Restoring the Death Penalty: Proceed with Caution

Evangelical Christians have sometimes advocated the death penalty with an ardor approaching glee. Such enthusiasm is shameful. With our compassionate Father we should declare, “As I live, I take no pleasure in the death of the wicked, but that the wicked turn from his way and live” (Ezek. 33:11; this and subsequent quotations are from the New American Standard Bible).

The death penalty is a horror. It is this not, as the humanists say, because it destroys the sanctity of human life, but because it testifies to the failure of human society to live up to the potential for justice and righteousness that comes from having been created in the image of God. The very existence of death is a perpetual penalty for mankind’s original sin. Death is our enemy. The command to “put away sin from among you” by the proper administration of the death penalty contains the promise of societal benefits; yet this same necessity to cast out evil required the death penalty for Jesus so that we could be freed from our own sentences of death. We all deserve the penalty of death.

To be Christian in personal behavior as well as social policy, advocates of the death penalty should present their case in a subdued manner. Exuberance for them is as inappropriate as the raucous clamor now heard on behalf of abortion.

Another factor ought to modify the advocacy of the death penalty: Old Testament judicial procedure. Though often presumed to be primitive, the legal processes in the Mosaic law are in many ways equivalent to those of the American system, and in some aspects superior. Evangelical Christians who favor the death penalty ought to be aware of the judicial safeguards God provided to prevent the miscarriage of justice and protect the rights of the accused.

Five aspects of the judicial procedure under the Mosaic code bear significantly on the appropriate use of the death penalty:

1. The standard of proof required for conviction amounted to certainty. Unlike the American system, which requires proof “beyond reasonable doubt” in criminal cases, the Mosaic law provides that “you shall inquire thoroughly. And behold, if it is true and the thing certain that this detestable thing has been done in Israel,” then the judicial sanctions may be invoked, including the death penalty (Deut. 17:4).

2. Conviction required the testimony of more than one witness. Under the American system, circumstantial evidence alone or combined with the testimony of a single witness may be sufficient for a criminal conviction, but under the Mosaic law two or more witnesses are essential. “On the evidence of two or three witnesses a matter shall be confirmed” (Deut. 19:15; also Deut. 17:6, Num. 35:30). Circumstantial evidence apparently would never be enough.

The text, however, does not indicate precisely what these witnesses must testify to. That is, must they be eyewitnesses to the crime or merely corroborators of the physical evidence? The internal logic of the passages implies to me that eyewitnesses were intended. First, it is difficult to think that circumstantial evidence, even if fully corroborated, could often amount to certainty. Second, the administration of the death penalty by stoning was to be begun by having the witnesses cast the first stones (Deut. 17:7); this would be an excellent form of psychological testing to pressure a lying eyewitness to reveal himself at the last moment, before the irreparable act had been accomplished, but would seem unlikely to influence greatly the behavior of merely corroborative witnesses. Third, the definitions of some crimes require information that only an eyewitness could supply. For example, Numbers 35:16–24 makes a distinction between murder and manslaughter partially on the basis of whether the victim was killed by an object held in the suspect’s hand or by an object thrown or dropped. Other than an eyewitness, who could tell?

3. Under the Mosaic law the penalty for perjury in a capital case was execution. “If a malicious witness rises up against a man to accuse him of wrongdoing … then you shall do to him just as he had intended to do to his brother” (Deut. 19:16, 19). Such a system would effectively discourage “framing” someone for a crime, and would put even the most honest witnesses under compulsion to limit their testimony to actual observations and avoid inferences or assumptions (especially concerning the identification of suspects) lest their errors be mistaken for intentional perjury and put them in jeopardy of their lives.

4. In difficult cases the verdict was deferred to judicial experts. Deuteronomy 17:8, 9 directs:

If any case is too difficult for you to decide, between one kind of homicide or another, between one kind of lawsuit or another, and between one kind of assault or another, being cases of dispute in your courts, then you shall arise and go up to the place which the LORD your God chooses. So you shall come to the Levitical priest or the judge who is in office in those days, and you shall inquire of them, and they will declare to you the verdict in the case.

One of the weaknesses of the American jury system is that after making decisions concerning the facts, jurors sometimes do not understand the law well enough to apply the law to the facts at hand. Also, if a trial results in a hung jury, a completely new jury trial is necessitated, or else the charges are dropped. Under the Mosaic procedures, confusing or borderline cases were to be decided not by the local officials but by special priests or judges who were experts in the law and who fully understood, for example, the legal distinctions between the various kinds of homicide, assault, and lawsuits. Under the American system of judicial review the jury must reach a decision first, and even then the appellate courts can review only the judicial procedures employed in the trial. They do not ordinarily re-examine the evidence. Under the Mosaic code, on the other hand, the local “jury” was prohibited from attempting to decide cases beyond its capacities, and the “appellate” court was required to study and re-evaluate the evidence.

In addition, the Mosaic code provided that the presentation of the evidence before the judge or priest was to take place in a different location from the original trial. This provision, like our modern procedures for change of venue, no doubt reduced the effects of local prejudice for or against the defendant, a very significant safeguard against injustice.

5. Finally, once the verdict was returned, under the Mosaic system the death penalty was mandatory. The judge would have no discretion in sentencing. “No proscribed person who may have been set apart among men shall be ransomed; he shall surely be put to death” (Lev. 27:29; also Num. 35:31). One of the chief arguments against the death penalty when it was invalidated by the United States Supreme Court in 1972 was that it was “unusual” punishment, meaning that statistics proved it had been invoked discriminatorily. A far lower percentage of whites were being executed than minority-group convicts for equivalent crimes. Discrimination would not have been possible under the mandatory sentencing provisions of the Mosaic law.

