Should the United States Abolish Capital Punishment?

Introduction

Capital punishment has been a hotly debated topic around the world, especially among the Western world. Some countries utilize it for non-capital offenses and others have abolished it altogether. The legitimacy of a government being able to take the life of an individual, as guilty as they may be, is increasingly brought into question. People wonder what the purpose of a criminal justice system should be. Others are concerned about the unfair and discriminatory practices involved with the application of capital punishment. In this essay, it is argued that the criminal justice systems’ primary role in punishing crime is retributive, the Scripture prescribes capital punishment for murder, and that while unjust and discriminatory implementation of it should be reformed, capital punishment should not be abandoned altogether.

The Nature of the Problem

What is Capital Punishment? It is when someone is authorized to be killed by the state as punishment for a capital, or non-capital crime. Capital punishment debates center around four fundamental questions according to John S. Feinberg and Paul D. Feinberg. These four questions are: “(1) Is capital punishment permissible? (2) Is capital punishment mandatory? (3) If capital punishment is either allowable or mandatory, which crimes are punishable by a capital sentence? (4) If capital punishment is to be practiced, what methods are acceptable?”Of course, many who see criminal justice primarily as remedial instead of penal argue that permissibility should not even be considered for capital punishment; They deem such a practice barbaric. Scott Rae refers to those who argue this as “abolitionists,”2those who share a position relative to this will be detailed below. 

One dispute regarding capital punishment arises because of the way it is disproportionately applied to minorities.3Another question is, does it deter crime? And yet another contention, it is argued that capital punishment breaks the eighth amendment and is a “cruel and unusual punishment.”4

To further complicate things, not everyone in the debate operates from the same ethical foundations. Some may operate from a consequentialist framework, others from a utilitarian one, and yet others may prefer principle ethics. Dennis Hollinger defines these viewpoints in his book, Choosing the Good: Christian Ethics in a complex world. He says of the consequentialist foundation, “Consequentialists believe that the ultimate criterion or standard of right and wrong is ends or results.”It is no surprise that for many a big deciding factor on capital punishment being utilized centers around if it deters crime or not. They think if the end is a good result (i.e., less crime), perhaps, it is a good practice. Or instead, if the lack of capital punishment results in rehabilitation for the one convicted, then not having it is justifiable. Those who operate under a utilitarian framework will look to consequences as well, but those that relate to the greatest good for the greatest number of people. Hollinger confirms, “The greatest good for the greatest number is the utilitarian mantra, and that good is not on the basis of a moral virtue but on the nonmoral good of happiness or pleasure.”Finally, if one approaches capital punishment from the perspective of principle ethics, they will be concerned with if it is “inherently right or inherently wrong, not dependent on outcomes or other intrinsic factors.”With all of these different ethical frameworks, the complexities involved, and the weightiness of capital punishment in general, it is no surprise that many positions have developed around it. 

Various Positions on Capital Punishment

Rae defines three stances that people take towards capital punishment: abolitionists, retentionists, and procedural abolitionists. Abolitionists, of course, advocate abolishing death sentences in all scenarios.Retentionists “favor retaining the death penalty,”9according to Rae. Procedural abolitionists find nothing wrong with the death penalty principally, but find it procedurally problematic.10 What Rae calls “retentionist,” Norman Geisler identifies as “retributionism,” who he says, “[Recommend] death for some (capital) crimes.”11Another view that correlates with what Rae calls, “abolitionist” is what Geisler calls, “rehabilationism, which would not allow [capital punishment] for any crime.”12

All of the positions above are arrived at through differing views on the purpose of the judicial system. Rae confirms, “At the root of the [capital punishment] debate, people on both sides disagree on the primary goal of criminal punishment, whether it should be retribution, deterrence, or rehabilitation.”13For this reason, various positions on capital punishment will be summarized through each of their own views on the purpose of the judicial system. Feinberg gives four different views on the judicial system, and proponents of each argue either for or against capital punishment. The four views that Feinberg gives are rehabilitation/restoration, restitution, deterrence, and retribution.14 There are some who believe that the justice system should be based on restitution, or paying people back for the crimes they commit. They would say for example that “someone convicted of stealing a car should be required to replace that car for the victim of the crime.”15 For two reasons, this position will not be taken up in this essay: (1) The value of human life is greater than restitution can provide. Though, proponents of restitution would argue a life sentence and continuing to work in prison and pay the family of the murdered victim is a form of restitution.16(2) The most considerable opposition towards capital punishment comes from subscribers to rehabilationism and the deterrence view (who often are procedural abolitionists or abolitionists.). 

