I have 2 questions regarding the deRabbonon death sentence of kipa (confinement, barley diet, death):
(1) Death by Beis Din is a final kaporo for the person and is dependant upon his doing tshuva before being executed. Meaning, even after he does tshuva (which he must do), his death sentence is carried out.
Death by kipa is a deRabbonon din and that is why the death sentence is carried out by gromo (indirect, caused). Where is tshuva vis-a-vis this death sentence? Meaning, if the person is in confinement and is being fed barley etc, if he does full tshuva, is he released? Or is his sentence (i.e., he is kept in confinement until he dies) carried out regardless of his tshuva?
(2) Bror lo misa yofeh - select for the defendant the best death sentence. When there is a choice (in the gemoro's discussions) of which death sentence to use, the rule is to use the best ("nicest") death sentence. Presumably this means the death sentence that is faster, less painful, etc. Is this correct? If yes, then in my humble opinion, the Rabbonon death sentence of kipa is the longest and most painful (slow death by a sort of starvation). Why would the Rabbonon use such a long and painful death sentence, which seems to go against the Torah's guideline for selecting a death sentence. Aren't there other gromo (indirect) death sentences that are faster and less painful than kipa? I recall the gemoro discussing cases where a person is not guilty of murder (to get misas Beis Din, but yes get misa bidei Shomayim) if he kills someone in an indirect way. Why couldn't the Rabbonon use these indirect methods instead of kipa?
Thanks and kol tuv,
Chaim
Chaim Mateh, Rechovot, Israel
1) Rashi (81b, DH v'Heicha) writes that the punishment of Kipah is not d'Rabanan, but in fact is certainly Halachah l'Moshe mi'Sinai. See also the Chidushei ha'Ran here who writes at length to prove that Kipah is Halachah l'Moshe mi'Sinai. However, there is an opinion that Kipah is a Din d'Rabanan, as you write, Chaim. This is the opinion of the Rivash (Teshuvos, #251).
I would like to suggest that the question concerning whether Teshuvah provides an exemption from Kipah depends on this dispute between Rashi and the Ran on one side, and the Rivash on the other side. Rashi and the Ran maintain that Kipah is essentially the same as every death by Beis Din. The only difference is that standard deaths by Beis Din are stated explicitly in the Torah, while Kipah is Halachah l'Moshe mi'Sinai (although it is hinted at in the Torah, as the Gemara on 81b states; see Rashi DH v'Heicha). Therefore, it apears logical that according to Rashi and the Ran, Teshuvah will not prevent the sentence of Kipah from being carried out. In contrast, according to the Rivash (DH Teshuvah) that Kipah is a Chumra of Chazal, it seems logical that Chazal would not apply this Chumra even where the offender did genuine Teshuvah.
2) This is not a simple question, but I would like to cite a source which may help us understand it a little better. The Toras Chayim here comments on what Resh Lakish teaches (about halfway down the page), that the Din of Kipah is hinted at in the verse, "Bad shall kill the Rasha" (Tehilim 34:22). The Toras Chayim writes that "bad" ("Ra'ah") refers to suffering, Yesurin. This is why someone who has a Chazakah of being a Rasha -- because he transgressed twice and received lashes twice, as stated in the Mishnah -- and then did it a third time is put into the Kipah. His actions are considered worse than those of the person who is puished with the standard death penalty of Beis Din, who only did the transgression once. The criminal who did it three times is deliberately punished by having to suffer.
Kol Tuv,
Dovid Bloom
1) I found a source, bs'd, that teshuva is effective for the person sentenced to the kipa. This is from Targum Yonatan to Vayikra 27:29. The Torah there states that any cherem which is made of a person cannot be redeemed but he must surely die. Targum Yonatan translates that if a person has been separated, he cannot be redeemed with money. The only way that he can be redeemed is by offering sacrifices and asking for mercy from Hash-m.
2) Kli Chemdah (Parshas Shoftim on Devarim 17:6, page 104, second column) writes that Targum Yonatan is referring to someone who killed without receiving prior warning not to do so. He cannot be killed by Beis Din because he had not been warned, so he is sentenced to the kipa. Targum Yonatan teaches us that paying money cannot buy him free, but if he does a complete Teshuva he is pardoned. If the Beis Din see that he has done teshuva with a complete heart, they do not place him in the kipa.
Dovid Bloom