When blood is spilled upon the land, the Torah stresses, nothing provides atonement, at least not fully, save the blood of they whose hands spilled that blood: “Do not pollute the land in which you live; for blood pollutes the land, and the land can have no atonement for blood that is shed on it, except by the blood of him who shed it” (Numbers 35:33). Closure is achieved, balance restored in the spiritual-moral economy, when and only when the blood of the slain is “redeemed” with the blood of the slayer (35:21). Of course taking the murderer’s life does not bring the murdered back; those bereaved remain bereaved, those absented remain no less barred from bearing the fruit they still had to bear (cf. Rashi to Deuteronomy 21:4). But the aim of the remedy was never just for the sake of the individuals involved, but for the land – and the nation, and God, who dwell upon it: “You shall not defile the land in which you live, in which I Myself abide, for I the LORD abide among the people Israel” (35:34).
Sometimes, however, it happens that one of us is slain and we lack a perpetrator to convict, or lack the means to convict the perpetrator; sometimes the victim’s blood may well remain without the pollution-cleansing company of their murderer’s. But here the Torah stresses that though the ideal is out of reach, we are not without redress, and therefore not without responsibility (Deuteronomy 21):
(1) If, in the land that the LORD your God is assigning you to possess, someone slain is found lying in the open, the identity of the slayer not being known,
(2) Your elders and magistrates shall go out and measure the distances from the corpse to the nearby towns.
(3) The elders of the town nearest to the corpse shall then take a heifer which has never been worked, which has never pulled in a yoke;
(4) And the elders of that town shall bring the heifer down to an everflowing wadi, which is not tilled or sown. There, in the wadi, they shall break the heifer’s neck.
(5) The priests, sons of Levi, shall come forward; for the LORD your God has chosen them to minister to Him and to pronounce blessing in the name of the LORD, and every lawsuit and case of assault is subject to their ruling.
(6) Then all the elders of the town nearest to the corpse shall wash their hands over the heifer whose neck was broken in the wadi.
(7) And they shall make this declaration: “Our hands did not shed this blood, nor did our eyes see it done.
(8) Absolve, O LORD, Your people Israel whom You redeemed, and do not let guilt for the blood of the innocent remain among Your people Israel.” And they will be absolved of bloodguilt.
(9) Thus you will remove from your midst guilt for the blood of the innocent, for you will be doing what is right in the sight of the LORD.
It is a strange, composite, and coarsely violent ritual, and, as with the death to which it responds, our understanding may never succeed in tying its every loose end. But I want to see if we can’t find meaning its folds, find instruction for a society in which the pollution born of blood of the slain does not infrequently outstrip justice’s reach. After a streak of five years with figures falling below 15,000, in 2015 the total number of murders per year in the United states was 15,883, and then in 2016 rose back above the twenty-year average to 17,250. Overall, 59% of those cases were “cleared” (meaning an arrest was made, however the prosecution fared), though in large cities the number is only 52.9%, and in places like Chicago clearance rates have tumbled to 30.1%, 26.3%, even 11% in recent years. This is not normal: in 1965, the national clearance rate was 91%. America is becoming a land in which murder is rampant and without consequence.
With respect to the on-average 1,000 killings of American citizens by government officials per year, it is certain that the overwhelming majority are in justified defense of self or vulnerable others. In roughly 10% of cases the victim is unarmed; in 2015, of the 104 of such cases, 13 resulted in charges filed against the officer, with resulting convictions in a total of 4. Given these numbers, anecdotal and video evidence accumulating in volume and renown, and clearly inadequate data provided by police departments, we the public simply cannot be confident that all the blood spilled in our name is well accounted for. That is to say, reckoning is required.
I first sat down to assemble these reflections days after 26 people were cut down in a church in Sutherland Spring, Texas, only weeks after 58 were cut down at a Las Vegas concert. In the time between those events, 36 people were killed in mass shootings across the United States; since then, including the well-known 17 of Parkland, Florida, the number is 440. In a staggering majority of these and similar cases the perpetrator remains unknown. But even where the perpetrator is brought to justice, can it be that we have exhausted our responsibilities, that no more need be accounted for, that the blood of the slain is on the deranged assailant’s hands, and that’s that? The burden of the eglah arufah (“decapitated calf”) commandment, I argue, is that it cannot: When blood is spilled upon our land, we are, and must make clear that we are, responsible.
