The Common Good
April 2007

Crime and Sacrifice

by Tobias Winright | April 2007

What does the cross tell us about the ethics of capital punishment?

At Easter, Christians celebrate the resurrection of Jesus Christ from death and the tomb. We praise God who raised, and thereby vindicated, the falsely accused Innocent One who three days earlier was executed by crucifixion at the hands of an occupying Roman military force. Considered one of the cruelest, most humiliating methods of capital punishment, the cross was reserved by the Romans for slaves who were thieves and for rebels who were not Roman citizens. Especially during the highly charged atmosphere of the Passover festival, which commemorates the Israelites' earlier liberation from the oppressive Egyptians, the Roman governor, Pontius Pilate, and his troops were on red alert for insurrectionist threats from Zealots among the Jewish population.

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Meanwhile, the religious council in Jerusalem, the Sanhedrin, accused Jesus before Pilate of being precisely such a malcontent: "We found this man perverting our nation, forbidding us to pay taxes to the emperor, and saying that he himself is an anointed king" (Luke 23:2b). They apparently hoped that focusing attention on this man from Galilee might forestall any Roman counterinsurgency reprisals. In a succinct articulation of this sort of consequentialist reasoning, Caiaphas, the high priest, averred: "[I]t is better ... to have one man die for the people than to have the whole nation destroyed" (John 11:50). This is a quintessential case of scapegoating.

FOR THIS REASON, Baptist ethicist Glen H. Stassen writes, "Christians who remember that their Lord was unjustly and cruelly given the death penalty have a hard time being enthusiastic about imposing the death penalty on others." Of course, one might disagree with this statement by noting that there are those who are guilty, unlike Jesus, who should still have the death penalty imposed on them (in a just and humane way). And Stassen's comment is not descriptively accurate of Christians historically. In much of the Christian tradition until recent decades, capital punishment was supported. During the 13th century, for example, Thomas Aquinas wrote that "it may be justifiable to kill a sinner just as it is to kill a beast, for as Aristotle points out, an evil man is worse than a beast, and more harmful."

Nevertheless, Stassen is spot on prescriptively, that is, with regard to how Christians ought to be and behave when it comes to the issue of capital punishment. As he goes on to say, "The cross on Christian churches signifies not that we should advocate more crosses for others, but that we all need mercy." On this basis, Christians should take issue with state executions regardless of whether a person on death row is guilty or innocent, or regardless of whether lethal injection is cruel or humane. In short, executing people is morally wrong in principle.

This is not to say that the current public debate about questions of innocence, race, cost, and deterrence in relation to the death penalty are unimportant. Indeed, due to serious concerns about these matters, 10 states have put executions effectively on hold while their capital punishment laws and practices are under review. Two of these states, Illinois and New Jersey, presently have formal moratoria on all executions, while the other eight states are reconsidering their use of lethal injection. The death penalty is being implemented less frequently even in those states that continue to execute. During 2006, only 14 of the 38 states with capital punishment carried out any executions, and only six states executed more than one person. The number of executions in 2006 was 12 percent less than in 2005 and 46 percent less than in 1999. According to the Death Penalty Information Center, the number of death sentences given annually is at a 30-year low.

Accordingly, Christians who are opposed to capital punishment on moral grounds can pragmatically support their position with studies and data that show the patterns of race-of-victim or race-of-defendant discrimination in capital cases; that most criminologists and police chiefs don't think capital punishment is an effective deterrent to murder; and that the total costs of the death penalty exceed those of life-without-parole sentences. Such information is persuasive to many fellow citizens who may not share theological convictions against capital punishment. The fact that 123 persons since 1973 have been released from death row with evidence of their innocence has apparently given pause to many people, perhaps leading them into deeper moral reflection on the death penalty.

Not all people, however, are so persuaded. Some may acknowledge that it is statistically likely that innocent persons have been put to death by the state, but they go on to say that this is an acceptable risk in order to protect even more innocent persons. In other words, they continue to believe that capital punishment deters others from committing murder. For example, Ernest van den Haag writes, "It follows that the irrevocable injustice sometimes inflicted by the death penalty would not significantly militate against it, if capital punishment deters enough murders to reduce the total number of innocents killed so that fewer are lost than would be lost without it."

