle is that the announcement of multiple executions is permissible only when the transgression, as well as the mode of execution, are the same (but, remember, for multiple people). This principle, they explain, applies even to people mixed up in the same transgression: adulterers, violators of purity laws, transgressors and perjured witnesses who testified for them.

To the extent that there’s anything to this beyond logic games, I can think of two ideas. The first that announcing capital punishment is something that should be seriously considered, and that the court must focus on each case individually–which means that, even in the context of the same scheme, people’s situation should be individually addressed. The second has to do with the interplay between different people mixed up in the same scheme, whose culpability might not be equal. It is only in cases that seem identical in terms of transgression and punishment that the sages may consider them on the same day (this reminds me a lot of David Sudnow’s “Normal Crimes,” and how quick we are to dispose of cases that appear to be the same and do not present any unusual features).

In any case, here the case shifts to something else: the fact that courts might issue harsh sentences beyond those prescribed in the Torah:

תַּנְיָא, רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב אוֹמֵר: שָׁמַעְתִּי שֶׁבֵּית דִּין מַכִּין וְעוֹנְשִׁין שֶׁלֹּא מִן הַתּוֹרָה, וְלֹא לַעֲבוֹר עַל דִּבְרֵי תוֹרָה, אֶלָּא כְּדֵי לַעֲשׂוֹת סְיָיג לַתּוֹרָה.

It is taught in a baraita: Rabbi Eliezer ben Ya’akov says: I heard that the court may administer lashes and capital punishment, even when not required by Torah law. And they may not administer these punishments with the intention of violating the statement of the Torah, i.e., to disregard the punishment stated in the Torah and administer another punishment; rather, they may administer these punishments to erect a fence around the Torah, so that people will fear sinning.

And we’re given two examples:

וּמַעֲשֶׂה בְּאֶחָד שֶׁרָכַב עַל סוּס בְּשַׁבָּת בִּימֵי יְוָנִים, וֶהֱבִיאוּהוּ לְבֵית דִּין וּסְקָלוּהוּ, לֹא מִפְּנֵי שֶׁרָאוּי לְכָךְ, אֶלָּא שֶׁהַשָּׁעָה צְרִיכָה לְכָךְ.

And an incident occurred involving one who rode a horse on Shabbat during the days of the Greeks, and they brought him to court and stoned him, not because he deserved that punishment, as riding a horse on Shabbat is forbidden only by rabbinic decree, but because the hour required it, as people had become lax in their observance of Shabbat and therefore it became necessary to impose the severe punishment for a relatively minor offense.

Riding a horse on Shabbat became a serious business because it occurred “in the days of the Greeks,” meaning, during the Hellenistic culture wars, which were characterized by religious oppression and ferocious inner strife between adherents and assimilationists.

The other example involves a man who slept with his wife under a fig tree and was flogged, again, לֹא מִפְּנֵי שֶׁרָאוּי לְכָךְ, אֶלָּא שֶׁהַשָּׁעָה צְרִיכָה לְכָךְ: presumably, modesty has become lax and people needed a reminder. The minor transgression reminds me of Durkheim’s “society of saints” example in The Division of Labor in Society:

Imagine a society of saints, a perfect cloister of exemplary individuals. Crimes, [commonly] so called, will there be unknown; but faults which appear venial to the layman will create there the same scandal that the ordinary offense does in ordinary consciousness. If then, this society has the power to judge and punish, it will define these acts as criminal and will treat them as such.

Durkheim and the talmudic sages are aware of the power of enforcement in awakening the collective conscience: any society will have a certain amount of punishment and deviation, because it serves an important social role. When norms become lax, or when there’s an important reason to issue a stern reminder, relatively minor transgressors will be made into examples.