These issues make their home amidst a hornet’s nest of deeply contentious political livewires, and our present-day political moment is such that the jealous vortex of zero-sum partisanship suffers no dialogical space unconsumed. But if the Torah has what to say about our responsibilities to and with each other, then we must be able to learn and debate it together, even and especially when division and acrimony enjoy the upper hand – for the Torah is not in vain. In any case, what is explored here is not a set of policies but a family of responsibilities, responsibilities which may well be well-realized by various parties in various ways, but which no party can faithfully leave unaddressed.
The Crime Scene
The body is discovered “in the land” and “in the field” (verse 1) – apparently, since measurement is required to determine the closest city (verse 2), in an open space between municipalities. Perhaps reflecting the relative size and intimacy of settlements in ancient Israel, it does not seem to have been a salient possibility to either the Bible or the rabbis that a fallen body would be found within the city limits without someone’s having noticed earlier and without someone’s being able to identify the assailant. Anonymity is reserved for the spaces between; the inner-city, in contrast, is where everyone knows your name, where someone will miss you if you’re missing from your usual spots. This, to be sure, is not our reality, where it is often precisely the urban concrete which boasts those cracks in which people fall for good. “The field” has become the street.
It is important, the rabbis say, that the body not be found in proximity to the border or near a majority non-Israelite city (Mishnah Sotah 9:2), which would suggest the possibility that the assailant was not one of our own, and hence requiring a response appropriate thereto. While obviously of high urgency in its own right, our responsibility to secure the citizenry against foreign threat is separate and distinct in form from our responsibility to cultivate a society of our own that does not cultivate murder. An atmosphere with national-security concerns at play is not an atmosphere conducive to efforts at getting our own house in order.
Calling in the Feds
Once the body is found, step one is to determine the closest city by measuring the respective distances from the body to the municipalities within the general vicinity. This step is essential: Even where it is “clear to the eye” which is the closest, it is nonetheless a “duty to engage in measuring” (Sotah 45a) – the due diligence of the investigatory process, conducted in public view, is itself as important as its result. And importantly, it is not enough in such cases to simply measure to the obviously-closest city; rather, the full procedure of measuring to each city in the vicinity must be conducted to completion (see Be’er Sheva, ad loc.). Though as a practical matter it will be only the one closest town that performs the culminating ritual, it is necessary to give public expression to the more fundamental responsibility shared by all. “Be it that only the one of them is called to take action in this instance, all are responsible for an occurrence such as this” (Samson Raphael Hirsch on Deuteronomy 21, emphasis added).
It is necessary that the city selected feature a duly constituted criminal court – what’s known as a “small Sanhedrin” featuring 23 justices – qualified to try capital cases. That is, the “closest city” is understood to be “the closest city with a court,” even if there is a court-less city in greater proximity to the corpse. That a murder could occur in our midst represents an apparent failure of the criminal justice system to impress the law upon the populace and keep perpetrators off the streets, and so we require that the highest court with local jurisdiction participate in taking responsibility. On the other side of the coin, it is precisely the criminal justice system in which our aspirations and concrete commitments to ensuring justice throughout the land coalesce, and so our expression of renewed commitment to justice in face of tragedy could not bear the same meaning without the national leadership present on site.
Local authorities’ involvement is not enough, however: “Your elders and your judges” is taken to refer to the “unique among your judges” – a delegation of justices from the Sanhedrin (high court) in Jerusalem, and perhaps the king and high-priest as well, who are to oversee the ceremony (Sotah 44b-45a). An unaccounted-for murder is not, cannot be, simply the business of the local government alone, something to be taken care of in house, comfortably free from the distractions of the national-media circus and ham-handed interference from the big-wigs in Jerusalem. No, if we cannot find justice for slain blood that is precisely everybody’s business – it is the nation’s business – and so this dirty laundry must be aired in broad daylight, before the nation’s eyes.
But it’s not only about holding local authorities accountable. Precisely the opposite is true as well: Local problems are ipso facto the nation’s problems, and when someone turns up dead on an out-of-the-way path somewhere in the Galilee, it is the Jerusalem leadership’s responsibility to show up and do its part. Importantly, it is they who must show up, the rabbis stress – “they, and not their emissaries” (Sotah 45a). Taking responsibility can’t be phoned in. Remember, is not only about the slayer and the slain, not only about those affected, those bereaved, the neighbors who will serve in the surviving children’s schools, oversee the community’s well-being tomorrow as yesterday. It is also about a nation cultivating a holy and just society on its land, a land they will not see defiled without a fight – without seeking, as a nation, to take responsibility to make things right.
