By Norman E. Anderson
Does the Bible justify the use of the death penalty in American society? Are people who believe in the Bible required for the sake of consistency to believe in the death penalty? Should the death penalty be used in modern society? These were questions that my niece, who is not just highly literate for her age but biblically literate, was asking for a junior high project; and they echo the questions of millions. At her Mom's instigation, I e-mailed her some thoughts on the issue, which comprise the following essay. To tell the truth, it was this essay that firmed up my own conclusion that the use of the death penalty is best avoided.
Essays like this can always leave misimpressions. For instance, I gave little indication of how I interpret the laws given to Noah. I take them as expressions of what was considered a universal existential sense, for instance, of value for life. But launching into an explanation of what that means would only be a distraction, especially when the principal topic is as challenging as it is.
Now on to the essay.
Your Mom thought it would be a good idea if I shared with you some of my thoughts on the death penalty. We didn't get a chance to discuss it in Plymouth; so perhaps e-mail will work. Don't hesitate to ask questions.
Here is a biblical framework for discussing the death penalty.
The basic text, what's called the locus classicus, for the death penalty is Genesis 9:5-6:
This appears in the laws given to Noah, which are called Noachides. The significance of the Noachides to the Jews and to the early Christians is that they are laws that apply to all of humankind, since Noah was portrayed in the Torah as the progenitor or father of all nations. Of course, Adam and Eve were considered parents of all nations too, so the laws given to them are likewise considered applicable to all of humankind.
Now this gets tricky since few people take seriously the Noachide against eating blood (Genesis 9:4-5). Orthodox Jews are among those who do. It is somewhat peculiar that more people do not, since the early Christians, probably drawing more upon Leviticus 17:10-16 than upon Genesis, explicitly mentioned this law as applying to Gentile Christians (Acts 15:20, 29). Perhaps it ought to be given more attention. For my part, I read it symbolically as an injunction to respect animal life (cf. Deuteronomy 12:23).
When you move to the Law of Moses, which was given to the Israelites, you see that the death penalty applies to quite a few offenses. Because of their significance for figuring out the New Testament (NT) attitude toward the death penalty, two passages in Leviticus are particularly instructive, namely, chapters 18 and 20. Take a look especially at 18:8 and 20:11 on a man taking his father's wife (in other words, one of the father's other wives besides the man's mother); 18:16 and 20:21 on taking a brother's wife; and 18:20 and 20:10 on adultery. In chapter 18 these are "cut off" offenses (verse 29). In chapter 20 these are death penalty offenses (verses 10-11).
Being "cut off" was a serious matter. It meant expulsion. It meant being turned over to a realm deprived of the special blessings of God. And, if you look at that phrase throughout the Old Testament (OT), it often meant hardship up to and including death. But it was not the same as the death penalty.
It's important to observe in the OT who has the right to inflict the death penalty.
Come to the NT, and we find a complicated situation. In some ways we find it similar to the Israelite monarchy and in some ways to foreign occupation. Consider two cases:
First, the story of Herod's marriage to his brother's wife, Herodias (Matthew 14:3-4; Mark 6:17-18; Luke 3:19). Herod violated Leviticus 18:16 and 20:21 and perhaps also the law regarding adultery, since for a man to marry a woman who had not been properly divorced by a still living former husband was, in the view of some, to commit adultery. (Regarding adultery, the facts are unclear.) In certain respects, the story of Herod and Herodias parallels the story of David and Bathsheba. The death penalty, which would apply to adultery, does not come into play. This fits the monarchy pattern.
Second, the story of Jesus' arrest. Blasphemy was a death penalty offense (Leviticus 24:16), and the Jewish Council of Elders found Jesus guilty of blasphemy (Matthew 26:63-68; Mark 14:61-65; Luke 22:70-71), but according to the Gospel accounts they brought up other charges to provoke the Romans to execute him (Matthew 27:12-14; Mark 15:3; Luke 23:2). This fits the occupation pattern.
How did Jesus Christ and the early Christians look at death penalty offenses? We have two clues.