We have seen that in the areas of evidence, judgment, and sentencing the Mosaic law code functions more restrictedly than the American judicial system. Fewer people would be convicted under the Mosaic code than under the penal codes of any of our fifty states. Those who are lobbying to restore the death penalty for biblical reasons ought also to consider lobbying for imposition of the procedural safeguards under which God directed that the death penalty be implemented.

There may be yet another reason why evangelicals should qualify or mitigate their enthusiastic endorsement of the death penalty. Suggested new death-penalty statutes apply the sanction not only against various (though not all) kinds of murder but also against other acts, such as treason and lewd acts committed against children under age fourteen. Evangelical supporters need to determine for what crimes the death penalty should be considered appropriate according to the biblical norms.

The Mosaic code prescribes the death penalty for eighteen crimes: (1) Murders—Exod. 21:12–14, 20; 22:2, 3; Lev. 20:2; 24:17, 21; Num. 35:11–21, 30; Deut. 19:11–13. (2) Accidentally causing the death of a pregnant woman or her baby (?) if injured in the course of a fight—Exod. 21:22–25. (3) Killing of a person by a dangerous animal that had killed before, yet was not kept caged (both the animal and the owner to be killed)—Exod. 21:28–30. (4) Kidnapping—Exod. 21:16; Deut. 24:7. (5) Rape of a married woman (but not rape of a virgin)—Deut. 22:25–29. (6) Fornication—Deut. 22:13–21; Lev. 21:9; exception, Lev. 19:20–22. (7) Adultery—Lev. 20:10; Deut. 22:22–24; Num. 5:12–30. (8) Incest—Lev. 20:11–12, 14. (9) Homosexuality—Lev. 20:13. (10) Sexual intercourse with an animal—Lev. 20:15, 16; Exod. 22:19. (11) Striking a parent—Exod. 21:15. (2) Cursing a parent—Exod. 21:17; Lev. 20:9. (13) Rebelling against parents—Deut. 21:18–21. (14) Sorcery, witchcraft—Exod. 22:18; Lev. 20:27. (15) Cursing God—Lev. 24:10–16. (16) Attempting to lead people to worship other gods—Deut. 13:1–16; 18:20; cf. Exod. 22:20. (17) Avenging a death despite acquittal by the law—Deut. 17:12. (18) Intentionally testifying falsely against someone in jeopardy of the death penalty—Deut. 19:16–19.

For which, if any, of these crimes should the United States or the fifty states re-establish the death penalty? If not for all of them, why not? Believers should be able to explain to unbelievers at least why they have selected certain crimes for the reinstatement of the death penalty, and they should be able to explain to other believers why their selection represents a consistent mode of biblical interpretation and demonstrates obedience to the sovereign authority of God.

One response could be that the Mosaic law code was intended only for Israel and no longer applies to us, especially in view of the teachings of Jesus. If that appraisal is accepted, the death penalty remains only for murder, because it alone pre-dates the legislation from Sinai. In Genesis 9:5, 6 God instructed Noah:

And surely I will require your lifeblood; from every beast I will require it. And from every man, from every man’s brother I will require the life of man.

Whoever sheds man’s blood,

By man his blood shall be shed,

For in the image of God

He made man.

What, then, about treason? Although not even explicitly on the Mosaic list, perhaps the death penalty for treason could be condoned by analogy. Since God was the head of the ancient government of Israel, to curse or defy God might be interpretable as analogous to treason against the supreme authority of the state. But even so, to accept that reasoning requires acceptance of the continuing validity of the Mosaic list. What then about blasphemy, sorcery, and witchcraft? What about private sexual acts between consenting adults?

If the notion of such broad application of the death penalty is distressing, notice at least that the crimes involved are all crimes against persons or against God. Property damage under the Mosaic law never brought the death penalty, though it did under the Code of Hammurabi and under the laws of European nations as recently as the eighteenth century. The Mosaic laws are carefully written to protect the recognizability of the image of God in men and women and to enforce basic human rights. The remaining laws defend the social structure itself by reinforcing the authority of the family unit and by accepting the sovereignty of God. The laws reflect rational principles and should not be dismissed as simply unreasonable or arbitrary.

The Mosaic law code cannot be treated as merely optional. Even though we believe that the enforcement of all of these penalties resides entirely with the government and not with the church, nevertheless to the extent that Christians attempt to influence the government they are not free to express personal preferences as though these fully disclosed the pronouncements of God. Perhaps we can say nothing to the government at all about crime and punishment, though to say nothing would be to leave the state to function on unbiblical, and therefore potentially inaccurate, ideas of good and evil. If we do choose to speak the truth, however, surely we must speak the whole truth.

The decision on whether to support the whole range of uses for the death penalty under the Mosaic law should not depend on their acceptability to our sensibilities. Properly considered, advocacy of the death penalty for all or none or just for murder should result from an independent decision about the applicability of the whole Old Testament revelation to New Testament Christianity. Such a decision should be a prerequisite to advocacy of the death penalty in any form.

Capital punishment is one of the life-and-death issues (along with war, abortion, and euthanasia) on which concerned Christians cannot divorce themselves from the actions of their government. When you speak out concerning the death penalty, however, speak soberly, for you are dealing with people’s lives and their final destiny; speak very precisely, for you are discussing a concept about which God has spoken precisely and in detail; and speak honestly and fully, for you are conveying a message for God, and his revelation should be forthrightly declared, no more and yet no less.

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