The Justice of the Death Penalty
This week Nebraska's legislature overrode its governor's veto of a bill to end the death penalty in Nebraska. Nebraska is the nineteenth US state to ban the death penalty. The editorial board of The New York Times celebrated this decision writing, "But the death penalty has never been about protecting public safety, only exacting hollow vengeance….The Nebraska vote… is an acknowledgment by reasonable people of all political ideologies that capital punishment is an abhorrent and indefensible practice. If that realization can happen in the deep-red heart of America, it can happen anywhere." Mainline Protestant churches, the US Conference of Catholic Bishops, the Orthodox Church in America, and many self-identified evangelicals oppose the death penalty.
Some Christians argue that the inherent dignity of the human person precludes the death penalty; others argue that Christians are called to forgiveness, not vengeance, and that the death penalty attempts to solve vengeance with vengeance. These claims can be easily dismissed by a cursory glance at relevant texts of Scripture and the logical distinction between Christian persons and the office of the magistrate. Indeed, God claims that vengeance is his and that it is the magistrate who he uses to enact that that vengeance upon wrongdoers. For murder, the penalty is unequivocally death (this pronouncement applies to all of creation and pre-dates the Mosaic law).
A more reasonable and conservative position in opposition to the death penalty is taken by Cardinal Dulles in an article in First Things. Dulles notes that both Scripture and the Apostolic Tradition (and indeed essentially all Catholic theologians until about the 1950s) do not oppose the death penalty. He notes that opposition to the death penalty "has gone hand in hand with a decline of faith in eternal life" and that early abolition of the death penalty was usually done over the protests of believers.
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Dulles, while admitting the right of the State to inflict capital punishment, argues that "killing should be avoided if the purposes of punishment can be obtained by bloodless means." These purposes of punishment are: "rehabilitation, defense against the criminal, deterrence, and retribution." He argues that, while the death penalty does not rehabilitate the criminal to society, it may lead him to a relationship with God; he believes defense (in our day and age) can be accomplished by life imprisonment without parole; he believes execution is not effective as a deterrent. His argument against retribution rests on the idea that, in our secular society, execution is viewed not as a ministration of justice, but as an instrument of the will and anger of the people. He argues that, since imprisonment serves the purposes of punishment as well or better and since unjust execution may occur, the death penalty should be avoided as a punishment (though it is not unjust in se).
Cardinal Dulles' argument, however, fails to take into account the human dignity of the victim who also is made in the image of God. God commands, "Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man." Rather than being a simple proof text, this text reveals the nature of the evil of murder. Made in the image and likeness of God, even fallen man is crowned with the dignity and preciousness that his integrity as a distinct person demands. Human personhood is dependent for being on God, who is Being itself. The Father, Son, and Holy Spirit are the only non-dependent beings; thus, for a man to violate the personhood of another man through murder is to set himself up as God, the only giver and taker of life.
In the case of government, various levels of authority over persons are delegated by God. This is, of course, recognized by St. Paul, but is also noted by our Lord when he says to Pilate, "Thou couldest have no power at all against me, except it were given thee from above." Government therefore, consciously or not, derives its authority over man – especially in the realm of capital punishment – from God; legitimacy is something, perhaps, that government gain from popular consent. Men cannot give government the power to execute, that power can only be delegated by God.
To deny the legitimacy or necessity of capital punishment by the proper authorities of a murderer convicted with surety is to elevate the life of the murderer over that of his victim. Assuming knowledge of the penalty for murder has been promulgated, by murdering another, the murderer has surrendered his own life. Contrary to the arguments of those that oppose the death penalty, the failure to apply the death penalty is a failure to recognize the human dignity of the victim – indeed, God's command gives no other options for punishment.
In examining punishment, the purposes Dulles listed cannot all be considered equal. Rehabilitation, defense, and deterrence are all secondary to the dispensation of justice (retribution). The blood of the victim calls out from the ground for justice. Indeed, there can be no rehabilitation without justice because without just punishment, the criminal has not expiated his crime. In his command, God established the principle of justice for murder. While it may be up to the state to weigh mitigating factors in its decision, the state is charged with insuring justice. Mercy belongs to God and his Church. When justice is removed as the primary consideration in a punishment, it becomes merely a means to promote good within the criminal and in society. This is fundamentally unjust to the victim.
It is also unjust to the criminal because this approach fails to treat him too as a person capable of making rational decisions and living with the consequences of those decisions. As C. S. Lewis notes, "Thus when we cease to consider what the criminal deserves and consider only what will cure him or deter others, we have tacitly removed him from the sphere of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient, a 'case'." The death penalty is the only way of recognizing the personhood of the murderer.
This essay is not intended to argue for the death penalty always and in all cases. Mitigating factors do exist, and our legal system is equipped to examine them. To claim that capital punishment is unjust either inherently or as practiced today is to misunderstand the demands of justice. Capital punishment recognizes the inherent dignity in the personhood of both the victim and the murderer. Capital punishment properly places the demands of justice at the center of the question of punishment. Scripture and the tradition of the Church both proclaim the justice of the death penalty for appropriate crimes; Christians today do not have either the reasons or the right to disagree.
This column was originally published in Juicy Ecumenism.
