Crime, the Christian and Capital Justice

J. Daryl Charles (September 1995)

In the present essay I wish to propose a test case for the application of Biblical ethics. (It should be noted that the preference for my choice of terms—a "Biblical" rather than merely "Christian" framework—is not incidental. It: suggests a unified ethic that encompasses the full range of Biblical data.) My test case has to do with violent crime—specifically, capital punishment in the context of premeditated murder. […]

It should be conceded from the outset that committed Christians are on both sides of this issue. Thus being a proponent or an opponent of the death penalty in no way constitutes a test of fellowship. Nevertheless what normally goes unsaid in the debate over capital punishment is tragic. Proponents are often caricatured as cold-hearted Pharisees who are utterly lacking in compassion. This caricature in and of itself can tend to quash meaningful dialogue. But if Christians do not shape the contours of the ethical debate, who will? […]

VIOLENT CRIME AND THE CHRISTIAN

For the Christian community to address the issue of crime at its root, one must consider the nature of the thinking that ends up becoming public policy. This thinking, remarkably, is often visibly at odds with what most citizens believe intuitively. Several years ago the Gallup organization confirmed what the majority of Americana instinctively believe concerning penal justice. The survey indicated, not surprisingly, that 76% of Americans favor the death penalty, a level of support that had risen from forty-nine percent in 1956. Strangely, in all of Christendom only one denomination—the conservative Missouri Synod Lutheran Church—acknowledges that capital punishment is "in accord with Holy Scriptures." All other bodies—the larger Evangelical Lutheran Church in America, the United Methodist Church, the Roman Catholic Church, the Presbyterian (U.S.A.) Church, the American Baptist Churches, the United Church of Christ, the Disciples of Christ, and so on—oppose the death penalty, as does the National Council of Churches and all major Jewish groups. The divergence between the average layperson and American religious denominations is telling. It points to the near wholesale incorporation of secular ethical assumptions by American "religious" into mainline American religious belief. The result is that the Church has unwittingly contributed to America’s moral wasteland.

Throughout the centuries the Church has, broadly speaking, defended the right of the state to impose capital punishment for certain heinous crimes. Among the Church fathers one finds varying perspectives on the death penalty though a general recognition of the state’s responsibility in implementing capital justice. Tertullian (late second century) and Lactantius (late third century) affirmed that, in the case of murder, divine law consistently required a life for a life. Theodosius II (mid-fifth century), who called for the Council of Ephesus (431) in the hope of settling the Nestorian controversy, enacted a legal code specifying capital crimes. While Augustine among others acknowledged the role of the state in mediating capital sanctions, various councils from the seventh century (Eleventh Council of Toledo) to the thirteenth (Fourth Lateran Council) followed the lead of Leo the Great (fifth century) in seeking to forbid clerics from engagement in matters of capital justice. The patristic and medieval periods in the main suggest the Church’s tacit recognition of capital punishment.

Late- and post-medieval theologians generally maintained that the state had a rightful duty before God to impose capital sanctions upon murderers. Aquinas insisted that the community had the right to "cut away" an individual "in order to safeguard the common good," since the community is a moral body and heinous moral defects are the equivalent of putrefaction of the body. Thomas writes: "The common good is better than the good of the individual .... The life of certain pestilent fellows is a hindrance to the common good, that is, to the concord of human society. Such persons therefore are to be withdrawn by death from the society of men."

Even the so-called left wing of the Protestant Reformation (from which domain modern religious opposition to capital punishment is said to derive) endorsed the death penalty. The Schleitheim Confession (1527), an exemplary document adopted by the Swiss Brethren, reads: "The sword is an ordinance of God .... Princes and Rulers are ordained for the punishment of evildoers and putting them to death." This Anabaptist declaration concurs with the Lutheran Formula of Concord (1580), which prescribes for "wild and intractable men" a commensurate "external punishment."

