Prophetic Challenge to Capital Punishment
By Cody J. Sanders, McAfee School of Theology, Mercer University, GA
Citizens of the United States are no strangers to the explosive issues raised by Christians in the political arena. Rhetoric concerning abortion, homosexuality and war consistently captures the public mind, especially during election season. The issue of capital punishment, however, seems seldom raised by the Christian sector. In fact, support of the death penalty maintains a position of popularity among multitudes of Christians in the U. S. Evangelical Christians, now by far the most influential Christians on the American political scene, are among the strongest supporters of the death penalty, maintaining its widespread acceptance. During 2005, 60 executions took place in the U.S., bringing the total since 1977 to 1,004 executed prisoners. As of January 1, 2006, 3,400 prisoners await their death in prisons across the country.
On the worldwide scene, the issue of the death penalty has been largely settled. Sixty-eight countries and territories still utilize the death penalty as the maximum punishment for serious crimes. In all, however, 88 countries have abolished the death penalty totally, 11 have abolished its use for all but extremely exceptional crimes and another 30 countries retain death penalty laws but have not executed an individual during the past ten years. Jimmy Carter reports that 90% of all known executions occur in only four countries: China, Iran, Saudi Arabia, and the U.S.
The institution of the death penalty is a reality that American Christians must face on a far more personal level. With no uniform approach to the issue, each Christian must assess the ethical implications of the death penalty with as much vigor as he or she tackles the more popular ethical issues of abortion and sexuality. In creating a foundation for discussing the death penalty, one might give attention to the context of the Hebrew scriptures upon which a Christian defense of the death penalty is often predicated, as well as the prophetic voices of Jesus and the New Testament writers. In addition to the resources of the Christian scriptures, one may benefit greatly from the conversation partner of the social sciences.
A Historical Overview
It is difficult to discern the historical position of the earliest Christians on the subject of the death penalty due to the dearth of extant writings concerning the views of the pre-Constantinian Church. It is well known, however, that Christians were frequent targets of the death penalty as adherents to an illegal religion. It may be surmised that the support from early Christians for the death penalty was scant, to say the least, though opposition may have stemmed from far more practical purposes than theological ones.
Whatever views the early Church held, penal codes became quite cruel after the legitimization of the Christian religion under Constantine. Death penalty historian, James Megivern, attributes this shift to the combination of the Bible and Roman law during the period of Imperial Christianity. No longer employed to persecute Christians, Roman law was used as an evangelistic tool of sorts to Christianize the Empire, waging war against barbarians, pagans and even heretics within the Christian Church. During this era Church and Empire aligned, resulting in the justification of extremely harsh punishment, including the death penalty. The Church gained unprecedented influence throughout the Empire, while the Emperor benefited from the unification of the Empire under the Christian banner.
In light of the entangled history of the Catholic Church and many successive governments after the Roman Empire, whose harsh penal code served to extend the Catholic influence, it is ironic to note the strong opposition to the death penalty put forth by Catholics in the U.S. today. Not so among Evangelicals. In an interview with Larry King, president Al Mohler of the Southern Baptist Theological Seminary stated, "Scripture clearly calls for the death penalty…[it] is the appropriate penalty for those who take life and for those who commit the crime of murder." Mohler justifies this statement using both the Old and New Testaments.
Lex Talionis and the Hebrew Bible
A typical conception of the death penalty`s efficacy is the ancient principle of lex talionis. Deuteronomy 19.21 typifies lex talionis, stating, "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot." The reasoning behind this ancient "law of retaliation" is that one`s punishment should be equal to the crime committed. Lex talionis is expressed in the three law codes of the Old Testament (Exodus 21.23-24, Leviticus 24.20 and Deuteronomy 1.21) and in the Code of Hammurabi. Genesis 9.6, "Whoever sheds the blood of a human, by a human shall that person`s blood be shed," is often cited in conjunction with the three passages from the Pentateuch as support for the death penalty. Though seemingly harsh, lex talionis is actually a restrictive legal device, prohibiting an individual injury inciting a violent feud among entire families. The story of Dinah`s rape in Genesis 34 provides a lucid example of the harsh and unfair nature of the ancient legal system, where homicide could avenge most any crime. Instead, lex talionis allowed equal injury to the crime committed and exacted punishment only on the perpetrator of the crime and not upon innocent family members. It also set limits that equalized the upper and lower classes, prohibiting the payment of blood money for crimes committed by upper class perpetrators upon lower class victims. All members of society paid equally for the crime of murder.
There are several scriptural difficulties in supporting the death penalty with the Old Testament. First, it is difficult to locate examples in which lex talionis is enacted in legal cases in the Hebrew Bible. In fact, the very opposite often occurs. The Hebrew Scriptures recount several cases where God intervenes against the justified use of the death penalty. Cain, Moses and David all committed acts of murder punishable by death. Yet, God purposefully spared their lives. Further, neither the Prophets nor the Writings of the Hebrew canon ever call for the death penalty.
