How do we know whether a Biblical law death penalty is mandatory?

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Mandatory versus Ransomable

There are two types of civil government death penalties in Biblical law:

1. Death penalties which are the talion punishment for negligently, but unintentionally, causing someone's death (e.g. Exod. 21:29, Deut. 22:8). These death penalties allow monetary ransom as a substitute for the penalty. See the article: Does Biblical law require a literal "eye for an eye"?
2. Mandatory death penalties which do not allow ransom or pardon (e.g. Num. 35:31).

From the standpoint of God's grace and eternal judgement, even the most egregious crime (like murder) can be forgiven, if the criminal repents. But in God's law there is a difference between eternal judgement and temporal judgement.

Some commentators have claimed that the only mandatory, non-ransomable death penalty is for the crime of murder. They have various arguments for this, some of which are addressed in the following essays:

Does Numbers 35:31 imply that all crimes except murder can be ransomed?

Don't the actions of certain Israelite kings show that death was only a maximum civil penalty?

Does Joseph's intent to divorce Mary show that the death penalty for adultery was not mandatory?

Semantic markers of the mandatory death penalty

In Biblical law, the mandatory death penalties are marked in two primary ways:

1. For most mandatory death penalties, except those in the book of Deuteronomy, scripture uses the Hebrew verb form mot yumat ("surely die"). Anywhere you see this in the law, it means that the death penalty is mandatory.
2. In the book of Deuteronomy, the phrase mot yumat is not used, but other signifying phrases (called "motive clauses") indicate that the death penalty is mandatory.

Let's examine each of these markers.

Mot yumat

The phrase "mot yumat" is a Hebrew verb form called the Hophal imperfect. It is often translated: "shall surely be put to death". This translation is a dynamic equivalency, trying to capture the idiomatic meaning of the pleonastic (doubled) form. In Hebrew, the doubling of a word often conveys an idea of intensification. In this case, it is an intensification of the idea: "putting to death."

In fact, the translation could even be made stronger, as shown in the entry on "mut" (Hophal imperfect) in the Theological Dictionary of the Old Testament. The author of this TDOT entry provides example English translations for Exod. 21:12 and Lev. 20:9:

"whoever strikes a man so that he dies shall be put to death unconditionally" (Ex. 21:12; cf. 21:15, 16, 17; 22:18[19]). ... "every one who curses his father or his mother shall be put to death unconditionally" (Lev. 20:9; cf. vv. 2, 10, 11, 12, 13, 15, 16, 27). As a rule, this schema concludes with the bloodguilt formula damaw bo, "his blood is upon him," or demehem bam, "their blood is upon them." (emphasis added)

Thus, the use of the Hophal imperfect verb form is the first indicator of the "unconditional" nature of this penalty. Let's briefly look at some other passages in scripture which reinforce this understanding.

The evidence from Numbers 35:31

Moreover, you shall not take ransom for the life of a murderer who is guilty of death, but he shall surely be put to death[mot yumat].Numbers 35:31

This verse is at the end of a section of the law which explains the cities of refuge. Cities of refuge were places where a person who unintentionally killed someone could flee for safety from the common practice of revenge-killing by the slain man's relatives. Generally, ancient Near East cultures did not distinguish between accidental killing and murder (the way Biblical law does!): if you killed someone accidentally, a relative could pursue you and make you pay -- either with your money (ransom) or your life.

That's why this verse is placed prominently in the "city of refuge" section. The law is making it clear that someone found guilty of murder could not be ransomed (the way most ANE cultures were accustomed to "solve" this problem), because murder is a mot yumot death penalty. Some commentators have tried to claim that this verse implies that all other death penalty crimes besides murder could be ransomed. For an extended explanation about why that interpretation doesn't work, see Does Numbers 35:31 imply that all crimes except murder can be ransomed?

Numbers 35:31 is one of the best pieces of evidence that mot yumat penalty entails an absolute prohibition upon ransom.

Evidence from Ezekiel

In Ezekiel, YHWH talks about the judgment due to a son who engages in several crimes (including murder, idolatry, and adultery):

13 ... shall he then live? He shall not live. He has done all these abominations. He shall surely die [mot yumat]. His blood will be on him.Ezekiel 18:13

YHWH is pretty clear here: "surely die" (mot yumat) means "shall not live". Notice the clause in v.13: "his blood will be on him". This clause reinforces the fact that the shed blood of the person to be executed would not be attributed as a crime to those doing the execution.

A counterargument from Ezekiel

Some commentators try to compare verse 13 to the later verse 21, which reads:

21 “But if the wicked turns from all his sins that he has committed, and keeps all my statutes, and does that which is lawful and right, he shall surely live. He shall not die. 22 None of his transgressions that he has committed will be remembered against him. In his righteousness that he has done, he shall live. Ezekiel 18:21-22WEB

The commentators make the argument that v. 21 suggests that a wicked person can "repent" of their evildoing and thus avoid any judgment brought against them for their evil acts. For example, Philip Kayser concludes from this verse:

If an idolater repents and becomes a believer, he shall surely live. If a man who has committed high treason shows genuine repentance, he shall surely live. There can be clemency for capital crimes.

