A lawyer asked me to respond to some arguments raised by another lawyer who claimed Jesus did away with the death penalty in the NT. The objections against the death penalty are in bold. My commentary follows:
In the Sermon on the Mount, Jesus said you have heard it said an eye for an eye, but I say to you turn the other cheek, etc. Therefore Jesus repudiates capital punishment, and it is the only old law he (He) specifically repudiates.
Jesus is dealing with a misapplication of the OT law by the Pharisees. He is not creating a new law. He just said that he did not come “to abolish the law and the Prophets” (Matt. 5:18). In the case of Matthew 5:38–42, there were those who were using a law that was designed to be executed by civil courts and who were applying it to personal relationships—everything from “an eye for eye” and “tooth for tooth” to “bruise for bruise” and “life for life” (Ex. 21:23–25). This text has been used by the Common Law to establish the principle that “the punishment should fit the crime.” The text in Exodus makes a particular point lost on Jesus’ NT and modern audiences: The adjudication is determined “as the judges decide” (21:22). This is a civil determination, not a personal one where vendettas are likely to foment.
Notice that the disputes are minor: a slap on the cheek, the theft of clothing, the demand to march (Matt. 5:39–41) that do not mandate civil action. Jesus may be giving instructions on how to deal with an occupying force (the Romans). If someone slaps you, do not retaliate. Of course, if the slap turns into something life threatening, noting is said about not defending oneself. The same is true if a soldier takes your shirt or cloak. And so what if a solider forces you to march. Go a Roman mile; go two miles to pacify his whims. Jesus was giving His audience a lesson in what was actually written in the OT, not what people thought it said.
The OT repeatedly forbids personal vengeance: “You shall not take vengeance, nor bear any grudge against the sons of your people, but you shall love your neighbor as yourself; I am the LORD” (Lev. 19:18; cf. Prov. 20:22; 24:29). This is the same OT that supports capital punishment. You can see this in Paul’s writings as well. In Paul’s letter to the Romans, we read: “Never take your own vengeance, beloved, but leave room for the wrath of God, for it is written, ‘Vengeance is Mine, I will repay, says the Lord’” (12:19). And yet, in the next chapter, Paul writes concerning the civil magistrate: For he “is a minister of God to you for good. But if you do what is evil, be afraid; for it does not bear the sword for nothing; for it is a minister of God, an avenger who brings wrath upon the one who practices evil” (12:4). This is why Paul could say, “If then I am a wrongdoer, and have committed anything worthy of death, I do not refuse to die; but if none of those things is true of which these men accuse me, no one can hand me over to them. I appeal to Caesar” (Acts 25:11; cf. Rom. 1:32). Paul didn’t claim the death penalty was no longer in effect.
You can see the misapplication of the text in the Sermon on the Mount you are using to justify Jesus’ nullification of capital punishment in Matthew 5:43: “You heard that it was said, ‘You shall love your neighbor, and hate your enemy’” (Matt. 5:43). As we saw above, the OT (Lev. 19:18) does say you shall love your neighbor as yourself, but there is no OT law that says to hate your enemy. The people in Jesus’ day, however, “heard it said” that it was OK—even biblical—to hate their enemies. Obviously, they heard wrong, because Leviticus 19:34 reads: “The stranger who resides with you shall be to you as the native among you, and you shall love him as yourself; for you were aliens in the land of Egypt: I am the LORD your God.”
In Jesus’ only confrontation with capital punishment until his own execution, he stops it and sends the executioners away and tells the offender to go and sin no more (forgiveness). This is the woman being stoned to death where Jesus says whoever is without sin can throw the first stone.
Your use of John 7:53–8:1–11 to justify your claim that Jesus nullified capital punishment is a weak reed. This is not “Jesus’ only confrontation with capital punishment until His own execution.” Let’s take a look at Mark 7:1–13. Jesus accused the Pharisees of “neglecting the commandment of God” so they could “hold to the tradition of men” (7:8). They set “aside the commandment of God in order to keep [their] tradition” (7:9). The commandments Jesus was referring to were OT commandments: “For Moses said, ‘Honor your father and your mother’; and, ‘He who speaks evil of father or mother, let him be put to death’” (7:10). Here we see Jesus applying Exodus 21:17 and Leviticus 20:9 in a NT context. The same account is found in Matthew 15:1–14, the same NT book where you claim Jesus did away with the death penalty because it was part of the OT. You ask WWJD? I don’t know, but I know what Jesus said. There’s some NT application even if we don’t know how it can apply. The same is true with the woman caught in adultery.
The story of the woman caught in adultery is interesting. Keep in mind that adultery does not necessarily lead to the death penalty. Joseph, who suspected Mary of adultery, “put her away secretly” (Matt. 1:19). It’s obvious by the story in John that Jesus was being set up. Notice that Jesus did not abolish the death penalty in anything He said. He asked for witnesses. None came forth. Where was the man? The scribes and Pharisees claimed she had “been caught in adultery, in the very act” (John 8:3–4). It takes two to tango. We’ve already seen that it was the Pharisees who were lawless. They favored their own traditions over against the written law.
The requirement that only a person who is sinless can cast the first stone is misunderstood. If this were the requirement for adjudication, no witness would be worthy to testify in any criminal case. Jesus was identifying their duplicity and complicity in the crime. They, too, were adulterers. Was one of them the other adulterer? Was she a prostitute that all of them “used” on a regular basis? How does a group of men find a couple in the very act of adultery unless they know where to look? Jesus knew their hearts, because “He Himself knew what was in man” (John 2:25). They walked away because they could not meet the standards of the law. In the end, there were no witnesses against her. What is different about similar judicial proceedings today? If there are no witnesses willing to testify, a prosecutor has no case. Even so, Jesus tells the woman, “from now on sin no more” (8:11).
There is no way the NT can be used to justify the abolition of the death penalty. How it should be applied and it what circumstances is another question.