Jesus, The Sermon on the Mount and Lex Talionis
In the gospel accounts, the message and ministry of Jesus emerge from the tradition of the Hebrew prophets. Both the Hebrew prophets and Jesus speak against existing structures of oppressive power that oppose the fundamental nature of the Kingdom of God.
While the primary basis of the teachings of Jesus is the Hebrew Scriptures, Jesus "avoids the violent parts of the teaching so systematically that it cannot be happenstance." In four distinct instances, Jesus prophetically decries the use of violence as a means of legal justice. First, in Matthew 5.21-24, Jesus gives an even stricter interpretation of "you shall not murder" from the Ten Commandments. Instead of stopping with this historic Jewish teaching, Jesus adds "But I say to you that if you are angry with a brother or sister, you will be liable to judgment" (Matt 5.22). Upholding the importance placed on human life in the Hebrew Scriptures, Jesus uses the text to circumvent the very cause of murder by dealing with the issue of anger. Second, Matthew 5.38-42 pictures Jesus reiterating the lex talionis but taking the opportunity to teach against its retaliatory nature. Jesus suggests that one not resist evildoers, but instead turn the other cheek. A third teaching is found in Matthew 5.43-48 where Jesus responds to the traditional teaching to love one`s neighbor and hate one`s enemy. To this teaching, Jesus issues a reversal of traditional sentiment in which one is to love one`s enemies and pray for one`s persecutors. Finally, Jesus is confronted directly with the question of capital punishment in John 8. After the scribes and Pharisees present Jesus with a woman caught in adultery they recite the Law of Moses commanding the death penalty and inquire of Jesus what course he would advise. Jesus, at first seeming to ignore the query, eventually stands and says, "let anyone among you who is without sin be the first to throw a stone at her" (John 8.7). Confronted directly by the question of capital punishment in this specific case, Jesus makes the imposition of such violent retribution against the woman impossible for her accusers.
Some also use Romans 13 as Christian support for the death penalty. The text states, "let every person be subject to the governing authorities…those authorities that exist have been instituted by God…the authority does not bear the sword in vain" (Rom 13.1, 4). Evangelical pro death penalty spokespersons argue that if one is to support the governing authorities bearing the sword, then Christians should not stand in opposition to capital punishment. Former professor of theology at the University of Notre Dame, John Howard Yoder, views the text quite differently, however. A few of Yoder`s arguments may be distilled to clarify the (mis)conception of evangelical Christians concerning Romans 13. First to note among many important aspects of the text is the word translated "sword" in verse 4. The word "sword," machaira, denotes not the sword of a warrior or the tool of an executioner; rather it speaks of a small dagger worn by judicial authorities or police. This distinction is made obvious when one takes into account that at the time of the writing of Romans, the preferred method of execution for the Roman Empire was crucifixion and that of the Jews was stoning. Further, the context indicates that Paul does not make a statement concerning the moral nature of the political reality, rather only states its place of civil authority. Jesus clearly demonstrates in his continued challenge of the authorities that the government is not always correct in its proclamations or concepts of a just society. Finally, as one attempts to understand the modern support for the death penalty using Romans 13 as proof text, the question should be asked: would this reading of the text be the same during the first few centuries of the Church when Christians were primary recipients of the death penalty? It is difficult to surmise that Paul was advocating for the power of the Roman Empire to take the lives of whomever it saw fit to execute.
A Prophetic Dialogue with the Social Sciences
Perhaps the most glaring flaw in the institution of capital punishment is its clearly prejudicial nature. Capital punishment has always been profoundly affected by race; so much so that "race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease." As of 1997, 12% of the population of the U.S. was African American while 41% of death row inmates were black. Making even more difference in death penalty usage than the race of the perpetrator of a murder is the race of the victim. Eighty-six percent of executions since 1976 have been people convicted of killing whites, though nearly half of all murder victims in the U.S. are black. In addition to racial bias, death penalty cases seem inherently biased against those of lower socioeconomic status. With the most common errors in death penalty sentences being incompetent defense lawyers and suppressed evidence, it is easy to see why one with greater resources stands a better chance of having his or her case treated with more efficiency than one who must rely on an overworked public defender.
A second but no less important flaw is that the death penalty does not deter crime, nor is it consistently imposed on the true offenders. Amnesty International reports that in Canada, the homicide rate in 1975 was 3.09 per 100,000. The following year Canada abolished the death penalty and by 1980 the homicide rate was 2.41 per 100,000. In 2003 the Canadian homicide rate was down to 1.73 per 100,000, a total of 44% lower than in 1975. Similarly, in states of adjacent geography sharing similar history, culture and economy, the results of country-to-country comparisons are almost replicated. Between 1920 and 1955, North Dakota, a state without the death penalty, was found to have a lower homicide rate than South Dakota and Nebraska, both states with the death penalty. In more recent studies, the average murder rate in states with the death penalty was found to be 8.64 per 100,000 people. In states without the death penalty, the murder rate was 5.35.