But maybe, following Durkheim, there’s another important role that our Shabbat horseback rider plays–one that the sages did not intend. Durkheim uses the example of the execution of Socrates:

According to Athenian law, Socrates was a criminal and his condemnation was just. However, his crime – his independence of thought – was useful not only for humanity but for his country. It served to prepare a way for a new morality and a new faith, which the Athenians then needed because the traditions by which they had hitherto lived no longer corresponded to the conditions of their existence. Socrates’ case is not an isolated one, for it recurs periodically in history. (1895/1982: 102)

Could it be that our horseback rider is reminding his astonished community that, in Hellenistic times, it is perhaps less important to insist on dogged pursuit of the rules and more important to survive? And could it be that the couple making love under the fig tree are reminding their community that outdoor lovemaking can be great fun and is not a big deal? These are possibilities that the talmudic sages are, understandably, not too interested in pursuing.

The remainder of today’s page deals with the question of burying those who were executed. If, and how, to mourn the condemned is a matter discussed in detail, with the logical effort directed at distinguishing undue honors from keeping propriety and dignity after death. The most poignant part of this discussion is:

וְלֹא הָיוּ מִתְאַבְּלִין, אֲבָל אוֹנְנִין, שֶׁאֵין אֲנִינוּת אֶלָּא בַּלֵּב.

And the relatives of the executed man would not mourn him with the observance of the usual mourning rites, so that his unmourned death would atone for his transgression; but they would grieve over his passing, since grief is felt only in the heart.

This reminded me of the beautiful aria sung by the mother of the condemned in Jake Heggie’s beautiful aria Dead Man Walking:

Tomorrow’s page continues the question of mourning the condemned.

Gender Differences in Punishment: b.Sanhedrin 45

Today’s daf starts with things that are quite difficult to talk about: stoning procedures. I’m not going to flinch away from this, though, because to this day, about half of U.S. states have elaborate execution protocols that might masquerade as being more humane, but actually hide a multitude of botched executions. We have to openly discuss state-sanctioned death, no matter how much we now medicalize executions and tuck them behind closed doors, they are part and parcel of our legal system at present. While the talmudic discussion feels cold and crass, it’s important to remember that it was theoretical: not only did they have no power to execute people, and they were reminiscing, but it is also highly unlikely that executions were very common during the Sanhedrin time. So much of this is speculation about execution proceedings that might harken to biblical times.

Anyway, the amoraic discussion starts with a quote from a mishna, according to which the proceedings for preparing condemned men and women for stoning differ: either the woman is a bit more covered up than the man or the man is completely naked and the woman is not. From here on, the sages matter-of-factly turn to examining the differences in procedure. Their point of departure is Leviticus 24:14, the provenance of the whole stoning debacle, where the text refers to a male transgressor and does not, seemingly, allow for the stoning of a female transgressor. This, however, contrasts with the text in Deuteronomy 17:5, which refers to both genders as candidates for stoning: “And you shall bring forth that man or that woman… and stone them with stones until they die.” And if this wasn’t distressing enough, here’s where things take an even uglier turn.

לְמֵימְרָא דְּרַבָּנַן חָיְישִׁי לְהִרְהוּרָא, וְרַבִּי יְהוּדָה לָא חָיֵישׁ לְהִרְהוּרָא? וְהָא אִיפְּכָא שְׁמַעְנָא לְהוּ, דִּתְנַן: הַכֹּהֵן אוֹחֵז בִּבְגָדֶיהָ – אִם נִקְרְעוּ נִקְרְעוּ, וְאִם נִפְרְמוּ נִפְרְמוּ, עַד שֶׁמְּגַלֶּה אֶת לִבָּהּ וְסוֹתֵר אֶת שְׂעָרָהּ. רַבִּי יְהוּדָה אוֹמֵר: אִם הָיָה לִבָּהּ נָאֶה לֹא הָיָה מְגַלֵּהוּ, וְאִם הָיָה שְׂעָרָהּ נָאֶה לֹא הָיָה סוֹתְרוֹ.

