Thoughts on Capital Punishment

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Whitey Bulger, Dzhokhar Tsarnaev, Jared Remy, and Jesus of Nazareth all have something in common. Lots of people wanted them executed.

Palm Sunday is April 13 when we will read the Passion according to Matthew’s gospel. This year the congregation will be the voice of Jesus during his arrest, trial, conviction and execution. Later that week on Good Friday we will hear the Passion according to John.   The first anniversary of the Boston Marathon bombings arrives during Holy Week when we will remember that fateful day and hear the cries for justice. A trial date has been set for November 3 and the prosecution is seeking the death penalty.

How do those of us whose hearts and minds have been captured by the crucified and risen Christ respond to capital punishment?   Here are some thoughts on the issue.

The issue of capital punishment is pressing because today well over 3,000 people pace the death row cells of America's prisons. If each of those prisoners were placed in a six-foot wide cell the cell block would stretch almost the distance it takes me to drive to church from my home, about four miles. The number grows larger each year, but of the many sentenced few are executed. During the first 20 years after the death penalty was reinstated in the United States in 1977, 285 were executed but 772 had their sentences overturned and 468 had their convictions overturned.

If I could walk that imaginary cell block route and meet each prisoner and learn what brought them to this fate I would surely be glad that they are where they are and that, at the very least, most should remain there for the rest of their lives.

If the subject is pressing, it is also difficult. Debate about capital punishment continues to be waged especially when spectacular cases arrive—and they always do—from an aging mobster apprehended to acts of terrorism to domestic violence that ends in murder. How do we approach this issue from the perspective of the Christian gospel, especially the one we have next week which finds our Lord on the threshold of death row. From the vantage point of this peculiar Christian story, have we anything to say that would not be found on the op-ed page?

Indeed the Hebrew Scriptures (our Old Testament) do not prohibit capital punishment and in fact prescribe capital punishment for certain crimes. It seems clear from such scriptures that God entrusts the state with power to take human life when a failure to do so constitutes a clear danger to society. There are those who point to such passages to support the practice of executing murderers in our time. However, those who argue for capital punishment on this basis must also consider that the Hebrew scriptures list no fewer than seventeen crimes that are punishable by death, including sorcery, prostitution, profaning the Sabbath, contempt for parents, and, of course, adultery, proving once again the perils of literalism. Fortunately they never say that crime must be punished by death. The Hebrew Scriptures really lead us to this question: Can a death penalty be administered in a just manner?

What about the New Testament? Well, the New Testament does not include any explicit prohibition of capital punishment. And yet before Jesus gets anywhere close to his own trial he meets someone who has already been tried, convicted and sentenced to death. And instead of letting it be carried out he intervenes in the case of a woman about to be stoned to death for committing adultery. But even here the gospel reading does not record that Jesus made any general statements about the practice of capital punishment. John merely records how Jesus responded to the particular circumstances of that one incident. That is one reason why it can be dangerous to trace ethical guidelines from a single biblical story. That does not mean that we cannot infer much from such a passage. While the New Testament writings do not prescribe capital punishment, they do not contain any explicit prohibition of capital punishment, either.

There are two arguments that are most commonly offered by those who support capital punishment. First, capital punishment is often advocated as a deterrent to future crimes. This is a straightforward and secular argument and seems to have some common sense. But a number of studies cast great doubt on the effectiveness of capital punishment as a deterrent to crime. The United States is the only Western, industrialized country that practices capital punishment, and yet we have had the highest incidence of homicide. Individual states that have had periods when they practiced capital punishment, and other periods when they did not, show no correlation between their practice and the incidence of homicide. Adjacent states in the same period of time, where one practices capital punishment and the other does not, show no difference in the incidence of homicide. As Albert Camus observed, "When pickpockets were punished by hanging in England, other thieves exercised their talents in the crowds by surrounding the scaffold where their fellow was being hanged. "

When confronted with such evidence, those who favor capital punishment usually move beyond the argument based on deterrence. The second commonly-cited reason for the practice of capital punishment is the desire for justice. And what I often hear here is really a desire for vengeance. And let’s face it, sometimes vengeance can be incredibly satisfying. The desire for vengeance is so natural, and thus very understandable. It is older than history, certainly older than the Mosaic formulation, "An eye for an eye, and a tooth for a tooth." Indeed, vengeance can seem almost instinctual. We can see it at work in every school-yard scuffle, where a balance sheet is kept of every push and shove. As one editorial writer put it, "Taking the lives of murderers has a zero-sum symmetry that is simple and satisfying enough to feel like human instinct: The worst possible crime deserves the worst possible punishment."

Having granted that, however, it is important to add that a response that is natural, instinctual or even understandable is not necessarily right. As Christians we are called to an ethic that is by no means natural. It is rigorous and difficult. If someone hits you, the natural response is to hit that person back. But we are stuck with Jesus, who says difficult things like, "You have heard it said that 'an eye for an eye, and a tooth for a tooth,' but I say to you, if someone strikes you on the right cheek, offer him the left also."

It is not fair to characterize vengeance as a mere primitive instinct. It is more than that.   One law professor put it this way: "Execution is primarily a vengeance mechanism, but that is not necessarily a bad thing. Vengeance is a way society gestures to itself that justice has force against injustice." Walter Berns, an eloquent defender of capital punishment, argues that society must manifest a terrible anger in the face of a terrible crime, for nothing less will suffice to "remind us of the moral order by which alone we can live as human beings."

