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The Case for Capital Punishment, Part Two

May 29, 2012

In Part One of this article I looked at three frequently-heard objections to the death penalty. Here I will examine three more. In each of these I seek to show that a strong case can in fact be made for capital punishment.

Race and discrimination

The objection is often raised – in America at least – that more blacks are in prison or are executed proportionately than non-blacks. But the simple rejoinder to this is that sadly blacks happen to commit more crimes and capital crimes, proportionately, than do non-blacks. For this reason there are a disproportionate number of blacks in American prisons and on death row.

And the actual figures go against this notion that blacks are being discriminated here. In the US where capital punishment was reinstated by the Supreme Court in 1976, the majority of those under sentence of death have been whites. In 2001 for example, there were 63 people executed: only 17 were black, while 48 were white, and one was Native American.

Moreover, as Paul Cassell notes, the Department of Justice found that while black Americans made up 48 per cent of those charged with homicide, “there were only 41 per cent of those admitted to prison under sentence of death. In other words, once arrested for murder, blacks are actually less likely to receive a capital sentence than are whites.”

A related objection is that the death penalty unfairly targets poor people. But even if true, this can be said of most things in the criminal justice system. Rich people may be able to buy themselves out of some legal situations which poorer people may not. As John Jefferson Davis rightly remarks:

“Discrimination in any part of the criminal justice system is a matter of serious concern. At the same time, it is important not to exaggerate the problems of the system, and not to require perfection before the administration of criminal sanctions is possible. In any human society, the wealthy may be more capable of escaping the penalty of certain laws, but that is no argument for abolishing laws and prisons. If a given principle is valid – whether capital punishment or some other principle of criminal justice – then imperfections of administration are justification not for the abolition of the principle, but rather for its reform and more evenhanded application.”

Or as Norman Geisler writes, “If justice is applied unequally, then we should work to assure that it is applied equally, not abolish justice altogether. The same thing holds true for capital punishment. We do not argue that all medical treatment should be abolished until everyone has it equally, even though more poor and minority people will die from lack of treatment than others. Why then should capital punishment be abolished until equal percentages of all races are executed?”

Vengeance

Abolitionists often complain that capital punishment is merely legalised vengeance, which has no place in a civilised society. But nothing could be further from the truth. Revenge has nothing to do with retribution. And when just retribution is not consistently and quickly carried out, then an injustice-weary public may well resort to personal revenge.

Louis Pojman explains: “People often confuse retribution with revenge . . . Vengeance signifies inflicting harm on the offender out of anger because of what he has done. Retribution is the rationally supported theory that the criminal deserves a punishment fitting the gravity of his crime. . . Retributivism is not based on hatred for the criminal (though a feeling of vengeance may accompany the punishment). Retributivism is the theory that the criminal deserves to be punished and deserves to be punished in proportion to the gravity of his or her crime, whether or not the victim or anyone else desires it. We may all deeply regret having to carry out the punishment, but consider it warranted…

“When a society fails to punish criminals in a way thought to be proportionate to the gravity of the crime, the danger arises that the public would take the law into its own hands, resulting in vigilante justice, lynch mobs, and private acts of retribution. The outcome is likely to be an anarchistic, insecure state of injustice.”

Because people so often confuse these two concepts, it is worth devoting a bit more time to this, until we thoroughly drive home this point. Ernest van den Haag makes the distinction this way: “Vengeance is self-serving since it is arbitrarily (by his own authority) taken by anyone who feels injured and wishes to retaliate.” Retribution, however, “is imposed by courts after a guilty plea, or a trial, in which the accused has been found guilty of committing a crime.” It is inflicted “to enforce the law and to vindicate the legal order.”

Or as J. Budziszewski puts it, “Society is justly ordered when each person receives what is due to him. Crime disturbs this just order, for the criminal takes from people their lives, peace, liberties, and worldly goods in order to give himself benefits. Deserved punishment protects society morally by restoring this just order, making the wrongdoer pay a price equivalent to the harm he has done. This retribution is not to be confused with revenge, which is guided by a different motive. In retribution the spur is the virtue of indignation, which answers injury with injury for public good. In revenge the spur is the passion of resentment, which answers malice with malice for private satisfaction.”

And even here, we might nuance this just a bit further. A case can be made that it is a good thing to see justice established. Thus it is a good thing to see criminals punished. We can in fact rejoice in seeing evil thwarted, and evil doers punished. This may not be revenge so much as a proper appreciation of justice being served.

As J. Daryl Charles writes, “At its base the moral outrage expressed through retributive justice is first and foremost rooted in moral principle, not mere emotional outrage and hatred. Recall Augustine’s words to Marcellinus: retribution is a form of ‘benevolent harshness.’ The governing authorities, by punishing criminal behavior, mirror a concern for the welfare of the population and for those doing the wrong. Any parent intuits the truth of this principle. Indeed, not to act against the will of a wrongdoer, in the words of Augustine, is to ‘nourish and strengthen the will toward evil.’ It needs reemphasis, especially in our present cultural climate, that it is virtuous and not vicious to feel anger at moral evil. In truth, something is very wrong with us if we don’t express anger and moral outrage at evil. And yet, moral outrage alone is not enough.”

