The Common Good
January 2013

Gandalf, Gollum, and the Death Penalty

by Tobias Winright | January 2013

Theological considerations should frame the Christian response to capital punishment.

EARLY IN J.R.R. Tolkien's The Fellowship of the Ring, Gandalf the wizard is talking with the hobbit Frodo Baggins about the dreadful Gollum. The frightened Frodo expresses his regret that his uncle Bilbo had not killed "that vile creature, when he had a chance!"

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Because of "all those horrible deeds" that Gollum has done, Frodo adds, "He deserves death." Gandalf replies, "Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment. For even the very wise cannot see all ends. I have not much hope that Gollum can be cured before he dies, but there is a chance of it."

I do not know where Tolkien stood on the issue of capital punishment, but Gandalf offers theologically relevant points about innocence, guilt, judgment, and hope that Christians should seriously consider as heated debate continues about the morality of this lethal governmental practice.

While a majority of Americans still view capital punishment as morally justified, there is growing opposition to it. Indeed, the number of death sentences dropped to a 35-year low in 2011, and the annual number of executions since 1999, the year in which the most persons were put to death, has with a few exceptions continued to decrease. Seventeen states have abolished capital punishment, including Connecticut, which outlawed the death penalty on April 25, 2012, for any future crimes committed. In 2012, 12 states had active legislation to end it. Why?

Much of the rethinking, even among "law-and-order" conservatives, centers on 1) mistakes that may lead to wrongful convictions and the executions of innocent persons, 2) unfairness in its application, especially in connection with racial and economic biases in society and in the criminal justice system, 3) data that call into question whether capital punishment is an effective deterrent to violent crime, and 4) the high costs for states (and therefore for taxpayers) to implement it (see box on facing page).

While the empirical studies and criminological research are very important, for Christians it is the theological and biblical framework that should ultimately determine our stance on this contentious issue.

Personal Mistakes. Institutional Errors.

Three decades ago, I worked as a corrections officer at a large maximum-security jail in metropolitan Pinellas County, Fla. I know from experience that mistakes happen.

Of course, even though nearly every inmate assured me of his or her innocence, many were found guilty at trial, while others were found innocent. Due to errors, including some that may have been intentional on the part of some law enforcement officers or prosecutors, the possibility remains that some in the former category were actually innocent, while some acquitted were actually guilty. "Do not be too eager to deal out death in judgment," advised Gandalf. "For even the very wise cannot see all ends."

Sister Helen Prejean, in her bestselling book Dead Man Walking, wrote, "Anything that human beings do can go wrong." This applies to personal sin as well as institutional error.

Regarding personal sin, Paul reminds us in his letter to the Romans that "all have sinned and fall short of the glory of God" (3:23). Because of human finitude, we often make mistakes. Some of us even commit crimes.

These aspects of what it means to be human should be kept in mind with regard to the institutions that humans create and maintain. Reinhold Niebuhr warned in his classic Moral Man and Immoral Society that sinful selfishness manifests itself in social groups and institutions, as well as in individuals. Persons, while capable of selfless action, are neither infallible nor free from sin. So too institutions, such as the criminal justice system, often act in self-interest and are neither infallible nor free from the possibility of sin.

When Gandalf replies "Some that die deserve life," he reflects theological insight about human nature and human institutions and the possibility for error.

No Society Without Sin

When I later worked in policing and served as a youth minister, I saw how crime affects victims and their families. I have known people who were later murdered. There indeed is a need for justice. In Niebuhr's view, while society "must punish criminals, or at least quarantine them," it should do so in ways calibrated with a "corrective justice." Avoiding "primitive vengeance," society should instead follow a logic ultimately directed by Jesus' command, "Love your enemies" (Matthew 5:44).

I believe in free will and in taking responsibility for one's actions. However, I am aware of the circumstances out of which many prisoners come. The horrible poverty, child abuse, illiteracy, unemployment, and violence that many inmates suffered themselves perhaps contributed to their criminal actions.

