Punishable by Death

The American Constitution, unlike Scripture, says little about the death penalty. It does not require it, although two amendments included in the Bill of Rights assume its existence and offer protections to those facing it. (The Fifth Amendment refers to capital crimes, and both it and the Fourteenth Amendment forbid being deprived of life without due process of law.)

Scripture, on the other hand, has a great deal to say about the death penalty. The Old Testament Law lists 18 crimes for which the offender could be put to death, and provides direction concerning how it was to be implemented. But it is the relative silence of the New Testament, together with the redemptive work of Christ, that has led some Christians to question whether the death penalty should be used today.

For example, at a forum on the topic conducted at this year’s convention of the National Association of Evangelicals, Myron Augsburger, in what he acknowledged to be a minority view among evangelicals, suggested that when the Old and New Testament works of God are considered, there emerges, in effect, a moral imperative against the use of the death penalty. On the other hand, Lynn Buzzard presented the view that while scriptural teaching on whether to use the death penalty is ambiguous, there are biblical principles concerning how it should be administered.

Most evangelicals, however, probably agree with Carl F. H. Henry, who, at the same convention, argued that while modern states (not being theocracies) are not required to use the death penalty, Scripture presents at least a moral imperative for the execution of deliberate murderers.

For most of American history, it was assumed that the death penalty was a constitutionally permitted sanction. While an abolitionist movement has existed since the time of the colonies, until recently its efforts focused on legislative advocacy to repeal death penalty statutes. By 1800, neither Pennsylvania nor Kentucky conducted executions. In 1846, Michigan became the first state to repeal its death penalty statute, and by 1917, 12 states in all had abolished it (although 4 reinstated it during World War I). The relatively few death penalty cases brought to the Supreme Court concerned the constitutionality of certain mechanics of the death penalty, not of the sanction itself. For example, In re Kemmler, decided in 1890, upheld the use of the electric chair in executions.

For the last 25 years, however, the matter has been hotly litigated, the issue being whether the death penalty violates the Eighth Amendment protection against cruel and unusual punishment. While it clearly was considered neither cruel nor unusual when the Constitution was ratified, the Supreme Court ruled in 1910 that “cruel and unusual” did not have a static definition, but must reflect “the evolving standards of decency that mark the progress of a maturing society.”

Three key decisions appear to have settled the question of the constitutionality of the death penalty itself. (See “Is the Death Penalty Constitutional?” p. 26.) But although these cases have resolved the question of the death penalty’s constitutionality, a series of additional cases have clarified the procedures the Constitution requires of those states that choose to impose it. One sometimes hears the complaint that a criminal avoided the death penalty “on a mere technicality.” Interestingly, the principles for applying the death penalty that have been discussed before the Supreme Court—the “mere technicalities”—are similar to the guidelines found in Scripture.

How May The Death Penalty Be Used?

Scripture does not simply address the “whether” of capital punishment, it also speaks of the “how.” Elaborate technical procedures were established for admitting evidence in capital cases, and for conducting executions. These procedures may be distilled into seven principles.

1. Proportionality. The Old Testament law restricted how much punishment could be imposed for various offenses: “But if there is a serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise” (Exod. 21:23–25). Punishment was to be proportionate to the offense. The extreme sanction of death was to be considered only for the most serious offenses.

The principle of proportionality has been recognized by the Supreme Court. One successful challenge to the death penalty was over the issue of execution following conviction for rape. Coker v. Georgia (see “Is the Death Penalty Constitutional?”) held that imposing the death penalty for rape of an adult woman was “grossly disproportionate and excessive punishment” and was therefore cruel and unusual.

The Supreme Court has been asked to rule that the Constitution required “comparative proportionality” as well. However, in Pulley v. Harris, the Court ruled that the Eighth Amendment does not require an appellate court to compare sentences given to similar defendants convicted of similar crimes to determine whether a sentence was disproportionate. It noted, however, that most states have provided for such reviews in their death penalty statutes.

2. Intent. The Old Testament provided that capital punishment could not be imposed when the offender did not act intentionally. Numbers 35:22–24 exempts from the death penalty those who kill accidentally.