Kayser fails to recognize that there has been a change in topic between verse 13 and verse 21. We must recognize that there is a division in the prophet's message between verse 20 and verse 21, which introduces a new set of ideas. Insofar as we understand where the judgement is coming from in these verses, there is no conflict between them. The unconditional judgement against the murderer in v. 13 is judgement brought by a civil government. This is evident (as indicated above) from the use of the Hophal imperfect and the standard "bloodguilt" clause which is associated with many of the death penalty laws.

On the other hand, the threatened judgement referenced in v. 21 against a different "wicked one" (different from the murderer in v. 13) is from YHWH Himself. Notice the phrase "remembered against him" in v. 22. This is a marker that Ezekiel is referring to YHWH's judgment, not human civil judgment.

Of course, it is true that YHWH graciously forgives those who repent of their crimes: even repentant murderers. But this gracious pardon from eternal judgement does not change the fact that certain egregious crimes require the civil death penalty, if convicted in court.

Evidence from a legal parallel

27 A man or a woman that is a medium, or is a wizard, shall surely be put to death [mot yumat]: they shall stone them with stones; their blood shall be upon them.Leviticus 20:27

Notice the mot yumot and the fact that the community is commanded to stone the convicted criminals. There is a similar passage in Exodus, showing the same type of crime:

18 “You shall not allow a sorceress to live. Exodus 22:18WEB

Here, the phrase mot yumat is not used. Instead, we have a clear denial of any punishment which does not result in death for the convicted sorceress.

On this law, Greg Bahnsen writes:

This says much more than simply that a convicted, practicing witch should be assigned some civil penalty. It specifically forbids allowing such a criminal to continue living (which she or he would do if any other penalty than capital punishment were inflicted).

Again, the parallelism with the crime in Lev. 20:27 shows that mot yumat means "shall not live."

Structural evidence in a "definition by example"

Furthermore, there is structural evidence from a case law which supports a single interpretation for mot yumat. When the Israelites were wandering in the wilderness, a man was witnessed gathering wood on the Sabbath (Num. 15:32). This was a violation of Exodus 31:15, which pronounced a mot yumat death penalty for anyone "doing work" on the Sabbath. However, the law did not specify the exact method of the death penalty (e.g. stoning), so Moses directly consulted YHWH.

YHWH's answer on this issue is structured as a chiasm:

A Then YHWH said to Moses: (v. 35) B The man must be put to death [mot yumat] C Shall pelt him with stones D the entire community outside the camp X They took him out (v. 36) D' the entire community outside the camp C' They pelted him with stones B' and he died — A' as YHWH commanded Moses

This brief pericope is translated literally (and awkwardly) to illustrate its perfect chiastic structure.

The above chiastic unit encapsulates a scriptural "definition by example" of mot yumat. When YHWH was asked by Moses what He meant by "mot yumat", He gave a singular, clear answer.

Mandatory death penalties in Deuteronomy

The phrase mot yumat does not occur in Deuteronomy. However, there are other ways in which we can identify mandatory death penalties.

Motive Clauses

I'm going to show you a tool which will help you better to understand Biblical law. One of the things which distinguishes Biblical law from other ancient Near East law systems is a feature labelled by Bible commentators as the "motive clause". Motive clauses are propositional statements which explain God's motivation in giving certain commands. For example, consider the following scripture:

Whoever sheds man's blood, by man will his blood be shed, for in the image of God he made man.Genesis 9:6

The non-italicized part of the above scripture is the command. The italicized part is the motive clause. This motive clause explains that the human-mediated retributive response to the crime is because the criminal attacked an image-bearer of God. In this case, we do not even need to know exactly what being "made in God's image" means. The motive clause, minimally, teaches us that transgressing the ontology of humans is somehow relevant to God's requirement for retribution.

In Deuteronomy, there are two motive clauses consistently associated with the death penalties. These two motives can be summarized as "purging out" or "extermination" (of the evildoer) and "deterrence" (of others from crime):

1. Purging out/extermination: "So you shall purge the evil from among you." (Deut. 13:5, etc.)
2. Deterrence: "Then all Israel will hear and be afraid, and will never again do such a wicked thing among you." (Deut. 13:11, Deut. 17:13, Deut. 19:20, Deut. 21:21).

