I came home today to the latest copy of World Magazine. Marvin Olasky's cover story is on the death penalty.
It's an unfortunate piece--not because Olasky opposes the death penalty, there's good reason to do that in America today--but because the article is a mishmash of personal pleading and faulty Biblical reasoning. It's so tendentious that I suspect it will only confirm most readers in their unwillingness to reconsider the appropriateness of the American system of justice's death penalty.
A few examples:
If we're to forego the death penalty for murder on this basis, should we continue to apply it for Sabbath-breaking and silver-stealing? Tell Achan and the man caught gathering sticks on the Sabbath that God opposes the death penalty. And what about Joab's death at Solomon's hands?
It's one or the other. You can't have it both ways. If it's bad rabbinic tradition it's not a good "limiting device."
Where does Scripture demand eyewitnesses and forbid circumstantial evidence and witnesses? Jewish tradition permits circumstantial evidence in monetary cases while denying it in capital cases, but there is no lexical reason to restrict the type of testimony demanded in Scripture to eyewitness rather than circumstantial. Olasky makes a distinction not found in Scripture at this point.
Finally, there's an especially awkward moment when Olasky seeks to make Genesis universally true, but Exodus through Deuteronomy only true for Israel: "'Put to death' is a common refrain from Exodus through Deuteronomy when God is laying out civil law for ancient Israel, but in universally applicable Genesis only 'a reckoning' is required."
There is a solid Biblical argument to be made against the American system of justice's death penalty. And at a few points, Olasky nails it--particularly when he reminds us that Deuteronomy 19 demands that a false witness have "done to him what he meant to do to his brother." In American justice where jailhouse snitches are rewarded with reduced sentences for their testimony and testimony from such witnesses is not-infrequently employed in murder trials, a perverse reversal of God's requirement takes place: false testimony is more likely to bring reward than punishment.
We tend to believe that the American way of doing things must also be God's way: democracy rather than monarchy; unfettered capitalism rather than any mediate form of finance; an adversarial system as the best path to justice.... But adversarial systems create adversaries, they do not guarantee truth. When convictions are the path to political advancement for prosecutors and police detectives are rewarded and promoted on the basis of cases "cleared", truth is often lost sight of and only adversaries remain.
Finally, though more could be said, this is how Scripture says the death penalty should be applied:
On the evidence of two witnesses or of three witnesses the one who is to die shall be put to death; a person shall not be put to death on the evidence of one witness. The hand of the witnesses shall be first against him to put him to death, and afterward the hand of all the people. So you shall purge the evil from your midst.
No antiseptic faux hospital rooms, complete with gurneys and IV lines as death chambers: people stoning their neighbor, witnesses casting the first stones. Until we return to such a system, our death penalty is likely to be far-too-readily applied. Clean rooms far removed from the public with paid executioners doing the dirty work are a prescription for injustice. We have to own the penalty's weight as citizens if we're going to apply it. Until false witnesses (including lying and concealing members of the court) are severely punished and executions are no longer hidden from the public, the death penalty will be unfairly applied.
