We learn in Parashas Masei: “When you cross the Jordan into the land of Canaan, you shall provide yourselves with places to serve you as Cities of Refuge to which a manslayer who has killed a person unintentionally may flee” (Bamidbar 35:10). The inadvertent killer must flee to a city of refuge.
It is noteworthy that the concept of a killer going into exile is mentioned concerning the very first act of murder recorded in the Torah. After Cain killed his brother he turned to Hashem and pleaded: “You have banished me this day from the soil… anyone who meets me may kill me” (Bereishis 4:13). The Ramban explains that the punishment was indeed appropriate, “for the punishment of killers is exile.”
According to the halachah, only an inadvertent killer may go into exile, thereby finding protection from the blood-avenger who wishes to kill him. An intentional killer cannot find refuge in exile. He must suffer the death penalty.
In the present article we will discuss the punishment of exile meted out to the inadvertent killer. What are the reasons and purposes of this unique punishment? Should it be seen as a type of incarceration, similar to the modern concept of imprisonment? Indeed, do we find any parallel in Torah law to the idea of prison? These, and other questions, are discussed below.
Reasons for Exile
We find five reasons for the exile of the inadvertent killer.
- Protection from the avenger. The blood-avenger, a close family member of the victim, has the right (and, according to one Talmudic opinion, a mitzvah) to kill the inadvertent murderer. The “city of refuge” is just that – a place in which the killer can find protection from the blood-avenger, as the verse states explicitly: “The cities shall serve you as a refuge from the blood-avenger” (35:12). This reason is elaborated in Devarim: “Otherwise, when the distance is great, the blood-avenger, pursuing the manslayer in hot anger, may overtake him and kill him…. That is why I command you: set aside three cities. And when Hashem, your G-d, will enlarge your territory, as He swore to your fathers, and gives you all the land… then you shall add three more cities to those three. Thus, blood of the innocent will not be shed, bringing bloodguilt upon you in the land….” (Devarim 19:6-10).
The Cities of Refuge thus provided protection for the killer from the vengeance of the blood-avenger. If the avenger killed the inadvertent murderer within the boundaries of the city, he is guilty of murder.
- 2. Punishment. Exile, which involves a harsh disconnection from the home and its environs is a fitting punishment for inadvertent causation of death. Though not intending the result, the inadvertent killer could have taken greater precautions, and he is, therefore, held culpable for his actions. The Chinuch thus explains (208): “It is fitting that somebody who killed, even inadvertently, should suffer the pain of exile, which is almost akin to the pain of death, in that he must separate from his friends and from his home environment, and live all his days among strangers.”
- 3. Atonement. The punishment of exile in a city of refuge atones for the sin of the inadvertent killer, as we find in the Gemara concerning the question of why an intentional killer is not exiled: “In order than he should not receive atonement” (Makkos 2b). Somebody who kills intentionally does not deserve the atonement of exile; only somebody who killed without intent is worthy of this atonement.
- 4. Exile among Levites. The permanent residents of the Cities of Refuge are Levites, a tribe wholly dedicated to service of Hashem. The Chinuch emphasizes that the place of refuge is specifically the city of Levites, whose service to Hashem sanctifies the land. This helps bring atonement for the sin. It is possible that the exile among Levites, whose excellence in character and disposition ensures the fair treatment of the killer, will also provide the inadvertent murderer with an opportunity for education and rehabilitation.
- 5. Preventing Pain to Family of the Victim. The Chinuch adds another purpose included in the exile: “Another benefit of the matter is that the relatives of the victim should not see the murderer in the place where the evil was perpetrated – all the ways of Torah are pleasant.”
Imprisonment as Punishment
The punishment of exile does not apply today, as the Tur writes (Choshen Mishpat 425): “Today we do not rule matters of nefashos (life and death), and even while the Mikdash stood (at the very end) this was the case… therefore we no longer have Cities of Refuge where a killer is exiled.”
However, the Tur continues, although we do not mete out Torah penalties in matters of nefashos, we must ensure that a killer is punished so that society should not become corrupt. The Rabbinic Court (Beis Din) therefore has the right to punish as it sees fit, to ensure that criminality does not get out of hand (Sanhedrin 46a).
Today, the punishment for serious crime in most of the modern world is imprisonment. In the case of murder, the prison sentence is of course heavy, and is usually for life – though some murders are freed after a lengthy period.
What is the Torah approach to the punishment of incarceration?
A reading of Torah sources reveals that where the Torah refers to prisons, they are not used as punitive incarceration. We find prisons established by non-Jewish societies, for instance Yosef’s imprisonment in the jails of Pharaoh’s Egypt; we likewise find prisons created in contravention of Jewish Law, such as the jailing of the prophet Yirmiyahu (37:15-16; 38:4-14). We also find prisons utilized as temporary holding cells until trial and sentencing (Bamidbar 15:34), and a prison environment that was used solely to carry out a sentence of capital punishment (Sanhedrin 81b; Rambam, Rotze’ach 4:8; Sanhedrin 18:4-5 – this was used when it was not possible to carry out a regular death penalty).