The Gemara asks: Is this to say that the Rabbis are concerned that the sight of a naked woman will arouse sexual thoughts among the onlookers, and Rabbi Yehuda is not concerned about such sexual thoughts? But didn’t we hear them say just the opposite, as we learned in a mishna (Sota 7a) with regard to a sota, a woman suspected of adultery by her husband, and who was made to undergo the ordeal of the bitter waters: And the priest grabs hold of her clothing and pulls it, without concern about what happens to it. If the clothes are torn, they are torn; if the stitches come apart, they come apart. And he pulls her clothing until he reveals her heart, i.e., her chest. And then he unbraids her hair. Rabbi Yehuda says: If her heart was attractive he would not reveal it, and if her hair was attractive he would not unbraid it. This seems to indicate that it is Rabbi Yehuda who is concerned about the sexual thoughts of the onlookers.

The concern, you see, is that onlookers might find the spectacle of a naked woman, even as she is on the verge of execution, sexually arousing. And the gemara seems to think this was Rabbi Yehuda’s concern in finding that women should be stoned fully clothed: analogizing from another biblical punishment, the forcing of bitter waters on an adulterous woman, they seem to think that the humiliation is part of the spectacle and want to prevent it becoming a sideshow. But wait, there’s more:

אָמַר רַבָּה: הָתָם הַיְינוּ טַעְמָא, שֶׁמָּא תֵּצֵא מִבֵּית דִּין זַכָּאָה וְיִתְגָּרוּ בָּהּ פִּירְחֵי כְּהוּנָּה. הָכָא הָא מִקַּטְלָא. וְכִי תֵּימָא: אָתֵי לְאִיתְגָּרוֹיֵי בְּאַחְרָנְיָיתָא? אָמַר רַבָּה: גְּמִירִי, אֵין יֵצֶר הָרָע שׁוֹלֵט אֶלָּא בְּמִי שֶׁעֵינָיו רוֹאוֹת.

Rabba said: There, in the case of a sota, this is the reason that Rabbi Yehuda says that the priest does not reveal the woman’s chest or unbraid her hair: Perhaps the sotawill leave the court having been proven innocent, and the young priests in the Temple who saw her partially naked will become provoked by the sight of her. Here, in the case of a woman who is stoned, she is killed by being stoned, and there is no concern about the onlookers’ becoming provoked after her death. The Gemara comments: And if you would say that the fact that she is killed is irrelevant to their having sexual thoughts because the onlookers will be provoked with regard to other women, this is not a concern, as Rabba says: It is learned as a tradition that the evil inclination controls only that which one’s eyes see.

Rabba is distinguishing between the bitter waters issue and the stoning issue, arguing that the latter spectacle is unlikely to sexually provoke men after death in the same way that the bitter waters spectacle for adulteresses is. Indeed, in trying to resolve the contradiction, Rava explains that in the case of the adulteress, part of the sentence includes chastening and disgrace, whereas for a stoned woman, the stoning in itself is the disgrace:

דְּרַבָּנַן אַדְּרַבָּנַן נָמֵי לָא קַשְׁיָא. אָמַר קְרָא: ״וְנִוַּסְּרוּ כׇּל הַנָּשִׁים וְלֹא תַעֲשֶׂינָה כְּזִמַּתְכֶנָה״. הָכָא, אֵין לְךָ יִיסּוּר גָּדוֹל מִזֶּה.

Rava continues: The contradiction between one ruling of the Rabbis and the other ruling of the Rabbis is not difficult either. With regard to a sota, the verse states that other women should be warned: “Thus will I cause lewdness to cease out of the land, that all women may be chastened not to do like your lewdness” (Ezekiel 23:48). In order to serve as an example and warning to other women, a woman suspected of adultery must undergo public disgrace, and therefore the concern about the sexual thoughts that her partially naked body might arouse is disregarded. Here, with regard to stoning, you have no chastening greater than seeing this stoning itself.