For all that, there’s a vital limit to what the Jerusalem dignitaries can do: Once they’ve overseen the preliminaries and ensured that the right people on the ground – the community’s leaders, teachers, and custodians- are ready to take over, “They take leave and go on their way” (Mishnah Sotah 9:5). When all is said and done, it is the local community which must take responsibility for its own and for itself, and it is those who were here yesterday and will be here tomorrow who can, with God’s aid, help a broken community heal.
In the end the elders and the city they lead will be declared innocent (verse 8), but to any acquittal corresponds some more or less implicit charge. “Our hands did not spill this blood,” they insist – why would it be thought they had? Ibn Ezra appeals to a general consideration, a kind of providential just desert for the people of the most proximate city: “For had they not committed some comparable transgression,” he reasons, “surely it would not have happened that one close among the would be killed” (Ibn Ezra on Deuteronomy 21:7).
Others, though, make the responsibility more concrete. Ibn Ezra himself, explaining the entreaty in the following verse for God to “Atone for your people Israel,” says the reason they require atonement is that they apparently “were negligent in not securing the dangerous roadways” (21:8). Greater, more effective police presence, better lighting, fewer places for assailants to lie in wait.
And of course, putting murderers behind bars: For the Palestinian Talmud, “Our hands did not spill this blood and our eyes did not see” is focused on their conduct with respect to the murderer (Yerushalmi Sotah 43a) – the elders affirm that they had not failed either to convict or execute whoever it is that did this. Seforno too reads the elders’ as asserting they had not allowed any “known murderer” to roam free about the land (to 21:7). As Jill Leovy has shown in remarkable and arresting depth, the single most important thing we can do to prevent killings in our cities is to ensure they don’t go unsolved, that justice is swiftly served. Beyond the obvious utility of diminishing the pool of eligible murderers, as Abravanel puts it, “Were justice in the city as strong and precise as it ought to be, no one would dare commit a murder in its environs” (Abravanel on Deuteronomy 21). Those who would kill must know they will be held to account, that no one, no matter who they are, who their friends are, or where they live, is above the law or beyond the law’s reach.
The Bavli, however, understands the elders’ statement as focused on their treatment of the victim: What they affirm is that they “did not give him leave without food or without escort” (Sotah 45b). Now it is clear how failure to accompany the victim along the way could have precipitated their death. But how exactly would neglecting to provide sustenance make the elders responsible for a murder? Rashi spells out the statement as follows: “He was not killed at our hands, meaning we did not send him away without food such that he was forced into armed robbery against others and so getting him killed on that account” (Rashi, ad loc.). In other words, had they in fact failed to provide this person with the necessities of life, the person would have been forced (“hutzrakh”) into a life of violent crime simply in order to make ends meet, and if he were then killed, in self-defense, by one of his targets or someone coming to their aid, there would be a sense in which it is not he, nor the killer, but the elders who shed this blood.
Hirsch elaborates on the point:
The “Decapitated Calf” commandment deals with a case in which the slain has remained where they fell – and thus to the authorities is imputed scorn and derision. There is only one case in which this scorn is truly justified: a case where the victim was immersed in difficult straights due to the fault of the city’s government, and was thus coerced into armed robbery and killed by his own victim acting in self-defense. In such a case the killer is free from all fault, and there is even what to say in justification of the slain: The true bearers of sin are the city leaders who averted their eyes from the hardships of the slain, and thus did not fulfill the obligation incumbent upon the Jewish collective.
The city’s elders, representing the city’s people in turn representing the nation as a whole, are responsible for the prevention of murder within their midst, which is to say they have a responsibility to prosecute and punish violent offenders; to ensure safe passage on the city’s roads through regular maintenance and upkeep; to see to it that no one need ever face danger alone; and to support a regime of public assistance robust enough to ensure that no one ever goes hungry, ever turns to crime in desperate hope for tomorrow’s bread.
