Killer Deal: May Murderers Be Released in a Prisoner Swap?

Adapted from the writings of Dayan Yitzhak Grossman

August 15, 2024

AP News reports:

The United States and Russia completed their biggest prisoner swap in post-Soviet history on Thursday, with Moscow releasing journalist Evan Gershkovich and fellow American Paul Whelan, along with dissidents including Vladimir Kara-Murza, in a multinational deal that set two dozen people free, the White House said…

But the welcome news was still sure to spark concerns over the imbalance of the deal—with Russia freeing journalists, dissidents, and others convicted in a highly politicized court system in exchange for people the West regards as rightfully charged—and whether it gives foreign actors seeking leverage over the U.S. an incentive to take prisoners…[1]

Vadim Krasikov, the Russian at the center of Thursday’s mass prisoner swap, has long topped the Kremlin’s list for an exchange…Krasikov was convicted for the Aug. 23, 2019 killing of Zelimkhan “Tornike” Khangoshvili, a 40-year-old Georgian citizen who had fought Russian troops in Chechnya and later claimed asylum in Germany.

Khangoshvili was gunned down from behind near Kleiner Tiergarten, a central Berlin park, with a silencer-fitted handgun. Witnesses saw the gunman throw a bike, a gun, and a dark wig into the Spree River nearby. Police arrested him before he could escape on an electric scooter…

The decision to free Krasikov wasn’t made lightly, the German government said. Chancellor Olaf Scholz’s spokesperson, Steffen Hebestreit, said in a statement that the release of people held “wrongfully” in Russia and a German held in Belarus could only be achieved by deporting Russians “with an intelligence background” held in Europe, such as Krasikov.

“The freedom, physical well-being and—in some cases—ultimately the life of innocent people imprisoned in Russia and unjustly held political prisoners stood against the state’s interest in the enforcement of the prison sentence of a convicted criminal,” Hebestreit said. “Our obligation to protect German citizens and solidarity with the U.S. were important motivations,” he added.[2]

In this article, we discuss some Torah perspectives on freeing a convicted murderer as part of a prisoner exchange.

The Torah commands:

You shall not accept ransom for the life of a murderer who is worthy of death, for he shall surely be put to death. You shall not accept ransom for one who fled to his ir miklat (City of Refuge) to return to dwell in the land, before the death of the kohen. You shall not bring guilt upon the land in which you are, for the blood will bring guilt upon the Land; the Land will not have atonement for the blood that was spilled in it, except through the blood of the one who spilled it. You shall not contaminate the Land in which you dwell, in whose midst I rest, for I am Hashem Who rests among the Bnei Yisrael.[3]

The Rambam explains:

And the bais din is warned not to accept ransom from the murderer. Even if he gave all the money in the world, and even if the go’eil hadam (redeemer of the blood) wished to exempt him. For the soul of the murder victim is not the property of the go’eil hadam, but the property of Hakadosh Baruch Hu, as it says, “You shall not accept ransom for the life of a murderer.” And there is nothing the Torah forbids more strictly than murder, as it says, “You shall not bring guilt upon the land…for the blood will bring guilt upon the Land…”[4]

R’ Itamar Wahrhaftig considers whether the freeing of convicted murderers for political considerations violates the prohibition of “You shall not accept ransom for the life of a murderer who is worthy of death,” perhaps even in jurisdictions where a murderer is merely jailed and not executed:

The pasuk there concludes: “You shall not bring guilt upon the land…the Land will not have atonement for the blood that was spilled in it, except through the blood of the one who spilled it. You shall not contaminate the Land…” Perhaps punishment lessens the contamination of the Land.[5]

The Sefer Hachinuch, however, declares that the prohibition against accepting ransom for the life of a murderer applies only while the Bais Hamikdash stands, “because now, in this era, we do not practice capital punishment.”[6] Moreover, even if, per Rav Wahrhaftig’s suggestion, the prohibition would apply to murderers sentenced to punishments other than death, it is not clear whether it would extend to jurisdictions outside Eretz Yisrael, given the rationale of avoiding the contamination of the Land, because “the Land” may refer specifically to Eretz Yisrael. Indeed, R’ Shlomo Korach, former rav of the Sepharadi community of Bnei Brak, discussing a murderer convicted in a Yemeni (Arab) court, inclines to the view that the prohibition would not apply to a non-Jewish court outside Eretz Yisrael.[7] Rav Korach’s talmid R’ Netanel Me’oded, Chief Rabbi of the Sepharadi Community of Hong Kong, suggests that the prohibition may theoretically apply even outside Eretz Yisrael, but he nevertheless agrees with the basic position of his rebbi that it is limited to Jewish courts operating according to halacha.[8]