Torah law appears to favor a short if sharp punishment, allowing the transgressor (with the exception of capital punishment) to return to civilian life as soon as possible. Rabbi Shimshon Refael Hirsch writes that, “imprisonment, with all its hopelessness and with the ethical devastation that takes place behind bars … has no place in the Torah of Hashem… In Torah law all we find is jailing and interrogation, and even this for a short period alone” (Commentary to Shemos 21:1).
Prison-Like Torah Punishments
In the book of Ezra we do find a punishment known as “osrin” (Ezra 7:26), which may imply incarceration. Commentaries differ as to its interpretation.
According to Rashi, it is not a form of imprisonment, but rather the transgressor is tied to a pole and smitten (Mo’ed Kattan 16a). The Rambam, however, writes that the intent is incarceration: “Also, his hands and feet should be bound and he should be placed in prison … as it is written … for osrin” (Sanhedrin 24:9). However, it is possible that the reference here is to a short and sharp period, and not to the lengthy periods of incarcerations known today.
However, we do find concerning an intentional killer who killed in an indirect manner so that he is not punished by death in Torah law, that the Rambam mentions ongoing imprisonment. The Rambam writes that Beis Din must “smite them with a blow that comes close to death, incarcerate them under lock and key for many years, and cause them pain of every type, to threaten and frighten the wicked” (Rotze’ach 2:5).
Aside from this one exceptional case, we do not find punitive long-term incarceration in Torah law, and the records of Jewish communities indicate that the custom over generations did not deviate from the general Torah aversion to imprisonment (see Prof. Simcha Asaf, Punishments after the Sealing of the Talmud, for broad research about communal sanctions over the generations). Prison sentences were simply not the Jewish way (see also Rema, Choshen Mishpat 97:15, concerning the incarceration of a debtor).
Cities of Refuge and Prison
In spite of the general absence of imprisonment in Torah law, the Cities of Refuge appear to be an exception. Are they not a case of incarceration?
It is true that Cities of Refuge were, in effect, the earliest known form of protective custody, in which persons guilty of unpremeditated murder were given the option of moving into one of six cities, thereby escaping the lawful revenge of the victim’s surviving relatives.
However, the Cities of Refuge cannot, by any stretch of the imagination, be deemed to have functioned similarly to today’s prisons. For one thing, the offender was not isolated from his loved ones and other contacts.
Entirely unlike the modern prison, these environments were regular communities, including providing productive work. Indeed, once the offender fled to one of the cities, the court would order his wife, children and even rabbi/teacher to join him (Makkos 10a). In modern prisons, a husband is separated from wife and family, causing all parties terrible agony. It is likely that the rabbi did not have to come to live in the city, but even his occasional visit demonstrates our continual care for the well-being and function of the exiled offender. Furthermore, if a rabbi was exiled, the Gemara teaches that his entire yeshiva was exiled with him!
It is also noteworthy that the citizens (other than offenders) of the Cities of Refuge were the spiritual elite – the Levites – from whom the offenders could surely learn much. Exile to the Cities of Refuge was therefore more like relocation to a foreign land than a prison sentence of isolation from the outside world.
Punishment or Rescue?
We noted above several explanations for exile to Cities of Refuge, and in conclusion we would like to focus on two of them. On the one hand, a central reason mentioned by the Torah is to provide the offender an escape from the blood-avenger. On the other hand, however, exile to a City of Refuge is considered a punishment and includes an element of atonement for the offender.
Which then is it: Punishment, or a refuge from the wrath of the avenger?
It is interesting to note that the two Torah passages dealing with the Cities of Refuge place different emphasis on the purpose. The passage in Parashas Masei warns, “You shall not take ransom for the life of a murderer who is guilty of death, but he shall surely be put to death,” and immediately adds, “You shall not take ransom for him who has fled to his city of refuge, that he may return to live in the land before the death of the priest” (Bamidbar 35:31-32). The juxtaposition of death with exile indicates that both are punishments for which no ransom may be taken, respectively.
The passage in Parashas Shoftim, however, implies that the purpose of exile is to save the offender from death at the hands of the avenger. This is more explicit in the Midrash (Tanchuma, Masei) which equates the unpremeditated killer to Adam Ha-Rishon, “…who should have died immediately, yet You were merciful and exiled him, just like the person who inadvertently kills his fellow.”
It is possible that the combination of the two factors is itself the punishment. Somebody who kills inadvertently is not put to death – his blood is “innocent blood” (Devarim 19:10) – yet, he may be legally killed by the blood-avenger. His punishment is his desperate escape from the avenger into exile in the City of Refuge.
Hope of Freedom
Another halachah of the Cities of Refuge addresses the termination of the exile period, which is upon the death of the High Priest (underscoring the atonement value of the exile). The possibility of gaining his freedom gives the offender hope for the future, as the Meshech Chochma writes (Bamidbar 35:28):
“That which the cities across the Jordan do not become functional until all cities are set aside (Makkos 9b)… is because the offender constantly hopes that the High Priest will die and he will gain his freedom upon his death. Yet surely Hashem declared that Elazar will officiate at the time of dividing the land, so that the disenhearted murderer will not be able to return until the land is divided. Therefore, since this leaves the offender with no hope of gaining his freedom, the Torah did not mention exile.”
Even in the hardest of times, the Torah ensures that all hope is not lost. There must be a way out, a way back.
We conclude with a prayer that Hashem speed our own Redemption, and show us the “way back” from exile and strife.