First is the story of Jesus and the woman taken in adultery (John 8:2-11). Many important manuscripts of the Gospel of John omit this passage. However, it may yet be a genuine story, and a strong argument can be made for including it in the canon of the Bible. Anyway, a woman is caught in the act of adultery, and Jesus is asked whether the death penalty ought to be inflicted on her. Nothing is said about the man with whom she was caught, although he too would have been subject to the death penalty under Jewish Law. Jesus convicts the consciences of her accusers and refrains from condemning her, telling her to sin no more.
Second is the story of the man in the Corinthian church who had taken his father's wife (1 Corinthians 5). As we have seen, in Leviticus 18 this was a "cut off" offense and in Leviticus 20 it was a death penalty offense. The Apostle Paul said "to deliver such a one to Satan for the destruction of his flesh" (verse 5). This meant that the believers were "not to associate" with the offender (verse 9). In other words, he was to be removed from the blessings of the Christian community and left to non-Christian authorities. This was the Christian equivalent of applying the "cut off" penalty.
One advantage for Christians of the "cut off" penalty was that it allowed for restoration to the community. In all probability, the very man Paul had the Corinthian church cut off was the same man mentioned in 2 Corinthians 2:5-11. There Paul urged the Corinthian church to take him back.
So in both of the two indications we have of the New Testament approach to the death penalty, it is avoided altogether. However, in neither of these instances is political authority involved. The door remains open for political authority to exercise the death penalty.
In fact, the death penalty seems to be hinted at in Romans 13:1-10 (cf. 1 Peter 2:13-17). One way of interpreting this passage is to understand it as reinforcing the Noachides. In other words, the laws of the nations have a legitimacy rooted in the law given to Noah. If that's so, then the nations were probably understood as having the authority to wield the death penalty.
Well, that's a quick overarching look at the Bible on the death penalty.
Now let me quickly mention several other issues that may have a bearing on where to come down on the death penalty.
First, the death penalty has been massively misused and overused in the history of humankind, either because laws were unjust or because people were falsely accused and convicted. We've already mentioned the example of Jesus Christ. Another example is the millions upon millions (according to some estimates) of supposed witches that were executed during the Middle Ages and right up to the end of the 17th century, including at least one of your own ancestors, Susanna North Martin. She was hung in 1692 following the Salem witch trials. I don't know how we can know what the true statistics are, but it is entirely possible that in the course of history more innocent people or people otherwise undeserving of the death penalty have been executed than have guilty and deserving ones. When I contemplate that, I recall Abraham bargaining with God for the lives of the innocent in the city of Sodom (Genesis 18). It is better that many guilty go unpunished than that a few innocent be killed.
Second, a significant percentage of convictions are ultimately being proven to be baseless. Two examples: (a) A significant number of convicted rapists are now being proven innocent through DNA tests, tests which were unavailable for their trials. (b) In the 1980s to early 1990s, starting, it's been said, in Bakersfield, California, a child sex ring panic swept through the country resulting in the conviction of many innocent people on the basis of evidence since shown to have been fabricated. Another result of that panic was the creation of harsh laws that resulted in even more unfair convictions, for instance, for child sexual abuse when all that was involved were teenage sweethearts. (I am thinking of the Kevin Gillson case in Wisconsin.) Few if any of these are death penalty situations, but examples can be found where people on death row have ultimately been shown to be innocent. Legal experts ask not whether any on death row are innocent but how many, and some of the estimates are shocking. If we know that our justice system is convicting innocent people some of the time, are we willing to rely upon it when it comes to imposing the death penalty if we don't have to?
Third, remember the question I raised above about who has the right to inflict the death penalty? In the Bible the who and when changes from one political situation to the next. What about in a democracy, which is based upon the ideas of individual liberty and of equality and of political authority being derived from the people? How can a group of individuals, a state, lay ultimate claim through the death penalty upon any single individual in a way that does not slip into the tyranny of the majority? This is not an easy question. In fact, it's one of the toughest questions in the theory of law, and much has been written on it.
