Christian NT scholar Craig Evans believes that the usual Roman practice in Palestine during the lifetime of Jesus was to hand over the bodies of persons crucified to the Jews for proper burial following Jewish burial customs. His strongest evidence for this claim is this claim by Josephus:
Bart Ehrman, noted agnostic NT scholar, responds to Craig’s claim and comments on this statement from Josephus on his blog, here. I will summarize Erhman’s comments below:
Note in the statement above, that Josephus does not say that the burial of crucified Jewish victims on the same day before sunset had been the Jewish custom for the entire period of Roman occupation of Palestine. He is writing about events which occurred 35-40 years after the death of Jesus, during the time of the Roman-Jewish Wars; very different circumstances than during Jesus’ day. Therefore it is not clear that we should understand Josephus to mean this always, or typically, happened. We can only say that it was, according to Josephus, something that took place in his day.
More importantly, Josephus’ statement is simply not true as a description of general Roman practice. During the Jewish Wars there were massive numbers of crucifixions. At one point, the Roman general Titus was capturing and crucifying 500 Jews a day in front of the walls of Jerusalem! Does any scholar believe that Jews inside Jerusalem were leaving the safety of the city to ask the Roman commanders for permission to take down the crucified bodies because they wanted to bury these crucified Jews before sunset…in compliance with Jewish law? Come on! It was war. The Romans would have strung up these Jews too!
So what conclusions can we draw about Josephus’ statement above? Answer: If Josephus’s statement was true, it was not true all the time, but only in some circumstances, when the conditions allowed. And for most of the crucifixions that occurred in the first century, the conditions did not allow.
So what were the conditions like during the time of Jesus? For one thing, there was no war. Jerusalem was not under siege. When Josephus says that “even malefactors” who were crucified were given decent burials he uses the generic term (καταδικη). He uses the term or its derivatives 17 times in his surviving writings, always to refer generally to someone who is condemned to something (e.g., slavery, dishonor, or crucifixion). In none of the 17 times that he uses it does he use it to refer to someone who was condemned to crucifixion as an “enemy of the state” or an “insurrectionist.” In the New Testament Jesus is never referred to with this term (translated here as “malefactor”). When he is crucified, he is not simply “condemned.” He is charged with calling himself the King of the Jews. This is a charge of political insurrection. Jesus was executed as an enemy of the Roman state.
So with this background, it is possible that during Jesus’ lifetime, Jews were sometimes given the right to bury some crucified victims when they were guilty of lesser crimes, when they were simply “malefactors,” as opposed to being “enemies of the state.” In summary, not only during war but also in times of (relative) peace the Romans publicly humiliated and tortured to death enemies of the state precisely in order to keep the peace.
A person who declared war on Rome by calling himself a self-appointed king would be publicly tortured and humiliated, left to rot on a cross so that every person passing by would receive fair warning not to ever think about crossing Rome. There was no mercy. There was no decent burial, precisely because there was no mercy or reprieve in cases such as this. After Romans had made their point, the body could be dumped into some kind of pit or common grave, but not until the humiliation and the punishment were complete.
In summary, even if Josephus is stating a general practice among Jews, it is not a practice that applied to times of war or threats of war. It did not apply to enemies of the state. Jesus was an enemy of the state, crucified for calling himself King of the Jews.