Introduction

For decades, capital punishment has been a hotly debated topic in the United States. There are numerous ethical considerations surrounding the issue, which this article will explore.  The objective of this article will be to provide the reader with the basic current facts on capital punishment in the United States, to consider the biblical stance on capital punishment, to present arguments for and against[1] the practice in the United States, and to offer some additional comment by the author suggesting the need for changes in the practice.

Background

Capital Punishment in the United States

Capital Punishment is currently legal in 32 states, the U.S. military justice system, and the U.S. federal justice system.[2]  Though 18 states currently prohibit the practice, their citizens can still be brought under a death sentence through either the U.S. military or federal justice systems.  Under the Bill of Rights, the Eighth Amendment to the U.S. Constitution limits the imposition of the death penalty, under its cruel and unusual punishments clause, to murder, espionage, drug trafficking, sexual battery, aircraft hijacking and piracy, kidnapping, sabotage, and treason.[3]  The Eight Amendment reads as follows:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The list of offenses for which the death penalty may be imposed is the result of varying state statutes, forty-one federal capital crimes laws, and a long list of U.S. Supreme Court cases that interpreted the cruel and unusual punishments clause. These Supreme Court cases date back to 1972, when, for the first time, the Supreme Court ruled that certain aspects of the death penalty violated the Eighth Amendment.[4]

Recent U.S. Statistics

According to Amnesty International,[5] from the end of 1976, the year that the U.S. Supreme Court reauthorized the death penalty, until the end of 2012, there were 1,318 executions carried out in the U.S.  The FBI reports that, during the same period,  689,524 murders were committed.[6]  This works out to approximately 1 execution for every 523 murders.  The use of the death penalty in the U.S is rare.  Less than two-tenths of one percent of U.S. murders results in death penalty executions.

The Biblical Stance on Capital Punishment

Old Testament

In the Old Testament, God not only authorized, but commanded, the death penalty to be applied under a significant number of circumstances. Specifically God commanded that punishments for crimes should follow the reason and logic of the punishment fitting the crime.  Consider this seminal command.

“Show no pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.” – Deuteronomy 19:21

This sentiment is also expressed similarly in two other passages. These passages regard crimes other than murder.

But if there is serious injury, you are to take life for life.” – Exodus 21:23 

Anyone who takes the life of someone’s animal must make restitution – life for life. – Leviticus 24:18 

Instances in which God commanded the death penalty include: touching the Ark of the Covenant (Num 1:51, 3:10, 4:15, 18:7), drunkenness during priestly duties (Lev 10:8-11), blasphemy (Lev 24:16), profaning the Sabbath (Ex 31:14, 35:12), false prophecy (Deut 13:1ff, 18:20), idolatry (Ex 2:20, 20:1ff, Deut 13:1-19, 17:2-7), sorcery (Ex 22:18, Lev 20:6, 27), cursing a parent (Ex 21:17, Lev 20:9), striking a parent (Ex 21:15), youthful incorrigibility (Deut 21:18ff), murder (Ex 21:12, Lev 24:17, Num 35:16ff), kidnapping (Ex 21:16, Deut 24:7), perjury (Deut 19:16-21), adultery (Lev 20:10, Deut 22:22ff), homosexuality (Lev 20:13), sex during menstruation (Lev 20:18), bestiality (Ex 22:19, Lev 20:15-16), prostitution of a daughter (Lev 21:9, Deut 22:13-21), rape (Deut 22:25), incest (Lev 20:11-12, 14, 17, 19-21), rejecting the verdict of the high priest in a murder trial (Deut 17:8-13), keeping dangerous livestock (Ex 21:9), negligent homicide (Ex 21:8-9, Deut 22:8), child sacrifice (Lev 20:1-2), and false claims of bridal virginity (Deut 22:13-21).

While many of these offenses do not warrant capital punishment according to the sensibilities of many modern Americans, they nonetheless were righteous sentences because they were required and imposed by God who is both good and just. This demonstrates the morality of capital punishment.  If capital punishment is immoral, then God is immoral.

