Capital Punishment: An Open Letter
By Curtis Freeman
[Dr. Curtis Freeman is Associate Professor of Christianity and Philosophy at Houston Baptist University.]
Dear David,
You have asked me to provide my views on capital punishment and in particular the place for clemency in public policy. Specifically, you urged my participation because in some measure you believe that my training and experience as a theologian might serve the Christian community in our witness to the state. Before you invited my participation, I had already revised the course outline in my Christian ethics course to include two class periods for reflection and discussion on capital punishment. My delay in responding is partly due to the need for time to reflect on my view. But I also held off because I wanted some lively discussion with students as we sought to formulate a normative judgment based on the revelation of God in Jesus Christ.
Seeking light on the subject we turned to the Christian scriptures for instruction and guidance. What we discovered was that the OT gives explicit warrants about capital punishment, but that the NT is silent. By that I do not imply that there is nothing at all in the NT which informs our judgment about capital punishment. I simply mean that there is no specific teaching about capital punishment. Some interpreters may regard the reference to "the sword" (machaira) in Romans 13:4 to be an allusion to the death penalty, but if so it is hardly clear what it means or how it applies. That it does not apply to the death penalty is more likely since the sword was not the instrument of capital punishment for the Romans. They crucified their criminals. That it does not even refer to war also seems likely because machaira was a dagger, not a soldier`s sword. What is described is the sword as the symbol of authority much like the gun worn by a police officer today. Our study of scripture led to the following conclusions.
1. The instructions about retaliation (lex taliones) were instituted to limit vengeance (Ex. 21:23-24). The rule of "an eye for an eye" prevents the escalation of violence (e.g. a life for an eye). In this sense the law of Moses was a moral improvement over vigilante justice. However, the lex taliones was remedial, not ideal. As Jesus told a group of Pharisees, Moses gave the Torah because of "the hardness of heart" (Mk. 10:5/Mt. 19:8); Deut. 24:1-4). Since capital punishment is a limitation, it is a wrong reading of these texts to suggest that the Bible requires capital punishment. Capital punishment, even in the OT, is a concession. It is not God`s best design for his people.
2. The OT includes a whole range of offenses for which the death penalty is deemed appropriate. These include intentional homicide (Ex. 21:12), but also listed as capital offenses are parental abuse-physical and verbal (Ex. 21:15, 17), kidnapping (Ex. 21:16), sorcery (Ex. 22:18), bestiality (Ex. 22:19), idolatry (Ex. 22:19), adultery (Deut. 22:22), rape (Deut. 22:25-27), and drunken-gluttonous-rebellious children (Deut. 21:18-21). Again, part of what is reflected in the law codes is an attempt to limit the abuses of justice, not to require that Israel put more people to death for as many offenses as they could justify.
3. The Torah and later rabbinical tradition places numerous restrictions on the practice of the death penalty. One was the eye for an eye limitation, but there are others. See for example, the requirement of truthfulness in witness and certainty of testimony against those accused (Deut. 17 and 19). The restrictions of Jewish law actually made conviction much more restrictive than U.S. law, so that by the second century B.C. the death penalty was rarely practiced among Jews.
4. Mercy is frequently granted to offenders for which the law specified death as a punishment. God granted mercy to Cain, the first murderer (Gen. 4). The cities of refuge created a sanctuary of mercy where the guilty could escape from the revenge of the victim`s family (Num. 35:1-34); Deut. 4:41-43; 19:1-21, esp. v. 10 and 18). Jesus proffered mercy to the woman caught in adultery (John 8:1-11). Far from being absent from the biblical witness, mercy is a constant theme to be demonstrated and practiced by God`s people.
5. Christians are above all to live by the "higher righteousness" of agape as exemplified in Jesus (Mt. 5:17-20). Jesus said that he did not come to abolish the law, but to fulfill it, that is, to bring it to its completion. The law of retaliation (lex taliones) was remedial and temporary, but the law of non-retaliation is ideal and normative (Mt. 5:38-48; Rom. 13:8-10). The practice of reconciling love signifies the in-breaking of God`s peaceable reign on earth. Jesus embodied this higher righteousness by showing us how to love enemies, pray for persecutors, forgive offenders, and welcome strangers. In following our Lord`s example (Rom. 12:14-21), the church lives as a colony of heaven (Phil. 1:27, 3:20). To the extent that Christians seek the peace of the other city (Jer. 29:3), we display in our exiled life together an alternative to the ways of violence, corruption, and despair. And in so doing the church in diaspora is a sign of God`s gracious presence in the world.
The Christian witness to the state is based on the warrants of scripture, the witness of the gospel, and the way of God in Jesus Christ. Christians must then call for and, more importantly, exemplify to the state a form of life which accounts for the needs of victims and offenders, allows for reconciliation and forgiveness, and minimizes the exercise and escalation of lethal force. Since the state claims that capital punishment is society`s way of `righting` wrongs, the church must ask the state to demonstrate that capital punishment is, in fact, justly applied.
1. Does society mean that the death penalty is a just punishment because it serves a retributive purpose? If this is so, we must point out that the eye for eye approach, while limiting gross abuses of vengeance (viz. "cruel and unusual punishment"), lacks any transformative dimension. Moreover, that there is a class and racial bias in the way capital punishment is imposed suggests that retribution is not well served. The poor and minorities are far more likely to be executed than affluent, Anglo members of society. Furthermore, when the victim is white and the offender is from a minority group, there is a much greater likelihood that the death penalty will be imposed. Add to these difficulties the real possibility of executing the innocent (Michael L. Radelet, Hugo Adam Bedau, and Constance Putnam, "In Spite of Innocence: Erroneous Convictions in Capital Cases," Boston: Northeastern University Press, 1992; Bedau and Radelet, "Miscarriages of Justice in Potentially Capital Cases," Stanford Law Review 40:21-179, 1987). As Martin Luther King, Jr. observed, practicing an eye for an eye will lead to a world of morally sightless people. Retribution is heartless and hopeless legalism.
2. Perhaps society means that the death penalty is just because it has a deterrent effect. Whatever one thinks about whether or not there is a general deterrent effect, the statistical evidence is not conclusive. The data simply does not demonstrate that capital punishment is a better deterrent to violent crime than imprisonment. Advocates of the death penalty as a deterrent, however, imagine that the execution of the guilty (i.e. the scapegoat) has a magical effect over our psycho-social reality, thus preventing further violence and moral chaos. Imagined and magical thinking, however, constitute no basis for just punishment, and it does not deserve Christian approval or support.
3. The witness of the Christian community to the state ought to be for a penal system based on restorative justice. Such a system would provide support for victims, apprehension and conviction of criminals, accountability for crimes, and opportunity for restoration and reconciliation to all parties. In such a system there would be opportunities and incentives for offenders to make amends with those whom they have wronged. Such a system would have alternatives to the death penalty, including life without parole. In such a system, there would be place for the sweet grace of Karla Faye Tucker, but also the most violent and yet unconverted soul. That Jerry Falwell and Pat Robertson asked for society to practice an eye for an eye for everyone except Karla Faye is hypocritical. That many Christians led the charge for her execution gives lie to the gospel. For the church of Jesus Christ not to challenge the death penalty as unjust punishment reflects our ultimate despair and disbelief in the redeeming and reconciling love of Christ. But most important of all, Christians must not only speak gospel truth. We must show it-in our worship, in our work, in our witness.
Hopefully,
Curtis W. Freeman
Associate Professor
Christianity and Philosophy
Houston Baptist University