Another perspective on the importance of carrying out the Torah’s sentence upon a killer is found in the Mishnah:

[The inadvertent killer] may not leave the ir miklat for any reason: not to testify regarding a mitzvah, nor to testify about a monetary case, nor to testify about a capital case. Even if the Jewish People needs him, and even if he is the commander-in-chief of the Jewish army like Yoav ben Tzruyah, he may never leave, as it says, “that he fled there”—there shall be his dwelling place, there shall be his death, there shall be his burial.[9]

The Rambam codifies this rule as follows:

The exiled [inadvertent killer] never leaves his ir miklat. Even for a mitzvah matter or for testimony, whether testimony about a monetary case or testimony about a capital case. Even to save a life by his testimony, or to save from an idolater, or from a river, or from a fire, or from a collapsed building. And even if the entire Jewish People requires his salvation, like Yoav ben Tzruyah, he never leaves until the death of the Kohen Gadol. And if he leaves, he has released himself for death, as we explained.[10]

The Acharonim are puzzled by this halacha: Since saving human life is of extreme importance, to the extent that almost all mitzvos must be violated in order to save even a single life, why is the obligation to remain in the ir miklat not overridden to save the entire Jewish People?” Some understand that this rule is actually for the protection of the killer himself, lest he be killed by the go’eil hadam upon leaving the ir miklat,[11] and some accordingly suggest that the Mishnah may just mean that the killer is not compelled to leave the ir miklat to save lives, but perhaps we do not object to him doing so of his own volition.[12] Others explain that there are no indispensable men, and the salvation of Klal Yisrael does not truly hinge on the military leadership of any individual.[13] But the straightforward reading of the Mishnah is that the obligation to remain in the ir miklat is simply an absolute imperative upon the killer,[14] and it applies even when lives are at stake.[15] This may be indicative of the importance the Torah ascribes to ensuring that a killer, even an inadvertent one, suffers the proper punishment, or experiences the proper atonement, for his sin.

R’ Michoel Vigoda adduces the halacha that a killer may not leave the ir miklat even to save Klal Yisrael (according to its simple interpretation as an inherent and absolute prohibition and not merely as a safeguard against the killer being killed by the go’eil hadam) as an argument in favor of the position that a murderer should not be released as part of a prisoner exchange, even when doing so would accomplish the mitzvah of pidyon shvuyim (redemption of captives).[16]

[1]Eric Tucker, Dasha Litvinova, and Matthew Lee. US and Russia complete biggest prisoner swap in post-Soviet history, freeing Gershkovich and Whelan. AP News. https://apnews.com/article/russia-gershkovich-whelan-d803e266cb4e60135ec5d668d684529f.

[2]Putin called him a patriot. But who is Vadim Krasikov, a Russian released in the mass prisoner swap? AP News. https://apnews.com/article/russia-us-prisoner-swap-gershkovich-krasikov-a48a143c9e6336738745e559adacffaf.

Cf. here.

[3]Bemidbar 35:31-34.

[4]Hilchos Rotzeiach 1:4. Cf. ibid. 4:8-9.

[5]R’ Itamar Wahrhaftig, Ge’ulas Dam Bizmaneinu, Hama’ayan Tishrei 5784 fn. 31 (citing Rav Wahrhaftig’s article in Techumin 6 (5746) p. 305).

[6]Sefer Hachinuch mitzvah 412.

[7]Teshuvah Kahalacha siman 45.

[8]Mizrach Shemesh cheilek 1 siman 8 pp. 52-61.

[9]Mishnah Makos 2:7.

[10]Hilchos Rotzeiach 7:8.

[11]Or Sameiach ibid. (and see Meshech Chochmah Shmos 4:19). Cf. Einayim Lamishpat Makos ibid. pp. 76-77 (beginning of os 5).

[12]Aruch Hashulchan C.M. 425:57, but cf. Einayim Lamishpat ibid. p. 77 s.v. Uchemoc”h.