Doctrine of Capital Punishment, I; Gen. 9:1-17
Verse 6, “Whoever sheds man's blood, by man shall his
blood be shed: for in the image of God made he man.” That has historically been
understood as the verse which under girds the institution of human government,
so this begins the next dispensation and it brings into focus the fourth divine
institution. The first divine institution was the institution of human
responsibility, that man is accountable for his actions. This implies volition:
that man can choose to obey or disobey God; that man can be held responsible
for his decisions and ultimately he is responsible to God. God is the authority
in the first divine institution. The second divine institution was marriage, which
is for believer and unbeliever alike. The law of marriage is for one man and
one woman. The third is the institution of family. This is what breaks down
when you have Adam and Steve trying to get married, you have the breakdown of
the family, the breakdown of the whole structure for raising children and
teaching them how they should obey God and the whole concept of authority,
because the very structure in such a home violates the authority of God. This
is why marriage is a factor because if the sanctity of marriage as defined in
the Bible is not maintained it breaks down families and it breaks down society.
These first three divine institutions are for the human race, given before
there was ever sin, and they are for the purpose of perpetuating the human
race, for perpetuating values and teaching within the structure of a family;
they provide stability in a culture. A fourth divine institution is introduced
here in Genesis 9, and that is the institution of human government. And the
most serious decision a governing body, whether it is within a small family,
whether it is tribal, a clan, whatever the governing structure is, there is a
basis for some form of authority that makes judicial decisions. The most
extreme of these is the decision to take the life of a human being because he
has committed some criminal act and has thereby forfeited his right to live. So
in these two or three verses in Genesis 9 there is the basis in the Scriptures
for the establishment of the judicial function in the human race, and that is
the foundation for human government. There is one more divine institution
established in Genesis 10, and that is the divine institution of nations and
tribal distinctions of groups.
Capital punishment is first authorized and mandated in
Genesis chapter nine and it becomes the foundation for the institution of human
government. This is an issue that is controversial for some, and there are a
lot of people who just don’t understand it. We will begin to look at this in
terms of the problem it presents to us in the 21st century in our
culture. Supreme Court Justice Marshall wrote “the death penalty is no more
effective a deterrent than life imprisonment. It is also evident that the
burden of capital punishment falls upon the poor, the ignorant and the underprivileged
members of society.” In that one quote we really crystallize what the
anti-capital punishment is. First of all, that it is not a deterrent, and
secondly that it is not applied evenly or fairly or judicially. The first
statement presumes an argument that is often put forth in American discussions
on capital punishment, and that is the fact that the reason for capital
punishment is that it is a deterrent. But that is not the argument, the reason,
the rationale for capital punishment that is given in the Scriptures. So if you
are going to get into an argument or discussion on this, argue from a biblical
basis, don’t get sucked into a non-biblical rationale in arguing. Second, he
points out that there is a methodological flaw in its application. The
conclusion from that is that if we are not doing it right, don’t do it. That is
false reasoning, because there are many things in life that we don’t do right
but that doesn’t mean we stop doing them. Just because a principle is not
fairly applied doesn’t mean you do away with the principle. It means you have
to revamp your application, but it doesn’t mean you go back and do away with
the principle. But this quotation in a nutshell is the anti-capital punishment
argument.
Just by way of introduction in terms of the history,
the United States has executed over 800 people since 1976 when the legitimacy
of the death penalty was reestablished. That is not very many people. That is
as of December 2002 and at that time over 3700 men and women were on death rows
in various states across the country. If only 800 people have been executed
since 1976, think about that in terms of a deterrent argument. You don’t have
much of a chance of being executed on that basis. So it can’t really operate as
much of a deterrent if it is not applied very frequently.