Lest you might think that these concerns about the public spectacle of executing women is unique to the gemara, the issue of gender in corporal punishment is present in all cultures. When Malcolm Feeley and I worked on our social history project, we were investigating a phenomenon that Malcolm, along with Deborah Little, uncovered when they studied sentencing in the Old Bailey: the gradual disappearance of the female offender. They discovered that, over the course of the long Nineteenth century, the numbers women, who used to be about half (sometimes more) of the convicts in court, begin to considerably dwindle. This cannot be explained away solely through the disappearance of offenses typically enforced against women (witchcraft, infanticide, adultery, etc.), by the return of men from war, or by the presence of more dominant male accomplices. When I joined the project, we expanded the historical inquiry to cover other countries: France, the Netherlands, Belgium, Germany. We found the same things, even as different regions differed in terms of local wars (that would remove the men from the list of potential offenders/defendants).

We came to the conclusion that the disappearance of female offenders was probably a combination of two shifts. The first was a decline in women’s opportunities to commit crime due to a change in patriarchal style, from public to private. While patriarchal regimes are present since antiquity (as today’s daf proves), women were very much part of the life of the market, the public square, etc. We have Medieval and Renaissance and Early Modern accounts of women as business proprietors, mixed in with the underworld. But the industrial revolution ushers a domestication of middle-class women and a gender segregation of working-class woman into gendered factories and into domestic service in households, which would reduce their opportunities for mixing up in scenarios that involve property crime, etc. The second factor in the decline, we hypothesized, was a decline in public willingness to drag women into the limelight of the criminal process, except in some sensationalized cases. Our colleague Lucia Zedner believes that some of this reflects a “bad-to-mad” shift, where women’s transgressions are medicalized and pathologized rather than medicalized. And our colleague Nicola Lacey documents the increasingly disempowered description of women offenders in period literature. There seems to be an idea that echoes the talmudic sages’ concerns – a notion that it is somehow unchivalrous to publicly criminalize and punish women, which is echoed by criminological theories from the 1950s and 1960s.. But then, Rav Nachman quotes Rabba bar Avuh as stating that minimizing the suffering of condemned women is more of a universal principle, stemming from our care for one another:

וְכִי תֵּימָא: לֶיעְבֵּיד בַּהּ תַּרְתֵּי? אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: אָמַר קְרָא ״וְאָהַבְתָּ לְרֵעֲךָ כָּמוֹךָ״ – בְּרוֹר לוֹ מִיתָה יָפָה.

And if you would say that two forms of chastening, both stoning and humiliation, should be done to her, Rav Naḥman says that Rabba bar Avuh says: The verse states: “You shall love your neighbor as yourself” (Leviticus 19:18), teaching that even with regard to a condemned prisoner, select a good, i.e., a compassionate, death for him. Therefore, when putting a woman to death by stoning, she should not be humiliated in the process.

But what counts as “a beautiful death” is malleable, and might encompass some gender differences–particularly about the question whether the priority is to minimize public humiliation (e.g., a dignified death) or corporal sufering (e.g., a painless death). And isn’t this exactly the sort of thing that animates our endless litigation and public debate about what can strip death of its “cruel and unusual” features, supposedly making it “kind and usual”?

לֵימָא: דְּרַב נַחְמָן תַּנָּאֵי הִיא? לָא, דְּכוּלֵּי עָלְמָא אִית לְהוּ דְּרַב נַחְמָן, וְהָכָא בְּהָא קָמִיפַּלְגִי: מָר סָבַר בִּזְיוֹנֵי דְאִינִישׁ עֲדִיף לֵיהּ טְפֵי מִנְּיָחָא דְגוּפֵיהּ, וּמָר סָבַר נְיָחָא דְגוּפֵיהּ עֲדִיף מִבִּזְיוֹנֵיהּ.

The Gemara suggests: Let us say that whether one rules in accordance with the statement of Rav Naḥman is a dispute between tanna’im, and according to Rabbi Yehuda there is no mitzva to select a compassionate death. The Gemara refutes this: No, it may be that everyone agrees with the opinion of Rav Naḥman, and here they disagree about this: One Sage, i.e., the Rabbis, holds: Minimizing one’s degradation is better for him than seeing to his physical comfort, i.e., than minimizing his physical pain. Therefore, the Rabbis view the more compassionate death as one without degradation, even if wearing clothes will increase the pain of the one being executed, as the clothes will absorb the blow and prolong his death. And one Sage, Rabbi Yehuda, holds that one’s physical comfort is better for him than minimizing his degradation, and therefore the one being executed prefers to be stoned unclothed, without any chance of the clothing prolonging his death, even though this increases his degradation.

