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William D. Bontrager, J.D.

1710 C.R. 121, Hesperus, CO. 81326

(970) 258-3384

wdb@frontier.net

IN DEFENSE OF THE DEATH PENALTY

I am a Christian, a lawyer, and a former Judge. While I know that the issue of the death penalty is divisive, I have been making a study of Biblical law, and comparing it to the laws and procedures with which I grew up in the United States -- and so I must consider the issue of the death penalty.

I start with some general principles:

First, Biblical law seeks restoration of offenders, victims, family and community as its goal; our law and system uses punishment in an effort to restrain behavior. It may be that a system which refuses to be restorative in ideal and operation may thereby forfeit the right to a death penalty.

Second, in the Bible, the Ten Commandments represent Law; the cases which follow are illustrative rather than mandatory. They are application of the law to a set of facts, with a suggestion of wider application.

Third, the execution of a person for violation of the law has nothing to do with the issue of the person's salvation. God is the judge of the eternal future of a person, not man. His judgment is done perfectly, based upon the central heart of the person. Execution does not automatically mean anything concerning the after-life.

Fourth, I have found that people in the East are very concerned about the death penalty. However, the concern is because people have been historically executed for political offenses as compared to biblical grounds for execution.

Having said that, an analysis of the Bible shows that the death penalty could be considered in light of three areas of offenses:

(1) Denial of the existence of God:

Blasphemy, idolatry, sacrificing to false gods -- Ex. 22:20; Lev. 24:10-16. The practice of sorcery, witchcraft, medium, spiritualist, etc. -- Ex. 22:18; Lev. 19:26, 31; 20:6, 27; Deut. 13:1-11; 17:2-7; 18:20. Profaning the Sabbath -- Ex. 31:14-15; 35:2; Num. 15:32-36.

(2)(A) Denial of the image of God in which I am made:

The practice of beastiality -- Ex. 22:19; Lev. 18:22-23, 29; 20:15-16; Deut. 27:21. The practice of homosexuality/lesbianism -- Lev. 18:22,29; 20:13. Harlotry -- Lev. 21:9; Deut. 22:13-21.

(2)(B) Denial of the image of God in which another is made:

Murder: by lying in wait or done presumptuously (having "boiled up in arrogance, pride or rebellion," resulting in acts taking the life of another) -- Ex. 21:12-14; Num. 35:16-23; Lev. 24:17; Deut. 19:11-13. Manslaughter (accidentally causing the death of another) was not subject to the death penalty. Kidnaping (with or without physical harm to the person) -- Ex. 21:16; Deut. 24:7. Intercourse with an engaged virgin in a city with no crying out by the woman -- Deut. 22:23-29. Forcible rape of an engaged woman in the country where crying out would do no good (man only to be put to death) -- Deut. 22:23-27.

(3)(A) Massive interference with the family unit:

Incest and certain related crimes -- Lev. 20:11-12, 14. Striking or cursing a parent -- Ex 21:15, 17; Lev 20:9; Deut 21:18-21; Mark 7:10. Child sacrifice -- Lev. 20:2. Adultery -- Lev. 18,29; 20:10-21; Deut. 22:22-26.

(3)(B) Massive interference with community:

Being an habitual offender -- Deut. 21:18-21 (While the provision speaks of "a drunken or rebellious son", we would do better to think of the habitual adult offender in understanding the passage.)

Refusing to abide by a Court decision -- Deut. 17:8-13.

The death penalty, in short: (1) Upholds the dignity of God; (2) Upholds the dignity of God's finest creation, mankind; and (3) Upholds the dignity, purpose, necessity and creative purpose of God's finest institutions -- family and community.

As we begin to consider the death penalty, we should note that there is an argument, based upon the Scriptures, that expulsion from the society (exile) was an alternative in nearly all of the death penalty cases. There is also authority for a person ransoming their way out of possibly any death penalty except for what we would call First Degree (premeditated) murder.

