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August 3, 2015 / 18 Av, 5775
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Preempting The Death Penalty

In this week’s parshah the Torah writes about a prohibition on killing a murderer prior to his trial. As the pasuk says: “…v’lo yamus harotzeach ad amdo lifnei haeidah lamishpat – … so that the murderer will not die until he stands before the assembly for judgment” (Bamidbar 35:12). The same rule applies to anyone who commits an aveirah that is punishable by death; no one is permitted to kill him prior to his trial in beis din, including the witnesses that warned him and witnessed the aveirah. The Sefer Hachinuch (mitzvah 409) writes that if one kills a transgressor prior to his trial, he is regarded as a murderer.

Anyone who performs any aveirah l’hachis (a transgression to spite Hashem, not because of temptation) is rendered a mummar l’kol haTorah. The Rosh (Moed Katan 3:59) says that one who is warned by two witnesses that the action he is about to perform is prohibited and punishable by death and responds that he will commit the aveirah despite the warning, attains the status of a mummar l’hachis. The reason is this: one performing the aveirah because of temptation would not do so after being warned that his life is on the line. Rather, we can assume that he is acting to spite Hashem.

Reb Chaim Ozer Grodzensky (Achiezer 3:53) writes that he discussed the following question with his wife’s grandfather, Reb Yisroel Salanter, the gaon ohr yisrael: the Gemara (Avodah Zarah 26b) says that one may kill a mummar l’hachis. (This is brought down in several places by the Rambam, including Rotzeach 4:10, and in the Shulchan Aruch, Choshen Mishpat 425:5.) This is known as “moridin v’eino malin – throw him into a pit and do not save him.” The view of both the Rambam and the Shulchan Aruch is that if possible one should publicly kill the mummar with a sword. The Rosh (Teshuvos 32:4) says that one should only kill via a gramma (indirectly), i.e., throw him into a pit and remove the ladder.

Question: How can the Torah say that we cannot kill a murderer or any transgressor until after his trial in beis din, despite the fact that he was warned in front of witnesses? After all, according to the Rosh the transgressor has the status of a mummar l’hachis (since he is not acting out of temptation), thereby permitting anyone to kill him as per the halacha of moridin v’eino malin.

Reb Chaim Ozer suggested two answers, but believed that the question demands more analysis. His first suggestion is that the pasuk is teaching us that although one is permitted to kill the individual who sinned by means of moridin, the Torah nevertheless prohibited killing him in this case until after his trial in beis din. However, Reb Chaim Ozer rejects this answer for several reasons. One reason: Why does the Chinuch say that one who kills the sinner is regarded as a murderer? Since he could kill him from the halacha of moridin, he should not be considered a murderer. The Chazon Ish (Yoreh De’ah 2:17) maintains that the halacha of moridin only applies when the sinner cannot be tried in beis din due to technical problems, i.e., no witnesses. Therefore, in a case to be brought in beis din one may not apply the halacha of moridin.

The second solution is that the pasuk is referring to a scenario in which we know that the individual did teshuvah. Therefore he can no longer be killed under the halacha of moridin. However, teshuvah does not remove the death penalty from beis din. Hence, the Torah says that we should wait until he is found guilty at trial before killing him.

I would like to suggest that the question does not start. I was scared to say that I learned the Rosh differently than Reb Chaim Ozer and Reb Yisroel Salanter. But, Baruch Hashem, I found afterwards that the Chazon Ish (Yoreh De’ah 2:12) learns the Rosh as I did. I believe that the Rosh is being taken out of context. The Rosh is discussing the Mishnah that says that there is no aveilus for people who are killed by beis din. The Rosh explains that this is because since they were warned that their life was on the line but nevertheless sinned, they are obviously not acting out of temptation; thus, they are comparable to a mummar l’hachis. I think that the Rosh never meant to say that anyone who transgresses after being warned is a mummar l’hachis regarding the halacha of moridin; rather the Rosh is saying that regarding aveilus we consider him a mummar, comparable to a mummar l’hachis – whereby aveilus does not apply.

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