Welcome to part six of the ongoing series on the death penalty. I appreciate those who have taken the time to respond to the podcasts with good questions, challenges and comments. A couple of folks who emailed me mentioned Jesus and the woman taken in adultery, and basically cast the anti-death penalty people in the role of Jesus and its supporters as Pharisees or legalists. This goes back to the muddy thinking I mentioned in previous podcasts regarding the boundaries of the roles of the Church, State and the individual. I think at the bottom line we’d all agree that it is absurd to believe that the state should bring each felon before the court and tell them “Go your way, sin no more” and release them back into society with no penalty for their crimes in the name of Jesus. We may as well dismantle the entire justice systems of the world if we really believed that. Again, the issue is not Phariseeism or Jesus-ism, but “what hath God said”, and what does that look like in terms of civil order? The particular instance was in the context of “the Church” (Israel’s religious leaders) and their conflict with Christ’s authority. Jesus knew EVERYONE’S heart in the situation and responded wisely…this was not a commentary or instruction on the function of and nature of civil order in general.
I was also admonished by a few people to “Judge not, lest I be judged…” I have to say that in these podcasts, I’m judging no one in particular, I’m merely presenting the Church’s historic Tradition that God indeed has given civil governments the authority to do just that…judge good and evil and reward both appropriately according to the divine order. And again, it would be absurd to apply that gospel command to individuals to civil authorities or even Church authorities. No where in the Scripture is “judge not” applied to civil rule, or even to the governance of the Church.
And finally, someone asked point blank, “Would Jesus give a murderer the electric chair?” I admit the imagery gave me pause, but after some thought, I had three responses to that question: First, He had the ability as God, but He didn’t “save” the thief on the left. As I mentioned in the last podcast, the crucifixion scene is a microcosm of the fallen world and civil order: One murder is justly condemned, another’s punishment might have been disproportionate, and one was unjustly condemned. In the providence of God, one saves, another is saved and the other exemplifies the unrepentant human even in the presence of the love of God. Even though it would have been a perfect object lesson regarding capital punishment and forgiveness, Jesus died and let two die with Him, one saved and one damned. So perhaps we should go a little deeper and see the crucifixion scene as God’s view of civil authority, divine love and the fallen world fully explicated. Secondly, if we hold to the Orthodox view of the Trinity (or even if we were Seballian modalists) we could ask, “Would Jesus kill all the firstborn of Egypt, over 50,000 in I Samuel 6, the entire populations of Sodom and Gomorrah, much less the entire planet?” And we’ve covered those issues in depth already in previous podcasts. But, thirdly, even if I thought I know Jesus well enough to grant that He would not give someone the chair, or “personally pull the switch”, the Scriptures make it clear that He will come again to judge the living and the dead and cast the evildoers into a lake of eternal fire as punishment if they are unrepentant. (And eternal punishment and retribution will probably be next week’s topic…so again, stay tuned.) So if we remove the emotional impact from the question, it gets more complicated.
So to begin this week, I want to summarize a bit of last week’s thoughts. We looked at the question, is the death penalty inhuman and ungodly? I concluded that the issue has been framed in this way for Christians by the atheist humanists. It is not “ungodly” because God Himself did it and required it of His people. It is not “inhuman” because it addresses what “true humanity” looks like from God’s point of view. It is, in some way even if we cannot fully grasp it, a Godly order for the communion of human beings in the context of the fallen world. In the Orthodox theology of the incarnation and the icon, we get the fullness of the meaning of Genesis 9: we fulfill our personhood in relationships, and we lose it in the same way. If we reject our proper regard and relationship to other human beings through murder, the desecration of the image ultimately passes to God. Thus, Godly justice is holding a person accountable, who by doing evil, rejects not only God, but his own personhood created in the image of God. He has defiled the entirety of the meaning of what it is to be human in relationship to others, himself and God.
Now, before I go on to more meaty issues, I want to touch very briefly on the emotional aspects on both sides of the issue. I’m not going to spend more than a paragraph on it because it IS emotional and has little true bearing on the issue except to a few individuals. There are those who cannot imagine participating in taking the life of another human being directly or indirectly because well, they would feel horrible about it. (And of course our convictions play into our feelings…I’m not implying that anti-death penalty people are all codependent bleeding hearts with no substance). And there are those who demand the death penalty because of the anger they feel about the depth of depravity exhibited by some evildoers (nor am I implying that pro-death penalty people are angry, rage driven vigilantes.) These visceral responses are at one level both legitimate reactions to the reality of the unnaturalness of death on the one hand for both the victim and evildoer, and to the horror of evil on the other, both for the harm done to the victim and the evildoer. However, on both hands we ultimately realize we cannot order a society on the basis of any individual’s “feelings”, or visceral reactions. That is why the death penalty is (or should be) a multi-layered, slow deliberative process and not handed over to individual victims, codependents, zealots or vigilantes. So, I don’t believe it is proper to say “Because of my personal convictions, I could not imagine “flipping the switch” to kill someone, therefore the state should not mete out a death penalty”. Nor is it proper to say, “Because vigilantes are out for retributive vengeance based on blind anger, therefore the State should not mete out death as a consequence for evil.” Systems of justice and objective civil laws are put in place in order to both reflect the proper anger and grief at human evil, and proper restraint and prudence in response to it. Thus a judge or court can take into account the depth of evil of a crime and acknowledge its impact on loved ones and society at large, and still exact a just and proportionate response to it apart from one individual’s feelings or conscience.
So finally, I want to get into the issues that are usually presented as the core of the controversy: Life in prison, deterrent, restraint, and punishment or retribution.
