A Theonomic Argument Against Capital Punishment

I consider myself to be a "Theonomist." See here.

Some would say I'm not a "real" Theonomist because I defend "anarcho-capitalism," and Theonomy requires the existence of the institution we call "the State." I disagree. More below.

I used to be a strong defender of capital punishment. No longer. Here's why.

Argument in a Nutshell

As a Theonomist, I was familiar with the division of Old Testament laws into three categories: "Moral," "Judicial," and "Ceremonial."

In the "Moral" category are laws like "Thou shalt not kill."

In the "Judicial" category (the lines are fuzzy and can be disputed by many theologians) might be laws like

Deuteronomy 17:6
At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death.

Deuteronomy 19:15
One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established.

Numbers 35:30
"'Anyone who kills a person is to be put to death as a murderer only on the testimony of witnesses. But no one is to be put to death on the testimony of only one witness.

In the "Ceremonial" category are laws requiring the shedding of blood to make atonement.

I now believe that "capital punishment" is a "ceremonial" law. "Capital punishment" is really a liturgical shedding of blood to make atonement. (Actually, I reject the "threefold division of the law." Here's why there is no such thing as "judicial law" in the Old Testament.)

Homicide with Nobody to Execute

Let's begin with Deuteronomy 21:1-9. This is case where someone has obviously been murdered (as opposed to a "natural" death), but there is no suspect to arrest, charge, try, and convict.

Deuteronomy 21:1-9 required the tribal elders to shed the blood of a heifer in order to atone for the shedding of innocent blood, following the directions of the priests:

{5} Then the priests, the sons of Levi, shall come near, for the LORD your God has chosen them to minister to Him and to bless in the name of the LORD; by their word every controversy and every assault shall be settled
{7} "Then they shall answer and say, 'Our hands have not shed this blood, nor have our eyes seen it.
{8} 'Provide atonement, O LORD, for Your people Israel, whom You have redeemed, and do not lay innocent blood to the charge of Your people Israel.' And atonement shall be provided on their behalf for the blood.
{9} "So you shall put away the guilt of innocent blood from among you when you do what is right in the sight of the LORD.

In The Annulment of the Dietary Laws, I.C.E. Position Paper No. 2, November 1984, Gary North writes:

The Cleansing of the Land

indent.gif (90 bytes)Since Christ's death and resurrection, the whole earth has been permanently cleansed of the death-curse it labored under as a result of Adam's fall. That release was established definitively at Calvary, and is being progressively revealed over time. The whole creation looks forward to the final release at the end of time (Rom. 8:19-23). This is one aspect of the release granted to the Church and to mankind in general by Christ.
indent.gif (90 bytes)In Old Testament Israel, for instance, the land was polluted -- religiously polluted -- by any unsolved murder. The elders of the city in which the murder occurred had to slay a heifer in order to remove the pollution from the land (Deut. 21:1-9). Calvary annulled this law; the death of Christ covered the pollution and permanently cleansed the land. There is no ritual cleansing required by the civil magistrates in order to free the land of pollution. | (link and emphasis added} |  Download PDF File

Nobody advocates the literal application of Deuteronomy 21 after the Cross. Christian theologians for 2000 years have rightly concluded that in our day only the blood of Christ can provide such atonement in cases of an unsolved homicide. Yet they persist in requiring the shedding of the criminal's blood when the homicide is "solved."