Others, such as U.S. Supreme Court Justice Antonin Scalia, note that at present there is no conclusive DNA evidence that an innocent person has indeed been executed. Last year, Justice Scalia said that although no criminal justice system can completely rule out "the possibility that someone will be punished mistakenly," this likelihood in the U.S. has been "reduced to an insignificant minimum." It is not too difficult to discern echoes of Caiaphas in these kinds of responses to the possible death of innocents in execution chambers in the U.S.

So, while Christians indeed should muster all of the arguments they can bring to bear on the subject of the death penalty, not everyone will be persuaded by, or interpret, evidence the same way. Even many fellow Christians in the pews continue to disagree on this issue. Anti-death-penalty crusader Sister Helen Prejean and Justice Scalia, both Roman Catholics, obviously differ. At present, while support for the death penalty is decreasing among Roman Catholics, one 2005 survey shows that 57 percent of Catholics still support stiffer enforcement of it, although generational differences are striking, with only 41 percent of people under 30 approving it. I propose, therefore, that Christians first get our theological and moral bearings straight, which brings me back to Stassen's remarks earlier about Jesus' crucifixion.

THEOLOGIANKARL BARTH put the matter this way: "Now that Jesus Christ has been nailed to the cross for the sins of the world, how can we still use the thought of expiation to establish the death penalty?"

The traditional satisfaction theory of atonement holds that the sacrificial death of God's son, Jesus, is required by God to atone for humankind's sin—to "satisfy" humankind's debt to God. This theory may contribute to ongoing support by Christians of the death penalty. In his The Executed God: The Way of the Cross in Lockdown America, Mark Lewis Taylor suggests that "Christian scapegoating interpretations of Jesus' death bear a significant responsibility for today's theatrics of terror, as we suffer it in the form of prisons, endemic police brutality, and state-sanctioned executions."

Sister Prejean rightly calls this theology into question: "Is God vengeful, demanding a death for a death? Or is God compassionate, luring souls into love so great that no one can be considered 'enemy'?" This latter possibility is just as salvific, making God and humankind at one again.

Mennonite theologian John Howard Yoder argued that in the ancient biblical cultures executions were not only criminal punishment but also a form of sacrificial reparations to placate a God who they believed required such practices for atonement. Dennis Gaertner, in the Eerdmans Dictionary of the Bible, writes that execution by stoning in the Hebrew scriptures was "an action conveying a corporate obligation for removing sin from the community." A serious crime or a sin committed by one person could result in God's punishment upon the entire community; therefore, if known, the perpetrator was executed.

If Jesus' death has done away with the sacrificial system, and if part of that edifice was capital punishment, then just as Christians no longer practice animal and grain sacrifices, so too we ought not to perform human sacrifice by executing criminals. Indeed, as the preacher of the papal household, Father Raniero Cantalamessa, has said, Jesus, "by his teaching and by his life, has unmasked and broken forever the system that makes something sacral of violence." Cantalamessa added that it is the celebration of the Eucharist, "the sacrament of nonviolence," that makes present "God's absolute 'no' to violence, spoken on the cross, [which] echoes alive down the centuries."

If more Christians were to believe this is really true during worship, and to pray for the grace of God to help them embody it in turn in their own lives, support for the death penalty would dramatically decrease. A recent Gallup survey suggests some basis for hope: "Americans who attend religious services on a regular basis are slightly less likely to support the death penalty than those who attend less frequently. ... 65 percent of those who attend services weekly or nearly weekly favor capital punishment, compared with 69 percent of those who attend services monthly and 71 percent of those who seldom or never attend."

Finally, contrary to what Justice Scalia has asserted, one does not have to be "ideologically driven" in order to call into question the death penalty. Lest I be accused of being a bleeding heart liberal, I should point out that I have several years of law enforcement experience, the bulk of it as a corrections officer. Assigned to a large maximum security jail, I often found myself witnessing human nature at its worst. Opposition to the death penalty does not come easily for me. Nevertheless, I hope I am indeed theologically driven in my stance against capital punishment. From a Christian moral perspective, even the guilty should not be punished with death. Perhaps instead of having more "dead men walking," we should send the death penalty walking.

A former law enforcement officer, Tobias Winright is a Catholic moral theologian at St. Louis University.

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