48 - Doctrine of Capital Punishment, Part 1 [C]

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 laws 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 21^st century in our culture. Supreme Court Justice Marshall wrote that "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 20^th 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 19^th 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 mean 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 20^th century Britain has outlawed the death penalty. Between 1970 and 1980 six western European countries outlawed the death penalty. By 1980 world-wide 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 because they bought into an anti-biblical world view.

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 it 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 is 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.