Sentiment as Social Justice
The Ethics of Capital Punishment
by J. Daryl Charles
Historically, the church has affirmed the right of the civil magistrate in matters of
capital justice. Contemporary culture, in contrast, is permeated with arguments
against capital punishment. Even among those professing Christian faith, there is
widespread opposition to the death penalty. As a trend, the ever-increasing role of
the media in manipulating public sentiment in the face of pressing ethical debates
promises not to subside. While we may grant that the Christian community is
divided over this issue and while we take no delight in its clarification, the church --
in keeping with its earthly mandate -- is to instruct the state in matters of justice.
The highly publicized 1992 executions of Robert Alton Harris (California) and Roger
Keith Coleman (Virginia), for better or worse, injected a new level of urgency into
the debate over capital punishment. In both cases the extent to which the
American public was treated to a numbing display of sentimentality by media
pundits was nothing short of breathtaking. A more recent case involving a disabled
murderer, Charles Sylvester Stamper, further fueled the death penalty debate on a
national level. Stamper, who killed three people in a restaurant robbery, became
the first person in a wheelchair to be put to death since the Gregg v. Georgia
Supreme Court ruling in 1976 that reinstated capital punishment.
Debates about capital punishment usually play to the emotions. Contemporary
Western culture is saturated with arguments that call for its abolition. These
arguments take various forms -- for example, purported Eighth Amendment
immunity, the fallibility of the criminal justice system, "excessive" governmental
power, the insufficiency of revenge as a motive, a purported lack of statistically
verifiable deterrence, the possibility of executing an innocent person, a purported
racial imbalance in executions, and among some Christians, the annulment of
In addition, the media play an ever-expanding role in shaping the contours of
ethical discourse. Film and television exert an inordinate influence on our perception
of reality. Television alone packs an enormous psychological punch. In reporting on
capital punishment cases, TV will not engage the public with a reasoned exchange
of viewpoints; rather, it uses powerful visual stimuli to impart the impression that
executions are repugnant and morally reprehensible. In the end, debates over the
death penalty are more a spectator sport than a quest for truth and justice.
Post-enlightened culture has grown increasingly intolerant of meting out criminal
punishment that smacks of being "cruel" or "barbaric." (This was not the case,
however, in 1791 when both the Eighth and Fourteenth Amendments were
enacted. Since the death penalty was not "unusual" in the late eighteenth century,
the Eighth Amendment cannot have been intended to apply to capital punishment
per se.) This loathing, strangely, is often in the context of increasingly barbaric
criminal acts themselves. Not infrequently this moral confusion manifests itself in a
pretext of compassion, in much the same way that abortion advocates who decry
graphic films such as The Silent Scream attempt to obscure moral culpability and
redefine the notion of victimhood. Meanwhile, society is stripped of its most
fundamental right -- protection from violent criminal acts.
Protection, for example, from the likes of "Little Man" James. Released in late 1991
on a mere $1,000 bail for four counts of assault with intent to kill, James was
cruising with several friends on the outskirts of Washington, D.C. when he
announced he "felt like killing someone." Rolling down his window, James fired a
shot into the passenger side of the adjacent vehicle. The blast from point-blank
range instantly crushed the skull and snuffed out the life of a 36-year-old mother.
Or take child abuser Westley Allan Dodd (Washington State), who after being
caught told authorities, "I will kill and rape again and enjoy every minute of it."
Dodd had raped and fatally stabbed two brothers, ages 10 and 11, in a park in
September of 1989. A month later he abducted a four-year-old boy from a school
playground, molested and tortured him, then hanged him. When his death sentence
was handed down in court, Dodd did not hide the pleasure with which he
committed the crimes. "I liked molesting children and did what I had to do to avoid
jail so I could continue molesting," he told the state Supreme Court in 1991. "I
think I got more of a high out of killing than molesting."
What is particularly excruciating for families of murder victims is that many
convicted killers are found to be out on parole following previous violent crimes.
The November 1993 kidnap-murder of a 12-year-old girl in Northern California is a
case in point. The slayer, Richard Allen Davis, had two previous kidnap charges to
his record before abducting Polly Klaas from a slumber party at her home and
driving her to her strangulation-death 40 miles away. Even as recent as May,
1994, 16 years after John Wayne Gacy was convicted of no fewer than 33
murders, it remained uncertain whether justice would be served. The day before
Gacy's scheduled execution, his lawyers dredged up every conceivable excuse for a
stay of execution.
