Parashas Masei: The Release of Unintentional Murderers

Artwork: Moat, by Noah Bradley
(This is the image of an ir miklat in my mind, even though I realize that it's totally unrealistic.)

Parashas Masei: The Release of Unintentional Murderers

One of the final topics in Sefer Bamidbar is the mitzvah of establishing Arei Miklat (cities of refuge): 

When you cross the Jordan to the land of Canaan, you shall designate cities for yourselves, cities of refuge shall they be for you, and a murderer shall flee there - one who takes a life unintentionally (Bamibdar 35:10-11) 

An ir miklat serves a dual purpose. Prior to the murder trial, it serves as a sanctuary location for the unintentional murderer, offering him protection from the goel ha'dam (the "blood avenger" who is a relative of the murder victim): "The cities shall be for you a refuge from the avenger, so that the murderer will not die until he stands before the assembly for judgment" (ibid. 35:12). After the trial, if the murderer is found liable for the penalty of galus (exile), the ir miklat become his home/prison-cell until the death of the Kohen Gadol: 

The assembly shall rescue the murderer from the hand of the goel ha'dam, and the assembly shall return him to his city of refuge where he had fled; he shall dwell there until the death of the Kohen Gadol ... and after the death of the Kohen Gadol, the murderer shall return to the land of his possession (ibid. 35:25,28)

This last halacha about the release of the unintentional murderer upon the death of the Kohen Gadol presents two major difficulties:

1. Why is the death of the Kohen Gadol as the trigger of the unintentional murderer's release? What does the Kohen Gadol have to do with the crime of unintentional murder?
   
   
2. The length of the unintentional murderer's sentence in the ir miklat seems arbitrary! Practically speaking, the murderer might be in the ir miklat for any amount of time, from one day to 100 years! Most prison systems and punishments are designed with an eye toward uniformity: everyone who commits a given crime gets the same punishment. Here, the penalty of exile is subject to chance, and can result in a wide variety of outcomes. Why did the Torah structure the halacha with this element of randomness?

The Bechor Shor [1] offers the following answer to both questions:

We do not know how long the victim would have lived, had he not been killed by this [unintentional murderer]. We [therefore] estimate this based on the Kohen Gadol, who is chashuv (distinguished). We assume that, in general, he would not outlive the Kohen Gadol, who serves before Hashem. The murderer will remain in exile for the remaining year's of the Kohen Gadol's life. This is the reason why the Torah designates the span of his penalty based on the Kohen Gadol. And even if he was young and the Kohen Gadol was old, or vice versa, the Torah doesn't differentiate; however it falls out, it falls out.

According to the Bechor Shor, the time period that the unintentional murderer spends in galus should ideally be determined by the number of years he "stole" from the person he killed. For example, if the victim was 50 years old and would have lived to the age of 80, then the murderer should receive an exile sentence of 30 years, since that is the number of years that were deprived from his victim.

The problem is that a human court has no way of making this calculation, since it is impossible for us to know how long a person would have lived. To compensate for this lack of knowledge on our part, the halacha makes an "estimation" based on the lifespan of the most distinguished member of society: the Kohen Gadol. As someone whose life is dedicated to serving God, the Kohen Gadol represents the paradigmatic human being, and thus, he is a fitting representative of the potentially full human life that was squandered through the negligent actions of the unintentional murderer. Although this solution does not correspond with absolute justice, it does make us aware of that ideal. Whenever the murderer thinks about the indeterminate duration of his prison term, this will bring to mind the indeterminate length of the life he cut short. 

The Rambam [2] takes a different approach. He begins with the general purpose of the galus penalty: 

The commandment that a person who killed another unintentionally must go into exile is imposed with a view to calming the anger of the goel ha'dam, so that he should not see the man who brought about this misfortune. 

Unlike the Bechor Shor, who learns that the penalty of galus is intended to convey an idea (i.e. the dictates of absolute justice and our inability to perfectly implement it), the Rambam maintains that this galus is intended to achieve a practical outcome: "calming the anger of the goel ha'dam" by removing from society the person who caused his suffering. It's not clear whether this intended for the sake of the unintentional murderer (i.e. so that the goel ha'dam won't kill him), or whether it is for the sake of the victim's family members (i.e. so that they don't have the be aggrieved upon seeing the murderer walking around town), or whether it is for both parties.

The Rambam explains the halacha about the death of the Kohen Gadol as a further development of the theory he proposed: 

[The unintentional murderer's] return [from exile] is made contingent upon the death of the Kohen Gadol - the most honored of men, and the one most beloved in Israel. By his death the relative of the slain person becomes reconciled, for it is a natural phenomenon that we find consolation in our misfortune when the same misfortune or a greater one has befallen another person. No death causes more grief among us than that of the Kohen Gadol.

The Kohen Gadol's death may be likened (lehavdil) to the death of a beloved leader (e.g. FDR, JFK, Martin Luther King Jr.) or a widely admired public figure (e.g. Michael Jackson, Princess Dianna, John Lennon). When such individuals die, the whole country falls into a state of collective mourning. The Rambam argues that in this emotional state, the goel ha'dam is in the best position to finally let go and move on - especially if the death of the Kohen Gadol happens many years after the murder. 

Chazal [3] provide a much more cryptic answer to our questions. They explain that the death of the Kohen Gadol effectuates kaparah (atonement) for the unintentional murderer. Unfortunately for us, Chazal do not elaborate here on what they mean. 

Both the Bechor Shor and the Rambam preface their comments by saying that their intent is to explain the reason for these halachos based on the pshat (straightforward meaning) of the pesukim. Several questions still remain. What is the basis of the machlokes between the Rambam and the Bechor Shor? What did Chazal mean by their interpretation? Is there a relationship between Chazal's relationship and those given by the aforementioned Rishonim? 

And that, my friends, is where we will conclude for now. If you have answers, please share!

[1] Rabbeinu Yosef ben Yitzchak, Commentary on Sefer Bamidbar 35:25

[2] Rabbeinu Moshe ben Maimon, Guide for the Perplexed 3:40
[3] Talmud Bavli, Maseches Makkos 11b