Capital Punishment, Part 2

July 31, 2009 Length: 15:38

In the second part of the series Steve discusses the Flood as the dividing line in human history in regard to the meaning of death, fear and capital punishment. Did the Mosaic Law abrogate the covenant with Noah? What do the atheist and the Christian have in common in regard to capital punishment?





This is part two of the series on Capital punishment.  I’ve already received quite a bit of listener feedback (for and against) and I’ve not even gotten into the meat of the issue.  So before I begin, let me say this IS a work in progress.  I am already revising future podcasts and adding more material based on comments I’ve received, so it is kind of taking on a life of its own.  Depending on how it goes I may go through all my material and then do a Q and A and response to comments podcast at the end of the series.  The other thing I need to say is, I am not past changing my mind on this topic even though I’ve wrestled with it for years.  I’m too old and have changed my thinking too many times on too many important issues to be absolutely sure I have it all nailed down.

So…with that, I will say up front, I am going to deal with the issue from a Christian and atheistic perspective because both have anti-death penalty advocates and the arguments converge and diverge at different points worth exploring.  I am not going to deal with all the current manners of amorphous “spiritualities” that amount to ambiguous and often self contradictory philosophies and personal feelings and sentimentalities rather than a coherent world view about ultimate issues.  It is my experience that the well thought out Christian position against capital punishment generally expresses the general substance of the arguments of those who oppose it because they are loving, compassionate and “spiritual” but would not claim to be Christian.

So, let’s begin our walk through the issue.  To begin with, the question of capital punishment often is framed as:  restraint or deterrent versus retribution and punishment.  For the most part the argument about capital punishment whether one is religious or not, boils down to life in prison or execution and which is, from a moral or ethical perspective, more humane or just.
Some arguments will appeal to a utilitarian consideration regarding which is less economically burdensome and risky to society in some long run, but no one uses this argument exclusively.  Since the Christian (and even most humanistic atheists, though there are notable exceptions) do not believe that human life is ultimately defined by economic burden on society but by the intrinsic value of the human person. (This is not the place to get into the pro-abortion stance which amounts to human life defined by its convenience and burden on parents). But in the realm of the death penalty, very few people solely argue dollars and cents in decisions to preserve human life. On the other hand, in Arizona a jury just sentenced a serial killer to life in prison and when the verdict was announced the talk show phones lit up. Several of the pro-death penalty folks who called in yesterday said, “I don’t want MY tax dollars keeping that piece of garbage alive.”  I don’t know how many of those people would have claimed to be Christians, however.  That’s about all I’m going to say about the economics of the death penalty because I don’t think it is truly a fundamental issue for anyone. But if it can be shown its cheaper to keep someone alive or to kill him, it is just a bonus point for the sake of argument because well, money matters to us. 

So on to the more fundamental issues.  If one is a Christian (or generically “spiritual”), it seems like the answer to capital punishment is simple: the gospel (or gods, or THE God) are ultimately about mercy, forgiveness and affirmation of life, hence capital punishment is antithetical to what God is or wants for human beings. Thus, “life in prison” is then the only permissible humane restraint in order to avoid death as a consequence of a capital crime.  But I’ve come to the conclusion that it is not quite that simple, nor is God quite that easily or simply defined.  It doesn’t matter how you define God or the gods, God may be love but God has been intimately involved with death since the beginning of the human race.  We cannot deal with the nature of God without dealing with a definition of the nature and meaning of death because ultimately if God defines all things, who God is (or for the atheist, what the universe is) defines what death is for the human being.

So, can a spiritual person who believes in a loving God view death as restraint? It is true that life in prison restrains the evil doer. But then so does death. When you really get down to it, “life in prison” is really “living in prison until one dies”.  So the question is not “life or death”, it is really about “life until a death by legislation or death by natural causes.” 

Here is where the definition of death needs some precision. Both the Christian and the atheist know two things: We ALL know (both Christians and atheists) that people do evil things, and some do grossly evil things.  And we all know everyone and everything dies.  How we explain those two things and their relationship is the key to everything else about the universe. A coherent theology of a fall, or a coherent philosophy of the nature of matter is the key to understanding both evil and death. From a Christian perspective, the scriptures tell us that death is our ultimate enemy and a consequence of the fall. The Orthodox Church clearly teaches that death is unnatural, even death by “natural causes”.  Death is foreign to our nature, we were not created to die, and nature was not intended to be our enemy and kill us.  ANY death whether by an act of evil, mandated by laws of man or a consequence of the laws of nature is unnatural for the human being.  According to the Fathers of the Church, death and evil are inter-connected.  Death IS the ultimate constraint on evil. Death is actually called by the Fathers “the blessed curse” and it was added to humanity because it cuts short the days of man so he cannot wax grossly evil. In the days of Noah, God cut the lifespan of man short to 120 years to cut off the human decline into ever more pervasive evil.  The Old Testament is replete with stories of both God and man dealing out death to the grossly immoral and ungodly. Contrary to Bp. Seraphim’s division of the God of the two Testaments, the Christian must deal with the same God of Moses in the New Testament.

A recent document called “The Bases of the Social Concept of the Russian Orthodox Church” which was signed by all the Bishops of the Russian Orthodox Church summarizes the Church’s historical view of the death penalty in the Old and New Testaments and subsequent “Church age”.  It says,

“The death penalty as a special punishment was recognised in the Old Testament. There are no indications to the need to abolish it in the New Testament or in the (capital “T”) Tradition or in the historical legacy of the Orthodox Church either.”