Don’t Forget the Devil
According to Rambam’s widely cited view, the overall purpose of the ritual is functional: assembling a host of dignitaries to perform a dramatic spectacle and declaration regarding the murder before an assembled crowd increases the likelihood that anyone with information as to the assailant will come forward (Guide to the Perplexed III:40). This is in part, he reasons, because the elders’ solemn declaration of their own innocence before God would impress feelings of “great shame and brazenness” on those, even of low social station, who would withhold information of even the slightest value to the investigation. Looking to the more positive end of the motivational spectrum, we might also suggest that this sort of public expression of responsibility and commitment could serve to reassure those who would fear the repercussions of providing testimony – “snitching,” as it’s known on the street – that the very same responsibility and commitment of the public extends to them and their families’ protection as well. Of course we would have to mean it.
Shadal emphasizes the underlying values the ritual reinforces among the people: Since we cannot bring the murderer to justice, we instead act to “strengthen the people of Israel’s famed belief that all are responsible for all,” and to impress upon the public the grave pollution bloodshed represents (on Deuteronomy 21:1). This is especially important since in the heat of the moment some in the community may be tempted – and some may be tempted to tempt them – to identify, with or without the constraints of due process, an object on which to exercise vengeance in the name of justice (ibid.). The eglah arufah serves to remind the people that blood being spilled does not make blood spilled in response any cheaper, and to provide, in lieu of true justice, a form of catharsis in not leaving the community’s pain unexpressed and unaddressed.
Ramban accepts Rambam’s functional interpretation in principle, but along with Abravanel, senses that more is needed to account for the ritual’s specific and rather colorful texture: On Rambam’s view, notes Ramban, “the performance is not made satisfying in itself” (on Deuteronomy 21:4). His own account, he says, mirrors his famed interpretation (on Leviticus 16:8) of the “scapegoat” ritual prescribed as part of the Yom Kippur service. For Ramban, the goat designated “to Azazel” is not, as many would have it, simply sent to die in a place called Azazel, but rather, in parallel to its companion goat designated as “to God,” it is sent as an offering to the demon-god Azazel. “The reason here,” Ramban cryptically suggests, “is the same as there,” which would seem to mean that the eglah arufah is likewise a form of Godly-mandated sacrifice to a demon-god – the god that the burden of bloodguilt requires we acknowledge, engage, pay tribute to.
Were it only that our fealty to the one God were so whole that murder would be a true anomaly, incidents of violence would be simply freak exceptions to a fundamentally just and caring order. But until that day comes when “the wolf lies with the lamb” (cf. Isaiah 11:6) and “the nations no longer know war” (cf. Isaiah 2:4), we are not free to ignore the grip the god of violence holds on our hearts. We must recognize it, and rightly disturbing as it sounds, we may, from time to time and under God’s lovingly solemn direction, need to feed it. Bottom line, we will never conquer our demons if we do not look them in the eye.
Conclusion: The Blood Next Time
The elders may wash their hands of responsibility for the spilled blood, but only if they affirm to God and to the public they serve that they’ve indeed met all their responsibilities and met them in full. And part of the ritual’s meaning, I would venture, is that even as they profess, however sincerely, that they recall no failures with respect to the slain in particular, surely their responsibilities writ large have been less than exhausted – immediately following their declared vindication, notably, is a plea for atonement (Deuteronomy 21:8). At the least, there is no doubt more they can and should do going forward. As Ibn Ezra concludes, “Surely blood would not be spilled in the land, were you practicing what is just in the eyes of God.”
It is a reckoning which must be performed in public, its venue to remain undisturbed so long as our responsibility for bloodshed remains unexhausted – for eternity (Mishnah Sotah 9:5). For whether or not anyone in particular can be charged with any circumscribed wrong, our fundamental responsibility for bloodshed on our watch cannot be left without public expression: we must make unequivocally clear the “massive engagement and exactingness with which God burdens us over one life” (Bechor Shor to Deuteronomy 21:8). And responsibility cannot be meaningfully taken without a readiness to look in the eye all those who the responsibility is to.
The Mishnah says that “once the murderers multiplied in number, the ritual was no longer observed” (Sotah 9:9), perhaps, as Rashi says, for the technical reason that given the murderers’ utter shamelessness, murder cases never went unsolved, and perhaps because after a while the handwringing and solemn professions simply lost all meaning. May we never see such a time. To see to it that we do not, we might see to it that when unaccounted-for blood is spilled, it becomes an occasion, as the Netziv puts it, for “investigations into the past and resolutions for the future” (Ha-Emek Davar on Deuteronomy 21:9). In the end, the land can have no atonement for blood that is shed on it – save with responsibility alone.