death penalty: God's timeless standard for the nations?, The

Journal of the Evangelical Theological Society, Sep 2000 by Ballard, Bruce W

VIII. REPLY TO SOME OBJECTIONS

First of all, as Lloyd Bailey rightly points out, the "two or three witnesses" requirement found for capital crimes in the OT is in principle a much stronger requirement than a contemporary jury's "beyond a reasonable doubt," which can follow a purely circumstantial case.25 Indeed, one would think very few indeed might face the death penalty were the OT standard of evidence required for conviction. Whether or not the two or three witnesses requirement is also to be carried forward into modern societies has not been shown here, of course. But the number of reversed convictions for murder in the U.S. over the last decade or so, often based on new DNA tests, vividly demonstrates the horrific injustice resulting from the current standards and procedures.26 Since 1976, in Illinois alone, over half of those on death row have been later freed as innocent, leading the ordinarily pro-death-penalty governor, George Ryan, to declare a moratorium on executions.27

On the other hand, purported witnesses could also deceive. Yet it is notoriously difficult, if not impossible, for lying witnesses to keep their testimony consistent under separate and detailed investigation. The importance of the thorough separate investigation is highlighted in the command to judges trying capital cases (Deut 19:18) and becomes the defining theme of the apocryphal book Susanna. And of course OT law also commanded the death penalty for false witnesses in a capital case, no doubt a powerful preventative by itself. So Bailey's point reaches to the heart of the matter.

Second, as Bailey also notes,28 the effect of socio-economic status today on the chances of receiving justice from the criminal justice system in the United States is very great. Here, as all of us know, how much justice we receive is all too often dependent on how much we have to pay attorneys' fees.29 The investigative procedure and the two witness requirement of the OT again sharply reduced, if not eliminated, that skewing effect. Bailey concludes that, if Christians are to continue to support the death penalty in the U.S., they ought to work for a fair use of the penalty."3 Indeed, those who support the death penalty for Biblical reasons might well agree with Governor Ryan's position cited above, particularly in cases where two witnesses did not present evidence and the defending attorney inadequately examined them (an all-toocommon occurrence with court-appointed counsel for an indigent accused).

Another frequent objection is that the OT penalties are maximum limits, that offenses for which they are given could receive lesser penalties. Appeal is made to the example of Exod 21:29-30, where the owner of an ox known to gore either receives the death penalty or whatever compensation is asked of him. But as Greenberg rightly notes, this ransom payment is only explicitly allowed for this kind of homicide, "a homicide not committed personally and with intent to harm."31 The objection also fails to make sense of commands to show "no pity" administering the death penalty to those who commit premeditated murder (Deut 19:13), to the pre-Israelite inhabitants of the land (Deut 7:16),32 or in the use of the law of talion generally (Deut 19:21).