The gemara then proceeds to discuss stoning procedures designed to minimize suffering and raise accountability, e.g., requiring the incriminating witnesses to cast the first stone and thus take responsibility for the outcome of their actions. But the notion that humanizing death is a consequence of loving another as one own can be difficult to swallow. And yet, ever since capital punishment litigation eroded to a point of having protracted, sanitized discussions of whether to use one injection or three, this or that chemical, aren’t we essentially engaging in the same exercise to this day? The fact that the death penalty is on its last legs in the U.S. (I still think so, even with the current administration) makes its last bites especially vicious.

Recanting Witnesses: b. Sanhedrin 44

Most of today’s daf addresses the stoning of Achan during the conquer of the city of Ai, with the sages debating the gravity of his sins, the collective punishment, and the method of execution. This digression is apropos the previous page’s focus on execution procedures. At the end of the page, though, the sages return to matters of postconviction review. What happens if a person declares, on the verge of being executed, that he is innocent?

As habeas corpus connoisseurs know, a claim of actual innocence, even when accompanied by proof, is not immediate grounds for reversal. In Herrera v. Collins, Chief Justice Rehnquist wrote a blood-curdling majority opinion according to which executing a man who makes a claim of innocence based on new evidence does not violate the Eighth Amendment unless some constitutional violation is stated. The only thing actual innocence can do for you is excuse your procedural default, your failure to raise proper arguments in previous hearings (in other words, actual innocence overcomes the Cause and Prejudice threshold test for even entering the habeas process.) In Schlup v. Delo, a man pursued habeas relief for his conviction of the death of a fellow inmate on the word of two corrections officers who had witnessed the murder. But on habeas, Schlup wanted to introduce a videotape from a surveillance camera showing him at a different location in the prison at the time of the murder. Because the videotape evidence had not been presented at trial, ordinarily Schlup would have been barred from presenting it on habeas; but because of his persuasive claim of actual innocence, this initial barrier was removed.

How would someone arguing actual innocence fare before the Sanhedrin? Not that great, as it turns out:

תָּנוּ רַבָּנַן: מַעֲשֶׂה בְּאָדָם אֶחָד שֶׁיָּצָא לֵיהָרֵג. אָמַר: אִם יֵשׁ בִּי עָוֹן זֶה, לֹא תְּהֵא מִיתָתִי כַּפָּרָה לְכׇל עֲוֹנוֹתַי. וְאִם אֵין בִּי עָוֹן זֶה, תְּהֵא מִיתָתִי כַּפָּרָה לְכׇל עֲוֹנוֹתַי, וּבֵית דִּין וְכׇל יִשְׂרָאֵל מְנוּקִּין, וְהָעֵדִים לֹא תְּהֵא לָהֶם מְחִילָה לְעוֹלָם. וּכְשֶׁשָּׁמְעוּ חֲכָמִים בַּדָּבָר, אָמְרוּ: לְהַחְזִירוֹ אִי אֶפְשָׁר, שֶׁכְּבָר נִגְזְרָה גְּזֵירָה. אֶלָּא יֵהָרֵג, וִיהֵא קוֹלָר תָּלוּי בְּצַוַּאר עֵדִים.

The Sages taught: An incident occurred involving a person who was being taken out to be executed after having been convicted by the court. He said: If I committed this sin for which I am being executed, let my death not be an atonement for all my sins; but if I did not commit this sin for which I am being put to death, let my death be an atonement for all my sins. And the court that convicted me and all the people of Israel are clear of responsibility, but the witnesses who testified falsely against me will never be forgiven. And when the Sages heard this, they said: It is impossible to bring him back to court and reconsider the verdict, as the decree has already been decreed. Rather, he shall be executed, and the chain of responsibility for his wrongful execution hangs around the necks of the witnesses.

