Capital Punishment: Only for the Innocent

(Originally printed in the Winter/Spring 2013 Issue of the MCOI Journal )

In June of 2012, The Huffington Post had the bold headline: “Belief in Hell Lowers Crime Rate, According to International Study.”¹Huff Post Religion, “Belief in Hell Lowers Crime Rate, According to International Study,” 6/19/2012

The study, appearing in the Public Library of Science journal PLoS ONE, found that criminal activity is lower in societies where people’s religious beliefs contain a strong punitive component than in places where religious beliefs are more benevolent. A country where many more people believe in heaven than in hell, for example, is likely to have a much higher crime rate than one where these beliefs are about equal. The finding surfaced from a comprehensive analysis of 26 years of data involving 143,197 people in 67 countries.²Huff Post Religion, “Belief in Hell Lowers Crime Rate, According to International Study,” 6/19/2012; http://www.huffingtonpost.com/2012/06/19/belief-in-hell-lowers-cri_n_1609247.html

The article points out “criminal activity is lower in societies where people’s religious beliefs contain a strong punitive component,”³Huff Post Religion, “Belief in Hell Lowers Crime Rate, According to International Study,” 6/19/2012 but offers no reason for why this is the case. The Huff Post has a more or less materialistic worldview and has little basis to answer metaphysical questions. Where does basic morality originate? Is it just based on superstition, or is it merely a social contract brought about by cultural agreement in order to slow down Darwinistic evolution? Or does it originate with the Creator? I would suggest belief in objective morals is a principle written into us by God as the Apostle Paul claims in Romans 2:14-15:

For when Gentiles who do not have the Law do instinctively the things of the Law, these, not having the Law, are a law to themselves, in that they show the work of the Law written in their hearts, their conscience bearing witness and their thoughts alternately accusing or else defending them, (NASB)

There is something inherently within us that believes justice must be carried out for crimes committed. The more heinous the crime, the harsher the punishment must be; and those most affected by crime tend to be more insistent that punishment needs to be carried out. We live in changing times. Of course, we have always lived in changing times. Sometimes it is a move back toward a biblical worldview; but most often, it is moving further away from a God-centered and informed way of thinking. The debate over the death penalty for the convicted continues, and more states are banning the death penalty altogether. In March of 2011, the State of Illinois became the sixteenth state to ban the death penalty when Governor Pat Quinn signed the bill into law. Quinn stated:

Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it.⁴New York Times, “Illinois Governor Signs Capital Punishment Ban,” John Schwartz and Emma G. Fitzsimmons, March 9, 2011

The Religious Tolerance⁵http://www.religioustolerance.org/execute.htm web site has a fairly long section devoted to this issue with both pro and con opinions. Some are well-reasoned, while others are based more on personal preference. A quote from retired Federal Judge H. Lee Sarokin claims the death penalty doesn’t offer a deterrent, that it is discriminatory-that is, the death penalty is imposed more on minorities-and the death penalty is immoral:

This issue likewise has been discussed for years. After a lifetime of watching the death penalty at work, I believe that despite our understandable desire for revenge, retribution and even death for the most horrendous of crimes, the state should not be the carrier and enforcer of those emotions. I recognize and respect the opposite view, but I just cannot accept that the intentional killing by the state of an individual is moral.⁶Opposing views on the death penalty: Allegedly invalid techniques of biblical analysis; “An article by a retired federal judge opposing the death penalty”; http://www.religioustolerance.org/executr.htm

The opposing view on the deterrent question is quoted from John McAdams, professor of political science at Marquette University:

If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call.⁷Opposing views on the death penalty: Allegedly invalid techniques of biblical analysis; “A comment by a professor of political science in favor of the death penalty”

This is, without a doubt, a highly volatile and emotionally charged issue. If belief in hell-the ultimate place of punishment-lowers the crime rate, wouldn’t the practice of capital punishment also make a better-behaved society? Perhaps, but it doesn’t necessarily follow.

