Why Two Common Biblical Arguments against the Death Penalty Don't Work

John H has recently posted his rethinking of the death penalty, stressing the importance of the passages in Genesis 4 and John 8, where God/Jesus foregoes applying the death penalty to a person definitely guilty of a capital crime.

I made some snarky comment in his comment box, and now I feel I should pay for it by doing him the courtesy of a reasoned argument why I believe his exegetical case doesn't stand up.

Now, I'm not going to try to convince anybody one way or the other about the death penalty, but I do think both of his Biblical arguments are flawed.

For Genesis 4, I would argue for a more dispensational reading. (Even a broken clock tells the right time twice a day, right?) .

In Genesis 4, Cain is worried about being killed by a passer-by (not by the state, which doesn't exist). God gives him a mark of immunity. In fact God was simply letting Cain get away with murder. In Genesis 3-6 we have a situation in which God has not given anyone the right to shed blood -- blood of animals or blood of men. Yet the world is divided into those righteous in their generation, who obey God (the line of Seth to Enoch to Noah), and the wicked (all the rest).

So we have a world in which violence and righteousness are completely sundered. Those who obey won't kill, those who don't obey -- will. The only form of killing is murder, and only the righteous are subject to it. We see the result -- the Flood.

After the Flood, the broken post-paradisiacal situation is explicitly revoked and reversed by Genesis 9, and men -- even those righteous in their generation, who obey God -- are given the right to kill: "Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God has God made man." And they are also given the right to kill animals: "The fear and dread of you will fall upon all the beasts of the earth and all the birds of the air, upon every creature that moves along the ground, and upon all the fish of the sea; they are given into your hands. Everything that lives and moves will be food for you. Just as I gave you the green plants, I now give you everything." The two go together, blood vengeance and meat eating.

Together these commandments establish a world in which violence and righteousness are no longer completely sundered -- and hence God will preserve the world from any future Flood.

About John 8, I think it is completely irrelevant to any question of the death penalty -- not for it or against it, but just irrelevant. Too little attention is paid to verse 6:

The teachers of the law and the Pharisees brought in a woman caught in adultery. They made her stand before the group and said to Jesus, "Teacher, this woman was caught in the act of adultery. In the Law Moses commanded us to stone such women. Now what do you say?" They were using this question as a trap, in order to have a basis for accusing him.

The bolded verse should instantly recall for the reader the other episodes of the Pharisees violating their very own laws in order to attack Jesus. For example, in Mark 3:4-6, Jesus heals on the Sabbath, asks the Pharisees "Which is lawful on the Sabbath: to do good or to do evil, to save life or to kill?" and they respond by breaking the Sabbath rest themselves -- to do evil!: Then the Pharisees went out and began to plot with the Herodians how they might kill Jesus.

So is there anything in the context that suggests this whole thing is a set up, that the Pharisees and scribes are not even obeying the letter of the Mosaic law, that the whole thing is a stupid, odious trap? Yes, there is. They "brought in a woman caught in adultery." Caught in the act. Alright, so where's the man? By definition, if she was caught in the act, a man was caught with her. The law of Moses is clear: If a man commits adultery with another man's wife—with the wife of his neighbor—both the adulterer and the adulteress must be put to death (Lev. 20:10). No exceptions for the adulterer allowed. So where is he? And how convenient that someone was caught in adultery just when the Pharisees need a cleft stick to put Jesus in. One would almost think that the adulterer might have been one of them who arranged the convenient "caught in the act" deal with some po' Judean trash he'd been seeing since who knows when to give them one.

If He says "Let her go" He's breaking the Law of Moses, if He says "Stone her" He's party to what the people know is an injustice -- that's the basis for the accusation they want to make against him.

Without the adulterer the whole thing stinks of a set-up. It's a politically motivated prosecution, prosecutorial misconduct, pulling a Nifong, using the justice system as a partisan plaything -- call it what you will. What it is obviously not is a good-faith effort to apply the law of Moses fairly. And just as when Jesus is presented with other "heads I win, tails you lose" accusations, he turns it around on them.

"If any one of you is without sin, let him be the first to throw a stone at her": this is not some generalized statement about "judge not lest ye be judged" -- this is a specific reading of the hearts of the Pharisees who couldn't give a d**** about the Law of Moses and are simply trying to find a way to do in Jesus and don't care how much damage they do to everyone around them in the process.

If I was on a jury, and a Republican prosecutor brought in a case alleging that some Democratic politician was caught in a kickback scheme, and then it come out in the course of the trial that another, Republican, politician was just as deep or deeper in on the crime, and the prosecutor declined to charge him because, well after all, he's on our side -- well, I would vote to acquit no matter how plain the evidence against the Democratic politician was. And my doing so would say nothing about what I feel is the proper legal penalty for taking bribes.