Sanctuary Cities vs Cities of Refuge
Living in America today, we are familiar with the term “sanctuary city.” This designation applies to many Canadian cities as well. Until recently there was no legal definition of “sanctuary city.” Rather the term describes a policy or set of policies by which a city provides safe harbor from federal immigration law to undocumented immigrants. Municipal policies include prohibiting police or city employees from questioning people about their immigration status and refusing requests by federal immigration authorities to detain people beyond their release date, if they were jailed for breaking local law.
Such policies can be specifically set out by local law or have become the legal custom (way of doing things in a particular city) over many years of practice. But again the precise legal definition of “sanctuary city” is illusive. In a recent memo, May 2017, US Attorney General, Jeff Sessions, established the narrow criteria for defining sanctuary jurisdictions as those that “willfully refuse to comply” with a single federal law. Regardless of where you come down on the debate of “sanctuary cities,” the Torah’s idea of “cities of refuge,” mentioned in this week’s combined Torah portion, Matot-Masei, has a different objective than to protect illegal behavior.
The laws governing ערי מקלט, “cities of refuge,” are described briefly in Bamidbar, 35:9-28. No person is ever given “sanctuary” from the law. There are not “safety zones,” where the law doesn’t apply. Yoav was the mighty general of King David’s army. The Talmud tells us he was also a Torah scholar. Yet he erred in his legal formulation. He thought the Mishkan, temporary Holy Temple, was a safety zone. Earlier in his career defending David, Yoav murdered two other generals during peace time, Avner son of Ner and Amasa son of Jether. On his death bed, King David directs his heir to the throne, his son Solomon, “Act according to your wisdom and do not allow his (Yoav’s) white hair to go down to the grave in peace.” King Solomon begins to carry out his father’s charge. When Solomon heard that Yoav had run into the Mishkan to seek refuge from the law, he instructed Yoav to come out and turn himself in. When Yoav refuses, mistakenly thinking that he is safe since he is “holding on to the horns of the Altar,” King Solomon sends in his general, Benaiah, to dispatch with Yoav. Yoav is killed right there inside the Holy Temple. (The entire account is recorded in Kings I, chapter 2)
In his “Laws of Murder and Protecting Life,” the Rambam enumerates the laws that apply to the unintentional murderer and cities of refuge. According to his understanding, any murderer immediately after the crime runs to the closest city of refuge. Once there, the court sends for him and he is placed on trial. If he is found guilty of willful murder, he is executed. If however, they find him guilty of unintentional murder, the court sends him back to the city of refuge to live. He is escorted back by two Torah scholars in order to protect him from falling into the hands of the “avenger of blood. “ This term is used by the Torah and is ostensibly designated for a close family member of the murder victim. The “avenger” may kill the murderer if he catches him before he first arrives at a city of refuge prior to his trial or any time after the trial that the unintentional murderer steps outside of the city of refuge on his own. If the “avenger” kills the unintentional murderer inside the city of refuge, then the “avenger” is liable to the death penalty. The unintentional murderer only goes free, that is he can live wherever he wants, with the death of the Kohen Gadol.
Leaving aside the more complicated issue of the relationship of the Kohen Gadol’s life and death to where the unintentional murder may live, let us pose two questions on these laws. First, what is this in-between status of quilt or innocent that is balanced by this murder remaining in the city of refuge? Is this unintentional murderer guilty of murder? Then he should be executed; and if not, he should go completely free. Second, how does the “avenger” have a permit to kill this murderer outside the city of refuge?
Unintentional acts in Torah law are called “שוגג” (pronounced “showgeg”). Such acts are due to negligence or carelessness on the part of the person. Not to have your car breaks checked periodically is an example of an act of negligence on the part of a car owner. The Torah does not accept the notion of an absolute accident. Society affords a person a certain amount of protection. When a person is careless and as a result of his carelessness kills someone, his actions demonstrate a certain attitude that reflects a serious level of disregard for society. If he was really concerned with people, he would have put forth the effort and taken the necessary precautions. Failure to check the security of the axe head on top of the axe handle before chopping wood is the Torah’s example of this level of negligent behavior. This person should have been more careful. Placing him and confining him in a city of refuge is an act of protecting society from his future negligence.
So too the misunderstood concept of the “avenger” is also a law under the framework of protecting society. If the murderer refused to go to a city of refuge, how would society be protected? This negligent person would be free to do more damage and harm in society. He has already demonstrated his lack of concern and regard for other’s safety. The designation of an “avenger” on close relatives of the victim forces the unintentional murderer to confine himself to an isolated area in which to live. If the murderer doesn’t go to the city of refuge, he knows that the “avenger” is then permitted by the Torah to kill him as a means of protecting society.
Interestingly, we can now understand another law with regard to the “avenger.” The “avenger,” as depicted in the Torah, is usually a close relative of the victim. The close relatives are the most eager to see that justice is done. As a natural extension of this feeling, the Torah automatically gives close relatives the status “avenger” as well as the “permit” to kill the murderer outside of a city of refuge. However, if no close relative exists, the court appoints an “avenger of blood.” This law demonstrates that the concept of “avenger” is not for taking personal or family vengeance. “Avenger,” then, is an institution set up by the Torah to protect society from further carelessness resulting in additional negligent murder by this person.
As we can see then, there is a vivid and sharp distinction between our American “sanctuary cities” that exist for the protection of undocumented immigrants, essentially people who have entered this country illegally, and the Torah’s concept of “cities of refuge.” While misunderstood we can now understand how and why they are part of our Torah’s humane and moral system of justice established to protect both individuals and society at large.
Rabbi Robert Kaplan