Curiously, more concern by the pundits is given to the (potential) abuse of political
power by fallible civil servants than to ensuring that people like the 36-year-old
mother from Washington can drive safely on the beltway. In truth, genuine abuse
of the system is illustrated by the fact that while judges engage in moral vanity, the
death sentences of premeditated murderers -- when not revoked -- are delayed
for years due to legal technicalities. Legal experts, who by citing a lack of available
statistics contend that capital punishment has not constituted a measurable
deterrent, have strangely overlooked the obvious -- namely, that at the very least
it deters murderers by guaranteeing no possibility of parole or escape, hence
precluding new crimes committed by repeat murderers.
What in fact has watered down the death penalty deterrent is the manner in which
much-publicized cases such as those of Harris and Coleman have dragged on over
the years, thereby reflecting a wholly inconsistent approach to criminal justice.
Absent of moral standards, the courts and the criminal justice system languish
under the whims of activist judges and the psychotherapeutic elite, at the utter
expense of bona fide social justice.
The extent to which death penalty abolitionists have rendered justice impossible is
graphically illustrated by one social critic. Estimating about 265,000 murders in the
U.S. from 1976 (the year of the Gregg v. Georgia decision) until 1990, William F.
Buckley, Jr., calculated that within this 14-year period there was one execution for
every 2,137 murders committed across the nation. This reticence to do justly has
resulted in the longest judicial foreplay in history.
The Harris episode is particularly instructive. After 13 years of procedural
roadblock, California was finally able to execute Harris, who, lacking a car for a
bank robbery in 1978, kidnapped two 16-year-old boys sitting in an automobile
eating hamburgers, drove them to a deserted canyon, and shot one. The other
ran, screamed for help, and tried to hide, but Harris pursued and killed him as well.
Harris appealed to the California Supreme Court, which under the guidance of Chief
Justice Rose Bird overturned 68 death sentences before she was voted out of
office in 1986. (Harris's conviction was one of four that Bird let stand.) As Robert
Bork pointed out, Harris's case alone received nine separate reviews.
On the day before Harris's scheduled execution, his lawyers filed one state habeas
petition, one federal habeas petition, and one federal court action claiming that
execution in the gas chamber was cruel and unusual punishment under the Eighth
Amendment. Mercifully, the Supreme Court put an end to the excruciating volley of
last-minute attempts at stay of execution, noting that Harris had filed a total of
four prior federal habeas petitions and five state petitions, yet was unable to
explain why he never before raised the cruel-and-unusual-punishment claim. The
Harris case perfectly illustrates the wisdom of the preacher, uttered nearly three
millennia ago: "When the sentence for a crime is not quickly carried out, the hearts
of the people are filled with schemes to do wrong" (Eccles. 8:11).
PLAYING THE NUMBERS GAME
In an April 24, 1992 column in The Washington Post, Charles Krauthammer
voiced a prevalent argument against the death penalty -- the lack of available
statistics to verify deterrence. He wrote: "If capital punishment could be
demonstrated to deter murder, I might be persuaded...But there is no convincing
evidence that the death penalty deters."
The problem with the argument based on "convincing" statistics is that no person
who is in principle opposed to capital punishment will be sufficiently convinced by
any statistics that are suggestive of changing trends in criminal justice. This was
graphically illustrated some years ago at a symposium on criminal justice held at
Arizona State University. Two distinguished abolitionists, Professors Hugo Bedau of
Tufts University and Charles Black of Yale Law School, were asked whether they
could be persuaded to change their convictions if in fact statistics brought
conclusive proof that the death penalty was serving as a strong deterrent. Both
replied that this would not change their views. Asked if they would remain
abolitionists even if homicides in this nation ballooned to a dizzying 1,000 percent,
they responded in the affirmative.