Purging out/extermination

This motive clause is associated with crimes such as incest, false prophecy, idolatry, suborning idolatry, false testimony in a capital case, and kidnapping. The legal penalties call for the death of the transgressors, and all the instances of this clause in Deuteronomy use the Piel form of the Hebrew verb ba'ar. The commentator Craigie says that this verb "has the sense of 'burning out, purging out by fire.'" The Theological Dictionary of the Old Testament suggests the translation "exterminate," explaining:

A group of casuistic laws in Deuteronomy is of very special interest. In these laws the punishment is positively characterized by the words, you shall exterminate (RSV purge) the evil from your midst.12 The oldest sections in this group (Dt. 19:11-13; 21:18-21; 22:22; and 24:7) deal with the crimes of murder, stubbornness of a son, adultery, and kidnapping, and have a counterpart in the moth yumath (shall be put to death' ) series in Ex. 21:12-17.13

Michael Grisanti agrees that "exterminate" is an appropriate translation:

By exterminating the guilty party, they “burn out” or remove the evil (and evil influence) from the midst of the covenantal nation as a sobering deterrent for others.

Whether we translate it "purge out" or "exterminate", the intent is clearly to remove the evildoers from the whole human community (not merely to banish them, which would make them somebody else's problem). Here is the list of verses which contain variants of this motive clause: Lev 20:14, Deut. 13:5, Deut. 17:7, 12; Deut. 19:19, Deut. 21:21, Deut. 22:21, 22, 24; Deut. 24:7.

Deterrence

The deterrent effect is a natural corollary of the death penalty, and it serves the merciful purpose of reducing criminal acts which might otherwise have happened. This makes the community safer. It is one of the unambiguously "good" effects of taking God's law seriously.

The deterrent motive clause is often found in direct association with an "extermination" motive clause (Deut. 17:12-13, Deut. 19:19-20, Deut. 21:21). In one case -- Deut. 13:11 -- it is not.

Michael Grisanti writes (on the death penalty for disobeying a judicial ruling from the central tribunal):

Anyone who refuses to carry out this verdict, thereby acting arrogantly, must be stoned to death. To refuse a directive of one of God’s representatives is to stand in opposition to Yahweh. The death of that person will serve as a deterrent against any similar presumption.

Parallels with mot yumat

A way to verify the connection to the mot yumat penalties outside of Deuteronomy, are the parallel mention of certain crimes.

Adultery

For example, the crime of adultery:

22 If a man is found lying with a woman married to a husband, then they shall both die, the man who lay with the woman and the woman. So you shall remove the evil from Israel. Deuteronomy 22:22WEB

which has a parallel with the mot yumat penalty for adultery in Leviticus:

10 “‘The man who commits adultery with another man’s wife, even he who commits adultery with his neighbor’s wife, the adulterer and the adulteress shall surely be put to death. Leviticus 20:10WEB

Kidnapping

We also see this mot yumat connection in the crime of kidnapping:

7 If a man is found stealing any of his brothers of the children of Israel, and he deals with him as a slave, or sells him, then that thief shall die. So you shall remove the evil from among you. Deuteronomy 24:7WEB

16 “Anyone who kidnaps someone and sells him, or if he is found in his hand, he shall surely be put to death. Exodus 21:16WEB

Idolatry

Here is the death penalty in Deuteronomy for idolatry/false worship:

2 If there is found among you, within any of your gates which YHWH your God gives you, a man or woman who does that which is evil in YHWH your God’s sight in transgressing his covenant, 3 and has gone and served other gods and worshiped them, or the sun, or the moon, or any of the stars of the sky, which I have not commanded, 4 and you are told, and you have heard of it, then you shall inquire diligently. Behold, if it is true, and the thing certain, that such abomination is done in Israel, 5 then you shall bring out that man or that woman who has done this evil thing to your gates, even that same man or woman; and you shall stone them to death with stones. 6 At the mouth of two witnesses, or three witnesses, he who is to die shall be put to death. At the mouth of one witness he shall not be put to death. 7 The hands of the witnesses shall be first on him to put him to death, and afterward the hands of all the people. So you shall remove the evil from among you. Deuteronomy 17:2-7WEB

The parallel to mot yumat requires that we cross-reference the law in Exodus with another law in Leviticus:

He who sacrifices to any god, other than to the LORD alone, shall be utterly destroyed [charam].Exod. 22:20

The phrase "be utterly destroyed" above is the Hebrew charam, a Hophal imperfect verb. When we compare this verse with the following law in Leviticus:

No one devoted [charam], that shall be devoted from among men, shall be ransomed; he shall surely be put to death[mot yumat].Leviticus 27:29

we see that an idolater who is charam:

1. May not be ransomed (which exactly fits with what we learn about mot yumat in Numbers 35:31; see above)
2. Must be put to death [mot yumat]

Conclusion

The above connections show that the motive clauses of "extermination" and deterrence in Deuteronomy serve as semantic markers which reliably designate mandatory death penalties, equivalent to the use of mot yumat in the other Pentateuchal books.