Is the Death Penalty Ethical?

By Marcia Moret Sietstra; Crestwood UCC, August 27, 2006

It has been said that a minister should preach with the Bible in one hand, and the newspaper in the other, since Christians have a responsibility to care about what happens to their neighbors. Well, the last couple of weeks, if you have been reading the newspaper, you know that a 24-year-old named Elijah Page is set to be executed this week by the state of South Dakota, which of course represents us. So today I want to consider the ethics of the death penalty, particularly as we think about this young man who sits in a cell at the penitentiary just a little way from us this morning.

There are, of course, a variety of criteria one could use to judge whether an action is ethical. As Christians we traditionally look to four resources: we look to scripture, tradition, experience and finally reason. Let’s begin with scripture. I invite you to look at the handout you received at the door (addendum to this sermon). It begins with two conflicting penalties for murder found in the book of Genesis. First, in the myth of Cain and Abel, after Cain has murdered his own brother, God says:

¹¹And now you are cursed from the ground, which has opened its mouth to receive your brother’s blood from your hand. ¹²When you till the ground, it will no longer yield to you its strength; you will be a fugitive and a wanderer on the earth.’ ¹³Cain said to the Lord, ‘My punishment is greater than I can bear! ¹⁴Today you have driven me away from the soil, and I shall be hidden from your face; I shall be a fugitive and a wanderer on the earth, and anyone who meets me may kill me.’ ¹⁵Then the Lord said to him, ‘Not so!^* Whoever kills Cain will suffer a sevenfold vengeance.’ And the Lord put a mark on Cain, so that no one who came upon him would kill him.

According to this ancient Judaeo-Christian story, God did not kill Cain; he cursed Cain for the murder and sent him to wander the earth, and then he put a mark on Cain's body so that nobody who saw him would kill him. Indeed, if anyone killed Cain for the murder of his brother, that person would be severely punished. Here, banishment and exile is the pnalty for murder; capital punishment is specifically prohibited.

The first mention of capital punishment as a penalty for murder appears just a few chapters later and reflects a different writer’s tradition:

⁶Whoever sheds the blood of a human, by a human shall that person’s blood be shed; for in his own image God made humankind. (Gen. 9:6)

I’ve also listed some offenses from the Mosaic Code that were punishable by death: adultery, sexual activity before marriage, trying to convert an Israelite to another religion, murder (unless it was a slave you killed), cursing one’s parents, the careless management of an animal if that animal repeatedly injures others, in which case you as the owner should be put to death. Death was the penalty for blasphemy and for working on the Sabbath—oh my, do we really want to go back to this ancient law code for moral or legal guidance?

Of course not, and I list these laws simply to demonstrate once again why it is dangerous to quote the Old Testament whether you are discussing the death penalty, homosexuality, abortion or a variety of other ethical issues being discussed today. [As a sidenote: Isn’t it interesting to see how much these law codes look more like Muslim Sharia law.]

The New Testament presents a far less harsh view, though it is not much more helpful because it also presents a mixed message: While Jesus continually refused to practice violence, and he consistently told us to be merciful, even as God is merciful, some would say that we cannot be sure just how he felt about the state imposing the death penalty. Look, e.g., at the first quote on the back of your handout.

38 ‘You have heard that it was said, “An eye for an eye and a tooth for a tooth.” ³⁹But I say to you, Do not resist an evildoer. But if anyone strikes you on the right cheek, turn the other also; (Matt. 5:38-39) This might be interpreted as denying the right of the state to punish murder with execution. Or it may apply to the relationship between two people, rather than between the state and a convicted criminal. I don’t think we can know from this historical distance what Jesus meant. It is worth noting that Jesus himself was given the death penalty; his crime was blasphemy, and he died by crucifixion, which was a method of execution practiced by his government. Leaving that handout now, let’s consider what tradition tells us about the ethics of the death penalty.

I can summarize church tradition very simply: throughout Christian history there have been Christians opposed to the death penalty and supportive of it; there is no one consistent ethic. So I want to move on to consider society’s experience with the death penalty, and how it might inform our ethics. Let me begin with a story that illustrates the American experiment with the death penalty.

It was in the summer of 2000, that I seriously questioned the death penalty for the first time. My daughter was a student at Stanford Law School, and was working as an intern at a law firm during the summer. The law firm did some pro-bono work, and she was assigned to do research on a case that the firm had chosen as a worthy charitable project.

