Jesus and the death penalty: "Flaws in the system"

By Dan Popp

In my previous article I responded to what I called the weakest objection to the death penalty: that God alone has the right to decide when any human life – even the most evil human life – ends. You could almost open the Bible at random and find a refutation to that. This time I'll deal with what may be the strongest objection: that, because of flaws in our legal system, sometimes innocent people are executed.

If the goal is justice, then this objection must be taken seriously. We must admit that if there is a death penalty, some deplorable injustices will occur. But we must also admit that, without a death penalty, other fatal injustices will occur. So the choice isn't between perfect justice and no justice; it's between two different kinds of imperfect justice. If we study the Scriptures, I think we'll find that God is a realist. Let's look again at Numbers 35:

"'These things shall be for a statutory ordinance to you throughout your generations in all your dwellings. If anyone kills a person, the murderer shall be put to death at the evidence of witnesses, but no person shall be put to death on the testimony of one witness.'" (vv.29, 30, NAS95; see also Deuteronomy 17:6 and 19:15)

Why isn't one witness sufficient? Because one witness can lie or be mistaken. The fewer witnesses we require, the more likely that an innocent person will be executed. Conversely, as we demand more witnesses, it's more likely that a guilty person will go free because the murderer has thought to commit his crime away from all eyes – Cain killed Abel in the field, not in the camp. In this passage we see God's recognition of human error, corruption and uncertainty in the legal system. He strikes a balance: two or three witnesses. We'll still have occasional injustice in both directions, but more often than not, righteousness will be done. Though the hard truth that "our judicial system is flawed, and sometimes executes the innocent" is supposed to be something we should not tolerate, God in fact does tolerate it.

In the New Testament we read:

Anyone who has set aside the Law of Moses dies without mercy on the testimony of two or three witnesses. How much severer punishment do you think he will deserve who has trampled under foot the Son of God, and has regarded as unclean the blood of the covenant by which he was sanctified, and has insulted the Spirit of grace? For we know Him who said, "VENGEANCE IS MINE, I WILL REPAY." And again, "THE LORD WILL JUDGE HIS PEOPLE." It is a terrifying thing to fall into the hands of the living God. (Hebrews 10:28-31)

Today Vengeance is Mine, I will repay is used to argue against the death penalty. But neither the ancient Jews nor Jesus nor the Apostle writing this letter saw any conflict between the two. Here, capital punishment symbolizes and foreshadows the more terrifying sentence of God. They work together. We know that, at least sometimes, physical punishment has paved the way for divine mercy, as when Paul decided to deliver such a one to Satan for the destruction of his flesh, so that his spirit may be saved in the day of the Lord Jesus. (1 Corinthians 5:5; see also 1 Timothy 1:20). Jesus said, "Do not fear those who kill the body but are unable to kill the soul; but rather fear Him who is able to destroy both soul and body in hell." (Matthew 10:28; see also Luke 12:4,5) There's something worse than death, and the death penalty serves as a warning of it. If we remove that warning, we may one day find that we've sinned against both justice and mercy.

Here's a case of even rougher justice. God says:

"If the thief is caught while breaking in and is struck so that he dies, there will be no bloodguiltiness on his account. But if the sun has risen on him, there will be bloodguiltiness on his account. He shall surely make restitution; if he owns nothing, then he shall be sold for his theft." (Exodus 22:2,3)

The nocturnal thief gets no trial, much less a free attorney. He does have the right to remain silent – forever. The presumption is that if a person breaks into your home at night, he's planning something worthy of death. He may not be, of course. Even a mediocre American lawyer could think of a dozen reasons why someone would be in your home at night sans invitation. Maybe he's drunk, and he's just got the wrong house. "Should he die for being mistaken?" our Johnnie Cochran wails. Yeah, it seems God has no problem with that.

If you want to talk about a flawed legal system, how about the one that executed the only truly righteous Man? For the sheer magnitude of its corruption, racism, apathy, ungodliness, cowardice, cruelty and injustice, the Roman government that crucified Christ must take the cake. His bad execution wasn't even an accident; the governor simply couldn't be bothered to care about one more dead Jew. Such a regime has lost its moral authority to impose a sentence of death – hasn't it?

Every person is to be in subjection to the governing authorities. For there is no authority except from God, and those which exist are established by God. Therefore whoever resists authority has opposed the ordinance of God; and they who have opposed will receive condemnation upon themselves. For rulers are not a cause of fear for good behavior, but for evil. Do you want to have no fear of authority? Do what is good and you will have praise from the same; for it is a minister of God to you for good. But if you do what is evil, be afraid; for it does not bear the sword for nothing; for it is a minister of God, an avenger who brings wrath on the one who practices evil. (Romans 13:1-4)

God is perfectly aware of the, shall we say, "imperfections" of first century Roman justice. Yet He assures those living in the capital that their government bears the sword – it holds the power of execution – by His authority. Those who object to capital punishment on the grounds that only a perfectly righteous state may administer it are ignoring, or ignorant of, Scripture. There has never been such a state, and there has always been such a command.

The noble-sounding cliché that we should "allow 10 guilty men to go free, rather than execute one innocent man" would not only make us accomplices of the ten hypothetical criminals in all their past and future crimes; it just doesn't comport with anything God ever said.

Next time: The silliest objection.

© Dan Popp