An Eye for an Eye

Even as I write this, I am painfully aware we will have readers on both sides of the issue. Some with a strong and some with a passing interest; but most will have some sort of opinion. We find the death penalty in Scripture where God said in Genesis 9:6-7:

Whoever sheds man’s blood, by man his blood shall be shed, for in the image of God He made man.

It was a matter of justice. God entrusted the carrying out of the sentence and the executing to those in authority. A judge could have chosen to be merciful and apply a lesser sentence, but he was not allowed to choose a more severe sentence. The Lex Talionis ⁸1 the principle or law of retaliation that a punishment inflicted should correspond in degree and kind to the offense of the wrongdoer, as an eye for an eye, a tooth for a tooth; retributive justice.; Dictionary.com or concept of “eye for eye, …” (Exodus 21:24) seems to some to be barbaric and harsh, but that is mostly because they are reading into it something that isn’t there. The whole point of the passage is that the punishment should fit the crime and not exceed the crime. It sets the upper limits of justice. If someone knocked out the tooth of another, the most that could be done was to knock out the tooth of the offender; one couldn’t cut off their hand, foot or put their eye out. If someone took the life of another, that person’s life could be taken but not the lives of one’s family members or one’s family’s property. The sentence was to be determined by the judges (v:22). Far from being barbaric, it was designed to prevent barbarism and to keep the justice system as fair as humanly possible. It is certain humans will make mistakes. Sometimes evidence of innocence will not be available or will be over shadowed by seeming evidence of guilt. Eyewitnesses are fallible human beings. Sometimes the accused just “looks” guilty to the jury. However, I don’t know that the flaws in the system provide justification for eliminating the death penalty. Perhaps it provides an incentive to eliminate more flaws as we see them creep up and have ways to address them. If we were consistent in applying the “flaws-in-the-system” argument, we really could not charge and try anyone for a crime, because there are inherent flaws in the system in all criminal cases simply because humans are involved, and humans are, by nature, flawed.

The need for “eye for eye” (Ex. 21:24, Deut. 29:21) and “life for life” (Ex. 21:23, Deut. 19:21) are important. These differentiate between justice and revenge. Revenge is defined as:

… to exact punishment or expiation for a wrong on behalf of, especially in a resentful or vindictive spirit: …⁹Dictionary.com; “revenge”

The “resentful” and/or “vindictive spirit,” tend to drive bad behavior and, in turn, excessive punishment and torment to the one accused of a crime. Someone carrying out revenge will more likely make it a slow and painful process. The punishment inflicted would be more than the crime committed warranted. An “eye for eye” is, by definition, a just punishment commensurate with the crime. The judges may opt for something less. In Genesis 4, Cain killed his brother Abel. God was the judge; and even though the death penalty would have been the just sentence, God gave Cain a life sentence: A life separated from his farming, his family and from the face of God (Gen 4:12-14).

While assigning cities for the Levites (Nu. 35), God also designated six “cities of refuge.” If someone accidently killed another, they could flee to the nearest city of refuge for protection from a family member taking revenge on them. The family of the victim could come and bring charges. A trial would be held; if the death was accidental, the defendant was declared “not guilty” and protected in the city of refuge. If the defendant was found “guilty,” they were turned over to the family to carry out the sentence. But again, they could only impose a sentence befitting the crime.

God’s Justice or God’s Love?