In light of penal excesses during the late medieval and early modern period of England’s history, not a few influential eighteenth- and nineteenth century thinkers called for the abolition of the death penalty. Among its opponents were Montesquieu, David Hume, Benjamin Franklin, Thomas Paine, Caesare Beccaria, Voltaire, Jean Jacques Rousseau, Benjamin Rush, Jeremy Bentham and Karl Marx. Widespread use of torture and the inadequate state of criminal law gave rise to a growing movement in western Europe to abolish the death penalty or greatly restrict its use. The abolitionist argument, however, was fueled not by the Church but by Enlightenment thinkers who were notably secular in their worldview.

(Post-modern thinking has grown increasingly intolerant of meting out criminal punishment that smacks of being "cruel" or "barbaric." This was not the case, however, in 1791, when both the Eighth and Fourteenth Amendments were enacted. Since the death penalty in America was not "unusual" in 1791, the Eighth Amendment cannot have been intended to apply to capital punishment per se. Opposition to the death penalty may be understood as but one highly visible facet of cultural aversion to punishment in general, and this in a society where human life at both ends of the life spectrum has been steadily cheapened in horrific fashion.) It should be observed that as late as 1955 the Catholic Church, more recent pastoral letters aside, defended the role of the state in upholding capital justice. In addressing Italian Catholic jurists, Pius XII reaffirmed the Church’s historic recognition of vindicatory as well as therapeutic penology, noting that this was "in conformity with what sources of revelation and traditional doctrine teach regarding the coercive power of legitimate human authority." The mandate of Romans 13:4, noted the pontiff, is "as little determined by time and culture as the nature of man and the human society by nature itself."

Thus the witness of the Church through the centuries, contrary to the position taken by many contemporary religious leaders, is one of affirming the state’s role in executing capital justice for capital crimes. The contention that legitimate purposes of punishment do not justify the imposition of the death penalty stands in bald contradiction to virtually the whole of the history of the Church, in addition to demonstrating a deficient understanding of Biblical theology. No serious student of the historic Church’s social teaching can fail to note that opposition to capital punishment is only a very recent phenomenon among the religious. Seeing the big picture will help the Christian community preserve its integrity both in theological and ethical matters.

THEOLOGICAL FOUNDATIONS OF LAW

Unhappily, the theological and religious underpinnings of law are dying in western culture. America’s public philosophy of choice has shifted from a religious to a secular theory of law, from moral-theological to political-pragmatic. Justice, however, depends on something beyond itself. It requires a foundation of transcendent moral truth. When law loses what only a conviction of ultimacy can bestow, as observed by Herbert Schlossberg, it degenerates into pragmatic utilitarianism, and a moral-cultural breakdown ensues. It follows that when transcendent moral value is denied, commandments or laws become little more than opinions, since no compelling sanction can be invoked. Thus the moral capital of any culture is indebted to Biblical law.

It is important to note the meticulous nature of legislation in the Old Testament relative to capital punishment. Capital sanctions were by no means indiscriminate. Numerous constitutive safeguards were integral to the system. Corroborative evidence via multiple witnesses was requisite for the execution of an accused murderer. Specific instances of homicide, it should be noted, did not qualify for capital punishment. Nevertheless cities of refuge, intended to serve as asylums for manslayers, were not for the purpose of granting immunity to the murderer. The congregation of Israel would have adjudicated with well-defined criteria by which to distinguish between unintended manslaughter and premeditated murder. In the case of the former, deliverance out of the hand of the avenger was facilitated, whereas in the latter the accused was to be put to death.

Law as the contextualized expression of divine character was integral to the life of Israel. Disregard for the law inevitably resulted in a rotting of Israelite social character. When the unity of divine revelation and human cooperation fails, chaos and calamity follow, until which time unity and order are restored. All of history (pre- and post-cross) attests to this basic pattern. Frequently overlooked in the Biblical framework for criminal justice is the central role of purification.

