In this podcast we’re going to deal with what are usually the hot button issues brought up regarding the “effectiveness” of the death penalty. Is it a deterrent to capital crime? Does it restrain the evildoer? Does punishment accomplish anything? In one sense these are secondary issues because as I mentioned last week we do not use utilitarian “effectiveness based on statistics” as a hermeneutic by which we decide “hath God said…” But they are indeed talking points about the seriousness of taking the lives of human beings even if they have committed capital crimes. So let’s take a look at the issues of deterrent, restraint and punishment.
Is the death penalty a deterrent to those who might do evil? For some, yes. Realistically, for others, no. St. Paul says fear of retribution by the state is a fundamental basis for civil order. Does that work? Yes. Even the most enlightened and spiritually advanced people would have to admit they obey some civil laws at some level out of fear. Some people probably do obey laws from a higher ethical and moral plane than others, but most of us don’t speed because we fear getting a ticket. We don’t cheat on our taxes, not because we love how the government spends our money but because we fear the IRS. But we also have to face the reality that there are human beings so bent and broken that not even certain death will deter them from planning and doing evil any more than the threat of a speeding ticket keeps some of us from driving too fast. There will always be those who do not fear a particular consequence for breaking some law. So, the death penalty is not for those people, at least not as a deterrent. As with all other civil laws, we do not remove what works for many because it does not work for a few. We can all agree that the deterrent effect will never be 100% for any law and consequence, so then the question is, what percentage even if it could be proved would be an acceptable level?
And yes, I’ve read tons of statistics on deterrent and there are tons. The bottom line is that they are inconclusive. For every paper that says the death penalty is not a deterrent, there is another that says it is, all based on statistics. The problem is, regardless of how many people DO murder with or without the death penalty, we really do not know how many people DON’T murder because of fear of the consequence. The fact that numbers go up or down does not prove causality either way. Hyam Barshay made the following observation, “The death penalty is a warning, just like a lighthouse throwing beams out to sea. We hear about shipwrecks, but we do not hear about the ships the lighthouse guides safely on their way. We do not have proof of the number of ships it saves, but we do not tear the lighthouse down.” Prof. Ernest van den Haag, “On Deterrence and The Death Penalty”, Journal of Criminal Law, Criminology and Police Science, vol. 60, no.2 (1969).
Deterrent framed as the primary consideration whether to exact the death penalty or not is ultimately a red herring. Killing the evildoer has never been done ONLY to put the fear of consequence in others. It is PART of the reality of the fact that we are social beings, but the consequence ultimately addresses the anti-social act of the evildoer and it is addressed to HIS violation of humanity and social order.
A second issue with the death penalty is the concept of restraint. Does the death penalty restrain the one who has done evil? You bet, once and for all. But, we can legitimately ask, can he be restrained by confinement? Maybe. I remember Banzai Bob here in Arizona who, while awaiting execution for murder, killed two fellow death row inmates. He strangled one and finished him by stabbing him multiple times with a sharpened toothbrush, then carving his name in the corpse. The other (while again, still on death row) he burned to death by tossing a makeshift firebomb into his cell. Six other inmates died from smoke inhalation from the blaze. Restraint, like the death penalty doesn’t always work perfectly it seems. In a sense Banzai Bob executed eight people before the state finally took his life. The reality is, that if Arizona had been a “life in prison without parole”, his last eight murders meant nothing to anyone except the judicial formality of adding more life sentences, and he had even less motivation to not murder again.
One could argue that the death penalty is unnecessary because of improvements in the prison system and society is protected from repeat offenders because we have the technology to build nearly perfect restraint now. In Pope John Paul II’s “Gospel of Life” he states that the only time executions can be justified is when they are required “to defend society” and that “as a result of steady improvements . . . in the penal system that such cases are very rare if not practically non existent.” I believe this is another red herring on two levels. The first and practical one is, unfortunately, like the fallibility of the death penalty, no system of restraint is perfect and it is clear from recent news articles that prisons are not currently safe and people get killed in them, both guards and prisoners, and people escape from them. One could argue that we should continue to execute capital offenders until it is clearly demonstrable that the perfect prison has indeed been built. But secondly, and more importantly, I don’t believe that, like deterrent, the “defense of society” is the paramount rationale for the death penalty in the Scriptures. If we reduce the issue down to keeping the evildoer from repeat offense then the concepts of moral responsibility, justice, and even rehabilitative punishment are irrelevant. The standard for the application of capital punishment in the Scripture has never been “how secure is your prison system to isolate the evildoer, it has always been a consequence for “what capital crimes do to the image of God in human beings”.
