“It is easy to judge evil unmixed,” replied Gwydion. “But, alas, in most of us good and bad are closely woven as the threads on a loom; greater wisdom than mine is needed for the judging.”
– Lloyd Alexander, The Black Cauldron<1>
Why does the Torah require setting up cities of refuge (arei miklat) for an unintentional killer? (See Devarim 19 and Bamidbar 35.) We will present four approaches – two classic and two contemporary.
Let’s clarify that the killer here is someone who caused another person’s death in a way that was later determined by a beit din (rabbinic court) to be unintentional (shogeg). Someone who killed intentionally (meizid) receives the death penalty if there were witnesses and a warning, and someone who killed accidentally (oness) is set free.<2> In contrast, the unintentional killer is an in-between case – he didn’t intend to kill, but he was somewhat negligent and so he is held partly responsible for the victim’s death. He is sentenced to a city of refuge, where he must stay until the death of the High Priest (Kohen Gadol). If the killer leaves the city before that, he is liable to be killed by the victim’s blood avenger (goel ha-dam). This sentence is unique, unparalleled in Jewish law. But what is the point? What purpose is served by the city of refuge?
Chazal assume that the killer’s sentence is a type of punishment; the Mishnah describes it with the word “galut” (exile). The Sefer HaChinukh elaborates:
The sin of murder is extraordinarily serious, as it leads to the destruction of the world. Someone who intentionally kills another person, even if he performed every mitzvah, will still be punished for it, as the verse states: “A man who is laden with the guilt of human blood will be a fugitive until death” (Mishlei 28:17); he will not escape. Therefore, it is fitting that someone who killed another, even accidentally, should suffer exile, which is almost the equivalent of death (as a person is separated from his loved ones, his land of birth, and lives his life among strangers), because such a tragic mishap came about at his hands.<3>
While this classic explanation is relatively unsympathetic to the unintentional killer,<4> it still assumes the city of refuge is for his sake, as exile will bring him the atonement that he needs. The following explanations are more sympathetic.
The Torah itself speaks of protecting the killer from the avenger.<5> While the idea of avenging blood is foreign to us (fortunately), it was a major part of the Ancient Near East (ANE), and is still found today in Arabic society, especially among the Bedouin.<6> According to Shadal, Hashem knew that it would have been unrealistic to eradicate it completely; instead, in the Torah He limited blood-avenging to the unlikely case of the killer ever venturing out of the city of refuge.<7>
According to this, the killer does not deserve to be punished but rather to be protected. If not for the problematic culture of the Ancient Near East, he would not be relocated to the city of refuge.
Why does the Torah say (Bamidbar 35:6) that the six cities of refuge should be among the 48 cities set aside for the Levi’im? The Sefer HaChinukh writes: “Since they were spiritual people, knowledgeable in proper values and virtues, and deeply wise, it is well-known to all that they would not prevent the manslayer from taking refuge among them and would not harm him.”<8> Rav Yehudah Zoldan, who teaches at Bar-Ilan’s Midrasha, extends this idea:
Certainly there is an element of atonement in fleeing to a city of refuge, but primarily there is the association with a society (the Levites) that is prepared and willing to take in manslayers and help them to be rehabilitated. The great tragedy in manslaughter is that not only was a person’s life taken, but also the life of the manslayer is destroyed. Although he remains alive, he faces a tremendous personal crisis. Another reference to cities of refuge says: “Then Moshe set aside three cities on the east side of the Jordan” (Devarim 4:41; literally, “across the Jordan, eastward towards the sun”). Rabbi Yossi b. Rabbi Chanina commented on this unusual expression, “eastward towards the sun”: “The Holy One, blessed be He, said to Moshe: ‘Shine the sun for the murderer’ – give him a place of refuge to which he can be exiled, so that he not perish due to the sin of taking a life, just as the sun shines on the world” (Devarim Rabbah, Vilna ed., 2:30).
