The arei miklat, the cities of refuge, are described in Bamidbar (Numbers) Chapter 35. I’ll summarize the text and share some remarks:
A person who kills another unintentionally – that is, via manslaughter – is called the rotzeah. Manslayers may flee to one of six cities of refuge described in this section of the Torah. They leave the city for their trial, but if acquitted of premeditated murder, are still at risk of the victim’s family’s vengeance at the hand of the go’el ha-dam, the blood avenger. So they return to the city of refuge where the go’el may not pursue them. That is, for unpremeditated crimes of negligence or passion, the rotzeah is granted some measure of protection, but still endures some punishment by separation, via removal to the city of refuge. This protection is lost should the rotzeah leave the city of refuge.
The rotzeah is released from the ir miklat upon the death of the Kohen Gadol, the High Priest. The reasoning is given toward the end of the chapter: “You shall not pollute the land…you shall not defile the land in which you live, in which I Myself abide, for I the Lord abide among the Israelite people.” That is, bloodshed is a source of defilement of the land, and death of the High Priest releases the land from its defilement.
The Talmudic treatment of these passages is presented in Makot 9-11 and involves amazing attention to infrastructure. The court system is obliged to construct and maintain roads leading to the cities of refuge. It must shore up the water supply if needed. Every year on the 15th of Adar, the day after Purim, the courts were to send emissaries to inspect the roads. The towns should be of intermediate size. They couldn’t be so small that there would not be enough for the manslayers to maintain a standard of living, but not so large that a blood avenger could slip in, unnoticed, to pursue his kill. If the population fell to an unsustainable number, the court could send in priests and Levites to bring up the population counts. There is even attention to the vegetation in and around the towns.
The responsibility of the community to provide appropriate infrastructure, maintaining this milieu of punishment and rehabilitation, is admirable.
Also relevant to the rotzeah’s outcome is his anticipated length of stay. The manslayer’s “term” ends when the High Priest dies, and he is free to return to his normal city of residence. So the length of the sentence is unknown. Makot also describes the efforts of High Priest’s mother, who brought food and clothes to the cities of refugee, so the inhabitants would be content with their lots and wouldn’t pray for her son’s death.
But I wonder — why is the term in the city of refugee related to the lifespan of the High Priest? That seems unrelated to punishment, rehabilitation, or indeed, to any needed protection from the goel ha-dam.
The straightforward traditional answer is that the death of the High Priest atones for all sins, including defilement of the land via bloodshed, so the guilt of the manslayer is over.
Rashi, in his commentary on Makot 11a, wonders whether, had the High Priest prayed more fervently, the mishap would not have happened during his tenure. Perhaps his lack of leadership and example contributed to the ill-fated deeds of the rotzeah. Hence, upon his death, the rotzeah is given another chance. This commentary speaks to the importance of leadership in securing society’s safety.
Rashi also argues that were there no cities of refuge, there would be a risk that the rotzeah and the High Priest could run into each other somewhere. Perhaps we could call this a Biblical “AWKWARD!” moment. Since one person defiles the land and the other purifies the people, we don’t want the two of them in each other’s presence.
I’m not a fan of Rashi’s reasoning. I don’t see why the High Priest must be spared confronting one of his presumed failures, whereas the rotzeah is physically separated from society specifically to confront his gross misstep.
Rashbam felt that the release of the rotzeah represents a general sense of transition and clemency after the death of a High Priest. That’s an admirable though sadly, not full believable proposition – that a society experiencing loss and transition would react by turning to compassion and forgiveness. That’s a very different mood than last-minute Presidential pardons that characterize leadership transitions today.
Sforno suggested that perhaps God manipulates the timing of the High Priest’s death, so that if the manslayers are particularly egregious, God prolongs their exile by causing the High Priest to live longer. One could just as well reason that if the manslayers are not particularly awful, it would be fair of God to hasten the death of the High Priest so as not to prolong their punishment. That doesn’t seem right.
I’d like to suggest something else. The problem that brought the manslayer to the city of refuge was probably something quite random, unpredictable. In our day, those folks might be a careless driver, a doctor who made a mistake, a car mechanic who didn’t tighten a bolt enough to prevent a fatal accident. I don’t mean that these individuals weren’t truly negligent in causing manslaughter. Rather, there’s a random element behind who indeed, among all those displaying negligent behavior, precipitates a crime. Ten thousand people might check a text message on their phones while driving; one unlucky person amongst them strikes a pedestrian. The other drivers were not less negligent; perhaps the brightness of a pedestrian’s clothing, the proximity of the car to a speed bump, a honk from a car behind them, etc., spares them an awful outcome.
Is it fitting that their sentences are also unpredictable?
Let’s assume, unlike Sforno, that God hasn’t manipulated the timing of the High Priest’s death. Rather, we could consider it essentially unpredictable. Or at least, I don’t think we could predict manslaughter rates based on the age of the High Priest. In contrast, in another Biblical instance, Israelites did modify their behaviors, refraining from making loans and land sales in the final year of the shmita and Yovel cycles, prompting the rabbis to institute a remedy via prozbul. Would the Israelites have embraced similar game-theoretic reasoning with manslaughter, as with loans and land sales? I doubt that people would behave less prudently, just because the High Priest was old and their sentences for any infractions would be short. No one thinks, “I know I shouldn’t be fiddling with my cell phone while I’m driving, but hey, the High Priest is REALLY old — so how bad could my jail term be?”
That is, the crime feels random and unpredictable, and for me, the sentence seems that way, too. That almost feels fair. I think a lot of human emotion is misdirected to anguishing over events that are random and unpredictable. I’ll try to catch that in myself, though I doubt I’ll be successful.
So now let’s turn our attention to the hapless blood avenger, who remarkably seems to be the bad guy in the story of the Cities of Refuge. He and his family have suffered a terrible loss. He finds it hard to forgive and to understand the circumstances of the accidental killer. On top of that, though he might hope to get some satisfaction knowing that the manslayer is removed from society for a time – well – even that length of time is unpredictable! He’ll probably feel resentful, even enraged, if the sentence turns out to be relatively short.
Perhaps the unpredictability of the manslayer’s punishment will bring the blood avenger to a realization: that everything is precarious, and that there’s a limit to how much we control. Life circumstances have already taught him that grief and horror can drop into his family’s life unexpectedly and unpredictably. Can he accept that the satisfaction he might get from the punishment is also seemingly random? Might this lead him to a realization that his need to engage with his family’s profound loss won’t fully be addressed by punishment of the accused? The statistician in me would like to imagine that he could.