The Mandate to Oppose the Death Penalty

The moratorium on executions in Illinois imposed by Governor George Ryan has had a ripple effect throughout the nation. States are examining their usage of the death penalty.  Some have acted to exclude from eligibility for the death penalty juveniles and the mentally retarded.  Some have attempted, so far unsuccessfully, to impose their own moratoria on executions.

At the same time that Illinois legislators are responding to criticism of the state’s death penalty statute by offering reform bills and even a bill for abolition, both houses of the Illinois General Assembly passed bills in the current session, expanding the death penalty! The public is equally conflicted: The Pew Center’s polls indicate that backing for the death penalty slipped to 66 percent this year from a high of 80 percent in 1994.  A Gallup poll in April reported that 22 percent of the respondents opposed the death penalty, yet wanted to see Timothy McVeigh die!

The ELCA adopted a social statement opposing the death penalty by a more than two-thirds majority vote at its Second Biennial Churchwide Assembly in 1991.  But the issue was not without controversy then, and it can be safely assumed that the death penalty still enjoys widespread support in our congregations.

I find this to be troubling because in my opinion, believers must forsake basic, foundational affirmations of Christian faith in order to support the death penalty.  I attempt in this article to make clear why supporting the death penalty is not consistent with Christian faith.

Faith Issues

For us Lutherans, everything we know with certainty about God we learn from the Christ event. That is, we do not first turn to Exodus or Deuteronomy to discover who God is for us. Rather, we examine the Gospel of Jesus Christ as it is revealed in the writings of the New Testament, and then we read Exodus and Deuteronomy and the balance of Biblical literature through the filter of this Gospel. Basic tenets of orthodox Christian faith raise interesting questions when we read them with the death penalty in mind.

• Jesus knew God to be His Father and He teaches us that God is our Father also; indeed, God is parent to all humankind. God the Father loves all his children, the disobedient as well as the obedient, with a steadfast love that endures forever. Should Christians approve of society’s killing in a systematic way people who are beloved by God?
• All human beings are in bondage to sin and cannot by their own efforts lead God-pleasing lives. If we are all sinners, who, then, is qualified to decide which sinners deserve death?
• In Jesus Christ, God acts decisively to conquer sin. God’s Son is rejected and dies at the hands of sinful people. People of all times and places participate in this rejection and killing and Jesus takes on Himself the sins of all people. Who are we, who participated in the murder of God’s Son, to judge that certain other murderers deserve death?
• Of those who accept God’s offer of forgiveness and the promise of new life, God creates a new people. Believers do not access this grace by their own efforts but it is the Holy Spirit who “calls, gathers, enlightens, and sanctifies the whole Christian church on earth” (Luther). Are we, who come to grace apart from our own efforts able to discern who is and who is not capable of repentance and rehabilitation? Is it not a sin against the Holy Spirit to make this judgment?
• God entrusts to this community the proclamation of the Good News and the ministry of reconciliation. This ministry of reconciliation works not only vertically, between people and God, but also horizontally, between people and people. The power of this community’s witness depends upon its ability to see as God sees: “From now on, …we regard no one from a human point of view” (2 Cor. 5:16-21). The Church sees and proclaims that the Cross has unified humanity (Eph. 2:13-18). The Church sees and proclaims that the Lord makes no distinction among people – all are one in Christ Jesus (Gal. 3:28). The Church sees those not yet in the body of Christ as potential brothers and sisters in faith; they are people for whom the Lord died (John 3:16).

An examination of several Biblical texts illustrates how seeing with God’s eyes brings judgment upon the “human point of view” in regard to the death penalty.

Jesus treats the Fifth Commandment {“You shall not murder” (Ex 20:13, Deut. 5:17)} and the Lex Talionis {“Show no pity; life for life, eye for eye, tooth for tooth, hand for hand, foot for foot” (Deut. 19:21, Ex 21:23)}

. The Fifth Commandment and the Lex Talionis are probably the favorite Biblical texts used to justify the death penalty. It is unfortunate that many Christians who are advocates for the death penalty seem not to be acquainted with the Matthean Jesus’ commentary on these two texts. Jesus’ comments on these two texts indicate that he understands how human beings use them to their own advantage. And so, when Jesus treats the Fifth Commandment (Mt. 5:21ff), He actually equates anger and name-calling with murder! He suggests that those guilty of these offenses deserve the same punishment that murderers receive! By doing so, Jesus frustrates those who justify themselves by condemning fellow human beings. And when he comments on the Lex Talionis (Mt. 5:38ff.) Jesus rejects this “right of revenge” and suggests rather that the offended exhibit restraint toward and even cooperate with the evildoer. The reasoning behind this astonishing advice is to be found in the following verses (vv.43-48) in which Jesus urges his listeners to give up the hostility that divides humanity into neighbors and enemies and to love both neighbor and enemy because this is the way the Father behaves. While we might question total restraint vis-a-vis a murderer, we nevertheless are to understand that the murderer’s deed does not destroy his/her humanity, and in dealing with such an offender, we are to be mindful not only of society’s wellbeing, but the wellbeing also of this person.