The Origin of "Capital Punishment"

Defenders of Capital Punishment usually begin with Noah. The verses are fairly well-known:

But you shall not eat flesh with its lifethat is, its blood5 Surely for your lifeblood I will demand a reckoning; from the hand of every beast I will require it, and from the hand of man. From the hand of every man’s brother I will require the life of man. Whoever sheds man's blood, By man his blood shall be shed; For in the image of God He made man.
Genesis 9:4-6

Noah was not "the State." Noah was the family priest. When Noah got off the ark,

Noah builded an altar unto the LORD; and took of every clean beast, and of every clean fowl, and offered burnt offerings on the altar.
21 And the LORD smelled a sweet savour; and the LORD said in His heart, I will not again curse the ground any more for man's sake; for the imagination of man's heart is evil from his youth; neither will I again smite any more every thing living, as I have done.
Genesis 8:20-21

These offerings propitiated the wrath of God. Nobody believes that the commands to offer burnt offerings (which God evidently gave to Noah or to Noah's forefathers, though that act of lawgiving is not recorded for us in the Bible) are obligatory in our day, after the work of Christ on the Cross. But theologians still believe that the shedding of blood commanded in the next chapter (ch. 9) are still obligatory.

(On Noah and the origin of "the State," see John Frame's Theology of the State:

Some have found divine warrant for the state in Genesis 9:6, where God commands Noah’s family to return bloodshed for bloodshed. But this is a command given to a family. There is no indication here of any new institution being established. And in the law of Moses, the execution of murderers was carried out, not by the state as such, but by the "avenger of blood," kin of the murder victim (Num. 35:19,21; Deut. 19:12). The family, here, is the instrument of justice. We have no reason to believe, therefore, that any special institution beyond the family for the establishment of justice was created in Genesis 9:6.

Frame sees "capital punishment" as belonging to the "judicial" category rather than the "ceremonial" category. My point here is simply to expand on the claim that no "civil magistrate" is required to obey the commands in Genesis 9.)

The Purpose of "Capital Punishment"

The primary purpose of the ritual shedding of the blood of those who shed innocent blood is not said by the Bible to be "sending a message" to criminals.

Undeniably, killing animals and shedding their blood can cause fear:

And he took a yoke of oxen, and hewed them in pieces, and sent them throughout all the coasts of Israel by the hands of messengers, saying, Whosoever cometh not forth after Saul and after Samuel, so shall it be done unto his oxen. And the fear of the Lord fell on the people, and they came out with one consent.
1 Samuel 11:7

But the Bible says the primary purpose of the ritual shedding of blood is to cleanse the land (Heb.: make atonement) of the pollution caused by the shedding of innocent blood.

So you shall not pollute the land where you are; for blood defiles the land, and no atonement can be made for the land, for the blood that is shed on it, except by the blood of him who shed it.
Numbers 35:33

Smaller sins could be atoned for through the temple sacrifices: lambs, turtledoves, etc., but some crimes were so serious that atonement could not be made in any other way than by the shedding of the blood of the criminal himself:

If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.
Leviticus 20:13 (other "capital" crimes are listed in this chapter with the same effect: "their blood shall be upon them")

All the "pragmatic" arguments in defense of maintaining the temple sacrifices -- how it "sends a message" and reduces crime by showing that society takes sin seriously -- are outweighed by the fact that such rituals, if performed today, would show that society does not take the work of Christ on the Cross seriously.

The Bible does not say to "execute" people by lethal injection, electrocution, gas chamber, or any other bloodless method man may devise to kill another human being. What the Bible very specifically required under the Old Covenant was the shedding of the murderer's blood, to make atonement.

Shedding blood in cases of murder (Genesis 9, Numbers 35) or unsolved murder (Deuteronomy 21) or other "capital" crimes (Leviticus 20), after Christ shed His blood, violates the book of Hebrews, and shows that society does not take the blood of Christ seriously.

That's my Theonomic argument against "Capital Punishment."

