University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship Summer 2004 The eD ath Penalty and Due Process in Biblical Law Richard H. Hiers University of Florida Levin College of Law, [email protected] Follow this and additional works at: http://scholarship.law.ufl.edu/facultypub Part of the Religion Law Commons Recommended Citation Richard H. Hiers, The Death Penalty and Due Process in Biblical Law, 81 U. Det. Mercy L. Rev. 751 (2004), available at http://scholarship.law.ufl.edu/facultypub/741 This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. THE DEATH PENALTY AND DUE PROCESS IN BIBLICAL LAW RICHARD H. HIERS* This is the provision for the manslayer, who by fleeing there may save his life. If anyone kills his neighbor unintentionally without having been at enmity with him in time past... he may flee to one of these cities .. lest the avenger of blood in hot anger pursue the manslayer and overtake him, because the way is long, and wound him mortally, though the man did not deserve to die... lest innocent blood be shed in your land which the LORD your God gives you for an inheritance, and so the guilt of bloodshed be upon you. (Deuteronomy 19:4-10) INTRODUCTION Modem opponents and proponents of capital punishment, alike, often turn to "the Bible" in order to support their respective viewpoints. Those with either secular or religious "liberal" (or humane) concerns tend to emphasize certain biblical texts that can be read to oppose the death penalty, while "conservatives," especially religious conservatives, often advocate capital punishment, citing other biblical texts as authority.' * Professor of Religion, Emeritus, and Affiliate Professor of Law, Emeritus, University of Florida. Member, Florida Bar, U.S. District Court for the Western District of Texas, and the Bar Association of the Fifth Federal Circuit. Former law clerk with Judge Jerre S. Williams, U.S. Court of Appeals for the Fifth Judicial Circuit. Former President, American Academy of Religion, Southeast Region, and Society of Biblical Literature, Southeastern Region. The writer here wishes to record appreciation for instructive comments on earlier drafts of this article by Dr. Melissa Aubin, then Assistant Professor of Religion at Florida State University; Professor Marie Failinger, Hamline University School of Law; and the late Dr. Stephen C. O'Connell, former Chief Justice of the Florida Supreme Court and President of the University of Florida. Thanks are due also to the University of Florida for research support, and to the University of Oregon, particularly its William W. Knight Law Center and its Information Technology Center for use of its facilities and assistance by staff. 1. See, e.g., Glen H. Stassen, Biblical Teaching on Capital Punishment, & Jacob J. Vellenga, Is CapitalPunishment Wrong?, in CAPITAL PUNISHMENT: A READER 119-36 (Glen H. Stassen ed., Pilgrim Press 1998). Both articles are reprinted in TAKING SIDES: CLASHING VIEWS ON CONTROVERSIAL ISSUES IN RELIGION 186-01 (Daniel K. Judd ed., McGraw- Hill/Dushkin 2003). Citations infra are to the 1998 publication. See generally JAMES J. MEGIVERN, THE DEATH PENALTY: AN HISTORICAL AND THEOLOGICAL SURVEY 9-19 (Paulist Press 1997) (noting certain problematic aspects of biblical interpretation, and critiquing several contemporary treatments of biblical passages as proof-texts favoring capital 752 UNIVERSITY OF DETROITMERCYLA WREVIEW [Vol.81:751 Biblical texts occasionally are even cited as authority in judicial opinions.2 This article does not undertake to resolve current debates as to the propriety or effectiveness of capital punishment.3 The intent here, rather, is to achieve a more complete and accurate understanding of biblical perspectives and concerns in regard to the death penalty, in contrast to understandings that rely primarily upon selected proof-texts. When relevant biblical laws and texts are understood both for what they actually say and in their respective historical contexts, it can be seen that biblical perspectives are more complicated than either modem proponents or opponents of the death penalty usually recognize. Moreover, it will become evident that biblical laws provided a rather remarkable array of due process protections for persons accused of capital offenses. These due process provisions appear especially in some of the later biblical law codes. Strangely, the subject of biblical due process protection has been virtually ignored by both biblical and legal scholars.4 "Due process" is not, of course, a term found in biblical texts. Nevertheless, utilization of this punishment). The fact that states such as Texas and Florida, which carry out the greatest number of executions, are located in what once was designated "the Bible Belt," may not be entirely co-incidental. See infra notes 354, 382. 