The second thing in terms of the current situation is
that the United Nations has passed a resolution calling for all nations that
continue to execute to restrict the number of offences for which the death
penalty may be imposed, and to suspend executions with a view toward abolishing
the death penalty. So there is international pressure on nations that still
utilize the death penalty. We will see in Genesis 10 that the United Nations is
just another attempt of man, which has gone on since the tower of Babel to
reverse the impact of the curse of the tower of Babel and to create an
international organization that goes against the fifth divine institution. We
see problems with this today. For example, after 9/11 when terrorists were
identified in different countries such as Germany and France they would
extradite them to the US because the US practices the death penalty. And there
is a problem with this in the US, as when some murderer escapes to Canada the
Canadian government won’t extradite him back to the US unless there are
assurances that the murderer will not be executed. So there are other nations
dictating policy to the US out of their arrogant rebellion against the Word of
God.
In the US prior to 1972, 5707 had been legally
executed for capital crimes in the 20th century. That does not seem
a large number, and certainly not a deterrent. One wonders how many people were
convicted of homicide during that same period of time. In 1972 the US Supreme
Court handed down landmark decision by a five to four vote ruling that the
death penalty statutes in Georgia and Texas violated the eighth amendment by
involving cruel and unusual punishment. The key issue for some of the Justices
was that among those eligible for the death penalty only a few were chosen and
the standard was not consistent or clear. In other words, there was not a pair
application principle. During the next three years 35 states rewrote their
capital punishment laws to conform to the Supreme Court decision, and then on
July 2, 1976, by a seven to two vote, the Supreme Court declared capital
punishment acceptable and legitimate. In 1977 executions resumed and there was
an expectation that there would be numerous executions, but there were not. As
this developed in 1987 the Supreme Court handed down another five to four
decision ruling that racial bias in imposing the death penalty was really
insufficient grounds for challenging the constitutionality of capital
punishment laws. Statistics do demonstrate that blacks are much more likely to
be convicted and sentenced to death than whites, especially when the victim is
white and the murderer is black. Those least likely to be convicted are blacks
when the victims are blacks. But the Supreme Court ruled that despite the fact
that there were disparities and an unequal application of the law that did not
change the nature of the law. That is the principle. Just because a law is not
applied fairly or evenly doesn’t mean you throw out the law, it means you
change the way it is applied.
There have been various forms of execution utilized in
this country: hanging, public hanging, was a common form of execution through
the 19th century. If there is going to be a penalty that is to act as
a deterrent, people have to see it. We live in a society that is so distanced
from life and death that most people can’t handle death and they can’t handle
birth. Generations ago many were born and died in the same bed, and the whole
family saw both. Now we have these sterilized injections that nobody witnesses,
and it is a painless death, and this is supposed to be a punishment. The idea
is that it is a penal death; it is a punishment, not something that is supposed
to be easy or sanitized. Execution switched to electrocution, introduced in
1888, and then there was the gas chamber introduced in 1924. By 1983 nine
states decided to use lethal injections and this has brought various mixed
reactions. In 1981 the American Medical Association passed a resolution stating
that a physician as a member of a profession dedicated to preserving life when
there is hope of doing so should not be a participant in a legally authorized
execution. They viewed it as being inconsistent with their Hippocratic oath.
In England as recently as 1800 there were over 200
crimes that were considered capital offences. That is important historically
because when the American Constitution was written in 1789 and the Bill of
Rights was adopted, the eighth amendment prohibited the use of cruel and
unusual punishment. Let’s look at that as a historical document. You have to
interpret it in terms of the intent of the writers and in terms of the times in
which it was written. It was not mean to be a “living document” despite what
people say. If that kind of interpretive rationale to your taxes you’ll go to
jail, or if to the Bible you’ll go to hell. You can’t come along and say
something means that to one generation but it means something else to this
generation. It has to be what the authors intended, so you have to define cruel
and unusual punishment in light of the times when the Constitution was written.
In England at that time there were 200 crimes that were capital offences but by
the 20th century Britain has outlawed the death penalty. Between
1970 and 1980 six western European countries outlawed the death penalty. By
1980 worldwide 20 countries had outlawed the death penalty for all crime, but
since then many more have abolished the death penalty. By 1992 the number of
countries and territories that retained the death penalty had been reduced to
only 106. So it can be seen that the move is against the death penalty.