Further Confirmation

That "capital punishment" is actually part of the "ceremonial law" is suggested by the role played by the Levitical priests, even in areas that many would consider "judicial" or "civil":

Deuteronomy 17
“If a matter arises which is too hard for you to judge, between degrees of guilt for bloodshed, between one judgment or another, or between one punishment or another, matters of controversy within your gates, then you shall arise and go up to the place which the LORD your God chooses. And you shall come to the priests, the Levites, and to the judge there in those days, and inquire of them; they shall pronounce upon you the word [dâbâr] of judgment [mishpâṭ]. 10 You shall do according to the mouth [peh] of the word [dâbâr] which they pronounce upon you in that place which the LORD chooses. And you shall be careful to do according to all that they teach you. 11 According to the mouth [peh] of the law [tôrâh] in which they instruct you, according to the judgment [mishpâṭ] which they tell you, you shall do; you shall not turn aside to the right hand or to the left from the word [dâbâr] which they pronounce upon you. 12 Now the man who acts presumptuously and will not heed the priest who stands to minister there before the LORD your God, or the judge, that man shall die. So you shall put away the evil from Israel. 13 And all the people shall hear and fear, and no longer act presumptuously.

Psychoanalyzing Myself

I don't think there's some deeper reason why I came to reject capital punishment, e.g., that I'm "soft" on crime or don't care about sin or justice.

It could be argued that I needed to find a way around Biblical verses that seemed to require capital punishment because those verses were inconsistent with my movement away from "the State" and toward "anarcho-capitalism." This is not the case, because I see no Biblical  reason why capital punishment could not be administered by "patriarchs" (heads of households) in a stateless society ("Patriarchy"). See here.

Psychoanalyzing Everyone Else

Suppose we lived in a society where Old Testament temple sacrifices are still carried out. Lots of animals constantly having their blood shed to make atonement and propitiate the wrath of God. Suppose I called for the termination of all these animal sacrifices based on the book of Hebrews. Suppose there was great public outcry against my proposal:

"What? Eliminate sacrifices? Don't you care about sin? Don't you care about atonement? Won't that send a message to criminals that it's OK to commit crimes? Wouldn't eliminating the ritual shedding of animal blood cause a surge in crime?"

I appreciate these concerns. I'm all about "sending messages." I want to eradicate crime. I don't propose eliminating capital punishment in a way that "sends a message" that crime is OK. In my vision, capital punishment will only be eliminated by a society that has a fervent dedication to God's Standard of justice and to abolishing all crime. [More on "sending a message."]

Objection: "So what do we do with murderers?"

Let's start with logic.

That question -- and it's a worthy question -- is logically distinct from the argument I've raised above. It's a completely separate question.

Some members of our hypothetical ritual sacrificing society above, upon hearing of a proposal to eliminate animal sacrifices to atone for theft, might ask, "Well, what are you going to do with thieves if you don't sacrifice any animals? Just let thieves run rampant?"

My argument here is that shedding blood to atone for theft or murder denies the efficacy of Christ's blood. We shouldn't do it any more.

In the case of thieves, even the Old Testament required restitution from thieves (even though it also required ceremonial acts for atonement).

Even if we don't know what to do with murderers, we should still stop the ritual/ceremonial shedding of blood. The resultant demand to "Do something about murderers" will result in a quest for creative solutions. As long as we think we're OK just shedding their blood, there will be no demand for better alternatives, and they will not be proposed, debated, and implemented.

I have started a conversation on the question "What do we do with murderers" here.

How to "Send a Message"

"But if we abolish 'capital punishment,' won't that send a message to criminals that our society does not value life?"

It might seem a trite response to this criticism to say that killing cannot send the message that killing is wrong. Intentionally killing a murderer by executing him may not be the most effective way to send the message that life -- including that of the murderer -- has value.

So let's look at the idea of society "sending a message."

Since I was born, a group of people calling themselves "the government of the United States" has not only failed to send a good message to criminals about murder, it has been sending the wrong message in a most powerful way. It has created a "culture of death" through war and legalized abortion. And it creates a culture of death by banning God from the "Public Square."

“All those who hate Me love death.” (Proverbs 8:36)

During the 20th century, "private sector" homicides accounted for approximately 8.5 million murders worldwide. During that same century, "the State" -- which boasts of its purpose as protecting life against murderers and invaders -- murdered approximately 250-500 million people. Whichever estimate you accept, half the total represents governments murdering "their own" people to advance socialist programs at home, and half are the murder of people of other nations in war. "Over 60 million people were killed" in World War II alone. And whichever estimate you accept, "the State" is at least 25 times more deadly than the "criminals" from which it purports to protect us.