“That he not perish” means not only protecting him from the desire of the blood avenger to kill him, but also seeing to it that the manslayer himself not go to pieces emotionally. Having committed something gravely wrong, he feels remorse for his actions; the aim is to rehabilitate him and restore him to normal life, after having improved his sense of values. The spiritual support and human warmth that come from the Levites, holy and virtuous men, and the influence of living in their midst all contribute to promoting a process of spiritual and moral rehabilitation.<9>
In contrast, today’s prisons are notorious for their lack of rehabilitation. (Just because they are standard today does not mean they are ideal.<10>) Rav Itamar Wahrhaftig, a professor at Bar-Ilan’s law school, presents an intriguing comparison of arei miklat with prisons:
Let us compare the punishment of imprisonment with the punishment of exile to a city of refuge. True, if someone accidentally killed (killing being the most severe crime against society), his freedom was constricted by his exile to a city of refuge. However, in contrast to imprisonment, it did not necessarily involve the prisoner’s detachment from his family. This separation, and especially the separation from his wife, is cruel and unusual punishment. The family unit, which is based primarily on the connection of a man to his wife and children, is one of the foundations of society. Without these units, society cannot survive. By what authority, then, can we justify such a separation? Additionally, I dare say that the prolonged imprisonment that separates a man from his family is in some ways worse than death. For his wife and children are also prisoners, unable to move on. They can neither develop their current family nor replace it with a new one.
This is not the case with exile. The accidental killer went into exile together with his family, if they so wished. Even though he could not leave the boundaries of the city of refuge until the death of the high priest, within the city he lived a normal life. He worked to support himself and was not condemned to a life empty of productivity and value. Furthermore, the cities of refuge were populated by Levi’im, who were among the nation’s spiritual elite. An exile among them was likely to learn from their upright ways. . . .
Nowadays when people are imprisoned, it is not just that we detach them from their family, but we move them from a healthy society to an unhealthy one – a society of criminals who are often worse than they are. It is well-known that within the prison walls is where many prisoners become corrupted.<11>
In other words, the point of the city of refuge is to rehabilitate the killer, giving him the chance to benefit from the Levi’im’s good influence.
Let’s go back to Rav Zoldan’s sympathetic description of what the unintentional killer is going through: “The great tragedy in manslaughter is that not only was a person’s life taken, but also the life of the manslayer is destroyed. Although he remains alive, he faces a tremendous personal crisis. . . . ‘That he not perish’ means not only protecting him from the desire of the blood avenger to kill him, but also seeing to it that the manslayer himself not go to pieces emotionally.”
This fits with a fascinating article that appeared this past year in The New Yorker, entitled “The Sorrow and the Shame of the Accidental Killer.” It points out a gap in the therapeutic literature:
There are self-help books written for seemingly every aberration of human experience: for alcoholics and opiate abusers; for widows, rape victims, gambling addicts, and anorexics; for the parents of children with disabilities; for sufferers of acne and shopping compulsions; for cancer survivors, asexuals, and people who just aren’t that happy and don’t know why. But there are no self-help books for anyone who has accidentally killed another person. An exhaustive search yielded no research on such people, and nothing in the way of therapeutic protocols, publicly listed support groups, or therapists who specialize in their treatment.<12>
The author speaks to six people who had caused accidental deaths, and tells their stories. One in particular has suffered guilt for decades after having run over a child. She finds great wisdom in the Torah’s prescription of cities of refuge:
When Maryann Gray, a secular Jew . . . first learned of the concept of cities of refuge, she was overcome with gratitude. “The Torah was talking about me,” she remembers thinking. . . . “If I had been exiled to a city of refuge, I might not have needed exile from myself,” she once wrote. She was moved by the idea that, in such cities, a person like her could participate fully in society without shame. “I love that there was a way of recognizing the true devastation that’s been wrought, the harm that’s been done, without condemning the individual,” she said. “That’s what I’m looking for – to live in the world with acceptance and with opportunity, but also with the acknowledgment that in running over this child something terrible happened and it deserves attention.”<13>
That’s how the New Yorker article ends. According to this variation on the rehabilitation approach, the Torah is trying to help the unintentional killer cope. Because he was involved in something terrible, he needs to withdraw from regular society in order to come to terms with it. The city of refuge thus serves as a type of therapy.
We see that cities of refuge serve multiple purposes. Impressively, they address both the needs of society and those of the unintentional killer. They punish and protect, rehabilitate and repair. Impressive.