Those who advocate for rehabilitation or restoration in the criminal justice system are among the most vocal abolitionists of the death penalty. Feinberg says, “[Rehabilitationists] argue that the goal in punishing criminals should be to rehabilitate them so that once they are released from prison they can be productive citizens in society.”17Dominique DuBois Gilliard, in his book, Rethinking Incarceration: Advocating for Justice that Restores argues that this should be the very thing Christians advocate for in the criminal justice system. It is worth it to quote him at length, he says: 

As people who were pursued and saved by Christ while we were sinners, we can never lose sight of the grace that restored us. When we support capital punishment, retributive law-and-order policies, and legislation that leads to more prisons and less medical interventions for people plagued by addictions, we disavow the grace that rescued us. Punishment devoid of grace is not justice but vengeance.18

Gilliard also appeals to God’s justice as further justification for restorative justice. He says, “God’s justice is restorative and reconciling as opposed to retributive and isolating.”19Christopher Marshall also supports this viewpoint, he appeals to Paul’s words in Galatians 6:1 and concludes, “Christian justice focuses normatively on solidarity with sinners and their restoration, not on harsh punishment and rejection.”20Gilliard and Marshall do not attempt to distinguish between God’s purpose for the church and his purpose for the state. Neither does Gilliard comment on those whom God does not give restorative grace to and what one should make of that. Since rehabilitationists believe that the ultimate goal of the penal system is rehabilitation, capital punishment is antithetical to it and should be abolished.21 One more important reason rehabilitationists, abolitionists, and other procedural abolitionists seek to abolish capital punishment is its excessive use on minorities and those who are poor. Bryan Stevenson, a well-known advocate of restorative justice, comments on the last year of the twentieth century and says, “All of the executed were poor, a disproportionately high number were racial minorities convicted of killing white victims, many of the executed were mentally ill, and some were juveniles at the time their crimes occurred.”22

Deterrence is another view of the criminal justice system. Some argue that the primary purpose of the system is to deter crime. Principally, most would agree that deterrence of crime is a necessity. However, when it comes to capital punishment, the effectiveness of deterrence is hard to determine. Rehabilationists may find it is not a deterrent; Retributionists may discover that it is and still many on either side may agree that the evidence is inconclusive. Nonetheless, many opponents of capital punishment appeal that it is an “ineffective deterrent to crime.”23They point out, for example, that Michigan was among the first states to abolish the death penalty and from 1920-1955 it “had a lower homicide rate than Ohio and Indiana, which both had the death penalty.”24After surveying the opinion of criminologists, Michael L. Radelet and Traci L. Lacock conclude, “In short, the consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.”25The first objection observes a correlation between murder rates and states who do or do not support capital punishment; the second surveys the opinions of criminologists. Even in studies that attempt to compile more substantive data it is hard to reach a conclusive answer because other factors affect homicide rates as well, such as “the socioeconomic background of the perpetrator.”26Furthermore, how does one gather data on those who chose not to murder as a result of having, or not having the death penalty?27

Finally, those who believe the primary purpose of the state is retribution usually advocate for its retention. Geisler summarizes this position well. He says, “Unlike rehabilitationism, retributionism believes that the primary purpose of capital punishment is to punish… Retributionism holds that criminals are sinful, not sick. Their capital offense is moral, not pathological. Since they are rational and morally responsible beings, they know better and therefore deserve to be punished.”28Christians who advocate for this retributionist or retentionist view do so based on Genesis 9:6. Rae comments on Genesis 9:6 and says, “The general principle is ‘life for life,’ and the support for it comes from the overarching theological truth of man and woman being made in God’s image.”29 Furthermore, they appeal to Romans 13:1-7 and 1 Peter 2:13-14 to show that God’s justice through government is intended to punish evil and reward good. 