"The society which punishes criminals is never so conscious as it might be of the degree to which it is tainted with, and responsible for, the very sins which it abhors and punishes," wrote Niebuhr in An Interpretation of Christian Ethics. Recognizing that society is not always as conscious as it should be of its own complicity or moral decadence should lead us, paraphrasing Micah 6:8, to do justice, to love kindness, and to walk humbly when we sentence.

But Don't Some Deserve to Die?

While in law enforcement, I also encountered some Gollums, who like the "small, slimy creature" were not at all innocent. I've been spit at, yelled at, called every name in the book, and physically harmed. At times I had to dive for cover from hurled excrement or had to defend myself and others against attack. While talking to alleged murderers, I sometimes thought, this person would not hesitate to kill me if given the chance. There were those who, as Gandalf said of Gollum, "deserved death."

Christian supporters of capital punishment sometimes quote passages from the Bible to justify their belief that some heinous crimes demand the ultimate punishment. Yet scholars have identified in the Hebrew Bible between 20 and 36 crimes or sins (the two were not differentiated at the time) for which death was prescribed. These included striking or cursing one's parents, bestiality, incest, blaspheming, and working on the Sabbath. Do Christians today wish to reintroduce the death penalty for such offenses?

Even when the answer is no to this question, death-penalty supporters often point out that murder is in its own category. They cite the lex talionis ("law of retaliation"): "If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe" (Exodus 21:23-25 and others). Scholars agree that the lex talionis was established to set limits on tribal vengeance, to prevent the escalation of violence into a blood feud. The Hebrew Bible laws are meant to make sure the punishment fits the crime.

'Whoever sheds the blood of a human ... '

The Torah passage most often invoked in support of capital punishment is Genesis 9:6: "Whoever sheds the blood of a human, by a human shall that one's blood be shed; for in God's image is humankind made." Today scholars note how the wording of this passage is poetic, more like a proverb, not the legal jargon connected with the other references to the death penalty in the law codes of the Hebrew Bible. Moreover, the Hebrew wording is unclear. We cannot tell definitively if it is descriptively saying what tends to happen to violent people, or if it is prescriptively commanding capital punishment. A nearly identical proverb is spoken by Jesus when he tells his disciple to put away his sword, "for all who take the sword will perish by the sword" (Matthew 26:52). Jesus was not expressing his support for capital punishment; he simply stated what tends to happen to those who lead violent lives.

Theologian John Howard Yoder noted the passage's context—eating the blood of animals and shedding the blood of humans were prohibited in the previous sentence (Genesis 9:5). When Israelites killed animals, it was a ritual sacrifice, because the animal's blood belonged to God. The same applied to executing a murderer who had killed someone made in God's image. Yoder wrote, "Thus, the function of capital punishment in Genesis 9 is not the defense of society but the expiation of an offense against the image of God." In Yoder's view, this passage is the theological basis of everything else said on the subject in the Hebrew scriptures.

A Deadly Logic

This point about expiatory sacrifice is theologically pivotal. In a number of ancient cultures, there was what theologian Daniel M. Bell Jr. refers to as "the logic of blood sacrifice," or the notion of "redemptive violence." Bell adds that this logic has continued to shape the way that many Christians view God—"a wrathful, angry God who demands blood and suffering and threatens to inflict terrible violence as the just punishment for sin"—and therefore how we act in this world, including ongoing Christian support for capital punishment.

This kind of theology of atonement is known as substitutionary theory. And while there is some basis for this view in the New Testament, it is not the only perspective on how Jesus' crucifixion is a redemptive act. Bell notes that Paul also holds that "it is not a blood sacrifice that saves us, but Jesus' obedience and fidelity." In Philippians 2:5-8, for example, Paul writes that we should have the "same mind" as Christ, who "humbled himself and became obedient to the point of death—even death on a cross."