New Testament

In the New Testament, God Himself exercised capital punishment in two prominent cases: the crucifixion of Christ (Matt 27:1ff, Mark 15:1ff, Luke 23:1ff, John 19:1ff), and the deceit of Ananias and Sapphira (Acts 5:1-11). In both cases, God required the deaths of the accused.  In the case of the crucifixion of Christ, God was judging the sin of mankind.  In the case of Ananias and Sapphira, God killed them for at least two reasons: to punish their wrongdoing and to bring fear into the hearts of the people.  The punishment of wrongdoing is the just consequence of sin, and it is the first reason that capital punishment is legitimate.  Bringing fear into the hearts of the people is a deterrent against similar offenses, and it is the second reason that capital punishment is legitimate.

There are other New Testament passages in which capital punishment is acknowledged as a legitimate form of justice in society. These include: Jesus teaching on the “life for life, eye for eye, tooth for tooth” command in the law (Matt 5:38-39), Jesus upholding capital punishment for incorrigible youths (Matt 15:3-4, Mark 7:8-11), Paul recognizing the justness of capital punishment (Acts 25:11), Paul supporting the government’s right to apply the death penalty (Rom 13:4), and an angel proclaiming God’s righteousness in applying the death penalty (Rev 16:5-6).

The New Testament does not repeal the death penalty. Even in the case of Jesus commanding His followers to “turn the other cheek” (Matt 5:38-39), He was not abolishing the death penalty.  Rather, He was denying individuals the right of personal vengeance, and He was instructing His followers not to react to what amounts to mere personal insult.  A slap is quite different from a sexual assault or a murderous attack.  Jesus was not advocating pacifism.

Most Common Arguments for the Abolition of Capital Punishment

Amnesty International has argued for the abolition of the death penalty around the world. [7]  Similar forms of these same arguments are made by numerous groups including the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU).  Among the available sources for arguments against the death penalty, the author selected Amnesty International’s presentation of the arguments for brevity and scope.  Each argument will be presented as argued by Amnesty International, and it will be balanced with counter arguments.  The organization presents its arguments as follows.

The Death Penalty is Racially Biased

Amnesty International argues that “Since 1977, the overwhelming majority of death row defendants (77%) have been executed for killing white victims, even though African Americans make up about half of all homicide victims.”[8]

The argument fails to demonstrate that the death penalty should have been sought and secured in more cases of black victims than it actually was. But, the fact that there may be some cases in which murderers of black victims were not given the death penalty when, perhaps, they should have, does not lead to the conclusion that the death penalty should be abolished.  If the death penalty is applied in fewer cases than it should be, for whatever reason, then the solution would be to work for more death penalties, rather than none at all.

Moreover, Amnesty International’s argument ignores the fact that whites represented 56% of all executions since 1977, while blacks represented only 34% of executions.[9]  Further, “by the 1980s and 1990s black defendants were no more likely than white defendants to be executed in most states.” [10]

The Death Penalty Claims Innocent Lives

Amnesty International argues that “Since 1973, 140 people have been released from death rows throughout the country due to evidence of their wrongful conviction. In this same time period, more than 1,200 people have been executed.” [11]

This argument suggests that, since 140 people were released from death rows because of wrongful convictions, there were other innocent people among the 1,200 actually executed who were not as fortunate. Yet, it is commendable that the U.S. justice system righted those 140 cases.  This shows that the system works diligently to ensure that wrongful convictions do not stand.  With the advent of DNA testing, advances in investigative technologies, and the ever-increasing presence of video cameras in public places, overall, wrongful convictions should be on the decline.

Even if wrongful convictions are becoming more rare, it is highly unlikely that they will ever be completely prevented. An Ohio State University study showed that approximately one half of one percent (0.5%) of all those convicted of major crimes in the U.S. each year is wrongfully convicted.[12]  This study included both capital and non capital crimes.  If Amnesty International’s argument that capital punishment should be abolished on the basis of wrongful convictions is valid, then it follows that incarceration should also be abolished as a form of punishment.  The question begged is, if no one should be executed because of the chance of a wrongful execution, then why should anyone be incarcerated, since there is the chance of a wrongful incarceration?

On a final point, abolitionists, such as former New York state governor, Mario Cuomo, argue that a life sentence without parole is a worse sentence than death.[13]  If this is true, then there is even more reason to abolish incarceration on Amnesty International’s argument.  If the death penalty is too harsh a punishment, especially given that inevitably there will be wrongful convictions, then incarceration, which abolitionists argue is an even harsher punishment, should be eliminated as well.  No one is advocating that.