Jesus deals with a capital case (John 8:3-11)

. A favorite text of those who oppose the death penalty is this story, in which Jesus is put on the spot when a woman caught in the act of adultery, a capital crime, is brought to him. Not unlike the Matthean Jesus above, the Johannine Jesus’ response is contrasted to Moses’: The woman’s accusers state, “in the law Moses commanded us to stone such women,” but Jesus replies, “Let anyone among you who is without sin be the first to throw a stone at her.” Of course, the only One qualified to throw the stone will not do so; in fact, he refuses to condemn her at all and gives the guilty woman her freedom with the stipulation, “Go your way, and from now on do not sin again.” Does not the gospel writer John imply that Jesus’ refusal to condemn the woman and the power of his forgiveness will enable the woman to do as the Lord commands?

God deals with the first murderer (Genesis 4:8-17)

. The early chapters of Genesis are often considered the story of “everyman” and “everywoman.” If we observe God’s treatment of those archetypal people, we gain insight into how God treats us and how we should treat one another. After Cain kills his brother Abel, God punishes Cain but not in a vengeful manner. God does not kill Cain and God even marks him to warn others to not kill Cain – God fully understands the vengeful nature of human beings! But there areconsequences to Cain’s offense: life does not go on as before. A skilled farmer, Cain now will find that the soil does not yield for him as it once did. Further, he must leave his homeland. Yet God allows him to marry, to have a family, and even to establish a city. In this story, God’s punishment corrects Cain; it does not destroy him.

God has a penchant for making murderers heroes of the faith

. We so often gloss over the misdeeds of our Biblical heroes because we want our heroes to be perfect. Our human nature likes “uncomplicated” categories: either people are “good/virtuous” or “bad/evil.” But God doesn’t pick perfect people to serve him. Moses murdered an Egyptian (Ex. 2:11-15), David had Uriah the Hittite murdered (2 Samuel 11:2-17), and St. Paul looked on as Stephan was stoned (Acts 7:58-8:1). Before we give Paul (then Saul) a slap on the wrist for being an “innocent” bystander, we should be aware that an accessory to murder in Illinois is just as guilty as the one who actually commits the murder. (Illinois used this provision to kill Girvies Davis in 1995.) Because we know what giants of faith Moses, David, and Saul became, we tend to let them off the hook for their earlier misdeeds. Nevertheless, they were murderers and according to the purists, they deserved death for their deeds. In God’s eyes, a murderer is simply another beloved child who, equipped with God’s grace, has the capacity to serve God and God’s people.

Jesus has an annoying habit of preferring the company of “sinners” and telling stories that put good, decent folk in a bad light

. Even though John’s Gospel says that the Son was sent to the world, Jesus in all the Synoptic Gospels says, “I have come to call not the righteous but sinners.” (Mk. 2:17, Mt 9:13, Lk 5:32). Of course this discrepancy is easily resolved since the dirty little secret is that all people are sinners; but righteous folk in all generations have a hard time “getting it.” The Parable of the Tax Collector and the Pharisee (Luke 18:9-14) is the perfect illustration. The Pharisee in the story really is a pillar of the community! We can trust him when he relates for the Lord all the good deeds that he has accomplished. But even as he begins his prayer, “I thank you that I am not like other people” he exposes his sin. The Pharisee has two fatal flaws: he doesn’t see his oneness with fellow human beings and he trusts in his own goodness. God cannot save those who deep down feel no need of Him. What has this to do with the death penalty? How many of us, when we sing every Good Friday, “‘Twas I, Lord Jesus, …I crucified thee.” (LBW #123), really believe we are murderers? And if we don’t, why do we sing this hymn? And if we do, why are we not more vocal in defending our fellow murderers?

Jesus challenges us to see with the eyes of God

. If it is possible, the Parable of the Prodigal Son and His Brother” (Luke 15:11-32) is even more of a cautionary tale for the faithful than the parable above. Here are three characters, a father and his two sons, one obedient and faithful, the other disobedient and unfaithful. The disobedient son is not a sympathetic character – he demands his share of the inheritance, takes off with it, spends it recklessly, and when things really go bad for him, he returns home with a story of how sorry he is, knowing what a pushover Dad is. Certainly the elder brother can see right through this ingrate. We in the audience are nodding our heads in agreement, understanding perfectly the elder son’s disgust as he rails at the Father, “… when this son of yours came back.., you killed the fatted calf for him!” But then the Father gently reminds him, “But we had to celebrate and rejoice, because this brother of yours was dead and has come to life; he was lost and has been found.” And now the elder brother has a choice: will he refocus his eyes and see that this ingrate is still his brother and enter the house? Or will he choose to stay outside because his father’s generosity offends him? The Lukan Jesus challenges us also to see with the eyes of the Father. Everything the elder son says is true but that is the human point of view. Those who are baptized into Christ are a new creation. Now they put away the human point of view and see with God’s eyes. Can we recognize that the most despicable murderer is still our brother (sister)?

