Sanhedrin 121

1:
Our mishnah contains two sections: Reisha, a first section, whose topic is what happens when a person has incurred the penalty of a flogging and repeats the offence. The second section, is concerned with what happens when someone commits a murder, but for technical reasons the death penalty can not be applied.

2:
We have had cause to mention before (see Sanhedrin 110, for example) the punishment of flogging. We noted that there were two categories of judicial flogging: punitive and coercive, the former being administered as a punishment against certain infractions and the latter being administered to force a recalcitrant litigator to submit to the will of the court. Here is a reminder of some more of the points we noted then. The origin of the "Thirty-Nine Lashes" is in the Torah:

The sages were so anxious to abide by the "forty lash" limit that they prohibited the administration of even this number and reduced the limit to thirty-nine [Gemara Makkot 22a]. Moreover, by limiting the offences for which a flogging might be administered the sages deprived the judge of his discretionary powers and flogging lost its character of a general judicial deterrent. In order to prevent accidental death resulting from flogging the person to be flogged was first physically examined in order to determine the number of lashes that could safely be administered to him [Mishnah Makkot 3:11]. Where, as a result of such an examination, less than thirty-nine lashes were administered, and it subsequently became apparent that the offender could well bear more, the previous estimate would be allowed to stand and the offender discharged. But the offender would also be discharged where physical symptoms manifested themselves during the course of the flogging itself, so that he would not be able to stand any more lashes. Makkat Mardut was an innovation of the sages and may be categorized as disciplinary or coercive rather than punitive in nature, calculated to enforce obedience to the court. Wile punitive floggings had to be restricted to a maximum number of blows, disciplinary floggings had to be unrestricted so that they could be continued until the offender was prepared to submit and do his duty.

3:
In Sanhedrin 008 we noted that the Written Torah contains two categories of mitzvah [precept, command]: positive and negative. Positive mitzvot require us to do something (such as "honour your father and mother"); negative mitzvot require us to refrain from doing something (such as "do not steal"). There are also several categories of punishment for transgression. According to Rambam [Maimonides, 12th century CE, North Africa] in Hilkhot Sanhedrin, Chapter 18 flogging is a punishment that is restricted to the following types of transgression only:

1. Contravention of a negative mitzvah the punishment for which is Excision and which is not a capital crime.
2. Contravention of a negative mitzvah the punishment for which is [premature] death at the hands of heaven.
3. Contravention of a negative mitzvah when the contravention involves a deliberate act.

An example of the first category would be someone who deliberately eats ĥametz on Pesaĥ, or someone who deliberately eats the forbidden intestinal fat of an animal. Both of these are negative mitzvot whose punishment according to the Torah is excision. (Excision is a punishment from heaven that implies that physical death is also spiritual death for that transgressor.) The idea, as explained by the rabbis, is that by suffering the flogging the culprit has already been punished and thus will escape the punishment of excision.

Now that we have recalled these details we can understand our mishnah better. The Gemara [Sanhedrin 81b] says that the flogging referred to in our present mishnah is of the kind noted in category a) above. This kind of flogging was administered when a culprit had been apprehended for having transgressed a command of the Torah whose punishment was Karet, "excision". In other words, says the great Amora of Eretz-Israel, Resh Lakish, this person is already "technically dead" – dead to heaven. However, the Gemara also explains, the punishment of incarceration was administered only when the culprit had offended and been flogged, had offended yet again and been flogged a second time. Under circumstances in which the culprit had twice committed an offence which he had been warned was threatening his eternal life and had yet jeopardized his soul a third time, under such circumstances he was considered to have willingly forfeited his life. Thus, having offended a third time he is to be incarcerated in a small cell.

4:
The Babylonian Amora, Rav Sheshet, in the Gemara [Sanhedrin 81b] says that the two parts of our mishnah have been conflated. The hapless culprit was first fed on minimal rations of bread and water on order that his stomach contract, and then he was fed on barley which would expand the stomach and cause it to burst. Since Rav Sheshet lived far from the actualities both in time and in space I do not know to what extent his statement reflects actual practice, not do I know whether it is medically sound. It certainly does not seem to reflect the surface meaning of our mishnah. In another statement, another Babylonian Amora, Rav Yehudah (equally distanced from the actualities both in time and in space) says that the cell into which the culprit was introduced kept him in a constantly cramped position. This certainly seems to be running directly against the implied meaning of the Hebrew of the mishnah. The word that I have translated "cell" is Kippah, which implies some kind of room with a vaulted ceiling (the modern designation of the headgear, Kippah, describes its shape). A room with a vaulted ceiling does not sound to me like a room of such small dimensions that a man was not able to stand up in it, as suggested by Rav Yehudah.

5:
The Seifa [last section] of our mishnah deals with a topic which your questions have touched on many times previously. (Only this last week I received this message from Albert Ringer: "Granted that most murderers will not forfeit their lives, will they be punished in any other way?") Time and again we have noted that the whole hermeneutic thrust of the sages seems to have been devoted to restricting as much as is possible the application of the death penalty – to such an extent that it would become almost impossible to apply. We dealt with this issue at great length in Sanhedrin 070. Our present mishnah teaches that when it is clear to the Bet Din that the accused is guilty of murder, but that he cannot be technically sentenced to death, he is not released but imprisoned and fed on minimal rations of bread and water. You will recall that for the death penalty to be applicable there had to be two witnesses, acting in concert, who warned the malfeasor that he was about to commit a capital crime, that he acknowledged his awareness of this fact, and then proceeded to murder someone in defiance of their warning. Such conditions are, it will be readily conceded, of such a nature that it is highly improbable that they could ever be met. A companion work to the Mishnah, the Tosefta, states that the witnesses cannot testify that

Our present mishnah teaches that such a culprit would be incarcerated until he dies.