The question of applying either God’s justice or God’s love to the death penalty is a false dichotomy. God is perfectly just and perfectly holy. They are not mutually exclusive attributes and we can, to the best of our ability, practice both. Some who are opposed to capital punishment sometimes appeal to Scripture as support for their position; but do their claims stand the test of scrutiny? Dudley Sharp, Death Penalty Resources Director, Justice For All, in his paper “Death Penalty and Sentencing Information,” ¹⁰Dudley Sharp, Death Penalty Resources Director, Justice For All, in his paper “Death Penalty and Sentencing Information,” addresses many of the biblical issues in section F: “Christianity and the Death Penalty.” Even though he points out that the biblical issues have little to do with the legal question, he does believe they are important for a full consideration of the issue. He gives a 32-point response; and with regard to the use of Scripture, he writes in point 26:

The opposition to capital punishment is not based on Scripture but on a vague philosophical idea that the taking of a life is wrong, under every circumstance, and fails to distinguish adequately between killing and murder, between punishment and crime. The argument that capital punishment rules out the possibility of repentance for crime is unrealistic. If a wanton killer does not repent when the sentence of death is upon him, he certainly will not repent if he has 20-50 years of life imprisonment. The sentence of death on a killer is more redemptive than the tendency to excuse his crime as no worse than grand larceny. Mercy always infers a tacit recognition that justice and rightness are to be expected. The Holy God does not show mercy contrary to his righteousness but in harmony with it. That is why the awful Cross was necessary and a righteous Christ had to hang on it. That is why God’s redemption is always conditioned by one’s heart attitude. The Church and individual Christians should be active in their witness to the Gospel of love and forgiveness; but meanwhile wherever and whenever God’s love and mercy are rejected, as in crime, natural law and order must prevail, not as extraneous to redemption but as part of the whole scope of God’s dealings with man. No matter how often a jury recommends mercy, the law of capital punishment must stand as the silent but powerful witness to the sacredness of God-given life. Active justice must be administered when the sacredness of life is violated. Life is sacred, and he who violates the sacredness of life through murder must pay the supreme penalty. It is significant that when Jesus voluntarily went the way of the Cross He chose the capital punishment of His day as His instrument to save the world. And when He gave redemption to the repentant thief He did not save Him from capital punishment but gave him paradise instead. We see again that mercy and forgiveness are something different from being excused from wrongdoing.¹¹Dudley Sharp, Death Penalty Resources Director, Justice For All, in his paper “Death Penalty and Sentencing Information,”; http://www.prodeathpenalty.com/DP.html

There are some who argue that Christ was opposed to capital punishment. Rather than create a new response, I think Sharp addresses this head on in point 31:

There are two passages in Luke which speak directly to Jesus’ position on capital punishment. In 20:14-16, Jesus states: “He will come and kill those tenants and give the vineyard to others”. Jesus is stating that the proper punishment for murder is death. In 19:27, “Christ pronounced this judgement on those who rebelled against their king: ‘But these enemies of mine, who did not want me to reign over them, bring them here, and slay them in my presence’ (NASB). Thus, it is very clear that neither Christ nor His apostles [sic] intended to abrogate the God-given responsibility of the government (under Old Testament law) to protect its citizens and enforce justice by capital punishment.” ibid, D.14., pg. 342. In the 19:27 parable “their king” is Jesus.

Not a Deterrent

Those who oppose the death penalty have what they believe are legitimate reasons to oppose the practice. This, it seems to me, is a position based on pragmatism and avoids the point of capital punishment, which is justice. There are many laws which do little to deter crime, but we enforce them in order to uphold and serve justice. Punishing rapists, for example, doesn’t seem to diminish the incidence of rape, but we punish rapists as a matter of justice. Amnesty International argues for pragmatism rather than justice in their paper “The Death Penalty and Deterrence,” which states:

A 2009 survey of criminologists revealed that over 88% believed the death penalty was NOT a deterrent to murder.¹²Amnesty International; “The Death Penalty and Deterrence”

This obviously is a consideration, but notice a very important word in the statement. The percentage of criminologists “believed” the death penalty was not a deterrent. It didn’t say they have proven it or that it was statistically a fact, but rather it merely was their belief. They include a graph which, at first glance, appears to support their belief; but is the state’s lack of a death penalty the actual reason for a lower murder rate? Have they demonstrated a direct cause-and-effect link between states not having a death penalty and a lower murder rate? Are there other factors which come in to play that may show reasons other than the lack of the death penalty for the lower murder rates? The lack of ability to actually demonstrate the link renders the claim almost meaningless. Perhaps we could substitute another statistic to replace the one about the states which do not have the death penalty. Perhaps we could find out the percentage of people with tattoos; and if we find the states with higher capital crime are also states with a greater percentage of the population sporting tattoos, we could then claim tattoos cause a greater percentage of capital crimes. Someone may laugh, but that is at least as credible a suggestion or “belief” as the one Amnesty International has put forth.