I share Bell's view "that Christ's work of atonement, when rightly understood, demands the rejection of blood sacrifice and the logic of redemptive violence. Christ's work on the cross is not about satisfying a divine demand for blood, but about showing us that God does not demand blood." As anthropologist René Girard has argued, this is the full unveiling and rejection of the pattern of expiatory violence. It is the ultimate expression of God's love that saves us, a love that chooses to die rather than lash out at our sinful ways, especially as manifest in the execution of Jesus.

Father Raniero Cantalamessa, a Catholic priest and preacher to the papal household, writes that Jesus' death "has unmasked and broken forever the system that makes something sacral of violence." This is how Yoder understood Hebrews 10:12 on Christ's self-sacrifice offered "for all time." The killing of a murderer, according to Catholic catechism, may in some rare cases be considered "legitimate defense" of a society, but it cannot be understood as punishment or expiatory retributive justice. If Christians believe that we no longer should practice animal and grain sacrifices to placate God, so too we ought not to perform human sacrifice by executing criminals as if doing so balances some cosmic scale of justice. It doesn't.

Give Repentance a Chance

While it's true that in jail I encountered human nature at its worst, I also glimpsed unexpected grace. Some inmates shared their stories with me; some officers were kind and saw their job as about "corrections," rather than just detention or punishment.

I met some people, accused of grave crimes, who anguished and seemed remorseful. Some longed for a way to make things right, wishing there was some restitution they might make to their victims and victims' families. Some became mentors for their fellow inmates. A few who were discharged from the jail hoped to make a positive difference in society.

As Gandalf put it, "I have not much hope that Gollum can be cured before he dies, but there is a chance of it." Although death-row inmates may "be cured" and accept redemption before their execution, once an execution happens, such an experience becomes impossible for those who haven't yet had it.

While I've known persons whom I cannot imagine would change, nevertheless "there is a chance of it" because, as Jesus said, "for God all things are possible" (Matthew 19:26). Moreover, as Pope John Paul II asserted, "Not even a murderer loses his personal dignity." As made in God's image, human dignity can be neither gained nor lost by what we do; it is something inherent and therefore inviolable.

Admittedly, it is very difficult to view murderers as human—especially cold-blooded mass murderers such as Anders Breivik, who slaughtered 77 people in Norway in 2011. But they are. Though they commit monstrous crimes, they are not monsters.

Pope John Paul II argued that "[t]he new evangelization calls for followers of Christ who are unconditionally pro-life: who will proclaim, celebrate, and serve the gospel of life in every situation. A sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil."

My mother, Patricia Juhl, was a homicide detective for the same department where I worked. She met with serial murderer Anthony Joseph LeRette for six years while he was on death row in Missouri. He shared information about the murders, rapes, and robberies he committed in several states, including Florida. In a letter to her, the barely literate prisoner wrote, "I seen in your eyes and speech that I could trust you somewhat. You're still the law, and I know that you will do your job. But there's a heart in Pat that does care."

The crimes he committed were indeed atrocities, but over time he trusted my mother and revealed a lot to her that was helpful for her investigations. I do not know where she stands on the death penalty, but she said after his 1995 execution, "I got to know him as Tony LeRette on death row. I got to know him as a human being."

Highlighting the humanity of the perpetrator does not necessarily mean that the execution of a murderer is as gravely immoral as the murder of an innocent person. It means both are wrong.

"What a pity that Bilbo did not stab that vile creature when he had a chance!" declares Frodo. "Pity?" Gandalf replies. "It was Pity that stayed his hand. Pity, and Mercy: not to strike without need." Such need, according to John Paul II, is "rare if not practically nonexistent" in today's world, where secure prisons exist that can protect society from persons who have demonstrated they are a clear threat. As Christians we stand on a firm theological, biblical, and practical foundation to announce that the time is now for the U.S. to abolish capital punishment. n

Tobias Winright is associate professor of theological ethics at St. Louis University and co-author of After the Smoke Clears: The Just War Tradition and Post War Justice (Orbis, 2010).

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