Commenting in 1976 on the relationship between temporal punishment and cleansing/purification from sin, Karol Wojtyla, at that time Archbishop of Cracow, delivered a memorable series of homilies at the invitation of Pope Paul VI. The occasion was the annual Vatican Lenten retreat. In this remarkable series, sustained reflection was given to the question of man’s purification from sin in the present life, whereby the future pontiff demonstrated keen insight into the divinely-ordained virtues of punishment. Guilt incurred by sin constitutes a debt in the present life that must be paid. Punitive dealings, he maintained, provide the necessary atonement and restore the balance of justice and moral order that has been disturbed. They prepare man for a destiny in eternity. The "law of purification," noted the Archbishop, "reveals both the temporal and the eternal perspectives of mankind." Purification comes by way of suffering. It prepares the individual to meet his Maker.

Biblical ethics, then, are rooted in a universal moral code. This ethic, which antedates and transcends Mosaic legislation, can be said to be binding for pre-exilic Israel and first-century Rome as well as twentieth-century America. Modern Christians, with their "raised consciousness," do not have the luxury of accepting as binding the prohibition of personal vengeance in Romans 12 while rejecting as non-binding the role of the state as God’s "servant" to bear the sword in "executing wrath on the wrongdoer." While taking justice into one’s own hands is proscribed by the apostle, the derived authority of the magistrate in executing retributive justice, the ius gladii, is affirmed, irrespective of the moral character of those in office. The implication of Rom 13:1-7 is that by not carrying out their divinely instituted duty in maintaining social order the authorities in effect "praise" evil and negate what is good and just. The Church then, by reason of its very mission, is to inform the magistrate on matters of social justice.

Typically, religious abolitionists found their bias against capital punishment on a misreading of Jesus’ teaching that locates and extracts a so-called love ethic. Jesus’ attitude toward the law as an ethical standard is clearly illustrated in Matthew 5. One of Matthew’s concerns in writing is to deal with the charge being echoed in the synagogues of his day that the Nazarene was repudiating the ethical standard revealed in the Old Testament Scriptures. Matthew’s burden is to show that ethical living for the disciples was not based on a new moral code. Jesus did not forbid the law of the talion. Rather, he taught that true righteousness issues out of a proper understanding of the law, minus the distortions of oral tradition ("You have heard, but I say. . . ").

The tendency of Christians to confuse mercy and justice, salvific and moral-legal categories, has the effect of placing Jesus at odds with Paul, Peter and, of course, the whole of the Old Testament. Tragically, the result of this highly selective reading of the Scriptures is an undermining of God’s eternal ethical standards. In the words of one commentator, such despises both the image of God in the victim as well as the death of the Lamb of God. The prohibition of the commandment "Thou shalt not kill" means that an individual shall not take away another person’s remaining years of life. It does not mean that killing is unethical under all circumstances. The Torah knows the difference between manslaughter and murder, accident and intention, negligence and deliberation. Jesus is no way sets aside this ethical imperative.

REHABILITATING HUMAN DEPRAVITY

[…] Murderers generally do not rehabilitate. Yet it is remarkable how insistent abolitionists can be in denying the likelihood that punishment will deter the violent criminal. Perhaps the most comprehensive analysis of the criminal mindset was done some years ago by Samuel Yochelson and Stanton Samenow in their landmark work, The Criminal Personality. This study was based on sixteen years of observing 255 criminal patients at St. Elizabeth’s Hospital in Washington, D.C. The two researchers’ conclusions were nothing short of controversial. Criminals were found neither to be victims of society nor of "character disorders." Rather, they acted with deliberation and were in control of their behavior.

The authors concluded that the fear of death was very strong in their patients. Some crimes, as it happened, were ruled out because of these fears. The fear of the courts and the fear of losing one’s life, it must be emphasized, are two totally distinct matters. It is indeed ironic that the burden of proof for the efficacy of capital punishment as a deterrent rests on the shoulders of its advocates. The entire criminal justice system historically has been based on the common-sense notion that the more severe the penalty the greater its deterrent effect on the would-be offender. Economists, it should be noted, wholly subscribe to this proposition. The law of demand posits a negative relationship between the price of a commodity and the amount actually demanded for it. Can anyone really doubt the same when applied to the realm of crime? Most human beings, after all, are inclined to avoid situations that are likely to be unpleasant, painful or fatal. (This is the essence of Rom 13:3-4: "If you do evil, be afraid [of the magistrate], for he does not bear the sword in vain; he is God’s servant, an avenger.") […]