The Supreme Court, however, has handed down two somewhat conflicting decisions on intent. Enmund v. Florida, decided in 1982, involved a getaway driver who sat in the car during a robbery. His codefendant killed the victims during the crime. The Court ruled that Enmund could not be executed because he did not kill, attempt to kill, nor intend to kill the victim.

But on April 21 of this year, the Court ruled in Tison v. Arizona that the issue is not actual intent, but whether the accomplice had a major degree of participation in the crime and exhibited a “reckless indifference to human life.”

3. Due process. Several provisions of the Old Testament Law insured that executions took place only after appropriate judicial procedure. Numbers 35 established cities of refuge to which a person who had caused another’s death could flee. The victim’s family was prohibited from retaliating until the case was heard and the accused had a chance to present his case.

The same chapter also required two eyewitnesses before a person could be executed. And Deuteronomy 17:8–9 provided that priests or judges be appointed to hear difficult or capital cases. The issue was not simply whether the accused was guilty; it was also whether he had a fair chance to prove his innocence.

As noted before, the two constitutional amendments that refer to the death penalty require due process of law before a person may be executed. While most litigation has concerned due process issues, the rulings mean little unless they are actually made available to defendants facing execution. This means, at the least, that they receive adequate legal representation. Unfortunately, this is not always the case.

Robert Wayne Williams was executed in 1983. His court-appointed attorney reportedly spent only eight hours preparing his case for trial. In the case of Ernest Knighton, who was executed a year later, the attorney was reportedly handling 300 other cases at the time.

Some Christian attorneys with criminal defense practices have complained that fellow Christians criticize them for representing people who may be guilty. Churches should instead encourage such lawyers to take capital cases to insure that the defendants receive fair and effective representation.

4. Individual responsibility.Deuteronomy 24:16 says one cannot be held responsible for the crimes of his parents or children. This reflects two aspects of responsibility: that one is accountable for his own actions, but not for the actions of another.

This principle is illustrated in the Enmund and Tison cases mentioned above. Although Enmund had agreed with the codefendants to commit robbery, he had not agreed to the murder. Following the principle of individual responsibility, the Supreme Court held that he could not be executed for his codefendant’s actions. However, the Tison case held that an accomplice could be executed for a murder committed during a felony by a codefendant as long as he was a key player and showed “reckless indifference” for life.

5. Fairness. Recognizing that wealth could influence the outcome of legal proceedings, the Old Testament Law stipulated that the rich should have no advantage and the poor no disadvantage (Num. 35:29–31; Exod. 23:6–7). The principle was that there should be equal justice regardless of economic or social status.

One key reason the Supreme Court declared then-existing death laws unconstitutional in 1972 was that they lacked fairness. Furman v. Georgia (see “Is the Death Penalty Constitutional?”) held that rational standards must be established for judges considering the death penalty, partly because the lack of such standards resulted in racial inequities.

But there is disturbing evidence that the death penalty continues to be applied unfairly. Despite court-ordered sentencing reforms, the death sentence is still affected by the race of the victim and of the offender.

McClesky v. Kemp, decided on April 22 of this year, considered whether this racial imbalance was unconstitutional. McClesky is black; his victim was white. Accepting as true a study that showed that those who kill whites are 11 times more likely to be executed then those who kill blacks, the Court nevertheless upheld McClesky’s death sentence. It ruled that the existence of the pattern of discrimination did not prove that the prosecuters, judge, or jury in McClesky’s case had discriminated against him because of his or his victim’s race.

6. Reluctance to execute. Although to some, the Old Testament sounds bloodthirsty, it actually applied the death penalty with great restraint. In Ezekiel 33:11, God laments: “As surely as I live, … I take no pleasure in the death of the wicked, but rather that they turn from their ways and live.” God himself was reluctant to impose the death penalty, preferring instead that the wrongdoers repent. We see this reluctance demonstrated in his dealing with David after his adultery with Bathsheba and his murder of her husband, Uriah.