A Case for Retribution 

Feinberg notes that many ethicists approach capital punishment “from the perspective of their general ethical theory.” He approaches it from a modified divine command theory. Applying this to capital punishment Feinberg says, “That is, the commands of God (based ultimately on his nature as God) reveal which acts are to be prohibited and punished… [Scripture] does reveal God’s assessment of murder, and it also prescribes God’s punishment.”30This same ethical theory is used in this essay along with what Hollinger calls “modified prescriptivism.” That is, at times, “biblical principles, laws, narratives, and paradigms are then understood in light of a much bigger picture.” Also, since “prescriptions are much broader than just the biblical imperatives”31there will be synthesis of relative prescriptions.  

The purpose of the state against crime is retributive. Indeed, there is room for restorative justice and mercy to be shown by those in authority (as was the case with Cain not receiving capital punishment). However, this exception is not the rule. Romans 13:1-4 establishes that governing authorities are put in place by God to execute retributive justice . Verse 3 says, “[Rulers] are not a terror to good conduct, but to bad” and the apostle Paul instructs further, “But if you do wrong, be afraid, for he does not bear the sword in vain.” Some may object that this does not establish any specific punishment or length of punishment. True, but it is clear that punishment is the purpose and this punishment brings fear. 1 Peter 2:14 illustrates this with clarity; he says governors are sent to “punish those who do evil and to praise those who do good.” Thomas Schreiner is correct when he says, “Peter hardly intended to say that rulers always fulfill such a purpose. He was quite aware of the Old Testament that rulers may resist God and his will (e.g., Pharaoh and Nebuchadnezzar).”32It is correct to say that governing authorities can enact injustices and sin against God. When they do, they step outside of their legitimate authority and have no right to punish on those grounds, and there is certainly no obligation for a believer to submit in those instances (e.g., Peter and John in Acts 4:20; 5:27-29). 

If the purpose of the judicial system is retribution (as demonstrated above) employment of capital punishment should not be an exception if it can be shown that it is either biblically permissible or prescribed. Genesis 9:6 offers such a prescription. It reads, “Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image” (emphasis added). David Gushee and Glen Stassen reject the idea that this is a prescription. They say, “As it stands in Genesis, it does not command the death penalty but gives wise advice based on the likely consequence of your action: if you kill someone, you will end up being killed.”33If it is merely a prediction, why include the explanation “for” (or because) “God made man in his image?” For this reason, Feinberg says, “[The explanation in verse 6] offers justification for a command to execute murderers, but it would be irrelevant to a prediction.”34Also, some object that the phrase “by man” is better translated “in exchange.” Victor Hamilton comments on those who argue this and summarizes, “In other words, this verse does not at all delegate authority to man to institute capital punishment.”35Hamilton argues that this is an unusual rendering of the proposition used and notes that it would merely create a tautology of verse 5. Therefore, he concludes, “We prefer to see vv.5 and 6 together, with both prohibiting the taking of human life. The penalty for shedding blood may be exacted either by God (v. 5) or by man (v. 6).”36 In short, capital punishment through human agency is prescribed for murder by Genesis 9:6.