The case involved a young black man on death row in Texas. He read at a 2^nd grade level, and tested just barely above the level of mentally retarded. Several years earlier, he participated as the lookout outside a convenience store while a robbery took place inside. He had been told by his two friends, who left him outside on the sidewalk, to “watch for the cops.” He was used to doing as he was told by the other two boys, for whom he regularly ran errands in exchange for candy and pocket money. It is uncertain if he even knew that they planned to rob the place. The robbery went bad, and a store clerk was killed.

In Texas, anyone who participates in a crime in which someone is killed can be held responsible for the murder. So this young man was tried for murder along with the two guys who committed the robbery, even though they admitted that he never entered the store in which the killing took place. According to trial documents, this young man’s court appointed attorney actually slept during parts of the trial, and he was later disbarred for using cocaine during the trial. The defendant’s low IQ was never entered into the trial record to demonstrate his incapacity. It turned out that his attorney had ties to the private investigator working for the prosecution. The trial record demonstrated an incompetent defense at best, and possibly illegal collusion. Having received no real defense, this young black man who stood outside the store as the lookout was convicted and sentenced to death. Here’s the kicker: the other two young men who were actually inside the store and committed the robbery did not get the death penalty. They were tried together; they had a better defense attorney, and it could never be established which one of the two actually shot the clerk, so they received life sentences instead.

Do a google search when you get home; type in Death Penalty Mistakes. You will find dozens of cases like this in which people are on death row because of incompetent legal counsel. Columbia University law professor James Liebman is the author of an extensive study of all death penalty cases between 1973 and 1995. He documented the discovery of serious legal mistakes in 68% of them. He said, “It’s not one case, it’s thousands of cases. It’s not [happening in just] one state, it’s [happening in] almost all of the states.” (CBS News, June 12, 2000).

In 2000 Gov. George Ryan imposed a moratorium on the death penalty in Illinois after 13 men were proven to be innocent and released from death row, a number of them due to the diligent review of their cases by a Northwestern University class on justice. (St. Petersburg Times, April 19, 2002). These exonerations are not a sign that the system is working. The innocence of these death-row prisoners was discovered only because outsiders went to great time and expense to investigate when the courts would not. What about the ones who were killed before some charitable law firm or university class took on their case?

CAN OMIT: In some cases only sheer luck saved the life of a death row inmate. Walter McMillian spent 6 years on Alabama’s death row on the basis of perjured testimony and withheld evidence. His conviction was overturned only because a volunteer lawyer, who was listening to a tape of a key witness against McMillian, happened to flip the tape to see if there was anything on the other side. He then heard the very same witness complain that he had been pressured to frame McMillian. (The Challenge of Holiness: A Sermon on the Death Penalty, delivered by Rabbi Peter J. Rubinstein at Riverside Church, Jan. 10, 2000). “A legal system that requires college students to provide justice as a class project… cannot be called functional. A system that hold’s the balance of a man’s life in the flipping of a tape cannot be called reasonable.” (Rubenstein)

Experience demonstrates the inadequacy of our legal system to provide consistent and fair ways of applying the death penalty. As a result, Supreme Court Justice Harry Blackmun had a change of heart after having voted for the death penalty years earlier. He said this: “From this day forward, I no longer shall tinker with the machinery of death—I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now, that no combination of procedural rules or substantive regulations ever can save the death penalty from its constitutional deficiencies.”

Experience has also taught us that the death penalty does not deter crime. We used to think the fear of death would act as a deterrent, but study after study shows that it has not.

There was a time when legislators argued that it would cost the nation too much money to keep criminals imprisoned for their entire lives, and that the death penalty was more cost efficient. But experience has shown that in state after state, the cost of housing a prisoner for life is actually less than the cost of applying the death penalty because of the high legal costs of appeals.

If experience convinces us that the death penalty experiment has failed, what does reason suggest that we do? What can possibly satisfy justice? I am sympathetic to the argument that if we really value life, how can we take away anything less than life from a criminal who has taken away someone else’s life? Criminals certainly need to pay for wrongdoing I think many of us believe that the criminal must give up in equal proportion to what they have taken, as in “a life for a life.”

But perhaps the ancient story of Cain and Abel is instructive here. When Cain murdered his brother, God marked Cain with a sign so that no one would murder him, and punished Cain with great difficulty for the rest of his life. Is not taking away one’s freedom for the rest of one’s life conceptually proportionate to the taking of a life by murder? For many, a lifetime of incarceration is, indeed, a worse punishment than death. Indeed, one of the people quoted in the local newspaper last week, said he suspects this is why 24-year-ol Elijah Page has asked to die rather than go through more appeals. Death may be preferable to a lifetime in prison.