What are the arguments that are usually advanced
against using the death penalty? First of all, there is the one we usually hear
from our kids: everyone else is stopping it. Everyone else is stopping it; we
should too. According to Amnesty International the reason it should be stopped
is because governments all over the world are eliminating the death penalty.
But governments all over the world do not have a Judeo-Christian foundation for
their judicial system. We do. The answer to this objection is simple. Everyone
isn’t stopping it, though many are. The ones who do are doing it are doing it
because they bought into an anti-biblical worldview.
A second argument that is used against capital
punishment is that it neither deters violence nor makes society safer. This is
really a form of a truism—something that is commonly accepted to be true
but it is not—that violence can’t stop violence. We have to use violence
to stop violence in a fallen world. Remember that when Jesus went to the Garden
of Gethsemane in order to prevent being taken or assaulted prior to the time,
knowing that He needed to go to the cross, He told the disciples to bring along
a couple of swords. There is a time to fight and a time not to fight, and a
time to protect yourself. He knew that if there was violence toward Him that
would prevent Him from going to the cross that it needed to be stopped by
violence. The rationale that is normally presented here comes from statistical
evidence. For example, you will hear that records from 1967-68 states that
states that did not have a death penalty had a lower first-degree murder rate
than states that did have a death penalty. Other studies from 1920 to 1955,
Michigan, which was the first state to abolish the death penalty, had a lower
homicide rate than either Ohio or Indiana, and they both had the death penalty.
Others will point to a study where Missouri abolished the death penalty from
1917 to 1919. Prior to the abolition of the death penalty and after its
reinstatement the number of homicides rose steadily, but during the period when
there was no death penalty homicides steadily decreased. The problem with this
is that you can’t really analyze an unknown. The unknown: how many people
didn’t commit a murder because they didn’t want to die? There is no statistical
way to measure that, so you cannot prove whether it is a deterrent or not
because you never can measure how many people didn’t commit a murder. So the
idea that it isn’t a deterrent isn’t a provable argument. Furthermore, you
don’t know what other factors might be at play in the culture at that time. You
can point to a lot of different periods in states histories and in US history
where you have a rise in the homicide rate and a decline in the homicide rate,
it doesn’t have anything to do with whether or not there is a change in the
death penalty law. These things just fluctuate. It cannot be known what it would
have been like in a state like Michigan if they had had the death penalty, you
can’t prove the negative. Furthermore, in the US criminals know that they
aren’t likely to be executed. That is one factor. Remember the number of people
who have been executed is relatively small compared to the number of people
charged or who have been found guilty of first-degree murder.
A second reason you can’t go to the deterrent argument
is that in murders of passion thought and reason aren’t the issue. In a murder
of passion there is not thought of what the deterrent is, there is more concern
about not getting caught as opposed to not having to pay the full penalty. And
a third point, which has already been mentioned, is that there is no way to
measure how many people do not commit a murder because of the possibility of
the death penalty. So the conclusion is that it is impossible to demonstrate
that the death penalty doesn’t deter.
Nevertheless, deterrent isn’t the biblical argument.
The biblical argument is given in verse 6, and that is: “Whoever sheds man's
blood, by man shall his blood be shed: for in the image of God made he man.”
Why is there capital punishment, according to God? Because it is a theological
statement: you have destroyed a person who is created in the image and likeness
of God. This is so serious in God’s eyes that it means a murderer has forfeited
the right to live. It doesn’t mean that it isn’t a deterrent; it may be a
deterrent, but that is not why God said to do it. It is not vengeance; it is simply
that the person has forfeited the right to live.
Another argument that is used against capital
punishment is that it is discriminatory. There is a presuppositional problem
here, and that is that people in our society think that discrimination is wrong
in and of itself. But we make a discrimination every time we make a decision
for one thing or another. Discrimination in and of itself is not wrong, but
they flash this idea that it is discriminatory so therefore it is wrong. It is
not true. God is going to discriminate at the great white throne judgment.