Clemency

Finally, a word about clemency. Can a leader on occasion offer grace instead of strict justice, and pardon someone who has committed a capital crime? Yes they can, and yes they have. That is clearly their prerogative, although it should be the exception and not the rule.

As Adam Smith put it, “Mercy to the guilty is cruelty to the innocent.” Let me at this point however head off one objection which will come from religious folks. This piece is dealing just with the secular arguments, pro and con, but let me here briefly deal with Christian concerns about grace, mercy, forgiveness, and so on.

The simple reply to Christian objections here is that the church and the state are both God-ordained institutions, each with their own spheres of responsibility. The main function of the state is to uphold justice and punish evil. The state deals with crime, while the church deals with sin. While the two often overlap, they are not identical.

The church, as well as individual Christians, can of course show grace and offer forgiveness to offenders. But the state cannot. Its job is to administer justice, and to wield the sword, bringing punishment on those who do wrong. A governor may on occasion dispense clemency, but this is not the main role of political leaders.

But even in the church, there are obviously limits. A Christian who is caught robbing banks may be forgiven by a local congregation, but it is still fitting and proper that he face his just deserts and do a stint in prison. And if a Christian murders someone, he too should not expect the state to just blink at his crime.

As Norman Geisler wrote, “If a Christian jumps off a high cliff, confessing his sins on the way down will not avert death at the bottom. The truth is that, forgiven or not, there are social and physical consequences of sin. A Christian who commits a capital crime can receive forgiveness but should not expect to avoid the appropriate penalty. And the fitting penalty for taking another life is giving one’s own.”

Churches and Christians can forgive, but states must not. As J. Budziszewski puts it, “Christ did teach personal forgiveness, but he never challenged the need for public justice. The supposition that personal forgiveness implies a requirement for universal amnesty is not merely weak but mistaken. Taken seriously, it would destroy all public authority, for if punishment as such is incompatible with forgiveness, then why stop with capital punishment? Must we not abolish prisons, fines, and even reprimands as well?”

But I deal with all this in much more detail here: billmuehlenberg.com/2007/10/14/sin-forgiveness-and-consequences/

Mercy and justice are both important virtues, both for individuals and for states. But as C. S. Lewis warned in his critique of the “humanitarian theory of punishment,” we lose both when we strip men of their dignity as human beings by saying criminals are simply sick, not responsible and guilty. Sickness demands treatment instead of punishment.

He writes, “The Humanitarian theory removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice. . . . The Humanitarian theory, then, removes sentences from the hands of jurists whom the public conscience is entitled to criticize and places them in the hands of technical experts whose special sciences do not even employ such categories as rights or justice.”

He continues, “The older view was that mercy ‘tempered’ justice, or (on the highest level of all) that mercy and justice had met and kissed. The essential act of mercy was to pardon; and pardon in its very essence involves the recognition of guilt and ill-desert in the recipient. If crime is only a disease which needs cure, not sin which deserves punishment, it cannot be pardoned. How can you pardon a man for having a gumboil or a club foot? But the Humanitarian theory wants simply to abolish Justice and substitute Mercy for it. This means that you start being ‘kind’ to people before you have considered their rights, and then force upon them supposed kindnesses which no one but you will recognize as kindnesses and which the recipient will feel as abominable cruelties. You have overshot the mark. Mercy, detached from Justice, grows unmerciful.”

Conclusion

While I have pitched this discussion to a secular audience, relying mainly on non-religious arguments, all this can be discussed biblically and theologically as well. For example, as to clemency, God has on occasion done just that. Sometimes those deserving the death penalty – such as Moses or David – have instead been offered grace by God. But of course quite often that is not the case, and normally God allows retributive justice to run its fair course in this world.

For those who are interested in a biblical and theological pro-capital punishment position, I urge them to look here:
billmuehlenberg.com/2007/10/11/on-capital-punishment-part-1/
billmuehlenberg.com/2007/10/12/on-capital-punishment-part-2/

And for those looking for what the Bible has to say about killing in general, and if it is ever right for a believer to kill, then I encourage them to have a look at this article:
billmuehlenberg.com/2006/09/11/is-it-ever-right-to-kill/

In sum, both secular and religious folks can and do disagree about this issue. I have stated my position, and think it is both ethically and rationally sustainable. For those who disagree, fine. I am happy for them to take another line on this. But I have here sought to make my case. It could undoubtedly be improved upon, but it is a start at least to a complex and controversial issue.

Part One of this article is found here: billmuehlenberg.com/2012/05/29/the-case-for-capital-punishment-part-one/

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11 Responses to The Case for Capital Punishment, Part Two

  • Knowing how some hard core emotions can be aroused here, let me be the first to comment. While this is an important issue, it is not the most pressing issue of the day, and I am happy for others to think differently from me. If they think their abolitionist view is the only right one, and all other people are out to lunch, well that is up to them.