Fourth, the death penalty is extremely difficult to apply in a fair way across the board, especially in a system where whether or not the accused escapes the death penalty can depend upon how much money he or she may have for a lawyer.
Fifth, the death penalty sometimes subverts justice, since where the death penalty is involved juries are much less willing to convict the guilty and judges are much less willing to impose perhaps deserved sentences.
Sixth, the death penalty is extremely costly, not in terms of the execution itself, but in terms of the long legal journey it takes to bring an offender to the point of execution.
Seventh, the death penalty is divisive in a society that cherishes life and peacefulness and that wishes to abhor violence.
Eighth, the death penalty sets an example of state violence. Even if you and I can distinguish between violence as evil and violence as a counter to evil, the distinction is lost on some people, just as many young children fail to understand the difference between whacking a sibling and being spanked by a parent.
Ninth, the usual motives for the death penalty -- vengeance, closure for victims, assertion of ultimate power, cost-cutting, deterrence -- are all either less than noble or fraught with weaknesses and problems. The Bible is rare in that it pulls above the morass by appealing to the idea that people are created in the image of God (Genesis 9:6). To kill another, then, is to offend Someone infinitely bigger than ourselves. However, we must beware of turning an ancient insight into modern religious jargon and make sure that our understanding is genuine. Unfortunately the text is difficult to interpret; and, in any case, we face the problem of trying to answer this question: Why should others accept the Law as framed in the Bible as the rule for a pluralistic society?
Some of these reasons would seem to apply whether we are talking about the death penalty or any other penalty, so someone might say that they lead to the absurd conclusion that all penalties ought to be eliminated. I argue that the death penalty is different, first, because of its ultimacy, which allows for no correction, and, second, because the criminal justice system ought to have the fairest possible application of whatever is to be the severest punishment as a measure for the rest of the system to aspire to. By its nature (such as the impossibility of correction) and by its character (in that it is fundamentally different from any other punishment), the death penalty cannot live up to that standard.
Today Karla Faye Tucker is scheduled to be executed in Texas. Her case raises two other issues.
First, should women be executed? The point is often made that sexual equality implies even-handed application of the death penalty to both sexes. Yet many find the execution of women especially offensive, since the idea of protecting women is deeply rooted in American culture and, indeed, in many other cultures.This in turn may be rooted in the biological fact that the typical man can have countless offspring, provided women are available, whereas every woman is limited in terms of the number of babies she can deliver, no matter how many men are available. In other words, protection of the species, or of a tribe, where population levels are tenuous must entail protection of women -- absent reproductive technology, anyway. The point is not that this cold-blooded logic obtains or should obtain in our present circumstances, but that the sensibility, the idea that women should be protected, may be part of our survival instinct, which, I would suggest, is not to be tampered with lightly. Unfortunately, the corollary is that men are dispensable; and there's the rub. To my way of thinking, sexual equality means, in part, that society should be as reluctant to dispense with men as it is with women.
Second, should people who have turned away from a wicked past to a life oriented to goodness be executed? Such seems to be the case with Karla Faye Tucker, who claims to have undergone a religious conversion. Of course, prison conversions are infamous, which means that society has a lot of historical reason for being skeptical. Another factor that might suggest a negative answer to the question is that there's a long tradition of allowing people about to be executed to make their peace with God, which means that society long ago decided that a mere change of heart or reorientation of the mind is not sufficient to beat the death penalty. But in America many years may pass before a death row inmate is finally executed, enough time for that person to establish a new life and to rebuild themselves inwardly. Doesn't it then become barbaric for a state to execute a person who is no longer a vehicle of evil but of goodness?
My own position is this:
So here's my bottom line: In a democratic society, we should employ reasonable alternatives to the death penalty and not the death penalty itself.
My Take: NEA Editorial, no. 2
Written, December 2, 1997; posted, February 1, 1998; new url, January 28, 2004; last modification, January 28, 2004
Copyright ©1997-2004 by Norman E. Anderson
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