People who trust Christ get saved; people who don’t are going to the lake of
fire. Every time a judge makes a decision in a courtroom he discriminates. But,
of course, what they are saying is it is not equally applied, and there are
some statistics that indicate that there are serious problems with the way the
death penalty is applied. A recent study of death sentences in Philadelphia
found that African-American defendants were almost four times more likely to
receive the death penalty than were people of other ethnic origins who
committed similar crimes. Over 80% of people executed since 1976 were convicted
of killing white victims, although people of color make up more than half of
all homicide victims. That is not a fair or balanced application of the law.
Furthermore, a defendant who can afford to pay his or her own attorney is much
less likely to be sentenced to die. Ninety-five percent of all people on death
row could not afford to pay their own attorneys. These are inequities in the
system. Furthermore, from 1930-1957 in the US more than half of the executions
for murder involved non-whites, and in the south more twice as many blacks as
white were executed. That is an inequity in the system. Of all people legally
executed in the US between 1930 and 1980 about 53.3% were black, even though US
population during that period was only 10% black. So there are a lot of
problems with the way in which the death penalty is applied, but it doesn’t
mean you don’t apply it. Remember, God in His omniscience, when He established
this principle in Genesis 6, knew that man would not apply it fairly.
Nevertheless, He delegated that responsibility to the human race.
Another complaint is that it is used to silence political
opposition. That would not apply to the US but it certainly would apply in some
countries. Once again, this is a problem of methodology; it is not a problem of
morality.
There is the complaint that it is irreversible. Juries
make mistakes. Sometimes the wrong evidence is brought forth. Sometimes more
evidence is discovered down the line. Once again, God in His omniscience knew
that man was fallible and would make wrong decisions. Nevertheless, he
delegated the responsibility to man. It is not an option; it is a
responsibility for man to govern well and to govern wisely, even though he will
make mistakes.
Another objection is that the death penalty isn’t a
solution. The argument is that it just creates more victims, it doesn’t really
solve anything, it just perpetuates a cycle of violence, and “if we truly
believe that killing is wrong we must abolish the death penalty.” That is a
direct quote from the Amnesty International web site. What is wrong with that
statement? Killing isn’t by definition wrong. In the Ten Commandments it
doesn’t say, “Thou shalt not kill,” it says, “Thou shalt not murder.” There are
many times when the taking of human life is legitimate and authorized in
Scripture. Don’t make an absolute of a wrong principle and then try to force
everything to fit it. That is what is happening there; there is this
presupposition that killing and violence is inherently and always wrong,
therefore don’t keep perpetuating it. Furthermore, that argument says it just
creates more victims. In this sense the victims are the family of those who are
executed, the family of the criminal. He created them as victims as well as the
person he murdered. It is not the punishment that is making them victims and,
furthermore, it is questionable that the family should be called victims. They
are simply not victims in the same sense that the person murdered is a victim.
We have to put our emphasis on the victim of the crime, and their family, and
not on the criminal and his family.
The objection that it is just vengeance, but it is not
about vengeance; it is about justice. Vengeance has to do with an unauthorized
individual settling a score; justice has to do with the legally established
authorities dealing with a criminal act. We must realize that justice can be retributive
without being vengeful; they are not the same thing. Then we must realize that
because some victims are vengeance-motivated doesn’t mean the death penalty is
vengeance based. In any society those who cannot keep the laws should be
punished because they don’t obey the law.
The underlying issue goes back to the debate that has
been going on for the last 150 years: Is incarceration for punishment or for
rehabilitation? If you believe that man is inherently good, then you are going
to want to rehabilitate because they are “rehabilitatable.” It’s not his fault;
it is society’s fault! He grew up in poverty; he was abused when he was a
child; it is not his fault he grew up to be a mass-murderer! But the Bible says
that the heart is deceitful above all things.” We are corrupt sinners, and that
it takes discipline to restrain the sin nature, and when any individual is at a
point where they are no longer capable of restraining their sin nature to the
point that it becomes destructive to society, then they need to be removed from
society just as you would cut out a malignant cancer. That is what the death
penalty is all about. It is looking to what is best for society and not what is
best for the criminal.