The Death Penalty is Not a Deterrent

Amnesty International argues that “FBI data shows that 14 states without capital punishment in 2008 had homicide rates at or below the national rate.” [14]

There are numerous responses to this argument. First, the primary reasons for the death penalty are to remove offenders from the society and to exact from offenders the payment of their debt to society.  Second, as argued similarly above, incarceration should not be abolished on the basis that it is not a sufficient deterrent to crime.  Third, former Oklahoma Governor, Frank Keating, argues that the death penalty deters everyone who gets executed, since they are no longer living and able to continue to commit more crimes.[15]  Consequently, executions reduce recidivism rates and murders and other serious crimes within prisons.

Further, in the states where the homicide rates are at or below the national rate, one could argue that the people of those states are less concerned with capital punishment, since the need for the death penalty does not seem to be as urgent as in states where homicide rates are higher.

Finally, the likely reason that capital punishment is not more of a deterrent is that it is not carried out swiftly. The average period on death row before execution is approximately 10 years.  If executions were carried out more expeditiously, capital punishment would likely deter more capital crimes.

The Death Penalty Costs More and Diverts Resources from Genuine Crime Control

Amnesty International argues that “The greatest costs associated with the death penalty occur prior to and during trial, not in post-conviction proceedings.  Even if all post-conviction proceedings (appeals) were abolished, the death penalty would still be more expensive than alternative sentences.” [16]

This is a preposterous argument, and one also regularly championed by Sister Helen Prejean,[17] who became famous when her book, Dead Man Walking, was made into a major feature film.  The realities are that trials, legal fees, and court costs, when combined with the costs of incarceration, are roughly the same for death row cases as for life sentence cases (without the possibility of parole).  In the matter of death penalty cases, it is true that the costs are somewhat higher for trials, legal fees, court costs, and death row incarceration.[18]  But, in the matter of life sentence (without the possibility of parole) cases, the suggested sentence alternative to the death penalty as argued by abolitionists, the significantly higher number of years offenders are incarcerated, over time, effectively cancels out the higher upfront costs associated with death penalty cases.[19]

But, this argument is a red herring. The relative costs of various types of punishments should not be a factor in determining their moral status.  Even if one particular type of punishment costs more than another, it does not follow that the more expensive one is morally wrong, and the less expensive one is morally right.  Cost is a moral neutral.

The Death Penalty Disregards Mental Illness

Amnesty International argues that “The execution of those with mental illness or ‘the insane’ is clearly prohibited by international law.  In the USA, Constitutional protections for those with other forms of mental illness are minimal, however, and dozens of prisoners have been executed despite suffering from serious mental illness.” [20]

This argument does not assert that the insane are executed under the U.S. state, military, or federal legal systems. Rather, it merely states that those with serious mental illnesses are sometimes executed.  Mental illness, even “serious mental illness” on its own is a not protection against capital punishment.  The prohibition is designed to prevent the death penalty in cases where the offender is not capable of comprehending his punishment or the consequences of his crime.  The prohibition is not designed to protect those who do comprehend their punishment and the consequences of their crimes, whether or not they have a serious mental illness.  If challenged, a mental illness would merely have to be shown to satisfy the comprehension test before it could be applied.

However, to close this gap further by tightening the restriction on executing those with serious mental illnesses, on June 20, 2002, the U.S. Supreme Court ruled in Atkins v. Virginia [21] that the death penalty may not be imposed on persons with mental retardation.  Insanity and mental retardation are now the primary restrictions on the death penalty with regard to mental illness.

The Death Penalty is Arbitrary and Unfair.

Amnesty International argues that “Almost all death row inmates could not afford their own attorney at trial.  Local politics, the location of the crime, plea bargaining, and pure chance affect the process and make it a lottery of who lives and dies.  Since the U.S. Supreme Court reinstated the death penalty in 1976, 82% of all executions have taken place in the South (37% in Texas alone).” [22]

This argument fails to demonstrate what is unfair about the fact that most death row inmates could not afford their attorneys, or that most death penalties are imposed in the south. Death row inmates who could not afford their own attorneys were provided attorneys who held earned law degrees and were duly licensed by their state bars.  The same process is used for thousands of defendants each year in non death penalty cases.  Court appointed attorneys are a fact of life in American jurisprudence.