The first issue I want to deal with is the idea that we cannot kill the murderer in order to provide him with ample time to repent. Should we allow an evildoer to die a “natural death” while being restrained by the state from further crimes through some form of secure incarceration in hopes that he will come to repentance?
We all die from something sooner or later. So I think we have to ask, in the end is it just about the “timing” of the death of the evildoer? Is “sooner” as a consequence for doing evil categorically evil in itself, and how can we state that in the face of the clear command of God? Or, if we believe God is love and all consequences for sin are ultimately chastisement with the goal of repentance, did God intend that there is something redemptive about the death penalty for the evildoer that we as “innocents” can’t see or understand?
The reality is, except for isolated cases of crimes of passion, most murderers have long histories of criminal behavior. So we have to ask, what about the time they’ve already had to repent? How have they used it? As Christians we believe that the opportunity for repentance abounds every minute of the day and God is constantly at work in people’s lives to bring them to repentance. It is always KAIROS, “the opportune time” to repent. One of the ways God brings us to repentance is through temporal consequences for our sins. One temporal consequence for exceedingly gross evil is death by the state. The sentence of death on a killer is the first step to redemption because it is a clear statement that his sin is particularly depraved and a violation of all creation. The sentence of death is also redemptive in that it provides the evildoer the only true motivation most sinners initially understand to repent: we are going to die and face eternal judgment for our sins. Even though one of the Orthodox spiritual disciplines to keep ourselves in a repentant frame of mind is the “constant remembrance of death”, most of us do not live like we know we are going to die until we know we are going to die. The criminal having a date of execution has what most of us don’t have: a sure and exact knowledge of impending death. In that sense he has more of a chance and motivation to repent than the person who was unexpectedly murdered, or someone who is T-boned in an intersection or keels over at the dinner table from an undetected aneurism.
Dr. Gervas Carey, a Quaker Bible scholar and past President of George Fox College, says that executions represent mercy to the wrongdoer: In his book “A Bible Study” on capital punishment he says of the death penalty that, “. . . a secondary measure of the love of God may be said to appear. For capital punishment provides the murderer with incentive to repentance which the ordinary man does not have, that is a definite date on which he is to meet his God. It is as if God thus providentially granted him a special inducement to repentance out of consideration of the enormity of his crime . . . the law grants to the condemned an opportunity which he did not grant to his victim, the opportunity to prepare to meet his God. Even divine justice here may be said to be tempered with mercy.” (p. 116, A Bible Study).
St. Thomas Aquinas says, “The fact that the evil, as long as they live, can be corrected from their errors does not prohibit the fact that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement. They also have at that critical point of death the opportunity to be converted to God through repentance. And if they are so stubborn that even at the point of death their heart does not draw back from evil, it is possible to make a highly probable judgment that they would never come away from evil to the right use of their powers.” (St. Thomas Aquinas, Summa Contra Gentiles, Book III, 146.) “… if he be not converted, it profits to put an end to the sin, because the sinner is thus deprived of the power to sin anymore.” (Summa Theologica, II-II, 25, 6 ad 2.)
So, in the end, we say we fear playing God by taking a life prematurely, before the evildoer has time to perhaps repent. But there are more ways to play God than killing… we can play God by letting people live whom God has commanded to die. And it is clear from the OT that there are grave consequences for that too. St. John Chrysostom in “On the Priesthood” says more priests fall from compassion than from lust. It clear from scripture that it is possible to be too merciful to the sinner and in every case I can think of that happens in scripture it is in disobedience to a command of God to separate or even kill the evildoer. In regard to the death penalty an old Rabbinic saying seems to apply well, “Do not seek to be more righteous than your Creator.”
So, in the end, a juridical system that forces society to carefully premeditate its killing is probably one of the more “fair” deciders of who dies how and when in the fallen order. Unlike the natural order, at least the state gives you a fair warning, a last meal and a chance to say goodbye to your loved ones before you are handed a swift and painless departure from this world. For the Christian who would argue against the death penalty because “God is just, or God is love”, I’d say it seems that the state is more fair than God who allows people to die in their sins with no warning. And for the atheist, the state is more fair than their gods of nature, fate, blind chance and other human beings who randomly commit evil.
If we are to make a decision for permitting the evildoer to live, I would say it must be made on some other basis than a vague hope that more time might be helpful…for some, more time is opportunity to do more evil. We don’t know who is which, but we do know what God has commanded to do with the evildoer. Just as God will judge those who might have done more evil, He is also the judge of those who may have repented if given more time. He knows the depths of the heart, we can only guess. And I submit that we should not second guess God who has established the role and responsibility of civil authority in this area.
I read somewhere in one of the Fathers (and I confess I can’t remember who), that capital punishment is a temporal judgment and exacts the first death in order to bring about the fear of the eternal second judgment and second death. If a Christian believes in eternal life, this is ultimately humane. We cannot push all matters of earthly order, consequences for sin, and judgment of evil onto God in eternity. Romans 13 and I Timothy 2 make it clear that God did not remove Himself from the civil affairs of the human race after the Cross, nor did He remove Himself from judging sinful people within the Church. We are not given the luxury of deferring all judgment of human behavior to the last day in either civil or Church governance. We do not believe the God of the Old Testament is no longer concerned about civil law and order in the New Testament world. Civil authority is still God ordained and has its authority from God even under the Gospel. Death is still the blessed curse and a motivation to repent whether it comes from nature or the state. And the scriptures also make it clear that the fear of immanent death brings some to repentance and some to curse God and die in their sins, even when they are being killed justly along side God Himself.