The truth is that an abolitionist will remain an abolitionist based on passionate
ideological commitments. Statistics will not change any bias that is rooted in
deep-seated convictions. Above and beyond any statistical verification, abolitionists
choose to ignore the obvious implication of the death penalty -- namely, that it
eliminates the possibility of the convict repeating his capital offense. This
consideration is fully aside from the $600,000 cost of imprisoning a convict for
It is remarkable how insistent abolitionists can be in denying the likelihood that
punishment can deter criminals. Sadly, this often occurs at the expense of time-tested wisdom and common sense. Perhaps the most comprehensive analysis of
the criminal mindset was done some years back by Drs. Samuel Yochelson and
Stanton Samenow in their landmark work, The Criminal Personality. This study
was based on 16 years of observing 255 criminal patients at St. Elizabeth's
Hospital in Washington, D.C. Yochelson, a respected neuropsychiatrist who died in
1976, started the Program for the Investigation of Criminal Behavior in 1961. He
was joined by psychologist Samenow in 1970. The two researchers' conclusions
proved to be controversial: criminals were found neither to be victims of society's
problems nor of "character disorders"; they acted with deliberation and were in
control of their behavior.
The authors also concluded that the fear of death was very strong, persistent, and
pervasive in the criminal's life. Some crimes, it was observed, were ruled out
because of these fears. It is indeed ironic that abolitionists claim the burden of
proof for the efficacy of capital punishment as a deterrent rests on the shoulders of
its advocates. Most human beings, after all, are inclined to avoid situations or
circumstances that are likely to produce unpleasant, painful, or fatal results.
Does the fear of death deter? Hoodlums in Washington, D.C. and other cities
around the nation know the answer. Given the growing dilemma of witness
intimidation in murder cases, law enforcement authorities note that the refusal of
witnesses to testify, for fear of being eliminated themselves, is making it difficult to
prosecute murder suspects. "It's undoubtedly one of the biggest problems we
face," concedes the chief of the U.S. attorney's office in the nation's capital.
If capital punishment does not serve to deter the potential murderer, the
abolitionist will thus need to acknowledge the grim reality that neither will any
other form of punishment. (Thus, any punishment is arbitrary.) If, for the sake
of argument, capital punishment is implemented under the mistaken notion that it
deters, the lives of convicted murderers are lost. If, on the other hand, capital
punishment is abolished due to the mistaken belief that it does not deter, then
innocent lives -- indeed, many lives both within and without the prison system --
OUTRAGEOUS ATROCITY OR MORAL IMPERATIVE?
Murder constitutes the initiation of lethal force against an innocent person; it is also
the ultimate despising of divine authority. The murderer thereby forfeits his right to
live by violating, with an intent to kill, the victim.
When in the defense of an innocent victim or preservation of moral order the
authorities execute a premeditated murderer, no inalienable right is being violated.
The moral rationale lying behind the life-for-life mandate is rooted in the efficacy of
the Noahic covenant in Genesis 9. This imperative is directed at man as man and
thus is universal in scope. Accordingly, deliberately killing a human being created in
the image of God is tantamount to killing God in effigy.
The ethical directive in Genesis 9 of a life-for-life policy exacted "by man" for
premeditated murderers is validated in the New Testament by explicit statements
from the apostle Paul with regard to the civil authorities. These authorities,
irrespective of their inherent fallibility or moral character, exercise authority derived
from God and are under obligation to extend protection to society at large from
violent criminals. This they do by means of the deterrent ("Would you fear..?") of
the magistrate's "sword," the jus gladii.
Government, if it is performing a legitimate role in society, restrains by force those
who are a violent and criminal threat to society. The implication of the Romans 13
text is that by failing to apply the sword as punishment the authorities "praise" evil
and negate what is good. The death penalty is not an initiation of force as is
murder, rather it is a response to force -- a supremely calculated and necessary
one. And whereas private vengeance is proscribed by the apostle in Romans 12, a
legitimation of the state's administration of the death penalty for a murderer
follows in the immediate context. (Rarely is this literary context taken into
Christian opponents of the death penalty frequently cite the lifting of the Mosaic
code (which sanctioned the death penalty) as evidence of the nonbinding nature of
all Pentateuchal legislation (including Genesis 9). The affirmation of a life-for-life
policy with regard to premeditated murderers in Genesis 9, however, predates the
Mosaic code and commands universal respect for the sanctity of human life; it is
not limited to theocratic Israel.