And finally, we are left with the currently politically incorrect and ugly, but necessary topic of retribution. The notion of punishment as a pure consequence of an evil act has somehow been deemed “primitive”, unspiritual, unchristian and unenlightened. Part of this is because retribution is often framed as a purely utilitarian act that somehow balances the cosmic ledger of the insult suffered by a victim (and in the penal substitutionary model of atonement, the insult to God Himself). But that begs the question of “what is punishment” and what is its ultimate purpose? In terms of the death penalty, opponents tend to frame the death penalty as merely visceral retributive punishment but life in prison is merciful opportunity for rehabilitation. What is a sentence of life in a ten by ten metal cage for someone like Banzai Bob who cannot be let out or he kills? We can call it “rehabilitative restraint”, but it is still restraint as a consequence or punishment. So it is not truly about punishment per se, but a definition of punishment properly understood. To be forcibly removed from normal human society against one’s will is punishment, to be put to death against one’s will is punishment. The question is really, “are they legitimate and by what authority?” An ugly reality of fallen human nature is that inflicted pain or punishment relative to a behavior can be corrective, it can be an aspect of rehabilitation by its nature. This is clear in the Judeo-Christian scriptures and by human experience. If one rejects the concept as primitive, then one must reject the natural operation of the universe’s laws and the reality of our own human nature. The fact of all human experience is that human beings mostly only learn “the hard way”. We learn and are motivated to re-learn from personal pain and consequences, and if we are truly wise we consider the pain of others before doing wrong. No one can read Proverbs, the Psalter or the New Testament and escape the notion of suffering and even death inflicted either by natural consequences, directly from God or man as God’s agent being discipline, chastisement and corrective.
In the case of the death penalty we can indeed understand it merely as “an eye for an eye, a life for a life”. We can see it as a juridical quid pro quo disconnected from any overarching theological, philosophical or metaphysical framework that addresses an ontological point for the human being. “Punishment” can be seen as merely pure retribution or just balancing the cosmic books of body counts and pain. “Payback” may seem primitive and passionate, but ultimately this visceral response to evil has its roots in the concept of the depth of relationship we have to other human beings. Why “payback”? Why “retribution”? If there is no one who cares, no connection between human beings, no communion, no responsibility to a greater thing than just my own existence, in short, no love, “payback” or retribution would have no meaning. When you “pay” someone for something, it is a transaction based on a relationship. The doing away with the concept of “retributive justice” is framed as a compassionate and enlightened response to evil, but I believe it is a step child of radical humanistic individualism, and ultimately a metaphysical denial of the interconnectedness of humanity. Retribution assumes the evil doer violated more than his individual personhood or just the sole life of another individual he victimized. His actions corrupted the entire order of the cosmos which was intended to shape him into a true human being. “Retribution”, technically defined, is the payment of a tribute to someone for an action. When one is punished for evil, the tribute is an acknowledgment of and reward for the violation of what it means to be human for all to see. An eye for an eye is not merely accounting, it means my eye is inextricably intertwined with yours. A life for a life says we are all inextricably intertwined with God. In God I am related to all other human beings, body, soul and spirit. The existence of human society is the evidence of that truth, and human societies innately understand they must teach that truth to their members in some way.
The killing of the murderer is the ultimate statement of the importance of communion and the heinousness of the violation of it. The further we move toward individualism and away from a metaphysic of “communion”, the more compassion we will have on those who violate it, but not because we are more loving, but because we are indeed less loving and unable to see the horror of the depravity of the violation of our Trinitarian imaged human existence. The notion that capital punishment only adds one more injustice or more suffering into the universe is not a Christian concept, it is pop eastern philosophy. Suffering exists in the world because of sin, but suffering is not always a manifestation of evil, one can suffer for the sake of love. Indeed it is through suffering and death motivated by love that the world is cosmically redeemed. Because of our fallen minds and hearts, God has prescribed as a cure for sin the punishment or chastisement of sinners or evildoers. Godly chastisement is a bitter pill whose ingredients are an amalgam of retribution, deterrent and punishment, each of which addresses a symptom of our human illness. As difficult as it is to hand out or to swallow, it is given for the purpose of healing the human person: a restoration of the image of a God-in-communion. One does not need to know the chemistry of a medicine for it to work, one merely needs to administer it or take it. Capital punishment is prescribed by God whether we as Christians or secular civil authority understand how it works or God’s purposes for it or not. For Christians to lobby the state for the wholesale removal of the death penalty under the rubric of mercy, and make it unavailable for the sickest members of the human race, we are perhaps denying them the only God prescribed cure left for their disease, which is the ultimate and eternal merciless act.