Abolitionists normally fail to confront with painful honesty the ethical imperatives of Genesis

9. Premeditated murder constitutes the initiation of force against an innocent person and the ultimate expression of despising divine authority. When in defense of an innocent victim and society the civil authorities execute a murderer, no inalienable right is being violated. The frequent cry that capital punishment is "barbaric" depends fundamentally on how a society perceives the moral difference between crime and punishment. To abandon the criteria for just punishment—punishment commensurate with the crime—is to abandon all criteria for punishment. In truth, the sentences imposed by many state systems bear almost no resemblance to time actually served, thus breeding disrespect for the criminal justice system on the part of criminals themselves, jurists, victims and the general public.

In a moral vacuum, retribution and restoration are indistinguishable from revenge. A view of life that acknowledges proportionality for crime, contrarily, is not "uncivilized." Rather, it is predicated on life’s inherently sacred character. Hence the universal proscription against premeditated murder in Genesis 9, a proscription that transcends the old covenant. Since there is no possibility of offering restitution in the case of murder, "by man" the blood of the murderer is to be shed (9:6). Murder, it should be emphasized, constitutes no less a heinous (and thus punishable) crime in the New Testament than in the Old Testament.

Abolitionists gloss over the ultimate in morally repugnant acts when they argue that through the death penalty the criminal is prevented from restitution—that is, doing something for his evil. The Biblical witness is that murder cannot be atoned for, inasmuch as it is the ultimate crime against God: effacing the imago Dei. Furthermore atonement for capital crimes is not pushed off into the eschaton. Rather, criminal justice is to serve as a (present) shadow of eternal punishment.

This is no way negates the mercy of Christ extended to the sinner. It merely recognizes that consequences for our sins are not obliterated by the fact of Christ’s redemption. Therefore the murderer can in fact stand forgiven in the sight of God, while he at the same time undergoes the capital sanction that God himself imposes through the civil authorities. Christ’s mercy is not a mercy that erases penalties for human crimes. Rather, it is a mercy that offers the thief a place in paradise. The time to consider the magnitude of murder is before the sanction is imposed, not after the fact. Such is designed to instill within all members of society the fear of God. The rationale for the capital sanction in the case of murder is none other than the safeguarding of human life. Genesis 9:5-6 is to be understood foremost as an institution that protects life, and the retribution sanction has the social effect of discouraging invasions upon the sanctity of the human creature. An assault on human life is comparable, as it were, to an assault against God.

CONCLUSION

The ethics of capital punishment do not rest on sentimental reasoning that frequently accompanies the debate over the death penalty. The arguments commonly cited by both secular and religious abolitionists—purported Eighth Amendment immunity, executing the innocent, lack of statistically verifiable deterrence, the insufficiency of revenge/retribution, the fallibility of the criminal justice system, rehabilitation, abrogation of the Mosaic code; a "higher Christian ethic"—fail to withstand the scrutiny of the full range of Biblical data. On the whole, Scripture favors the retention of capital punishment for premeditated murder.

The Christian community takes no pleasure in clarifying this difficult issue. Nevertheless it plays a critical role in defining the ethical contours of the moral debate, a debate that more often than not proceeds along misguided emotional and sentimental lines. In keeping with its earthly mandate the Church is to instruct the state in matters of social justice. Social justice requires uniform standards of sentencing. The notions of "due process of law," "equal protection under the law" and "equal justice for all" are meant to avoid the utilitarian effects of unequal justice that are morally repugnant. The degree to which the Church actually contributes toward furthering authentic justice depends on the degree to which she is faithful to divine revelation.

J. Daryl Charles is an associate professor of religion and philosophy at Taylor University.

This article was excerpted from “Crime, the Christian and Capital Justice,” Journal of the Evangelical Theological Society 38/3 (Sept. 1995): 429-441.