It has been argued that capital punishment is prescribed in the Scripture for murder only. There is no good reason to say that it should exist for all crimes given under the Mosaic law, which were given under a theocratic government that God was ruling in a unique manner.37The command of Genesis 9:6, however, was given under the Noahic covenant which is still with us and active today. Peter Gentry and Stephen Wellum say of this covenant, “There is no evidence anywhere in the completed canon of Scripture as a whole that this covenant has been annulled or superseded.”38

Theological and biblical reasons have been given (and objections answered) for capital punishment, but what about the rational objections raised above? Some objections are raised against capital punishment because of the way it is implemented. For example, it is used in a discriminatory manner. Others also argue that it does not effectively deter crime or that it is a cruel and unusual punishment. The fact that it is used discriminatorily especially against minorities and those who are poor is undeniable. It is a reality that should be heart-wrenching for everyone no matter their stance on capital punishment. It is no wonder there are many abolitionists and procedural abolitionists for this very reason. The disproportionality here does not prove, however, that capital punishment is morally wrong, only that its implementation is. For this reason, Feinberg says, “Instead, [discrimination] suggests a need to change the judicial system in order to administer the death penalty fairly.”39Insofar as innocent people are put to death, perhaps, capital punishment should be put on hold until a better system can be established that identifies an absolute certainty of guilt. Ultimately, however, as a general rule justice should not be withheld to those verifiably guilty because of the presence of these discriminatory practices.40 

Additionally, as noted above, rehabilitationists and many procedural abolitionists argue that it is not an effective deterrent against crime. Most studies, however, indicate that evidence proving or disproving deterrence is not so conclusive. For example, John J. Donohue and Justin Wolfers after surveying data of executions and homicide rates in the United States and Canada conclude that the death penalty or lack thereof does not have substantial effects on the murder rate (at least insofar as they are verifiable). They say, “None of these approaches suggested that the death penalty has large effects on the murder rate. Year-to-year movements in homicide rates are large, and the effects of even major changes in execution policy are barely detectable.”41 Still, one thing is clear, “[capital punishment] sure does deter the person who already committed a capital crime,”42says, Feinberg. In any event, rather capital punishment deters crime or not is a separate issue. The primary question is, what is a proper punishment for someone who has taken a human’s life? The answer is “a life for a life,” according to Genesis 9:6. Except, of course, in exceptional cases of insane or mentally handicap persons whose moral responsibility should be weighed differently. In regards to it being “cruel and unusual” this is subject to varying interpretations.43Considering the severity of taking innocent life and provided that its implementation is not tortuous, it seems, as a rule, there is nothing cruel and unusual about it.44

How Should the Church Respond? 

The church’s response should be diverse and resolute. It will need an approach that advocates for capital punishment, but against its unjust implementations. Hollinger in Choosing the Good, gives nine strategies for implementing change. All of them would be relevant at different times and others at all times. For example, the church should always be engaged in “evangelism,” “Christian relief,” and “Christian embodiment” (ethics made visible through living). That is assumed here, but three strategies of change should be explicitly implemented in regards to capital punishment and the way it is applied. 

The first is through “Christian alternative institutions,” Hollinger says these are “institutions created to address a particular need or issue.”45 The church can respond proactively and preventively by creating institutions geared towards keeping people away from violent crime. Surprisingly, any institution geared towards adequate education would accomplish this in part. The second is through “prophetic pronouncements,” which involves “the voice of the church or Christian groups speaking to the world to challenge existing values, policies, structural arrangements, and cultural practices and to commend new forms in their place.”46 Stephen Mott says, “Our institutions are not just a constraint on sin (a conservative attitude toward institutions); they themselves are full of sin.”47 The discrimination that exists within the judicial system is a prime example. The church should position itself to speak “prophetically” against such prejudicial, racially bias practices. Finally, Christians within the church should engage in both inside and outside “lobbying.” That is, they should have direct contact with public officials, as well as seek to mobilize and sway voters to a particular viewpoint.48There will be variation of response in this regard: in states who have abolished capital punishment the aim through lobbying is to reinstate it. In other states, who have it, the goal is to retain it. In all states, there must be coinciding rigorous efforts to abolish the discriminatory ways capital punishment is implemented and efforts to make it as painless as possible. 