On the matter of the majority of executions occurring in southern states, it should be noted that northern states are less likely to impose the death penalty and have significantly lower murder rates,[23] which accounts for the relatively higher numbers of executions in the south.  Texas, Louisiana, Arkansas, and Oklahoma all have murder rates three to four times that of New England states.[24]  Moreover, the fact that some states have more executions than others does not morally invalidate the executions of those who committed their crimes in states where the death penalty is in operation, and where public sentiment has been driven by higher murder rates.  One could even argue that states without death penalty statutes should enact them, and those with death penalty statutes in place should use them, in order to provide a more uniform application of capital punishment across the land, rather than abolish the practice altogether in states which justly apply it.

The Federal Death Penalty is Arbitrary and Overreaching

Amnesty International argues that “The federal death penalty can be enacted in any state or territory of the United States, even in states that do not have the death penalty.  Currently, there are 60 people on death row.” [25]

The federal government has a right to impose the death penalty, just as states have the right to impose it, if they choose. However, the imposition of the death penalty by federal courts in states where the death penalty is not available for crimes prosecutable by the state, on its face, is not arbitrary or overreaching.  There are any number of federal laws which legally trump state laws.[26]  In Altria Group v. Good, the U.S. Supreme Court ruled that federal laws can preempt state laws.[27]  State laws are “without effect” when they are found to be in conflict with federal laws.[28]

Conclusion

Capital punishment in America is not likely to be abolished in the near future. While there are reasonable arguments for its abolition, they are not compelling.  Crime rates drive public sentiment, and serious crime is high in the United States.  The people want permanent solutions, and the death penalty is a permanent solution.

The problems with the death penalty are that it is not the law in all fifty states, it is not applied in enough cases, and it is not swift. However, critics cannot claim that the death penalty, correctly, quickly, and evenly applied, is immoral.  The death penalty honors the Old Testament mandate, “life for life” (De 19:21), and it is upheld in the New Testament.

That it sometimes favors one group and disfavors another, is not always applied evenly, occasionally errs, and does not deter in every case, are not reasons for its abolition. Rather, they are problems to be remedied.  The real concern should not be with the punishment itself, but with its proper implementation.

 BIBLIOGRAPHY

Schmitt, John, Kris Warner, and Sarika Gupta. The High Budgetary Cost of Incarceration. Washington, D.C.: Center for Economic and Policy Research. Center for Economic and Policy Research.

Keating, Frank. “The Death Penalty: What’s All the Debate About?.” In Religion and the Death Penalty: A Call for Reckoning, ed. Owens, Erik C., John D. Carlson, and Eric P. Elshtain, 217. Grand Rapids, Michigan: William B. Eerdmans Publishing Company, 2004.

Cuomo, Mario M. “Why I Oppose Capital Punishment,” In Religion and the Death Penalty: A Call for Reckoning, ed. Owens, Erik C., John D. Carlson, and Eric P. Elshtain, 244. Grand Rapids, Michigan: William B. Eerdmans Publishing Company, 2004.

Leo, Richard A. and John B. Gould. “Studying Wrongful Convictions: Learning from Social Science.” Ohio State Journal of Criminal Law 7, no. 7 (2009): 8.

Death Penalty Facts. Washington D.C.: Amnesty International USA, AIUSA Death Penalty Abolition Campaign, 2014. Amnesty International USA, 2014.

Snell, Tracey J. Capital Punishment 2012. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs: Bureau of Justice Statistics, Bureau of Justice Statistics, NCJ 236510.

Richard C. Deiter. The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at an Enormous Cost to All. Washington, D.C: Death Penalty Information Center, Office of the Executive Director, 2013. Death Penalty Information Center.

Crime in the United States: Semi Annual Uniform Crime Report. Washington, D.C.: Federal Bureau of Investigation, 2013.

The Criminal Justice Project. “Death Row U.S.A. Winter 2014.” NAACP Legal Defense Fund, Winter 2014, 2014. www.NAACPLDF.org/ (accessed November 5, 2014).

Banner, Stuart. The Death Penalty: An American History. Cambridge, Massachusetts: Harvard University Press, 2002.

Prejean, Sister Helen. Dead Man Walking. New York: Vintage Books, 1994.

Morrison, Alan B., and William J. Brennan. Fundamentals of American Law. Edited by Alan B. Morrison. New York: Oxford University Press USA, 1996.

“Executions by Year.” Amnesty International, November 3, 2014. www.AmnestyUSA.org/ (accessed November 3, 2014).