While not all manslaughter required the death penalty -- indeed, safeguards against
abuse of the system were meticulously built into the Mosaic code -- the Hebrew
Scriptures nonetheless assume the moral accountability, in the present life, of the
offender. The argument by ethicists that the New Testament abrogates the legal
standard set forth in the Old Testament has little to commend it. Nowhere do we
find an annulment of capital punishment for premeditated murder. To the contrary,
the New Testament affirms that the civil authorities play a crucial role in maintaining
social order in a moral universe. The social injunctions of law remain universally
normative for a stable society.
Because a holy God cannot reside in a polluted land without judging its inhabitants,
Israel as a nation was to take pains to ensure the purity of the land by dealing with
bloodguilt when it occurred. Inasmuch as blood pollutes the land (cf. Deut. 19 and
21), its consequences are most serious. If a man was killed, it was the duty of the
nearest male relative to avenge that death.
Mosaic Law made very clear distinctions between premeditated murder and
accidental manslaughter (for which the cities of refuge were mercifully
provided). It should be noted that this proscription applied not only to native
Israelites but to foreigners and sojourners as well. Even wholly secularized legal
authorities in modern culture acknowledge the difference between involuntary
manslaughter and premeditated murder. Thus they demonstrate more discernment
than some Christians who in their theological shallowness glibly observe that the
Mosaic code has been "abolished," without considering the abiding moral
People should start reflecting on the sanctity of life before a murder is committed
and not after. The clear goal of capital sanctions is the preservation of human
life. This sanction, it should be repeated, transcends theocratic Israel.
ETHICS FROM BELOW
Opponents of the death penalty are quick to cite the potential for executing an
innocent person. The fact that potential for error exists in the criminal justice
system is undeniable. Yet no domain of our legal system is predicated on a zero-percent chance of error; the system is indeed fallible. This is not to say, however,
that the system is not workable. Fallible people work nevertheless for just results.
Sadly, it is rare that abolitionists confront "the other side of the story." Fifteen
years, 30 years, or life in prison inevitably afford the murderer the possibility of
escape, pardon, or parole, and more tragically, the chance to kill again -- whether
inside or outside the prison. Abolitionists appear unwilling to concede that innocent
deaths resulting from released or paroled criminals are far more frequent -- and
tragic -- than the rare instance of an innocent convict dying. If the risk that an
innocent person will die is present with or without the death penalty, why not
devise the system in favor of society and not the convict?
Another difficulty with the abolitionist argument of erroneous execution is the
degree to which the media inevitably discount or obscure forensic evidence against
a convict -- evidence of which the general public has little or no knowledge.
Consequently, a shift occurs in death penalty cases from adducing and evaluating
forensic evidence to the exploiting of public sentimentality.
Compassion, when it is anchored in objective morality, is redemptive and
restorative in nature. Historically, this has meant that compassion has been
(necessarily) directed toward the victims of crime. "Compassion" that is directed
toward the violent criminal, at the expense of the truly oppressed victim, is a
moral-legal miscarriage (Isa. 10:1-4). For those, both inside and outside of the
criminal justice system, whose sense of compassion is not guided by universally
normative notions of good and evil, innocence or guilt, it is often the murderer who
-- fully aside from corroborated evidence -- is regarded as the "victim."
Carried to an extreme in this century, "compassion" for certain "poor" (e.g., Stalin
and the Communists), abetted by "compassionate progressives" in the West,
resulted in the murder of about 10 million "rich" in the gulags. Ethically speaking,
when compassion supplants morality and truth as the highest value, the results are
horrific. One political historian estimates that roughly 170 million lives worldwide
have been deliberately sacrificed in this century alone because of political-ideological
(i.e., nonmilitary) reasons -- in the name of compassion, to be sure. As
former Attorney General Ramsey Clark once noted, one person's terrorist is
another person's freedom-fighter. When the notions of objective "good and evil"
fall into disuse, moral judgments can be no more than personal opinions.
A CIVIL SOCIETY
Does the death penalty for premeditated murder constitute an "uncivilized" or
"barbaric" response by society to crime, as many abolitionists fervently maintain?
The answer depends fundamentally on how a society perceives the moral
difference between crime and punishment. Those who contend that capital
punishment is barbaric are incapable of morally distinguishing between punishment
and criminal acts themselves. To abandon the criteria of righteous and just
punishment, as C. S. Lewis pointed out, is to abandon all criteria for
punishment. Thus, punishing the innocent can be justified, since it has nothing
at all to do with desert. Moreover, in a moral vacuum, retribution and restoration
are indistinguishable from revenge.