A further objection that is raised against capital punishment
is that it is cruel and unusual punishment. What is claimed here is that by
definition the death punishment is cruel and unusual. But the founding fathers
didn’t understand it that way, did they? They clearly authorized the death
penalty, and they utilized means of execution that we no longer think are
acceptable. What happens is that those who are against the capital punishment
usually argue that any kind of punishment is cruel and unusual. They just don’t
want any kind of punishment at all. They argue that “cruel” means deliberately
causing pain or injury. Also they would say that the emotional grief caused by
simply arresting this “poor” criminal is cruel. The problem is that we get into
redefining what is cruel and unusual in terms of our culture. The answer to
this is that the executions that are actually carried out in this country for
capital crimes are not unusual, and since the criminal is not tortured the
penalty is not cruel.
When we come to the Bible it doesn’t define what kind
of death penalty, the methodology; it doesn’t set up a specific form of
government, it just lays down the principle: that man has the prerogatives to
police himself. That means that he has to adjudicate criminal actions and to
deal with them in an appropriate manner. And because of the rationale that is
given in Genesis chapter nine is that man is in the image of God we have to
recognize that, in our first principle, capital punishment is first and
foremost an issue of theology. If anything has to do with taking a life then
ultimately it must be understood in terms of a theological framework. It has to
do with the value of human life and why God created man, and so capital
punishment, then, becomes an issue of theology. In fact, all ethics, all moral
judgments, are ultimately determined by a person’s theology. So if you are a
believer then you have to go back to the Bible and let the Bible define your
understanding of any issue. You can’t let society define it; you can’t let the
inappropriate or inequitable application of a principle define it. You have to
start with an absolute and then you work your applications out from that
absolute. It is a matter of theology because whoever determines what life is,
when it begins and ends, what its parameters are, is the one who determines the
basis for taking life in a just manner.
We have to recognize that capital punishment was not a
part of the first two dispensations—of perfect environment between creation
and the fall, or the dispensation of human conscience between the fall and the
flood. But God sees fit to establish it here in Genesis 9.
Capital punishment is as much a part of the Noahic
covenant as the promise to not flood the earth again and the authorization to
eat meat. If any part of this contract is still in effect the whole contract is
still in effect. This is going to be different when we get to the Mosaic Law.
The way that many Christians argue for capital punishment is to go to the Mosaic
Law, but the Mosaic Law was a temporary law code and it was only for the nation
Israel. The Noahic covenant is for every nation on the planet and it is still
in effect. The Mosaic Law code ended at the cross.
The authorization for capital punishment comes from
God and not from man. This isn’t something that was generated by the creature.
This authorization is a mandate, not an option; it is not based on pragmatics,
such as a deterrent effect, but on an absolute: man is in the image of God.
Thus the authorization for capital punishment provides the basis for human
government. The Noahic covenant legitimizes capital punishment for only murder,
but this does not restrict its application in other areas. It does imply
certain things: that if there is going to be a system to adjudicate and
determine guilt there needs to be a system for the objective evaluation of
evidence.
The Mosaic law provides a divinely authored government
constitution showing that capital punishment may be applied in other areas:
Murder was a capital crime, Exodus 21:12; Numbers 25:26-31. Sabbath violation,
Exodus 35:2. Cursing parents, because he had failed to learn authority
orientation. That would lead to a breakdown of authority in society and lead
to, criminality, Leviticus 20:9. Adultery, because it breaks down the second
divine institution of marriage, and that would lead to the destruction of
society, Leviticus 20:10. Incest, breaks down the family, Leviticus 20; Sodomy,
Leviticus 20:13, 15, 16. False prophecy, idolatry, incorrigible juvenile
rebellion, Deuteronomy 21:8-21. Rape, Deuteronomy 22:25. Kidnapping, Exodus
21:6.