Conclusion 

Given the various ethical theories surveyed above and different viewpoints on the purpose of the criminal justice system in general, it seems unlikely that any universal agreement will be reached on capital punishment. Nonetheless, it has been argued that the purpose of the criminal justice system is retributive and there is no punishment adequate for murder other than capital punishment. A murder takes the life of an innocent person made in the image of God, and for this reason, the perpetrator forfeits their right to live (Genesis 9:6). Whether it deters crime or not cannot be demonstrated persuasively, but it will undoubtedly prevent the individual from committing murder again. The presence of discrimination in the implementation of capital punishment is tragic and unjust, and as a result, these practices should be reformed. Even though its implementation is flawed, there is no good reason to abolish capital punishment altogether. It was also argued that the church should respond by creating institutions that would encourage one away from a life a violent crime. The church should also speak prophetically against the discriminatory practices that exist in the application of capital punishment. And finally, the church should lobby for the retention of capital punishment as a legitimate practice. 

This essay was originally written as a requirement for an MA in Christian Leadership at Gordon-Conwell Theological Seminary.

Notes

1. Feinberg, John S and Feinberg, Paul D. Ethics for a Brave New World. (Wheaton, Il: Crossway Books. 2010), 233.

2. Rae, Scott. Moral Choices: An Introduction to Ethics. Fourth Edition. (Grand Rapids, MI: Zondervan. 2018), 265.

3. Feinberg, John S and Feinberg, Paul D. Ethics for a Brave New World, 241.

4. Ibid., 240-241.

5. Hollinger, Dennis P. Choosing the Good: Christian Ethics in a Complex World. Grand Rapids, MI: Baker Academic. 2002), 28.

6. Ibid., 31.

7. Ibid., 36.

8. Rae, Scott. Moral Choices: An Introduction to Ethics, 265.

9. Ibid., 265.

10. Ibid., 265.

11. Geisler, Norman L. Christian Ethics: Contemporary Issues & Options. Second Edition. (Grand Rapids, MI: Baker Academic. 2010), 199.

12. Ibid., 199.

13. Rae, Scott. Moral Choices: An Introduction to Ethics, 266

14. Feinberg, John S and Feinberg, Paul D. Ethics for a Brave New World, 233.

15. Ibid., 234.

16. Ibid., 234.

17. Ibid., 234.

18. Gilliard, Dominique DuBois. Rethinking Incarceration: Advocating for Justice That Restores. (Downers Grove, IL: InterVarsity Press. 2018), 172.

19. Ibid., 178. 

20. Quoted in Gilliard, Dominique DuBois. Rethinking Incarceration, 161. 

21. Feinberg, John S and Feinberg, Paul D. Ethics for a Brave New World, 234. 

22. Bright, Stephen B., Budau, Hugo A., et al., Debating the Death Penalty: Should America Have Capital Punishment?Edited by Hugo Adam Bedau and Paul Cassell. (New York: Oxford University Press. 2005), 84.

23. Feinberg, John S and Feinberg, Paul D. Ethics for a Brave New World, 235.

24. Ibid., 235

25. Lacock, Traci L. and Radelet, Michael L. “Do Executions Lower Homicide Rates?: The Views of Leading Criminologists.” The Journal of Criminal Law & Criminology 99, no. 2 (2009): 489-508. https://deathpenaltyinfo.org/files/DeterrenceStudy2009.pdf

26. Rae, Scott. Moral Choices: An Introduction to Ethics, 274. 

27. Feinberg, John S and Feinberg, Paul D. Ethics for a Brave New World, 236.

28. Geisler, Norman L. Christian Ethics, 214. 

29. Rae, Scott. Moral Choices: An Introduction to Ethics, 269. 

30. Feinberg, John S and Feinberg, Paul D. Ethics for a Brave New World, 245.

31. Hollinger, Dennis P. Choosing the Good, 147. 

32. Schreiner, Thomas R. 1, 2 Peter, Jude. The New American Commentary. Vol. 37. (Nashville, TN: B&H Publishing Group. 2003), 129. 