1. Lloyd Alexander, The Black Cauldron (New York: Holt, Rinehart and Winston, 1965), p. 217.
2. The Gemara establishes that the city of refuge is limited to a killer whose case is pure shogeg. If the case leans toward either meizid or oness, the city is not for him (Makkot 7b).
3. Rabbi Aharon HaLevi (13th century), Sefer HaChinukh #410, the first explanation. Translation by my wife, Dr. Yocheved Engelberg Cohen.
4. Compare the third explanation of the Sefer HaChinukh, that the killer needs to stay in the city of the refuge in order to spare the victim’s family members the pain of seeing their relative’s killer walking around.
5. Bamidbar 35:25. This is the second explanation of the Sefer HaChinukh.
6. W. Robertson Smith, The Religion of the Semites, p. 272. As cited in Rabbi Dr. Zvi Shimon, “Parashat Masei: Killer on the Run,” The Virtual Beit Midrash. https://www.etzion.org.il/en/killer-run
7. Shadal (Shmuel David Luzzatto, 1800-1865) spells this out in his commentary on Bamidbar 35:12:
In early times, before the establishment of a stable government under a king, princes, judges and law enforcement officers, each family executed its own private vengeance, the next-of-kin of the murderer being obliged to avenge personally his death. The Torah appointed judges and officers and took vengeance out of the hands of individuals, entrusting it to the whole community. Now when the murder was deliberate, it was conceivable to mollify the blood avenger by saying to him: Leave it to the judges, they will investigate and bring him to justice if he is guilty. But when manslaughter was involved, it was not possible to mollify the blood-avenger and force him to see the murderer of his father go unpunished. For that would be regarded by himself and his friends as if he was lacking in love of his father in not avenging his death. This attitude could not be eradicated all at once. Divine wisdom realized that if the blood-avenger were punished by death for avenging the inadvertent slaying of his relative, not all nor even the majority of blood-avengers would be deterred from wreaking vengeance for their relatives. In this way, unnecessary bloodshed would ensue, and the suffering and harm caused to a single family would be aggravated. For since one mischance had happened in the family in one of its members being accidentally slain, yet another would suffer the death penalty for avenging his brother’s death. It would also not be improbable that when the blood-avenger was being executed, the whole community would rise up against the judges, resulting in a national upheaval. What did the Torah therefore do? It allowed the blood-avenger the privilege of avenging the death of his kinsman, but fixed a place of refuge for the murderer to flee where the blood-avenger could not reach him to slay him. (Translation by Aryeh Newman in Nehama Leibowitz’s Studies in Devarim, pp. 189-190, slightly modified by my wife.)
8. Sefer HaChinukh #408. Translation is from the article in the following note.
9. Rabbi Dr. Judah Zoldan, “Cities of Refuge as Rehabilitation,” Parashat Massei 5768 (Aug. 2, 2008). http://www.biu.ac.il/JH/Parasha/eng/massey/zold.html
10. Rabbi Dr. Norman Lamm asks rhetorically: “If 200 years from today our descendants decide that . . . the penal system, no matter how enlightened, was a degrading form of inhumanity compared to systems they will develop later, can we today be faulted for practicing them?” (“In Defense of Samuel,” Parshat Zakhor sermon at The Jewish Center (Manhattan), March 21, 1970. http://brussels.mc.yu.edu/gsdl/collect/lammserm/index/assoc/HASH010f/f1f55367.dir/doc.pdf)
11. Rabbi Dr. Itamar Wahrhaftig, “‘Set Up Cities of Refuge’: Exile as an Alternative to Prison” (Hebrew), Mishpat Ivri #216 (Masei 5765). http://www.daat.ac.il/mishpat-ivri/skirot/216-2.htm (Translation by my wife.) He adds: “Exile had yet another advantage. The killer worked for a living, and part of his salary could be set aside to compensate his victim. . . . In contrast, a criminal today who is sentenced to prison does not have to worry about compensating his victim, whether because he is not charged separately in civil court or because he doesn’t have the resources with which to make payment.”
12. Alice Gregory, “The Sorrow and the Shame of the Accidental Killer,” The New Yorker, September 18, 2017. http://www.newyorker.com/magazine/2017/09/18/the-sorrow-and-the-shame-of-the-accidental-killer