By George Clifford
The Chief Justice of the U.S. Supreme Court, John Roberts, in his majority opinion in Baze v. Rees, No. 07-5439, the recent Kentucky death penalty case challenging the constitutionality of execution by lethal injustice, wrote:
Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual [under the Eighth Amendment’s prohibition against cruel and unusual punishment].
A premise underlying Roberts’ comment – that the death penalty is not a kind, gentle act – seems commonsensical to me. Unfortunately, modern culture often lacks an adequate supply of the precious commodity we call commonsense. Why would anyone think that capital punishment, however administered, is not painful?
Societies impose the death penalty on convicted criminals for three reasons. First, a society may intend the death penalty to deter people from committing crime. Deterrence obviously proved ineffective with respect to the criminal justly convicted of a crime. Both death penalty proponents and opponents point to research that supposedly supports their argument that the death penalty deters, or does not deter, crime. From my ethical perspective, the research is irrelevant. My ethical problem with justifying the execution of one individual to deter other persons from committing crimes is that this reduces the one executed to a means to an end, thereby denying that person’s inherent dignity and worth as a child of God. Christians should never view a person as simply an instrument for achieving a goal, no matter how laudable the goal. The Gospel of Luke’s account of the crucifixion portrays Jesus assuring one of the criminals crucified with Jesus that the two of them, that very day, will be together in Paradise (23:39-43). Jesus clearly regarded the criminals crucified with him, who both acknowledged their guilt, as persons worthy of dignity and respect in spite of their crimes. In Luke’s narrative, one criminal experiences transformation, the other does not.
Admittedly, Scripture’s witness on the issue of deterrence, like the research on deterrence, is inconsistent. Some Biblical passages recognize the value of deterrence:
• “Stone them to death for trying to turn you away from the Lord your God, who brought you out of the land of Egypt, out of the house of slavery. Then all Israel shall hear and be afraid, and never again do any such wickedness.” - Deuteronomy 13:10-11 • “All the people will hear and be afraid, and will not act presumptuously again.” - Deuteronomy 17:13 • “The rest shall hear and be afraid, and a crime such as this shall never again be committed among you.” - Deuteronomy 19:20
Other passages suggest that retribution belongs to God, undercutting the rationale for deterrence:
• “You shall not take vengeance or bear a grudge against any of your people…” - Leviticus 19:18 • “Beloved, never avenge yourselves, but leave room for the wrath of God; for it is written, ‘Vengeance is mine, I will repay, says the Lord.’” - Romans 12:19 • For we know the one who said, ‘Vengeance is mine, I will repay.’ And again, ‘The Lord will judge his people.’” - Hebrews 10:30
I discuss retribution, the third rationale for the death penalty, below. Suffice it to say, the Deuteronomic passages supporting deterrence reflect a more rigid legalism and less robust understanding of personhood than I find in Leviticus and the New Testament. These latter passages point to a developing awareness of the demands of loving as God loves. Not surprisingly, the Baylor Institute of Religion survey, American Piety in the 21st Century, published in September 2006, confirmed that individuals who have an authoritarian image of God are more likely to support the death penalty than individuals who have a benevolent image of God.
Second, society may impose the death penalty intending to prevent a person convicted of a serious crime from further harming anyone else. As a Christian, I have two ethical problems with this rationale. Capital punishment is a final solution that allows no second chance. What if new evidence becomes available that the person executed was, in fact, innocent? Worse yet, what if the executed person is innocent but nobody ever finds the exculpatory evidence? At least in the first instance, society can release and compensate the convicted person discovered to be innocent. No evidentiary standard, no matter how high it is set, can guarantee that absolutely everyone given the death penalty is in fact guilty.
Even more morally troubling to me, the death penalty makes a large number of people – legislators, police, judges, lawyers, jurors, prison officials – complicit in the death of each person executed. William J. Wiseman, Jr. was a member of the Oklahoma State House of Representatives from 1974 to 1980. He admits that for six years his highest priority, like that of every legislator he has ever known, was retaining his seat. Everything else was in a different category of regard and concern. Philadelphia Quakers had educated Wiseman and he opposed the death penalty. He believed that at best it was unjustified and at worst was immoral.
When a bill came before the legislature to re-write Oklahoma’s death penalty law, Wiseman found himself in a difficult position. Ninety percent of his district, as measured by a poll that he had commissioned, supported the death penalty. He was afraid that if he voted against the death penalty he would not be re-elected. Wiseman attempted to rationalize supporting the death penalty by seeking a more humane means of execution. Working with the state medical examiner, who sought out Wiseman after learning of Wiseman’s quest for a more humane method of execution, they drafted what became the nation’s first legislation authorizing capital punishment by lethal injection. Over thirty states have copied that groundbreaking legislation.
Today, William Wiseman lives with the knowledge, the guilt, that he is morally responsible for the execution of many criminals. He sacrificed his principles for political expediency. (William J. Wiseman, “Inventing lethal injection,” The Christian Century, 20-27 June 2001, pp. 6-7) I do not believe that I have the moral right to ask others to kill another person to prevent that person from committing additional crimes when at least one viable alternative exists, e.g., life in prison without parole. This belief mirrors Christian Just War Theory, which requires any potential war to satisfy a number of criteria, one of which is that war is truly the last resort, before waging war with the attendant use of lethal force is morally justifiable.
Third, society may impose the death penalty as retribution against the criminal for the crime committed. The gospels report in several places that Jesus taught his disciples, “Love your neighbor as yourself” (Matthew 5:43; 19:19; 22:39; Mark 12:31). Jesus’ teaching echoes the Torah (Leviticus 19:18) and the New Testament repeats it several times (Romans 13:9; Galatians 5:14; James 2:8). Pretending that Jesus thought that anyone involved in imposing the death sentence on him or in executing him acted out of love for him mocks the brutally cruel reality of his crucifixion. Similarly, no amount of thought or imagining allows me to construe legally executing a convicted criminal as loving that person.
Some death penalty proponents argue that executing the guilty individual somehow expiates, atones for, makes amends, or compensate the victim or victim’s loved ones. Executing the guilty, from this perspective, becomes an act of justice, if not love, for the victim or victim’s loved ones. This entails, as with the first rationale for the death penalty, reducing the executed to a means to an end. In other words, the way to set the first wrong – the crime(s) that led to the imposition of the death penalty – right is a second wrong – the dehumanization of the criminal. Two wrongs never make a right.
Capital punishment is obviously painful. Its principal pain stems not from the method of execution, no matter how agonizing. Prematurely extinguishing a human life causes the real anguish of capital punishment. The executed criminal experiences that pain most intensely. The rest of us are diminished by the loss of a brother or sister and because we ourselves become a little less human every time our society executes one of its members. The time has come to declare loudly, emphatically, and decisively through our political process that capital punishment is inimical with whom we believe God has called us to become. Capital punishment should end, regardless of constitutional issues, because capital punishment is morally wrong.
The Rev. George Clifford, a retired priest in the Diocese of North Carolina, served as a Navy chaplain for twenty-four years.