There were overtones of reluctance in the 1976 Woodson v. North Carolina decision that mandatory death penalty laws were unconstitutional because they did not permit courts to consider mitigating factors. (If there had been mandatory death-penalty laws in biblical times, David, Cain, Moses, and the adulteress of John 8 would all have been executed.) The Court held that courts must duly regard the particular circumstances of the crime and the character and background of the defendant.

But there seems to be a growing lack of reluctance to execute. As courts have painstakingly reviewed capital cases, states have passed new death penalty laws, and courts are imposing the death sentence more often. Explanations offered for this increased use of execution include higher crime and conviction rates, frustration with the courts for delaying executions, and perhaps a false sense of reality, since the pace of actual executions has been so much slower than imposition of the death sentence. Whatever the reasons, the trial courts, legislatures, and general public no longer appear reluctant to execute.

7. Certainty of guilt. Under scriptural procedures, before a murderer could be executed, two eyewitnesses had to confirm his guilt (Deut. 17:6; Num. 35:30). As a practical matter, this meant that murder cases required a higher standard of proof than other criminal cases, since in the others, the victim could be a witness. Furthermore, those two eyewitnesses were required to participate in the execution to underscore the seriousness of the charge and encourage truthful testimony. Both requirements were established to avoid convicting an innocent person.

The Supreme Court has not required certainty of guilt. Defendants have been sentenced to death, who later were either acquitted in a new trial or pardoned when others confessed to the murder. A recent study found 349 cases since 1900 in which innocent people were convicted of capital crimes. While many of these convictions were overturned, 23 of these defendants were executed.

Unlike Scripture, no state has required a standard of proof for capital cases that is greater than the normal standard in criminal cases. Nor have states established mechanisms to continue investigating evidence of innocence after imposing the death sentence, to be sure of the defendant’s guilt.

Some have argued that the procedures required by the “guided discretion” statutes of Georgia and other states will prevent mistakes. This is not necessarily true, although they certainly may help. The case of Hill v. Stale illustrates the potential and the limitations of such standards and procedures. The case concerned a murder committed during a robbery by Charles Harris Hill, Gary Watts, and James Brown, Jr. Although the prosecutor believed that Watts was the person who had killed the victim by slitting his throat, he nonetheless permitted him to plead guilty in return for a life sentence.

The jury found Hill guilty and sentenced him to death. The case went to the Georgia Supreme Court, which affirmed the death sentence. It ignored the issue of whether Hill actually had killed the victim, as well as the question of proportionality raised by the life sentence given Watts.

At that point Hill dropped further appeals, though his attorney applied to the Board of Pardons and Paroles for executive clemency. The board found an unusual number of people who had been involved in the trial were requesting commutation, including the judge and prosecutor. It determined the victim had, in fact, been killed by Watts, and commuted Hill’s sentence to 99 years.

The statutory protections had not helped. Fortunately for Hill, the Board of Pardons and Paroles considered the obvious injustice of a life sentence for the actual murderer and a death sentence for his partner as grounds for commutation.

Any system run by humans will result in mistakes. But is it necessary the procedures be “mistake proof” in order to be constitutional? The Court has not ruled on that, although Justice Byron White, in his concurring opinion in the Gregg case (see “Is the Death Penalty Constitutional?”), said this:

“Petitioner has argued in effect that no matter how effective the death penalty may be as a punishment, government, created and run as it is by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made and discrimination will occur which will be difficult to explain” (emphasis added).

A Life-And-Death Issue

With the Court’s ruling this year in McClesky v. Kemp that death penalty procedures are not racially discriminatory, the final broad constitutional challenge to the death penalty has been resolved.

This means that public debate will again move from the courts to the legislatures. The era of judicial exploration of the constitutionality of the death penalty may well be ending.

But Christians must remain involved in the discussion. Biblical principles concerning how to impose the death penalty are as important as the initial question of whether to support it. We have something of great value to offer our culture, as judges and legislators continue to grapple with this life-and-death issue.

Daniel W. Van Ness is president of Justice Fellowship, a criminal justice reform advocacy organization affiliated with Prison Fellowship. Van Ness is author of Crime and Its Victims: What We Can Do (InterVarsity Press).

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