33. Gushee, David P., and Stassen, Glen H. Kingdom Ethics: Following Jesus in Contemporary Context.Second Edition. (Grand Rapids, MI: William B. Eerdmans Publishing Company. 2016), 222

34. Feinberg, John S and Feinberg, Paul D. Ethics for a Brave New World, 258. 

35. Hamilton, Victor P. The Book of Genesis (New International Commentary on the Old Testament Series) 1-17. (Wm. B. Eerdmans Publishing. 1990), 315.

36. Ibid., 315. 

37. Geisler, Norman L. Christian Ethics, 216. 

38. Gentry, Peter J. and Wellum, Stephen J. God’s Kingdom Through God’s Covenants: A Concise Biblical Theology. (Wheaton, IL: Crossway. 2015), 67

39. Feinberg, John S and Feinberg, Paul D. Ethics for a Brave New World, 249. 

40. Geisler, Norman L. Christian Ethics, 217. 

41. Donohue, John J., and Justin Wolfers. “Uses and Abuses of Empirical Evidence in the Death Penalty Debate.” Stanford Law Review 58, no. 3 (2005): 791-845. http://www.jstor.org.proxy.gordonconwell.edu/stable/40040281.

42. Feinberg, John S and Feinberg, Paul D. Ethics for a Brave New World, 243. 

43. Ibid., 247

44. Geisler, Norman L. Christian Ethics, 216.

45. Hollinger, Dennis P. Choosing the Good, 258.

46. Ibid., 261.

47. Mott, Stephen. Biblical Ethics and Social Change. (New York, NY: Oxford University Press. 2011), 12.

48. Hollinger, Dennis P. Choosing the Good, 263.

Bibliography 

Bright, Stephen B., Budau, Hugo A., Cassell, Paul G., Kozinski, Alex, Marquis, Joshua K., Pojman, Louis P., Ryan, George, and Stevenson. Debating the Death Penalty: Should America Have Capital Punishment?Edited by Hugo Adam Bedau and Paul Cassell. New York: Oxford University Press. 2005.

Donohue, John J., and Justin Wolfers. “Uses and Abuses of Empirical Evidence in the Death Penalty Debate.” Stanford Law Review 58, no. 3 (2005): 791-845. http://www.jstor.org.proxy.gordonconwell.edu/stable/40040281.

Feinberg, John S and Feinberg, Paul D. Ethics for a Brave New World. Wheaton, Ill: Crossway Books. 2010.

Geisler, Norman L. Christian Ethics: Contemporary Issues & Options. Second Edition. Grand Rapids, MI: Baker Academic. 2010.

Gentry, Peter J. and Wellum, Stephen J. God’s Kingdom Through God’s Covenants: A Concise Biblical Theology. Wheaton, IL: Crossway. 2015.

Gilliard, Dominique DuBois. Rethinking Incarceration: Advocating for Justice That Restores. Downers Grove, IL: InterVarsity Press. 2018

Gushee, David P., and Stassen, Glen H. Kingdom Ethics: Following Jesus in Contemporary Context.Second Edition. Grand Rapids, MI: William B. Eerdmans Publishing Company. 2016.

Hamilton, Victor P. The Book of Genesis (New International Commentary on the Old Testament Series) 1-17. Wm. B. Eerdmans Publishing. 1990.

Hollinger, Dennis P. Choosing the Good: Christian Ethics in a Complex World. Grand Rapids, MI: Baker Academic. 2002. 

Lacock, Traci L. and Radelet, Michael L. “Do Executions Lower Homicide Rates?: The Views of Leading Criminologists.” The Journal of Criminal Law & Criminology 99, no. 2 (2009): 489-508. https://deathpenaltyinfo.org/files/DeterrenceStudy2009.pdf

Mott, Stephen. Biblical Ethics and Social Change. New York, NY: Oxford University Press. 2011.

Rae, Scott. Moral Choices: An Introduction to Ethics. Fourth Edition. Grand Rapids, MI: Zondervan. 2018.

Schreiner, Thomas R. 1, 2 Peter, Jude. The New American Commentary. Vol. 37. Nashville, TN: B&H Publishing Group. 2003. 

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