The UCC, like many other mainline denominations, has formally taken a stand against the death penalty in recent years. Personally, I have moved from being in favor of the death penalty as a young adult, to opposing it in recent years. Like so many, I have come to believe life in prison is a punishment that is far superior to the death penalty, morally and ethically, for four reasons…

· First, life in prison is proportionate; incarceration is, essentially, the taking of a life for a life.

· Second, it allows for human error: if we discover a mistake has been made, we can try to make amends. In a court system as broken as ours, in which dozens of death row inmates have been shown to be innocent, we can’t claim justice is being done.

· Third, life in prison is preferable because it keeps us, as a society, from the dehumanizing practice of killing. We abhor laws in some Muslim countries that punish people by the cutting off of a hand, or stoning to death, yet is the death penalty much different? Throughout sacred scriptures, there is an overriding theme not to kill, and an overriding theme to practice mercy. Which leads me to the fourth reason…

· Life in prison is a morally superior punishment because there is always a chance for redemption in the criminal’s life, between that person and his or her God. We fallible humans dare not take that away from anyone.

Perhaps some of you will reach a different conclusion. Christians reach various viewpoints on this tough issue. I do hope this morning’s sermon helps you to think about our responsibility as Christians to form judgments about things like the death penalty, because we help mold the justice system in our society, and we have a responsibility to do our best to care for our neighbors. Amen.

Addendum: Some Scripture References to the Death Penalty

Two conflicting penalties for murder found in the book of Genesis.

Cain had killed his brother, Abel. But God did not kill Cain; he cursed Cain for the murder and sent him to wander the earth. God also put a mark on Cain's body so that nobody who saw him would be motivated to kill him. If anyone killed Cain for the murder of his brother, that person would be severely punished. Here, banishment and exile is the penalty for murder; capital punishment is specifically prohibited.

The first mention of capital punishment as a penalty for murder:
⁶Whoever sheds the blood of a human, by a human shall that person’s blood be shed; for in his own image God made humankind. (Gen. 9:6)

From the Mosaic Code of Hebrew Scriptures - a set of 613 laws and punishments. A sample of offenses for which the death penalty was prescribed (by stoning, being impaled on a stick or burned alive):¹

· For adultery. Leviticus 20:10-- And the man that committeth adultery with another man's wife…the adulterer and the adulteress shall surely be put to death.

· For sexual activity before marriage. Deut. 22:13-21-- Then they shall bring out the damsel to the door of her father's house, and the men of her city shall stone her with stones that she die...".. Note that this applied only to women; there appears to have been no penalty for men who engaged in pre-marital sexual activity.

· For trying to convert someone to another religion. Deut. 13:1-10 states that a person who tries to convince an Israelite to convert to another religion must be killed.

· Sometimes for committing murder: Levitucus 24:17 requires that "he that killeth any man shall surely be put to death." However, Exodus 21:20 states that if a slave-owner kills his male or female slave, he shall be merely "punished." However, if the injured slave lives for a while after the beating before dying of the abuse, the owner is not punished at all.

· For cursing parents. Exodus 21:17—And he that curseth his father shall surely be put to death.

· For careless handling of an animal. Exodus 21:29—But if the ox .....hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death. For blasphemy. Lev. 24:16-- And he that blasphemeth the name of the LORD, he shall surely be put to death. Blasphemy was defined as uttering the name of Jehovah while cursing.

· For working on Saturday. Exodus 35:2 states: ...but on the seventh day there shall be to you an holy day, a Sabbath of rest to the LORD: whosoever doeth work therein shall be put to death. Numbers 15:32-36 described a man who was executed because he gathered wood on Saturday.

Overview of Christian Scriptures (New Testament)

Some sayings of Jesus:

Matthew 5:38-39: ‘You have heard that it was said, “An eye for an eye and a tooth for a tooth.” ³⁹But I say to you, Do not resist an evildoer. But if anyone strikes you on the right cheek, turn the other also;’

This might be interpreted as denying the right of the state to punish murder with execution. Or it may apply to the relationship between two people, rather than between the state and a convicted criminal.

Matthew 26:51-52: ⁵¹Suddenly, one of those with Jesus put his hand on his sword, drew it, and struck the slave of the high priest, cutting off his ear. ⁵²Then Jesus said to him, ‘Put your sword back into its place; for all who take the sword will perish by the sword.’

Jesus' reproached one of his followers who had attacked a priest's slave with a sword. Some have interpreted this as a prohibition against all killing, even when it might be termed “defensive.” But Jesus' comment might merely be an observation that violence tends to create more violence.

Luke 6:36: “Be merciful, even as your Father is merciful.”

For more, see http://www.religioustolerance.org/exe_bibl1.htm