As exile seems not to be an option for us today in light of world norms, the first argument may perish -- or we may think of prison as exile, in which case we need a process by which the exiled one can be restored upon repentance. The second argument may be a recognition that the direct victims of an individual act calling for death might have the ability to grant a form of grace or mercy and cancel the societal demand.

In our pluralistic societies, we may not be able to authorize the death penalty for the first category -- a direct affront against God. The two remaining categories are then areas for discussion, keeping in mind that the Bible required 2 eye-witnesses to an act calling for the death penalty. Therefore we have not just the act, but a blatant and flagrant flaunting of the law involved.

Rather than focus on whether or not you would want any of those listed to be a capital offense, look instead at the nature, type, and massively grievous level of breach of relationships involved. I consider it fair to say that death is exacted in those situations which demonstrate a total and complete rejection of God and His law -- virtual anarchy.

I believe that one reason God provided for the death penalty was that it grants something to the victims and community which is needed for their ability to release the events of the past and find peace rather than bitterness. In that analysis, there is a restorative function within the death penalty.

And, the death penalty fits into specific deterrence and general deterrence -- two historic purposes of having a process to deal with conflicts.

But, to consider the death penalty from a Biblical view means we must also acknowledge that the Bible only had two other punishments: restitution (with bond-servitude for a maximum of 6 years if unable to pay); and whipping (the latter being, I think, public humiliation done after restitution has failed and a person seems to be developing into an habitual offender).

Prisons, which only harm the soul, not heal, were unknown in the Bible. Ask any prison official in any nation and you will here the same: "We at the prisons are the not cause of the problems of society nor the cure. All we can do is inflict pain regardless of how humane the conditions are, or how good our programs."

When I suggest that, biblically, only death and restitution are options, I am accused of not understanding reality: "What do we do with an offender who is an animal and who, regardless of what love is displayed to him (such as granting him restitutional opportunity), will continue to prey upon people? What do we do with a drug dealer, the habitually violent, the pornographer, if we have no prisons?"

I am not ignorant -- I served as a Judge. I also served for three years on the Board of Correction of the State of Indiana as a lay advisor to the Governor on matters of prisons. From my experiences and study, I offer four ideas:

(1) If we change from our "State-As-Victim-with-Punishment-as-Purpose" model for criminal law to a model of Restorative Justice, the need for prisons should diminish. This is not the place to describe this, but the key is direct, speedy, confrontation of an offender by victim and community, focusing on the act done and not the state of the mind or heart, encouraging confession and repentance, and offering reconciliation. This should reduce substantially the number of people entering the criminal law system and only being made worse for the experience.

(2) One or more situations (drug trafficking, pornography or mafia activity, for example) may be considered such a massive violation of family or community as to warrant the death penalty -- a legislative decision. Recently a man was executed in Singapore for bringing in 4 kilos of cocaine; this might be an example of a modern day application of an ancient concept.

(3) The offender may flee the community (self-banish); or,

(4) The offender continually hardens his heart to the point where he: (a) murders; (b) is killed during an act of crime; (c) refuses a lawful order of a court thus incurring the death penalty; or (d) proves himself to be an habitual offender subject to death under the principles of Deut. 21:18-21.

I use the fourth possibility because my experience show me -- and I believe the Bible teaches -- that sin un-addressed in one's life will eventually lead to total loss of life (Matt. 18:35, or Pharaoh as specific examples). Yes, many more people, and even the entire community, may suffer loss before that happens -- but love always faces the risk of loss, just as Christ did when He faced the cross, and as did the Father when He decided to send His Son to the cross.

In taking the risk, we acknowledge that God is, when all is said and done, the provider and protector (Eccl. 12:13-14). In fact, one reason I look to the Bible for all of my reference points is that the Bible teaches that there will come a day when God will make all things right. Man will always come up short -- but God will not.

As you ponder this, consider two final things:

(1) Without the death penalty, what deterrence can you offer through your law for the one who would be an anarchist?

(2) If God is, and has said the death penalty is to be done, why do we argue?