Courts Cannot Take Payment to Absolve Murderers

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by R. Gidon Rothstein

I am surprised when the Torah defines as a separate mitzvah a matter I would have thought already subsumed under some other mitzvah, and am self-centered enough to think you will share my surprise, making it worth our while to consider two mitzvot from Parshat Mas’eimitzvot which both could have been included in another one and/or could have been joined together.

The Law Must Be Followed

Bamidbar 35;31 adjures the court against taking a kofer, a redemption payment, for a murderous soul. Prohibitions 295 and 296 of Rambam’s Sefer Ha-Mitzvot codify it in two mitzvot, prohibit accepting payment to absolve a murderer, require administering the legislated punishment, either the death penalty (295, for a deliberate, premeditated murder, with witness warning and all the other requirements), or exile to a city of refuge (296, for a rotzeah be-shogeg, someone who kills someone else because of insufficient care).

Sefer Ha-Hinuch’s presentation of the second of the two mitzvot, number 413, almost completely echoes the previous one, with only the difference of it being for rotzehim be-shogeg. Same rule, basically, yet a separate mitzvah. Why?

Deliberate Murder Has Stricter Rules Elsewhere

Aruch HaShulhan Hoshen Mishpat 425:35 gives us reason to wonder at the simple equation, because of the significant differences in how we react to the two types of murder. In shogeg, the murderer will only be sent to ir miklat if the victim died immediately, part of making clear s/he died solely because of the murderer’s actions. A killer whose bleeding victim writhes and thus hastens his/her own death, for example, does not go into exile.

A deliberate murderer, on the other hand, is held culpable as long as the victim dies without recovering from the wound. Aruch HaShulhan also points to the distinction between derech yeridah and derech aliyah, totzeah be-shogeg only exiles to an ir miklat if the killing happened when s/he slipped on his/her way down (a ladder, in the classical example), not up. The direction of travel has no impact on how the court treats premeditated murder.

Once we see how they differ, we have more of a reason for separate prohibitions of disallowing monetary substitution for punishment. Whatever it is about shogeg that fosters those different rules means we also need a separate commandment not to forego ir miklat for the killer.

Even If It Seems More Productive

In both situations, we might think it more effective and/or productive to take the money. Rambam in Laws of Murderers 1;4 adds a crucial phrase, we may not do this even if the go’el ha-dam, the relative of the victim who theoretically avenges the victim’s death, pushes for exempting the murderer. There can be many reasons, especially the possibility money will improve a web of lives among the victim’s survivors, where killing or exiling the murderer will not bring the victim back to life.

While easily corrupted, we can imagine a murderer who could make the survivors comfortable or wealthy where now they will live in grinding poverty. I’m not promoting it, I’m noting ways we could see other choices as also valid. It’s why the Torah has to insist on the prescribed punishment, because people using their own reasoning might convince themselves another path was better.

Society Depends on Not Being Able to Buy the Right to Kill Others

Rambam, Laws of Murderers 1;4, adds why: the end of the victim’s life, and whether or not we demand accountability for it, are not a choice. God decides when lives end, this murderer expropriated a right not his/hers, either deliberately or by not exercising the needed caution, and God decides the correct accounting. He adds the Torah treated nothing more seriously or stringently than murder, such as where Bamidbar 35;33 says leaving blood unavenged or unreacted is mahanif et ha-aretz, pollutes the Land.

In Laws of Murderers 5;1, he makes the similar point for a rotzeah be-shogeg.

Sefer Ha-Hinuch 412 gives a more societal argument, accepting fines for murder ends up putting a price on people’s lives; someone wealthy enough will then choose who dies, as long as s/he is willing to pay. [It’s a problem with fines in general; there’s a study out of Israel where a daycare had a certain percentage of parents who were repeatedly late picking up their children. When the daycare instituted a fine, parental tardiness rose, because it came to feel like a fee rather than a fine. Of course, the solution is escalating fines, but that’s a different discussion.]

Society cannot function that way. [On the other hand, we all know situations where overlooking a “minor” wrong is worth it, especially since we are none of us perfect. It happens often, someone is willing to donate large amounts of money and expect to have his/her personal peccadilloes overlooked. Which sins/crimes are significant enough for us to say, sorry, we cannot take your donation, much as they will improve many lives, because we must redress a wrong? It’s a very hard question; in the case of murder, the Torah eases our way by making a clear mitzvah of it.]

Aruch HaShulhan Hoshen Mishpat 420;5 focuses on Bamidbar 35;31’s warning against taking a ransom from a rotzeah. We do accept monetary retribution from someone who physically damages someone else, even costs them a limb, have a specific oral tradition that is what the Torah meant by “an eye for an eye.” There, apparently, the problems with administering the deserved retribution lead us to do it monetarily instead.

Aruch HaShulhan Hoshen Mishpat 425;4 assumes the reference to rotzeah includes  anyone liable for the death penalty—accepting monetary payment not to put to death someone who violated Shabbat in public would also violate this prohibition. Rambam had stressed the significance of murder.

Only Courts or Not

Sefer Ha-Hinuch points out the mitzvah applies to women. Although they never sit on a Sanhedrin, women achieve power in other ways, he says, so a woman could be have the ability to exempt a murderer, deliberate or unwitting, from the needed punishment. Minhat Hinuch recognizes Rambam had spoken of this being a rule for beit din, the court. He could have seen it as a debate, instead says Rambam referred to the usual case, would easily have agreed with Sefer Ha-Hinuch where someone else has the power/ ability to free a murderer for money.

Violating the rule leads to many more deaths, says Sefer Ha-Hinuch, yet there are no lashes because it is nitan le-hishavon, the money paid can be returned (and the murderer punished however s/he was supposed to be).

Minhat Hinuch relates this to bribery and interest; in all three, money is being used to secure a desired outcome, a verdict, a loan, a more palatable punishment. At root, they are all examples of letting money talk where it should not.

Murder, or any death penalty crime for Aruch HaShulhan, brings the temptation of taking money to not exact full punishment. Perhaps especially because the Torah seems to have instituted such a system with bodily injury, even grievous bodily injury, we need to be told these more serious crimes have no such out. The value of human life is such that if one Jew caused the death of another in a culpable way, and/or acted in a way the Torah thought deserved to lose his/her life, no money can make it up. Money talks, but not this far, these two Torah prohibitions insist.

About Gidon Rothstein

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