Imagine a constitutional convention in the ancient world, tasked with drafting laws for a new society. The convention must address the thorny problem of crime detection: In an age without fingerprint/DNA evidence or closed-circuit television cameras, how can the community determine “whodunnit”? Imagine the sarcasm that would greet someone who proposed, “I know, we’ll just have the killer turn himself in!” But that is exactly what the Torah prescribes, and it is so ingenious that the United States Supreme Court adapted a version of the model.
References to the “Cities of Refuge” are interspersed throughout the Torah, as the cities themselves were interspersed throughout the land. [Exodus 21:13; Numbers 35:11-14; Deuteronomy: 4:41-43; 19:1-10.] Someone who killed unintentionally would flee to one of these cities to avoid the vengeance of the go-el da-am, the blood avenger of the deceased. Unintentional killers would remain there until the death of the Kohen Gadol (high priest), after which they could return home. So it is easy to see these cities as a sentencing outcome: Just as intentional homicide (similar to what we today call “murder”) was punished by death, unintentional homicide (what we call “manslaughter”) was punished by indefinite confinement in one of these cities.
But the cities were not the outcome; if a killer fled to one but witnesses came forward and confirmed the killer used a deadly weapon, and the homicide was intentional, the murderer would not avoid the full punishment he deserved. Rather, the cities were a process.
Why would an unintentional killer follow this process and turn himself in? Because if he did not, and the blood avenger found him, he would be subject to the avenger’s immediate violence: he would have no opportunity to present his side of the story.
But if he went to one of the cities, he would be protected from immediate violence. Like all witnesses, he would be guaranteed an opportunity to present his account. In this sense, the cities’ function resembled that of the sotah procedure, which forestalled private vengeance and substituted legal process in its place. [Numbers 5:11.]
The process thus benefited both the suspect and the community. The suspect gained protection from impulsive retaliation and the community gained the knowledge of the killer’s identity. As the late Rabbi Emanuel Rackman, chancellor of Bar-Ilan University, explained, the Torah incentivized the killer’s self-identification, and enabled a proper legal inquiry.
Contemporary application
The U.S. Supreme Court embraced the wisdom behind the procedure in the 1980s. After Eric Weir fatally stabbed Ronnie Buchanan during a fight outside a Kentucky nightclub, he fled; he did not call for an ambulance, or police, but tried instead to escape detection. Weir was eventually arrested and tried for the crime. After the prosecution presented its evidence, Weir for the first time acknowledged it was he who stabbed Buchanan. He claimed both that “he acted in self-defense and that the stabbing was accidental.”
Though American criminal procedure does not involve “blood avengers,” the Supreme Court produced a modified application of the Torah’s incentive. Because Weir had not come forward to provide his innocent explanation but instead tried to conceal his involvement, the court held the jury could infer his belated account was false. Prosecutors may highlight where defendants choose to conceal rather than disclose their involvement, and juries may find them less trustworthy as a result. The undesirable consequence for Buchanan was not an angry avenger but a distrusting jury.
Those who commit a homicide are not forced to turn themselves in, and they may try to conceal their involvement. But they harm their “accidental” defense if they do not self-identify, and help it if they do.
The life imprisonment plea
There is another contemporary application of the “blood avenger” incentive. Just as the threat posed by the ancient blood avenger led unintentional killers to confess their involvement (to present their side of the story), the existence of the death penalty today leads intentional killers to confess their guilt (to avoid maximum punishment).
Though nearly all the relatives of Tree of Life Synagogue victims favored the death penalty for the murderer, one widow, Miri Rabinowitz, preferred the murderer plead guilty. Trial, she feared, would force her to “relive the horrific circumstances of Jerry’s murder through a trial and inevitable lengthy appeals.”
Many victims and prosecutors share this preference, as trials force survivors to relive trauma and force prosecutors to risk a jury acquittal (or reversal on appeal). A guilty plea, with a sentence of life imprisonment without parole (LWOP), avoids these problems. It can benefit both survivors and prosecutors when murderers plead guilty.
But this works only where death is an authorized punishment; it is the possibility of capital punishment that leads defendants to plead guilty for the lesser sentence of LWOP. No defendant ever pleads for the maximum sentence. Defendants have no incentive to plead guilty if they will receive the maximum term; they plead to receive a sentencing “discount.” So if there is no death penalty and the maximum sentence is LWOP, they will plead only for a sentence that offers parole, or at least the possibility of it. Ironically, it is the existence of capital punishment in theory that can render it unnecessary in practice.
Nonlegal applications
The Cities of Refuge concept has important lessons beyond the practice of criminal law. None of us will ever commit a homicide in ancient Israel. But all of us, at some point in our lives, will injure someone — emotionally if not physically. And all of us will be injured by someone — emotionally if not physically.
How will we respond? Instinct leads the injured to anger and impulsive retaliation. It leads the injurer (like Eric Weir) to conceal his role in the harm, or failing that, to avoid any contact with the injured, which breeds further distrust. Relationships can unravel.
The Torah offers a better model than avenging and avoiding. It offers a safe opportunity for parties to meet and peacefully explain their perspectives, which might have been misunderstood. They can offer apologies and, where necessary, make amends for harms caused. The commitment to peaceful discussion can often help parties save, and even strengthen, relationships that might otherwise be lost.
Ideally, the principles that promote justice in the courtroom can also promote peace in everyday life.
Mitchell Keiter, a certified appellate law specialist in Beverly Hills and former law professor, clerked at the California Supreme Court and has briefed over 30 cases before the U.S. and California Supreme Courts.