Contrarily, a view of life that acknowledges proportionality for crimes is not
predicated on "barbarity" (a description that many abolitionists have curiously
chosen not to use regarding abortion), but rather on life's inherently sacred
character. To be punished -- however severely -- because we in fact should have
known better is to be treated as human beings, endowed with dignity and moral
agency. A society unwilling to impose the penalty of death upon those who murder
in cold blood is a society that has deserted its responsibility to uphold the unique
value of human life.
In the context of a moral universe, premeditated murder is unique in terms of
significance and severity of consequence. By biblical standards, it is the one crime
for which there exists no possible ransom or restitution (Num. 35). It is precisely
the acknowledgment of the reality of "good and evil," as well as moral
accountability in the present world, that allows the Judeo-Christian
framework of law to infuse the criminal justice system with moral guidelines of an
enduring nature. The biblical teaching on punishment derives from a world view in
which the absolute moral good of the Creator and the moral depravity of human
beings cohere. While just punishment is scandalous to the secular mind, it is central
to the biblical mindset. A foreshadow of divine judgment, punishment is the
necessary restoration of morality and social justice.
Rendering life for life in the case of premeditated murder is not to be carried out in
the context of personal vengeance. Social justice requires -- indeed demands --
uniform standards of sentencing. Certainly "due process of law," "equal protection
under the law," and "equal justice for all" are meant to avoid the morally repugnant
effects of unequal justice. However, a truly "civilized" society indeed will distinguish
between mercy and justice. Civil authorities make a mockery of justice by
considering the life of an offender of more value than the life of an innocent victim
who did not have the luxury of even choosing life incarceration. A sense of "justice"
that expresses undue sentiment toward the murderer, hailing him as a type of
champion of "victims' rights," is a perversion of true justice and a travesty of
SEEKING A STANDARD
Contrary to modern practice in most jurisdictions, punishment for a crime and
restitution for the victim are interrelated concepts. In the case of premeditated
murder, compensation is not available as an alternative; thus it should carry a
mandatory death sentence, in recognition of the sacred character of human life.
Arguments that seek to undermine the authority or binding force of the universal
moral imperative found in Genesis 9 -- an imperative that is assumed throughout
the whole of biblical revelation -- have little to commend them. Responsible
involvement in this debate by the Christian community must proceed from a sober
"consensus" reading of relevant biblical data -- a reading that, on the balance,
favors retention of the death penalty.
Contrary to modern abolitionist arguments, the inherent morality of the death
penalty does not stand or fall on the fallibility of judges, jurors, and lawyers, or the
government's ability to administer justice "fairly." Neither is it predicated on the use
or abuse of Eighth Amendment provisions, the possibility of mistaken executions,
or vengeance for the aggrieved. All these factors, powerful and volatile as they are
in informing debate over capital punishment, are insufficient in explaining a moral
standard of justice by which to measure and respond to violent criminal acts.
Most notably, all are susceptible to excessive human manipulation. A framework
for criminal justice can in fact administer justice only to the extent that a
consistent, unchanging canon of justice is adhered to and advanced. The failings of
the system lie not in the fallibility of the instruments who execute justice, but rather
in our failure to acknowledge and implement an abiding moral standard.
Left in the hands of moral philosophers who exalt sentiment over substance,
society's framework for criminal justice becomes devoid of moral accountability
and inevitably turns on those who are to benefit from its protection. In its place is
the triumph of the "Little Man." Well-meaning Christians only add to the ethical
confusion surrounding the debate by calling for abolition to the death penalty in the
name of some "higher" Christian ethic. To suggest that the ultimate human
crime should not be met with the ultimate punishment at the hands of the civil
authorities is not "compassion" as some would have it; rather, it is moral
prostitution of the highest order. If a person cannot be made to answer for a
capital crime, then everything in the world is arbitrary and nothing is certain.
Reducing matters of morality to private elitism, public opinion, or mushy religious
sentiment will only obscure the pressing issues of our culture. How contemporary
American society in the future will view the moral difference between crime and
punishment depends to a great extent on the church's involvement in ongoing
cultural debate -- and on the influence of CNN. Stay tuned.