Clearly, "governments" send the message that life is not as important as maintaining power.

More than 10,000 people were intentionally killed by criminals last year in America. But during the 20th century, governments intentionally killed more than 10,000 people every day, each and every single day of the year, over the course of 100 years.

Abolishing the State could not possibly increase the number of murders that occur each year.

If nobody believed in "government," millions of people would not put on a uniform and kill millions of people. It is belief in the moral legitimacy of "the State" that causes ordinary people like you to wear a uniform and follow orders to kill people you don't even know, and have never done anything to harm you or even threaten you. Private sector crime knows nothing of this "government uniform" phenomenon. There is no reason to believe that people would start doing this if we abolished capital punishment and "the State."

Eliminating "capital punishment" is part of my agenda to eliminate entirely the institution we call "the State."

Conflicting Messages

God says "Thou shalt not kill" (Exodus 20:13, etc.).
Jesus said "Love your enemies" (Matthew 5:44; etc.).
The Bible, from cover to cover, is an anti-war anarchist manifesto.

This is why all governments -- eventually -- ban the Bible.

The United States bans the Bible from its "public" schools because the Bible ultimately undercuts the authority of the government. (Not that many in government are "epistemologically self-conscious" about this; the actions of most people are not well thought out.)

The government of the United States, through its Supreme Court, has said that a public school teacher cannot get in front of the students and, acting in her official capacity as a government-hired teacher, say these words, as if these words were actually, learnably true:

"God says you should not kill other people."

Or even more incorrect politically:

"The Bible says you should not kill other people."

Implicit in these simple statements is the claim that God exists, and that students have a moral obligation to listen to what God says, and obey Him. This is why the Supreme Court prohibited public schools from posting the Ten Commandments in public school classrooms. Even a privately paid-for copy of the Ten Commandments with this disclaimer cannot hang in a public school classroom:

The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.

The Court explained,

This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Abington School District v. Schempp, supra, at 374 U.S., at 225. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective....

It should be noted that an "appropriate study" of "comparative religion" etc., means examining ancient religions as irrelevant artifacts, and critiquing them from the perspective of the modern religion of Secular Humanism. The Court says you can tear down Christianity from a secularist perspective in a public school classroom, but you cannot endorse or promote it.

Notice also the distinction between "private devotion" and public ("state") objectives. The message being sent here is that you can be apply the commandments of Christ to your "private" life and still be a good citizen. But you may not apply the teachings of Christ to government or the "public sector." If you refrain from murder as a matter of "private devotion," that's fine, but if your Christianity forbids you in your capacity as a citizen of the State from voting for a mass murderer like George W. Bush, Barack Obama, or Hillary Clinton, or from wearing a uniform and killing enemies of the State, then your Christianity has exceeded its proper bounds. Most church-going Christians agree with this thinking. Christianity is for your private life, but not your life as a citizen, and not your government.

As of January 1, 2016, there were 2,943 death row inmates in the United States. Those who say that
abolishing "capital punishment" and sparing the lives of a few hundred people who are actually sentenced to death in the U.S. will "send a message" that killing is OK,
ignore the far more significant message that the government sends
by not allowing public school students to hear the message that God says not to kill,
and the message that government sends
by being the most efficient, evil, and dangerous killing machine on the planet.

To quote a Supreme Court Justice in another case, Christianity and the institution of systematic killing ("the State") are "on a collision course." The more people who follow Christianity, the fewer people can be recruited for imperialist murders.

We need to send a message that killing is wrong. Not just the thousands that "criminals" kill, but the millions, and tens of millions, and hundreds of millions of people that "governments" kill.

But our argument against capital punishment on this webpage is not about "sending a message." It is about accurately interpreting the message that God has already sent.