by R. Moshe Kurtz
Lomdus on the Parsha: Re’eh
Based on the Acclaimed Sefer Chavatzeles HaSharon
Q: Should a Jewish court still execute a person who repents for the evil that he previously perpetrated?
And that prophet, or that dreamer of dreams, shall be put to death; because he has spoken to turn you away from the Lord your God, who brought you out of the land of Egypt and redeemed you out of the house of bondage, to thrust you out of the way which the Lord your God commanded you to walk in. So shall you eradicate the evil from your midst. (Deuteronomy 13:6)
The Nodah B’Yehudah (Mahadura Kamma O.C. no. 35) notices that something in the Jewish jurisprudence appears to be amiss:
Without any doubt, we know that repentance leads to complete absolution – this is something that is replete throughout the Bible and the two Talmuds (i.e. Jerusalem and Babylonian). And it is also true, without a doubt, that one who has been warned and sentenced to the death penalty – even if the witnesses were delayed and came to the court many years later and in the meantime the defendant repented with countless numbers of self-flagellation and fasts, beyond that which is prescribed by the Rokeiach, and after all of this repentance witnesses come to court and testify against him – certainly the court cannot take the defendant’s repentance into account and rather they burn him or stone him in accordance with his sin (see Makkos 13b).
This matter is beyond comprehension – for repentance certainly works. And if he as already removed and atoned for his sin why should he die? For it is written “and the innocent and righteous you shall not kill” (Exodus 23:7).
How is it that after all that our Biblical and Rabbinic literature has to say about the power of repentance the rabbis themselves can disregard the defendant’s transformation? This is all the more compounded by the Rambam who writes (Hilchos Teshuvah 2:4) that one who repents becomes a new person and any prior Divine verdicts against this new individual are consequently null and void
The Nodeh B’Yehudah resolves this difficulty as follows:
Rather, this is certainly a Scriptual decree (gezeiras ha-kasuv). For if not, all of the punishments of the Torah would be inoperative. A person would never die by the court for he could simply claim “I sinned and behold I have repented” And since God desired to impose the death penalty on a number of sins in order to instill a fear in man from transgressing [the Torah], therefore it was necessary for repentance to be incapable of saving someone from death by the court.
According to the Nodah B’Yehudah, fundamentally one does not need to engage in any extended and overt forms of penitential self-flagellation in order to be considered a repentant individual (for if that was necessary, ancient literature ought to have spelled out precisely the method required to atone for each and every sin). While such deeds may contribute to their atonement, it would seem that one is already considered penitent from the moment they bear full remorse for their transgression. And something as subjective as that is inscrutable by the court and thus cannot be taken into account, as it would then easily be taken advantage of by anyone seeking to exonerate themselves from a guilty verdict. Consequently, the court is required to carry out the guilty verdict on the chance that he did not repent sincerely (see also Aruch HaShulchan Ha’Asid 58:2).
However, how is it possible that someone could be potentially guiltless, after having repented, yet still be put to death – the court may only execute with certitude and not on the basis of a doubt (safek)!
(1) The Chasam Sofer (Kesubos 30a) suggests that if a man was truly penitent, God’s providence would have intervened and prevented such an outcome:
Perhaps if this individual repented before God and he was accepted and had atoned, God would never have enabled these witnesses to come to the court – and even if they did [come] then they would not have withstood the cross-examination. For God does not incriminate the soul of the righteous.
The weakness of this argument is that the Torah’s legal system should be able to function without reliance upon Divine intervention. Otherwise, there would be no need for the many safeguards and procedures we have in place to ensure a proper verdict is achieved since the court could simply relax and assume that whatever decision they hand out must is the will of God in either event.
(2) R. Mordechai Carlebach proposes that the answer to our question hinges upon why the court punishes people in the first place. Does the court administer punitive measures (A) in order to provide the guilty party with an atonement, (B) or is the main purpose to actually punish him? According to this position, the beneficiary of the death penalty is society, as such an outcome will deter others from committing a similar evil. Accordingly, any atonement gained by the offender is merely a secondary by-product.
(A) On the one hand, the Maharsha (Sanhedrin 64b) cites the Smag who writes that anyone who sacrifices all of his children to the pagan deity Molech is exempted from the death penalty, for such an egregious act cannot possibly be atoned for. If the purpose of the death penalty was to punish the offender then such a terrible person should all the more so be sentenced to death! However, the fact that that he is “exempt” suggests the main purpose is to provide the transgressor with a personal atonement, which is unachievable in this scenario. (This is also a possible explanation for the principle of ein onshin min hadin – that we may not infer corporal punishment from one sin to the other, as the latter may need a different kind of penalty to effectuate a proper atonement for their particular transgression..)
(B) On the other hand, there are sources which indicate that the primary purpose of these penalties is simply to punish the sinner. The Mishnah in Sanhedrin (43b), describes the moments leading up to the sinner’s execution:
When [the condemned man] is at a distance of about ten cubits from the place of stoning, they say to him: Confess [your transgressions], as the way of all who are being executed is to confess. As whoever confesses [and regrets his transgressions] has a portion in the World-to-Come.
While the sinner is ideally takes the opportunity to confess his sins, should he decline he would still be executed nonetheless. Even though he does not recognize his execution as a means to achieving atonement, he is still put to death, as his sentence is ultimately a punishment meant to deter others from following in his sinful ways (cf. Sanhedrin 47a).
With this framework we can now understand what shifted between the question and answer of the Nodah B’Yehudah. In the Nodah B’Yehudah’s question, he assumed that the sole purpose of the death penalty was to benefit the sinner with a personal atonement, and so he was reasonably troubled by why a penitent person would have his sentence carried out anyway. Whereas, the Nodah B’Yehudah’s answers acknowledges that the raison d’etre of the court is primarily to benefit society by providing a punishment which will serve as a deterrent. Thus, the court is not executing a potential penitent man since his personal repentance is immaterial next to the immutable imperative to benefit the collective by demonstrating when evil is perpetrated it must be eradicated from our midst.
Endnote: See also Kisvei HaGrach (no. 21) and Koveitz Shiurim (no. 91) regarding how the dichotomy above applies to the principle of kim lei b’derabah minei.
Note: This series is not intended to dispense practical halachic conclusions. The Torah presented here is but a small extraction from the breadth of the sefer Chavatzeles HaSharon and is not affiliated with the author in any official capacity. Translations are adapted from Sefaria, Chabad.org, Mechon Mamre, and my own. Contact: [email protected]