The Limits of Teshuvah

by R. Gil Student

Teshuvah, repentance, breaks through the heavenly barrier, reaching the divine throne and tearing evil decrees. However there is a large distance between heaven and earth. Does teshuvah have this same piercing power in the earthly realm? Is there a Jewish concept of parole or even dismissal of charges due to repentance?

I. Teshuvah and Theodicy

Tosafos (Kesubos 30b sv. din) ask the traditional question why bad things do not always happen to bad people. Someone who commits a sin that merits execution should be smitten by God. Yet we see many such people living long lives. Today, when many find it difficult to accept that truly bad people exist, the common question is why bad things happen to good people. Traditionally, however, the more frequent question was about the success of the wicked. As Jeremiah (12:1) asks, “Why does the way of the wicked prosper?”

Tosafos offer two answers: 1) the wicked repent and in response God lessens or entirely removes the punishment; or 2) a merit of the wicked, some good deed they performed for which they deserve reward, delays their punishment. I do not believe that these answers are intended as comprehensive theodicies. I suspect that Tosafos would accept other answers, such as those suggested by other commentators.

II. Teshuvah and the Commutation of a Sentence

Regardless, Tosafos’ first answer raises another question. A wicked person’s teshuvah removes the sin or even transforms it into something positive. This change leads God to lighten or even remove entirely the punishment. Does teshuvah similarly relieve the perpetrator from human punishment? For example, should a (duly authorized) religious court execute a murderer who undergoes a religious transformation via teshuvah or should it set him free? The Noda Bi-Yehudah (1:OC:35) puts it this way: If witnesses to a murder only come forward decades after the event, and in the meantime the murderer repents and completely turns his life around, should the court convict and execute him for the murder?

R. Yaakov Weil of fifteenth century Germany (Responsa Mahari Weil, Dinin Ve-Halakhos 61) states that a blood avenger (Num. 35; Deut. 19) retains his right to revenge even if the murderer repents. Mahari Weil assumes that the earthly punishment is not averted by teshuvah. However, he does not explain why.

R. David HaKohen of Corfu (Responsa Radakh 30:2) was asked whether a mourner for a converso father has the same priority as other mourners. In an age when only one person recited kaddish at a time, priority was important. If a mourner for a sibling was present, would the mourner for a converso take precedence because he is saying kaddish for his father? Or does the fact that his father was a converso, who under fear for his life converted to Christianity, remove the obligation to recite kaddish and therefore remove all priority for the mourner. The Radakh rules that the mourner has full priority as someone mourning for his father.

In the course of this discussion, the Radakh points out that criminals are required to confess immediately prior to their executions. However, we still treat them like wicked people even after their deaths, forbidding their family from mourning or burying the deceased in family plots. The Radakh suggests that mere recitation of a confession does not constitute repentance. However, a truly penitent criminal, after his execution, is buried among his family and is mourned. R. Yosef Engel (Gilyonei Ha-Shas, Makkos 13b) points out that the Radakh would still have the court execute a repentant criminal. The lenient treatment does not undo the sentence.

R. Engel (ibid.) discusses three reasons why the court should not absolve a repentant criminal. ^[1]I first became aware of R. Engel’s discussion from a Shabbos Shuvah lecture by R. Ephraim Kanarfogel over 20 years ago. However, I am not convinced they all withstand scrutiny.

III. Who Knows?

The Mabit (Beis Elokim, Teshuvah ch. 2) offers two reasons why a court must still punish a repentant criminal. One of these is that the court cannot know who truly repents. I find this the most surprising of all reasons because courts already have a procedure for detecting penitents. Indeed, the responsa literature indicates that communities have needed to use this procedure over the ages.

Men who engage in wicked behavior are invalid as witnesses in court. The Gemara (Sanhedrin 25b) describes how such men regain their credibility. In theory, all they need to do is repent. However, in practice they must prove their repentance by going in the other extreme. Gamblers must destroy their gambling paraphernalia and not even play the gambling game without money; interest lenders must tear up their contracts and refrain from lending with interest in even permissible situations; merchants who sell forbidden fruits of the Shemitah year must pass another Shemitah year without succumbing. Jewish law allows for criminals to demonstrate their changed ways, to prove their teshuvah.

Similarly, chazzanim and shochetim, cantors and slaughterers, who are caught sinning must be removed from their positions and can only regain their jobs after demonstrating their teshuvah. As can be expected, many such cases have arisen over the years, leading to wide discussion of general principles and specific cases. ^[2]See Magen Avraham 53:8; Shakh, Yoreh De’ah 2:11; Pischei Teshuvah, Yoreh De’ah 2:5; Shulchan Arukh, Yoreh De’ah 119:15; Taz, ad loc. 16. The bottom line is that religious courts already recognize repentance and have a mechanism for determining its sincerity. Therefore, this reason seems difficult.

IV. Then What?

The Noda Bi-Yehudah (1:OC:35) argues that if courts commute sentences for penitent criminals, they will effectively undermine the entire judicial system. Of what purpose is a law if we do not enforce it? God intended the punishments as a deterrent. If no one is ever punished, and a convicted killer can easily say that he repents, then the divinely ordained punishment is undermined.