2. See a collection of such citations by Michael Medina, The Bible Annotated: Use of the Bible in Reported American Decisions, 12 N. ILL. U. L. REV. 187, 189-91, 195, 198-99, 202, 214,216-18, 221,226, 247 (1991). 3. Several law journal symposia on death penalty issues have appeared in recent years. See, e.g.: 53 DEPAUL L. REV. No. 4 (2004); 33 N.M. L. REV. No. 2 (2003); 86 JUDICATURE No. 2 (2002); 81 OREGON L. REV. No. 1 (2002); 29 HOFSTRA L. REV. No. 4 (2001); and 33 CONN. L. REV. No. 3 (2001). See also Jonathan Alter, The Death Penalty on Trial, NEWSWEEK, June 12, 2000, at 24-34; Hugo Adam Bedau & Michael L. Radelet, Miscarriagesof Justice in Potentially CapitalCases, 40 STAN. L. REV. 21 (1987); FRANK G. CARRINGTON, NEITHER CRUEL NOR UNUSUAL: THE CASE FOR CAPITAL PUNISHMENT (Arlington House 1978); CAPITAL PUNISHMENT (Thomas Draper ed., H. W. Wilson Co. 1985); Samuel R. Gross, Lost Lives: Miscarriagesof Justice in Capital Cases, 42 U. MICH L. QUAD. NOTES 82-94 (1999); ERNEST van den HAAG & JOHN P. CONRAD, THE DEATH PENALTY A DEBATE (Plenum Press 1983); CHALLENGING CAPITAL PUNISHMENT: LEGAL AND SOCIAL SCIENCE APPROACHES (Kenneth C. Haas & James A. Inciardi eds., Sage 1988); FACING THE DEATH PENALTY: ESSAYS ON A CRUEL AND UNUSUAL PUNISHMENT (Michael L. Radelet ed., Temple Univ. Press 1989); MICHAEL L. RADELET, HUGO ADAM BEDAU, & CONSTANCE E. PUTNAM, IN SPITE OF INNOCENCE (Northeastern Univ. Press 1992); GREGORY D. RUSSELL, THE DEATH PENALTY AND RACIAL BIAS: OVERTURNING SUPREME COURT ASSUMPTIONS (Greenwood Press 1994); CAPITAL PUNISHMENT: A READER, supra note 1; LLOYD STEFFEN, EXECUTING JUSTICE: THE MORAL MEANING OF THE DEATH PENALTY (Pilgrim Press 1998); and articles in PHI KAPPA PHI FORUM 82:1 (2002), pp. 19-27. Most such studies evaluate the effectiveness or propriety of capital punishment without reference to biblical texts or norms. 4. But see Steven A. West, Scripture Can Advocate Capital Punishment, 12 CHRISTIAN LEGAL SOC. QUARTERLY 9, 11-12 (no. 3, 1991) (describing certain biblical provisions as "due process" protections). See also Edwin M. Good, CapitalPunishment and Its Alternatives in Ancient Near Eastern Law, 19 STAN. L. REV. 947, 972-74 (1967). Good discusses certain "procedural requirements in capital cases" found in Ancient Near Eastern (ANE), including biblical law, though not in terms of "due process" procedures or protections. 2004] THE DEATH PENALTYAND DUE PROCESS IN BIBLICAL LAW 753 concept and other modem jurisprudential categories when appropriate may illuminate the function if not also the intent of a number of biblical laws with respect to capital punishment. The first part of this article reviews those biblical texts that have been (or could plausibly be) read as condemning or repudiating capital punishment. The next, and necessarily more detailed and extensive part, discusses the many texts that explicitly call for, or illustrate application of the death penalty. This section also describes the different prescribed methods for executing offenders, identifies the persons assigned responsibility for carrying out executions, and examines biblical rationales for capital punishment A third part describes a variety of biblical provisions that, using modem legal terminology, may be said to afford certain due process procedures and protections. The conclusion notes that although both proponents and opponents of capital punishment commonly misconstrue certain biblical texts, a great many biblical texts express fundamental concerns which might well be considered relevant and important in evaluating contemporary United States death penalty jurisprudence and practice. This article assumes that biblical tradition - including biblical laws developed or evolved over many centuries. The relative sequence and dating of the biblical "sources" or components considered here for the most part follows the general consensus of current biblical scholarship. Thus, as will be noted below, the Ritual Decalogue (Exodus 34:17-28) is regarded as the earliest segment of biblical law, dating possibly from the 13th century B.C.E. The Covenant Code (Exodus chapters 20-23) is thought to have been set down or "codified" a century or so later. The Deuteronomic Code (here identified as Deuteronomy chapters 5 and 20-26), followed, perhaps as early as 1000 B.C.E. The Holiness Code (Leviticus chapters 17 or 18- 26) is dated around the middle of the 7th century B.C.E. and was succeeded a few decades later by what is designated here the Revised Deuteronomic Code (Deuteronomy chapters 12-19). Priestly or P tradition generally, including the so-called Priestly Code, is thought to have been formulated in the 6th or 5th centuries B.C.E. The Priestly Code is the term used to describe the large body of laws found in Exodus, Leviticus and Numbers that are not attributable to earlier codes. Narrative traditions and other biblical writings often presuppose or apply various laws relating to the death penalty or due process standards.