This chilling story involves a man who claims, albeit without evidence, that he is innocent. He’s given up hope of justice emerging for him at the last minute, and expresses his willingness to face death for other sins he might have committed, but launches a last-words accusation against the witnesses who perjuted themselves to incriminate him. The man from the story is echoed, almost word for word, by Herrera, who before his 1993 execution said: “I am innocent, innocent, innocent. And something very wrong is happening tonight.”

Chief Justice Rehnquist would have found some likeminded friends among the Bavli sages. The gemara continues to ask whether it isn’t obvious that a claim of innocence without proof could not lead to a reversal of judgment. But the sages continue to state that, even in the face of witnesses recanting testimony, the execution decree stands:

פְּשִׁיטָא, כֹּל כְּמִינֵּיהּ? לָא צְרִיכָא דְּקָא הָדְרִי בְּהוּ סָהֲדִי.

The Gemara asks: Isn’t it obvious that he should be executed? Is it in his power to have his sentence overturned just because he says he is innocent? The Gemara answers: No, it is necessary to state that the condemned man is executed even when the witnesses retracted their testimony.

The reason for this is a classic appeal to finality:

וְכִי הָדְרִי בְּהוּ, מַאי הָוֵי? כֵּיוָן שֶׁהִגִּיד, שׁוּב אֵינוֹ חוֹזֵר וּמַגִּיד! לָא צְרִיכָא, דְּאַף עַל גַּב דְּקָא יָהֲבִי טַעְמָא לְמִילְּתַיְיהוּ, כִּי הָהוּא מַעֲשֶׂה דְּבַעְיָא מֹכְסָא.

The Gemara asks: Even if the witnesses retracted their testimony, what of it? It is still clear that the condemned man is to be executed, as the halakha is that once a witness has stated his testimony, he may not then state a revision of that testimony. In other words, a witness’s retraction of his testimony has no validity. The Gemara answers: No, it is necessary to state that the condemned man is executed even when the witnesses retracted their testimony and gave an explanation for having lied in their initial statement. This is like that incident involving Ba’aya the tax collector, where it was discovered that witnesses had falsely accused the son of Rabbi Shimon ben Shataḥ in revenge for the son’s having sentenced to death for sorcery the witnesses’ relatives.

Why would the Talmud not make room for recanting witnesses to disavow their perjured testimony in time? One can glean two reasons. First, there is the matter of incentivizing witnesses to tell the truth; providing incriminating testimony has consequences in the real world, which people don’t like to face. In the second season of the podcast Proof, Jacinda Davis and Susan Simpson interview the people who testified against Jake Silva at his trial for the murder of Renée Ramos. It’s clear from the interviews that these witnesses, teenagers themselves at the time, were pressured by the police, and didn’t quite know what they were talking about. Yet when prodded to consider the consequences of their testimony–two likely wrongful convictions, Ty murdered behind bars, Jake incarcerated for decades and savagely attacked by another prisoner–they are embarrassed and evasive, as if they don’t want to confront the consequences. Having the consequences play out is harsh, to say the least, and it is a lesson for everyone else to do the right thing.

The second reason has to do with undermining the credibility of the witnesses. The gemara takes the trouble to state that the sentence still stands even after the witnesses provide an explanation for their perjury. This is a tough pill to swallow, and it is a grim reminder of the injustice of the Troy Davis case, in which seven of the nine prosecution witnesses recanted, citing police coercion. But when one now says that they lied before, without cross examination or a court proceeding to examine their veracity, what can we say about their credibility now in light of their lack of credibility then? Where one stands on these matters might correlate quite a bit with one’s position on the spectrum between Packer’s Due Process and Crime Control models. Due Process fans will urge to halt the execution, reopen the proceeding, hear the recanting witnesses, and see what’s what. Crime Control fans will urge an end, at some point, to the proceedings, so that closure can begin. Most of us are somewhere along that spectrum.