This seems to be a combination of the previous concern of being unable to determine true repentance and another concern about deterrence. We already responded to the first issue. This would mean that not just anyone could claim to repent. Such a claim would have to be accompanied by appropriate behavior. But even then, someone wishing to avoid execution could falsely change his behavior. While a cantor wishing to regain his job could fake repentance, presumably someone awaiting execution has greater motivation.

However, it seems the validity of this concern is a debate between Rashi and Tosafos. Rashi (Makos 5a sv. mai ta’ama) states that a criminal who confesses before witnesses testify against him in court exempts himself from punishment. Tosafos (ad loc., sv. de-be-idna) argue that this position would nullify all punishments. Criminals could simply immediately confess their crimes, thereby avoiding punishment. This seems to be precisely the Noda Bi-Yehudah‘s concern about repentance.

R. Tzvi Hirsch Chajes (Glosses, Makkos, ad loc.) defends Rashi on two points. First, he notes that the conclusion of the Gemara in Bava Kama (75b) is that someone who confesses to a fine (as opposed to physical punishment, which is Rashi’s extension) is exempt from paying the fine, but only if his confession obligates him to pay the principal amount. A confession that totally exempts one from paying anything is too easy. Similarly, R. Chajes contends, Rashi is arguing that someone who confesses to murder will still be punished, just not executed. The court will find a lesser punishment to impose. However, R. Ya’akov Ettlinger (Arukh La-Ner, Makkos, ad loc.) convincingly argues that Rashi on Bava Kama reads the Gemara differently and allows for a confession that completely exempts the perpetrator.

R. Chajes makes another point that indirectly responds to the Noda Bi-Yehudah. The Sages were not concerned that courts would only administer the Torah’s punishments infrequently. To the contrary, they embraced the concept. The Mishnah (Makkos 7a) states that a court should execute at most once a decade, or even less frequently. It seems that allowing repentance to remove an execution sentence is consistent with this Talmudic attitude. R. Chajes suggests that this explains Rashi’s view that a criminal is exempted from punishment if he confesses, even without full repentance, before the court receives testimony against him. This would also seem to respond to the Noda Bi-Yehudah‘s explanation for the reason that courts punish a penitent criminal.

V. Sin and Punishment

The Mabit‘s second reason why a court must punish a repentant criminal is that all sin requires punishment. Even after teshuvah, the sin must still be punished. Either a court will punish the criminal or God will. The Mabit explains that this is why Tosafos say that God will lighten the punishment of a penitent sinner. He must still administer some punishment. And so must a human court.

However, this approach seems to ignore a key phrase in Tosafos. Tosafos explicitly state that God either lessens or removes the punishment. There is at least some case in which God refrains entirely from punishing a repentant criminal. R. Ya’akov Emden (She’eilas Ya’avetz 2:9) goes so far as to disagree with Tosafos over this phrase. R. Emden believes that every criminal must be punished.

Allow me a brief digression to describe R. Emden’s case because it is so interesting. One of the attendees at R. Emden’s private minyan reluctantly went to the main shul in town and saw someone treat the shul disrespectfully by smoking a pipe at the entrance during service. This man objected and knocked the pipe out of the other man’s mouth. This other man then pulled out a knife and stabbed the first man fatally, in shul. Apparently, there was insufficient evidence to convict the killer so the local (gentile) court was willing to acquit him if he swore his innocence. The perpetrator’s rabbi ruled that he was allowed to swear falsely to save his life. R. Emden wrote this responsum to argue that this murderer, even if penitent, must be punished and may not swear falsely in court.

VI. Inadmissible

The Maharal (Nesivos Olam, Teshuvah, ch. 2) offers two related reasons why a court cannot change its sentence based on the perpetrator’s repentance. First, earthly courts only focus on the bad, the crime. In contrast, the heavenly court looks at all sides of the issue, including the good. I think this means that God considers all extenuating circumstances, including mindset and subsequent developments. A human court can only look at the facts of the crime and not the broader picture.

Maharal adds that teshuvah brings an individual closer to God. It is a change in the relationship between an individual and God. Therefore, only God can accept penitents and no one else. A human court has no place in this personal relationship. This second, mystical approach is difficult to understand given the practical reality of accepting penitent chazzanim and shochetim. The human court is not accepting teshuvah but recognizing its effect on the perpetrator.

Perhaps the Maharal means that teshuvah is inadmissible in a criminal trial in a religious court. Certainly American judges are limited in the evidence they can consider. Evidence obtained illegally or otherwise inadmissible cannot be utilized in reaching a decision. We can easily transfer this concept to a religious court and suggest, based on the Maharal, that repentance is inadmissible in a Jewish criminal trial. However, in determining rehabilitation, which is not a trial, repentance is admissible as a character assessment.

The Mishnah (Avos 1:6) tells us to judge every person–all the person–favorably. Some commentators (e.g. Sefas Emes) interpret this to mean that we must look at a person and consider his whole personality and his complete circumstances rather than looking at a specific incident. From what we have learned, this is a divine perspective. Human courts are procedurally limited in their focus. On a personal level, though, we are asked to look more broadly, to see a person’s bigger picture which is usually more positive.

As we enter Rosh Hashanah and the season of heavenly judgment, we pray that our own larger picture be taken into account. Our many merits should lighten the load of any misdeed we may have committed. In preparation, we can consider how we can judge others with this heavenly perspective. By acting more divinely, we can see the world more positively and, in return, be judged favorably as well.