[1] In researching this paper, it became clear that the majority of the books published in the past two decades on the subject of capital punishment in the U.S. were decidedly abolitionist.  Nonetheless, credible voices in favor of capital punishment, though in the minority, were sufficient to assist in balancing the arguments of the abolitionist movement.

[2]  Richard C. Deiter, The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at an Enormous Cost to All (Washington, D.C: Death Penalty Information Center, Office of the Executive Director, 2013), 1, Death Penalty Information Center.

[3] Tracey J. Snell, Capital Punishment 2012 (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs: Bureau of Justice Statistics), 5, Table I, Bureau of Justice Statistics, NCJ 236510.

[4] Ibid.

[5] “Executions by Year,” Amnesty International, November 3, 2014, www.AmnestyUSA.org/ (accessed November 3, 2014).

[6] Crime in the United States: Semi Annual Uniform Crime Report, (Washington, D.C.: Federal Bureau of Investigation, 2013).

[7] Death Penalty Facts (Washington D.C.: Amnesty International USA, AIUSA Death Penalty Abolition Campaign, 2014), 1-14, Amnesty International USA, 2014.

[8] Ibid.

[9] The Criminal Justice Project, “Death Row U.S.A. Winter 2014,” NAACP Legal Defense Fund, Winter 2014, 2014, www.NAACPLDF.org/ (accessed November 5, 2014).

[10] Stuart Banner, The Death Penalty: An American History (Cambridge, Massachusetts: Harvard University Press, 2002), 278.

[11] Death Penalty Facts (Washington D.C.: Amnesty International USA, AIUSA Death Penalty Abolition Campaign, 2014), 1-14, Amnesty International USA, 2014.

[12] Richard A. Leo and John B. Gould, “Studying Wrongful Convictions: Learning from Social Science,” Ohio State Journal of Criminal Law 7, no. 7 (2009).

[13] Mario M. Cuomo, “Why I Oppose Capital Punishment,” in Religion and the Death Penalty: A Call for Reckoning, ed. Owens, Erik C., John D. Carlson, and Eric P. Elshtain (Grand Rapids, Michigan: William B. Eerdmans Publishing Company, 2004).

[14] Death Penalty Facts (Washington D.C.: Amnesty International USA, AIUSA Death Penalty Abolition Campaign, 2014), 1-14, Amnesty International USA, 2014.

[15] Frank Keating, “The Death Penalty: What’s All the Debate About?,” in Religion and the Death Penalty: A Call for Reckoning, ed. Owens, Erik C., John D. Carlson, and Eric P. Elshtain (Grand Rapids, Michigan: William B. Eerdmans Publishing Company, 2004).

[16] Death Penalty Facts (Washington D.C.: Amnesty International USA, AIUSA Death Penalty Abolition Campaign, 2014), 1-14, Amnesty International USA, 2014.

[17] Sister Helen Prejean, Dead Man Walking (New York: Vintage Books, 1994), 233.

[18] Death Penalty Facts (Washington D.C.: Amnesty International USA, AIUSA Death Penalty Abolition Campaign, 2014), 1-14, Amnesty International USA, 2014.

[19] John Schmitt, Kris Warner, and Sarika Gupta, The High Budgetary Cost of Incarceration (Washington, D.C.: Center for Economic and Policy Research), 10, Center for Economic and Policy Research.

[20] Death Penalty Facts (Washington D.C.: Amnesty International USA, AIUSA Death Penalty Abolition Campaign, 2014), 1-14, Amnesty International USA, 2014.

[21] Atkins v. Virginia, 536 U.S. 304 (2002)

[22] Death Penalty Facts (Washington D.C.: Amnesty International USA, AIUSA Death Penalty Abolition Campaign, 2014), 1-14, Amnesty International USA, 2014.

[23] Stuart Banner, The Death Penalty: An American History (Cambridge, Massachusetts: Harvard University Press, 2002), 278.

[24] Ibid.

[25] Death Penalty Facts (Washington D.C.: Amnesty International USA, AIUSA Death Penalty Abolition Campaign, 2014), 1-14, Amnesty International USA, 2014.

[26] Alan B. Morrison and William J. Brennan, Fundamentals of American Law, ed. Alan B. Morrison (New York: Oxford University Press USA, 1996), Chapter on Preemptive Controversies.

[27] Altria Group v. Good, 555 U.S. 70 (2008)

[28] Maryland v. Louisiana, 451 U.S. 725, 746 (1981)