An issue of concern-and it should concern all on both sides of the question-is: What about cases where the innocent are convicted and given the death sentence? There are many who go to this as nearly the first argument against the death penalty. Amnesty International claims:

Since 1973, over 130 people have been released from death rows throughout the country due to evidence of their wrongful convictions. In 2003 alone, 10 wrongfully convicted defendants were released from death row.¹³Amnesty International; “Death Penalty and Innocence”; http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/death-penalty-and-innocence

There seems to be legitimate debate on whether the death penalty or life imprisonment without the possibility of parole is the correct sentence for murderers, perhaps serial rapists, and even pedophiles. There are some reading this who will be certain that I am in favor of capital punishment and, although I tend to lean in that direction, I, like others, am concerned about those who were tried and wrongfully convicted. In other words, I am uncomfortable seeing the innocent executed for crimes they did not commit. But that leads me to another very important issue.

Capital Punishment for the Innocent

Of all the trials held, it is a small percentage where the accused and convicted are sentenced to the death penalty. Once sentenced, there are a series of appeals which take years before the execution can actually be carried out. This is all part of the system in an attempt to overcome the flaws inherent in the system and to be able to change the sentence or even free the convicted individual if it can be proven there is new evidence which demonstrates either innocence, problems in the court proceedings, or some other extenuating circumstance(s). Again, we are concerned as a society, even after someone is charged, tried and convicted, that the judicial system got it right.

Many who argue against capital punishment consider pro-life advocates who are also pro-capital punishment as being inconsistent. After all, they argue, if life is sacred and should be protected while in the womb, how can you be so inconsistent by being in favor of the death penalty? This is seen by some as a somewhat schizophrenic position.

Actually, I think our society is schizophrenic on the issue of capital punishment and abortion but in the opposite direction. They seem to be arguing that the morally, financially and culturally correct position is to eliminate the death penalty for one who has been tried and convicted, but a mother should have the right and sole authority to pronounce the death sentence on her child who has committed no crime, has not been charged, tried, or convicted. The mother is not an officer of the court; but because the innocent child is living in her womb, she can act as judge and jury without accountability. So, on the one hand, the group currently holding legislative power in these issues is pro-life for the tried and convicted and pro-capital punishment for the innocent.

Then there is the question of methodology. Firing squads and hanging have been pretty well eliminated as inhumane methods and lethal injection as the more humane way to carry out capital punishment. The humane methods of abortion are dismemberment, chemically burning to death in saline solution and then, of course, partial-birth abortion­-which I will not describe here. Then, there is also the “born alive” bill, which would require doctors to care for a child which was scheduled to be put to death, but the process failed, and it was born alive. While an Illinois Senator, Barack Obama voted against this bill three years in a row¹⁴Born Alive Truth favoring leaving the child on a counter or table untouched and untreated until it died. Capital punishment for the innocent, untried, and unconvicted; and preservation of the life of the charged, tried and convicted who are to be considered sacrosanct.

So, I wonder, would those who view these abortion methods as humane be more comfortable if we used them as capital punishment for the guilty? You know, death by dismemberment, or death by drowning in saline solution, or even death by exposure without food, water or any other care? Would there be howls of inhumane treatment of serial killers? I think there would be. Counting the body parts of a convicted felon to be sure they are all there would and should spark a public outrage over unnecessary barbarism in our penal system. There is hardly a peep when it comes to these methods being used against infants. I wonder, what does that say about a society that values the life of a convicted serial rapist above that of an innocent unborn child?