Introduction Mishnah five deals with special punishments for a repeat criminal and for one who commits murder without witnesses. These punishments are what I would call extra-halakhic punishments. They don’t seem to have been prescribed by the Torah, but rather by the Rabbis desire to shape their legal system.
He who was flogged and then flogged again [for two transgressions, and then sinned again,] is placed by the court in a cell and fed with barley bread, until his stomach bursts. According to the Talmud this clause is dealing with a person who committed a sin for which one is obligated for “kareth” or excommunication, a punishment of premature death meted out by God and not by a human court. According to Jewish law, if one is beaten for a crime that carries a punishment of “kareth”, the “kareth” is mitigated. If one commits this crime, is beaten, and repeats the crime, and is beaten again and then commits the same crime again, he is put into a jail and fed food that will cause him to die. Since this person has shown over and over that beating is an ineffective form of punishment, the court has no way to stop his behavior other than killing him.
One who commits murder without witnesses is placed in a cell and [forcibly] fed with bread of adversity and water of affliction. Earlier in our tractate we learned just how difficult it is for testimony to be accepted by the court. There will certainly be cases in which the testimony cannot be officially accepted but nevertheless it is clear that this person is a murderer. In such a case the court has the authority to cause him to die by imprisoning him and feeding him food that will cause his stomach to rupture. The “bread of adversity and water of affliction” (based on the language of Isaiah 30:20) mentioned here is understood as synonymous with the barley mentioned in the first section.
Questions for Further Thought:
• Why didn’t the Rabbis merely state that these two categories of people are to be executed in one of the four ways? Why this strange system of feeding them food that will cause them to die?