About the Author
J. Daryl Charles is a Scholar-in-Residence at the Wilberforce Forum of Prison
Fellowship in Washington, D.C. The views he expresses in this article do not
represent the official views of Prison Fellowship. -------------------------------------------------------------------
1 Michael York, "James Found Guilty of Freeway Murder," Washington Post, 4
June 1992, B1.
2 AP News, "Dodd's 'Conversion' Revives Eternal Tiff on Redemption," The
Washington Times, 9 January 1993, C4.
3 Jerry Seper, "System Fails to Stop Repeat Offenders," The Washington Times,
15 December 1993, A7.
4 At his trial, Gacy's lawyer pled insanity; however, Gacy himself later rejected that
plea. More recently, he claimed outright innocence.
5 W. F. Buckley, Jr., "The War against Capital Punishment," National Review, 25
June 1990, 62.
6 Robert H. Bork, "An Outbreak of Judicial Civil Disobedience," Wall Street
Journal, 29 April 1992, A22.
7 The Preacher demonstrates basic insight into human nature. The certainty and
swiftness with which punishment is meted out -- coupled with proportionality --
constitute the proper measure of justice. Thus seen, the U.S. system would require
a major overhaul in order to meet fundamental criminal justice criteria.
8 E. van den Haag, Is Capital Punishment Just? (Washington, D.C.: Ethics and
Public Policy Center, 1978), 403.
9 A 1991 Bureau of Prisons report calculated the average annual "operating" cost
of housing someone in a federal prison at about $20,000. This figure excludes the
costs of land, buildings, and facilities themselves.
10 The conclusions of Yochelson and Samenow departed radically from
conventional behavioral thinking. At the time they were published, they drew
responses ranging from high praise from those concerned with the bankruptcy of
corrections to knee-jerk criticism from those whose "humanitarian" model was
11 P. Duggan, "Witness Imprisoned by Fear; Man Goes to Jail Rather than Risk
Testifying at Murder Trial," The Washington Post, 18 December 1993, A1.
12 Walter Kaiser, Jr., Toward Old Testament Ethics (Grand Rapids: Zondervan,
13 It should be noted that the cities were intended to serve as an asylum for the
involuntary manslayer, not the premeditated murderer. The congregation of Israel
would have adjudicated with well defined criteria by which to distinguish between
the two. In the case of the former, deliverance out of the hand of the avenger was
facilitated, whereas in the latter the accused was to be put to death.
14 Zbigniew Brzezinski, "New World, New Disorder," Crisis, May 1993, 40.
15 Lewis's critique of "humanitarian" punishment, published in God in the Dock
(Eerdmans, 1970, 287-94), originally appeared in the Australian Quarterly
Review in 1949. The reason for this was simple, as he wrote to T. S. Eliot out of
frustration: he could get no hearing for it in England. See also S. B. Babbage, "C. S.
Lewis and the Humanitarian Theory of Punishment," The Christian Lawyer, 4
16 In his crucifixion narrative, Luke is careful to note just deserts. The one thief
responds in defense of Jesus: "We are receiving the due reward for our deeds, but
this man has done nothing wrong" (Luke 23:41). Legal sanctions exist for non-Christians and Christians alike, ranging from speeding to strangulation. Salvific
redemption in no way eradicates the consequences of our actions, whether they
are pre- or post-conversion.
17 Frequently misunderstood by Christians is the "eye-for-an-eye" (Exod. 21:24)
maxim to which Jesus alluded (Matt. 5:38). As understood in Jesus' day, it meant
restitution, not retaliation. If one blinds another's eye, one compensates the victim
-- in money -- for the value of the eye. The Talmud says repeatedly, "Eye for eye
means pecuniary compensation," and Jewish courts apparently never read physical
punishment into the lex talion.
18 A more thorough discussion of the ethics of capital punishment can be found in
J. D. Charles, "Outrageous Atrocity or Moral Imperative: The Ethics of Capital
Punishment," Studies in Christian Ethics, 6,2 (1993): 1-14.
Permission kindly given to Faith & Reason Forum from Christian Research Institute (P.O. Box 7000,
Rancho Santa Margarita, Ca 92688-7000). © 1995. Taken from Christian Research Journal,
Spring/Summer 1994, page 16. The Editor-in-Chief of the Christian Research Journal is Elliot Miller.
Faith & Reason Forum