In the same document it mentions that under the influence of the Church capital punishment in the period from the mid-18th century to the 1905 Revolution in Russia, it was applied on very rare occasions.  It is notable that Prince Vladimir abolished the death penalty in Kiev when he converted to Christianity in the 10th Century. But I found the Russian Church’s bishop’s statement interesting because it seems to indicate that Holy Russia, in spite of Prince Vladimir’s influence, was not uniformly anti-death penalty across its 900 year history.

So, back to the original point…is there a difference between the God of the “Law” of the Old Testament and the God of the “Gospel” in the New… or perhaps more accurately, does God deal with the human race differently in the two Testaments?

I think part of the answer is in Acts 5, shortly after the establishment of the Church.  This is the story about how God immediately strikes Ananaias dead before the congregation for lying about his tithe. When his wife, Sapphira shows up, the Apostle Peter asks her a loaded question which she answers wrong, and he tells her that her husband was struck dead for lying to God and the same fate awaited her for participating in her husband’s lie and she is struck dead too. While it was God who did the killing, St. Peter did not pray to God for mercy, clemency or life in prison for either of them.  And St Luke records that the result was great fear came upon the Church and all who heard about it.  I take that to be biblical language for “public capital punishment for lying to the apostles and the Church was a deterrent”.

In one sense death is indeed fearful, but it is also referred to in our readings for the Saints during the Vigil services as a blessing: God takes the righteous early so that they will be spared the evil days to come. So the real question surrounding capital punishment is not “death or no death”, the question is “death by whose hands” and “when” and “for what purpose”? In the final analysis both the atheist and religious person will agree, death is inevitable, we will all die.  How death comes to anyone is at the bottom line inequitable and a tragedy, whether a person dies because a god personally killed them, or of cancer, a random accident or even if it is at the hands of an imperfect juridical system that seeks to maintain a “civil society”. 

So, according to the Christian faith and its scriptures death is a mixed curse or mixed blessing depending on how you look at it.  So when we consider capital punishment as a form of death, we have to look at it as more than a one dimensional evil. The concepts of death as penalty, or as just retribution, deterrent and consequence did not come from the gods of paganism or from atheistic philosophy. 

If we look at the biblical history of capital crime beginning with Cain (though one could argue the first human capital crime was Adam and Eve’s sin since it resulted in death)…God’s response to Cain in Genesis 4 was essentially solitary confinement and a warning to the rest of humanity to not participate in his murderous ways lest God take vengeance on Cain’s murderer sevenfold.  But murder became part of human society anyway.  In Genesis 6 God exacts capital punishment on the whole human race which had become exceedingly evil except for Noah and his family.  In Genesis 9, after the flood the “culture of death” comes to full fruition on the earth.  Man is allowed to kill and eat the animals and the animals will now fear man, but more importantly God now requires capital punishment for murder. 

There is a lot to think about there, but most interesting statement for our discussion is in Genesis 9:6: “ Whoever sheds man’s blood, By man will his blood be shed, FOR IN THE IMAGE OF GOD HE MADE MAN”  The rationale FOR the death penalty is exactly the rationale used against it by most modern Christians, that we cannot kill someone because they are in the image of God. It seems to me that God is saying to Noah, “I require that you kill the murder because he has violated the image of God in his fellow humans, and perhaps more importantly within himself.” This predates the Mosaic Law and seems to initiate a new era that will be the way the universe works from then on.  The promise to not destroy man by a flood and the status of man and the animals is still true… why not capital punishment? It seems we have a lot of unpacking to do. 

So we fast forward to Moses.  Capital punishment is undeniably commanded by God to His people under the theocracy of Judaism.  There are arguments that capital punishment under Mosaic Law, though it seems administered for slight or even non-offenses by modern standards, had more stringent boundaries and checks and balances of justice than the surrounding pagan nations.  That may be true, but it does not shed any light on the issue at hand…why capital punishment AT ALL? 

I think we could legitimately ask, IF Israel was a type of the Church and a foreshadowing of the ministry of Christ, why didn’t God tell them: passive resistance to evil, no death penalty, no armies, negotiate everything and let evil run over you…you are to be a type of the forgiving, Crucified Savior.  Not to second guess God or His powers and ability to bring good from evil, but it seems to me that He could have gotten Jesus born of a virgin just as easily in that scenario as the one we find in the Scriptures if He so willed.  But we have the reality that God commanded death, both on an individual level and a national level, and He Himself killed the disobedient and unrepentant, and through His permitting the Assyrians and Babylonians to punish idolatrous Israel was responsible for a lot of collateral damage to the innocent and righteous within Israel. 

I have heard it argued that even though God commanded capital punishment that it was rarely carried out and reconciliation and forgiveness were more the focus of Mosaic justice in practice.  That might be true, I don’t know…but it seems to beg the question that perhaps it is precisely because they disobeyed God’s law is why Israel was idolatrous, spiritually adulterous and immoral and had so many evil kings.

So, it seems clear to me that fear and death, and the death penalty are not just a Mosaic institutions but universal principles under which the cosmos and the human race now functions because of the nature of mankind after the fall.  The Mosaic Law foreshadows the Gospel and yet demands capital punishment.  And if we think about it, it is through capital punishment unjustly administered through both Moses and the Gentiles that our salvation comes and through which one thief is saved,… but more on that later.

So, next week, civil authority, secular laws, the Church and the State, and utopian society.  Until then, I welcome comments, suggestions, challenges and clarifications on what I’ve presented so far.  There’s a lot more left to come… thanks for joining me.  See you next week on Steve the Builder.