    It is not my intention here to spend the rest of my life arguing with those who have this as a particular bee in their bonnet. There are many folks like that who will want to debate this till the cows come home. I am happy to engage in some of this discussion, but if this is your all-consuming passion, and think it is the only thing that has to be discussed, ad infinitum, ad nauseum, then it may well be advised that you go elsewhere to run with your hobby horse. I see this as just one issue, not the be-all and end-all, which I must devote all my time to in answering those who get wound up about this. OK? Hey, after all, it is my website.

    Bill Muehlenberg, CultureWatch

  • Strong points Bill, and capital punishment serves as a strong deterrent, though not perfect, to those who would commit murder, thus preserving the sanctity of human life.

    Avoiding the death penalty and locking a convicted murderer up for their natural life is not always the answer either, as then they have nothing to lose and may murder another inmate. Just because they are locked up doesn’t lessen their threat status for repeat offence.

    Dorian Ballard

  • Clemency:
    God has given clemency on occasions, but it was never on a whim or unsupported by justice, but He knew that He himself would pay the price that justice demanded as retribution for our sin. I’d believe the laws of the moral realm are not unlike the laws of chemistry. When you track the parts of a chemical reaction you have to pay great attention to the need to balance the equation. Nothing is lost or forgotten there. The principle is the same in the moral realm, though we can not physically see the parts of the equation, but in God’s economy, the equation will balance at the cost of Himself. 1 John 1:8 “”He is faithful and JUST TO FORGIVE”. He paid for the right to forgive without cost to us.
    Praise His name!
    Many blessings
    Ursula Bennett

  • Basically those who say that Capital Punishment is wrong is basically saying they know better than God, since he instituted the punishment himself. They are saying that God is unjust when he commanded us to kill those who have murdered innocent blood.

    Ian Nairn

  • Thank you for an excellent pair of articles, Bill. While I do not generally support capital punishment, it is only because we have seen murder convictions completely overturned on the basis of new (usually DNA) evidence and I would hate to see even one innocent person executed. It is better that nine guilty men go free than one innocent be punished, so the saying goes. That said, I have often been bothered by pro-lifers/Christians who maintain that capital punishment is not compatible with our beliefs, so thank-you for writing on this topic. In theory, I agree. In practice, I have grave reservations about the ability of our systems of justice to deliver anything approaching real justice.
    Mishka Gora

  • Thanks Mishka. I think I have covered most of the bases in my articles, but let me reiterate. We live in a fallen world run by fallen people, so of course none of us can expect “our systems of justice to deliver anything approaching real justice”. But they can nonetheless offer substantial justice. That is all we can hope for in a fallen world. If we demand perfection, then we must dispense with justice altogether. Christians above all people are not utopians but realists. It is God who ordained both the state and the death penalty to meet our needs in a sin-impacted world, so we dare not despise what he has gifted us with. But thanks for your thoughts.

    Bill Muehlenberg, CultureWatch

  • Yes, Bill, I agree with you there too – we cannot expect perfection. However, when we see the legal system exploited to punish political incorrectness, I think that points to fundamental defects as opposed to inevitable slip-ups, and when miscarriages of justice become mundane rather than extraordinary then we need to consider safeguards. Ultimately, I think more Christians would be comfortable supporting capital punishment if we had more faith in our legal system, and this is a significant stumbling block to achieving consensus among Christians on this topic.
    Mishka Gora

  • Thanks again Mishka

    Sure the system stinks, and your beefs are legitimate indeed. But why is this the case? A good hunk of the answer to all this is that we have allowed it to happen. We must take some responsibility here.

    Now one response is simply to throw up our hands in despair and head for the hills. A better option is to seek, with God’s grace, to turn things around. We need more – not less – Christians in the legal and political arenas. It is exactly because so many have opted out that it is in such a mess today. So things are certainly not ideal at the moment. But the real question is, what are we going to do about it?

    Bill Muehlenberg, CultureWatch

  • Indeed, Bill, which is where your blog comes in, encouraging Christians to not only have faith in God but in what God may do through them. Personally, I’ve recently locked horns with the highest court in the secular world – the International Criminal Court – and am currently doing my best to get two innocent men out of gaol. I even have a documentary film maker coming from New York to interview me in a couple of weeks. To those Christians who doubt they can make a difference, take a look at me, a stay-at-home mum with no legal qualifications defying the highest court on earth. We must have faith and act on it!
    Mishka Gora

  • Well done Mishka – you are a champion!

    Bill Muehlenberg, CultureWatch

  • Thanks Bill
    I’m challenged by this article and I’m left with a rather weak conviction in my heart. Yes God has clearly endorsed punishment by death but. Well I’m struggling. Here’s the thing, there have been times in my life when rage has almost overwhelmed me learning that yet another child molester gets 2 or 3 years and a murder get 14 and yes at those times, bury them. But, on a calmer day I wouldn’t like to be the one who gives the lethal injection. But yes Bill I completely agree cause and effect, consequences.
    Daniel Kempton

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