In other words, according to these advocates of capital punishment, vengeance is more than brut instinct. It can be a highly refined desire to affirm the standards of civilization. It says that we take our standards seriously and will not see them mocked by antisocial, violent individuals. Capital punishment is one way to affirm that our laws transcend the life of any individual.

This is a serious argument. Nevertheless, it seems to me that in our attempt to prove that we will not have our standards of justice mocked, we end up mocking them ourselves. Consider first how the death penalty and capital punishment are a great distraction for our need of vengeance and how it concentrates our focus on the convicted. This distraction of seeking vengeance not only keep us from expressing sympathy and offering support to victims of crime but really ends up hanging them out to dry. Somehow it seems safer for us as a society to spit on the convict rather than embrace the victim. We are almost more afraid of the victims of violent crime because we know they could be us in a way that we could not be the criminal. One of the chief complaints in support groups for those who have been victims of crime is that once the trial is over they are on their own.   And so it is because of our church’s concern to minister to people affected by violent crime that the death penalty is wrong. The focus gets terribly misplaced.

The argument for vengeance also seems wrong because of a strange logic. We kill people who kill people to show people that killing is wrong. To me, that in itself is an uncomfortable paradox, at the very least.

But even those who can accept such a paradox will have to admit that when we move from theory to practice the picture becomes even more disturbing. The record provides abundant evidence that the death penalty is imposed without precision or consistency. Even those Hebrew Scriptures that prescribe capital punishment take pains to stipulate that the punishment must be meted out fairly and equitably, a standard that we cannot claim to uphold.

We wonder about a legal system, for example, that kept passing Jared Remy along, despite many arrests and much violence, and never stopped him before it was too late. It seems that highly paid attorneys and a famous father kept him out of jail. An old slogan states the opposite: "Those without the capital get the punishment."

If the current system of justice discriminates against the poor, it all the more clearly discriminates on the basis of race. Although the 1976 Supreme Court decision that made capital punishment permissible again was supposed to have included safe-guards that would assure that capital punishment would not be used in a way that discriminates against minorities, the record since then indicates that the discrimination continues. About half of all the people who are murdered each year in the United States are black. Yet, since 1977 when capital punishment was reinstated in this country, the overwhelming majority of people who had been executed-- 85 percent-- had killed a white person. Only eleven percent had killed a black person. David Baidus, a University of Iowa law professor found that, although blacks account for some 60 percent of Georgia homicide victims, the killers of black victims are punished by death less than one-tenth as often as are the killers of white victims. When Peewee Gaskins was executed in North Carolina several years ago, it was the first time in nearly half a century that a white American was put to death for killing a black one.

In such a flawed system it is more than a mere theoretical possibility that innocent parties are executed. New examples are added to the public record in which innocent people are executed and, incredibly, some have been executed even after the real murderer has stepped forward to confess guilt. The Innocence Project states that 18 of the 314 people exonerated through DNA evidence since it began in 1989 served time on death row.  

As much as this may disturb us, it should not surprise us. It reaffirms what we should have known all along: Even a carefully crafted system of justice is imperfect because it was crafted and administered by fallible human beings. Consider Jesus in our Palm Sunday gospel. There were folks just like you and me who were convinced beyond a shadow of a doubt that Jesus was guilty and should be executed. In Palm Sunday’s past, we remember the congregation reading the part of the crowd who yell: “Crucify Him. Crucify Him!” We know that our voice is their voice. In short it is our concern for justice and the actual use of a death penalty that makes capital punishment wrong. We cannot be precise enough in our judgments when the stakes are so high as to cost a human life.

Of course, even though our judgment is imperfect, we are called upon to use that judgment every day. We cannot avoid the necessity of standing in judgment over one another. Civilization requires it. In order for civilization to survive, crimes must be identified and violators punished. That is why Moses, and then those whom Moses appointed, were given the job of being judges for the Hebrew people. But even a wise and divinely-appointed judge like Moses pronounced every judgment in great fear and trembling, recognizing that our judgments will be necessarily flawed because we measure deeds with a crude instrument.

And so, our judgments can never be absolute, but only preliminary, awaiting the absolute and perfect judgment of God. Christ the King whose return we await and whom we confess will judge the living and the dead is temporarily out of the courtroom, and we may need to put together a system of judgment and punishment in the interim to keep order, but we must never forget that we are merely stand-ins for the true judge who always keeps the prerogative of final judgment.

If we lived in a world without God, if all we had were our own human reason, our own human conscience, our own human justice, then we might be free to be absolute in our punishments. But when we recognize that God is our one true judge we will view our own judgments as potentially flawed, and thus preliminary, conditional, and subject to appeal, always subject to appeal to the one absolute judge, that is to God. If we recognize this, it seems to me that we will exhibit greater humility in our judgments. Such humility would prevent our judgments from taking any final, absolute form, such as the death penalty. Even if it were an appropriate response to a crime, our own sinfulness prevents us from distributing such punishment with fairness.

It might not come as any surprise that our denomination’s position on Capital Punishment is one of opposition to it and for many of the reasons I have stated here. You can find it here.

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