Justice Issues

God, being a God of justice as well as a God of mercy, cares about the political and social structures of society and whether people are treated fairly within these structures. Christians may oppose the death penalty for faith reasons but not every member of society will be compelled by these considerations. People of good will might reconsider their support for the death penalty when they know the realities of the death penalty and how it is administered. For example:

• Most murderers will not receive the death penalty. The 1-2% of murderers chosen to endure a death penalty trial are not necessarily those who commit the most heinous crimes.
• The law defines which crimes are death eligible, but in Illinois, it is the prosecutor who decides which of these cases will be tried as capital cases. The likelihood of a successful outcome is a major consideration and this depends on factors such as the resources available to the defendant and whether there is public pressure for a death sentence.
• The death penalty for the most part is reserved for marginalized people: poor people, people of color, and people of little or no stature in the community. Few affluent people are found on the death rows in the United States.
• Many defendants facing the death penalty cannot afford a qualified lawyer. An assigned pro bono lawyer may not even be a criminal lawyer let alone one qualified to try a capital case with all its complexities. Public defenders are often skilled, but their caseloads work against the mounting of a comprehensive and adequate defense. (Recently, the Illinois Supreme Court has adopted new rules to improve the quality of prosecutors and defense counsels.)
• Even when a defendant secures a qualified lawyer, he/she still may lack sufficient resources to present an adequate defense. In very few cases do the resources of the defendant match those of the State.
• The death penalty is arbitrarily imposed. Depending on the county, the prosecutor, the judge, the race of the victim, and the “societal stature” of the defendant: for the same offense, one defendant will receive the death penalty, another, a life sentence, and still another, a sentence for manslaughter (a comparatively minor sentence).
• Human beings make mistakes: since the death penalty was reinstated in Illinois in 1977, thirteen men have been released from Illinois’ death row because they were innocent. The late U.S. Supreme Court Justice Thurgood Marshall wrote: “No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some.” In a civilized society, what margin of error is acceptable?
• In recent years, without regard to the dangers of doing so, lawmakers have shortened the appeals process. But how long must the process be to insure that innocents do not die? One of the thirteen innocent men in Illinois needed 17 years to prove his innocence, another 16 years, and five others needed over ten years.
• Once convicted it is very difficult for an offender to prove innocence. A recent ruling has exacerbated this burden: The U.S. Supreme Court ruled that if a defendant received a fair trial, then, proof of actual innocence discovered later was not a constitutional claim for which a sentence could be vacated. Justice Blackmun in his dissenting opinion said, “the execution of a person who can show that he is innocent comes perilously close to simple murder.” The defendant in this case (Herrera v. Collins, decided 1/25/93) was subsequently executed.
• Proof of discrimination does not save an offender from the death penalty. The U.S. Supreme Court accepted a study proving that race (not the brutality of the crime or lack of remorse of the defendant) was the most important factor that determined who was sentenced to death (specifically, black murderers of white victims). The Court ruled, however, that defendants who were victims of such discrimination were not entitled to new trials. The defendant in this ease (McCleskey v. Kemp, decided 4/22/87) was subsequently executed.
• The death penalty is not necessary. A prison term can adequately punish the offender, while insuring that an innocent person is not killed. Should an offender kill while in prison, there are extreme security measures (commonplace in supermax facilities) which can prevent the offender from doing so again. A prison term allows time for repentance and amendment of life. Even reconciliation with the victim’s family is not unknown.
• The death penalty does not provide closure to families. In the first place, only 1-2% of murderers receive the death penalty.  If it is necessary for closure, does this mean 98% of the families are denied closure?  Secondly, to proceed with the grieving process, families need swift justice: the death penalty, to be just, cannot be swift.  A non-death penalty case usually involves one appeal and then the process is over.  The death penalty involves many appeals, during which the family is constantly reminded of the cruel death of their loved one.   Bud Welsh, who lost a daughter in the Oklahoma City bombing, wondered, “My daughter Julie loved life; how does it honor her memory to kill Timothy McVeigh?  Killing Tim creates new victims—Tim’s father and sister.”  The grieving and healing, the ability to forgive the murderer—these are processes which have no timetable.  And yet, we Christians know that true healing happens when one no longer desires evil to befall the one who has harmed us.

Conclusion

The mission of the church is to proclaim the Good News. The Good News is not only that God is reconciled to human beings, but that human beings now are empowered to overcome their own hostilities with one another. The power of forgiveness effects the peace. All divisions are of the Evil One and not of God: God has revealed in the Cross of Christ that human beings are one people and the ministry of reconciliation stands against any divisions which the world tries to impose. There are no “good” people, there are no “evil” people, there is only “God’s people,” sinners all, but beloved by God; and for all of them God’s Son suffered and died.

In regard to the death penalty, the challenge to Christians is deciding whether to side with the world and its wisdom that evil must be killed or with God and his foolish notion that great evil can be overcome through repentance and forgiveness. May we trust with St. Paul that “God’s foolishness is wiser than human wisdom, and God’s weakness isstronger than human strength (1 Cor. 1:25). May we heed St. Paul’s admonition: “Do not be conformed to this world, but be transformed . . ., so that you may discern what is good and acceptable and perfect.” (Rom. 12:2).