Contrary to expectation, the death penalty does not reduce the murder rate. Rather it has an imitative effect on other potential murders by setting "an official governmental example that killing someone is a proper way to resolve feelings of resentment." This has been statistically demonstrated to the point that "some researchers believe that the data are consistent enough to demonstrate that the presence of a death penalty in a state creates a brutalization effect, in that human life is held less sacred." This brutalization effect is fueled by the very cheapening of human life that the prophetic voice of Jesus was guarding against by teaching love and forgiveness in a culture saturated with the ethic of vengeance and retaliation.
Jesus constantly emphasized the innocent who suffer at the hands of an unjust society as central in the Kingdom of God. It is no surprise that in a judicial system inherently weakened by fallible human beings one finds the innocent suffering too often under unjust circumstances. The Death Penalty Information Center cites cases of 123 people in 25 states who have been released from death row convictions due to evidence proving their innocence since 1973. If for no other reason, the overwhelming rate of conviction of innocent suspects should elicit great caution concerning the efficacy of capital punishment in the United States.
Even when used against the guilty, there is no punishment as severe as the starkly atypical punishment of death. Not only is death the most extreme form of punishment in the United States, it is also the only form that is completely irrevocable. Taking the life of a human being can rarely be accompanied by complete certainty of his or her guilt. Yet this punishment includes the psychological torture of anticipating one`s own death and ends with human beings taking a life that they neither gave nor are capable of returning if a mistake is made. In its brutal extremity, capital punishment fails to fulfill the purpose of justice, especially as understood in the prophetic message of the Kingdom preached by Jesus. Nothing could stand in more antithetical contrast to the life-giving and life-affirming prophetic message of Christ than the destruction and devaluation of human life that results from the death penalty in modern America society. Thus a way forward must be forged with the prophetic voice as guide.
A Way Forward
Until recently, most surveys given to voters failed to ask about alternative punishments for the death penalty. When given alternatives, however, support for capital punishment drastically decreases. A forced choice between life without the possibility of parole and the death penalty shows Americans almost evenly split between the two possibilities. Moreover, when given a third alternative of life without the possibility of parole plus restitution, including all or part of a murderer`s prison labor earnings going to support the victim`s survivors, a majority of Americans support this alternative. In this case, the crime is punished, the murderer is removed from society and given the possibility of rehabilitation within the context of the prison system, and the families of victims receive support after the grave loss of a loved one. Among other possibilities, this alternative seems to fit the aims of the criminal justice system and fulfill the prophetic ethic of life-affirming love and restoration.
Though prophetic ethics cannot be adequately directed by opinion polls, it seems that a majority of Americans already support alternatives to the death penalty that contain the life-affirming and restorative elements of prophetic justice. Whatever restorative alternatives may arise to replace the inadequate system of capital punishment, the preservation and affirmation of life should remain at the forefront of Christian thinking in forging a way forward led by the prophetic voice of restorative justice.
1 “Facts and Figures on the Death Penalty,” Amnesty International, Accessed 10 November 2006, Online: http://web.amnesty.org/ pages/deathpenalty-facts-eng.
2 Jimmy Carter, Out Endangered Values: America’s Moral Crisis (New York: Simon & Schuster, 2005), 80.
3 James J. Megivern, The Death Penalty: An Historical and Theological Survey (New York: Paulist Press, 1997), 19.
4 Ibid., 27.
5 Robert Parham, “Making the Crooked Straight In Moral Debate about Death Penalty,” Ethics Daily, accessed 13 November 2006, online: http://www.ethicsdaily. com/pr int_popup. cfm?AID=1249.
6 All scripture citations are from the New Revised Standard Version.
7 Millard Lind, The Sound of Sheer silence and the Killing State: The Death Penalty and the Bible (Scottdale, Pennsylvania: Herald Press, 2004), 36.
8 Ibid., 70-71.
9 Ibid.
10 Stassen, “Del iverance,” in Leviathan’s Choice, 122.
11 John Howard Yoder, The Politics of Jesus, 2 nd ed. (Grand Rapids: Wm. B. Eerdmans, 1994), 203.
12 Glen H. Stassen and David P. Gushee, Kingdom Ethics: Following Jesus in Contemporary Context (Downers Grove, IL: InterVarsity Press, 2003), 211.
13 Mark Constanzo, Just Revenge: Costs and Consequences of the Death Penalty (New York: St. Martin’s Press, 1997), 80.
14 Stassen and Gushee, 211.
15 “Facts and Figures.”
16 Constanzo, 97-98.
17 Stassen and Gushee, 196.
18 Lawrence S. Wrightsman and Solomon M. Fulero, Forensic Psychology, 2 nd ed. (Belmont: California, 2005), 348.
19 “Innocence and the Death Pena l t y, ” Death Penal t y Information Center, accessed: 14 November 2006, online: http:// www.deathpenaltyinfo.org/article.php?did=412&scid=6.
20 Costanzo, 92.
21 Ibid., 125-126.
