Preface: This article was originally written as an upper-level writing requirement for the Juris Doctor (J.D.) degree at Belmont University College of Law.
On December 23, 1991, a fire destroyed the Corsicana, Texas, home Mr. Cameron Todd Willingham shared with his wife and three daughters.[i] Willingham, who was (allegedly) asleep when the fire started, survived. However, his three daughters perished. At his trial, prosecutors claimed he had intentionally set fire to his home in order to kill his children. Willingham testified that he was sleeping when the fire started and until his death maintained his innocence. His conviction was based in part on the testimony of forensic experts who testified that the fire was intentionally set. Additionally, a jailhouse informant said Willingham had confessed to him. On October 29, 1992, he was sentenced to death.[ii] Willingham was executed by lethal injection in Huntsville on February 17, 2004.[iii] After his execution, multiple arson experts testified that the forensic evidence, far from proving that Willingham had intentionally started the fire, demonstrated that the fire had been an accident. Not only did Mr. Willingham have to endure the horrific loss of his children, but he also had to forfeit his own life as a convicted child killer. Yet, the evidence later revealed that he had been convicted as a result of questionable scientific analysis of the fire. It would be hard for a reasonable person to imagine how the death penalty served any sense of justice in this case. On the contrary, the execution of Mr. Willingham serves as a reminder of what is at stake in the jurisprudence of death by the state—the execution of a potentially innocent man.
On June 11, 2001, in a final act of defiance, convicted murderer, Timothy McVeigh handed the warden a poem, which closed with the words, “I am the master of my fate; I am the captain of my soul.”[iv] Moments later, he was strapped down and executed by lethal injection. On June 13, 1997, Timothy McVeigh was sentenced to death for his role in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City. This single act of terror claimed the lives of 168 people, including 19 children. In the end, McVeigh wasn’t the master of his fate; it was decided by the judicial system that carried out the ultimate sanction—the death penalty. It is hard to imagine a more deserving candidate for the death penalty than Timothy McVeigh. Hundreds of survivors and families of victims received justice as McVeigh breathed his last breath. In the end, a reasonable person could find that justice was served. Yet, nearly 100 protesters held a silent vigil outside of the prison opposing the death penalty.
When it comes to the morality of capital punishment, many Americans have accepted the paradox that is illustrated in the executions of Willingham and McVeigh. That is, a reasonable person can easily conclude that it is reprehensible and unacceptable that an innocent man could be both convicted and executed on questionable or faulty science, while conversely feeling a sense of satisfaction at the execution of a domestic terrorist. Although it may, at first, appear that these views on capital punishment are contradictory, they likely represent a moral tension that exists in the minds of many Americans. One the one hand, there are moral arguments against taking life at any stage and for any reason. Conversely, requiring the life of a murderer is also supported by moral arguments. Moreover, both sides, particularly in America, still employ theological arguments, in varying degrees, to support their moral arguments.[v]
It is seemingly undeniable that moral arguments on both sides of the death penalty debate have been influential in swaying both legislators and the electorate either to uphold or abolish capital punishment. Although some legal scholars, such as law professor Davison Douglas, believe that religious arguments (i.e., traditional moral arguments) will have little effect on the future of the death penalty in the United States,[vi] one can contend that moral arguments have not only played a significant role in shaping the debate and influencing states to either abolish or uphold capital punishment laws, but will also continue to play a substantial role in shaping the jurisprudence of capital punishment on both the state and federal level because Americans continue to be influenced by moral arguments. Although the United States is becoming decreasingly religious, it would be a stretch to suggest that religion (i.e., theological positions) are no longer influential. Not only are moral arguments still prominent in both the national and state arguments for and against the death penalty, theological arguments are used to bolster both sides of the debate.
This article will seek to demonstrate that moral arguments used to influence legislators and the electorate to either uphold or abolish the death penalty have been shaped by theological positions on capital punishment.[vii] To substantiate this argument, this article will provide a synopsis of the moral arguments used in states that have abolished the death penalty and states where the death penalty is still legal. Additionally, this article will examine theological positions on the death penalty that either directly or indirectly contribute to the moral arguments for and against capital punishment. Finally, this article will provide a conclusion that theological arguments are still being used to justify moral arguments both for and against capital punishment in the United States.
Due to the limitations of this article, the synopsis of the moral arguments in section one will be limited to three states. Because it was the first state to abolish the death penalty, this article will present a summary of the moral arguments put forth by Michigan’s state legislature in 1844 that led to the abolition of capital punishment in 1846, and again when abolition was enumerated in the state’s constitution in 1963. Next, because it is one of only three states that still has “death-by-firing-squad” as an alternative in carrying out capital punishment, this article will present an overview of the moral arguments used to justify Utah’s death penalty law. Finally, as a recent example of a state that abolished the death penalty, this article will present a synopsis of the moral arguments used to justify New Jersey’s prohibition of the death penalty, which took effect in 2007.
MORAL ARGUMENTS USED IN ELIMINATING AND UPHOLDING CAPITAL PUNISHMENT IN THE STATES.
Currently, twenty-nine states have retained the death penalty.[viii] However, four of those states (California, Colorado, Oregon, and Pennsylvania) are currently under a gubernatorial moratorium preventing any executions by the state. Conversely, twenty-four states and the District of Columbia have either abolished the death penalty or the state’s highest court has declared capital punishment unconstitutional.[ix] Although the different approaches to capital punishment in the fifty states may represent the diversity of opinions concerning the morality of the death penalty in contemporary America, the abolition of the death penalty is not a recent phenomenon. Prohibition of the death penalty in the United States covers a period of 172 years.[x] Although societal norms and morality shift, the arguments for and against capital punishment have largely remained the same. According to Gallup, the percentage of Americans who favor the death penalty for a person who has been convicted of murder has declined from a high of 80% in favor in 1994 to 56% in favor in 2018.[xi] However, when asked if the death penalty was moral, according to a 2019 Gallup poll, 60% of those polled responded that it was morally acceptable as compared to 35% who responded that it was morally wrong.[xii] On the one hand, these statistics represent a significant shift in how Americans view capital punishment. Although the majority still either believe it is appropriate in the case of a convicted murderer and find it morally acceptable, those numbers are slowly declining. Conversely, these statistics also reveal the tension that people likely feel between moral arguments for and against the death penalty. While the majority of those polled believe that the death penalty is still morally acceptable, the same surveys reveal that people are concerned about the likelihood that innocent people are being executed.[xiii] Moreover, when asked if they believed that the death penalty was either administered fairly or unfairly, only four percentage points divide the responses (49% fairly; 45% unfairly).[xiv] Both the declining support and the increasing skepticism in relation to the procedure and application of the death penalty demonstrates that the death penalty may, at some point, be completely abolished or only employed in extremely limited circumstances in the United States.
Moral arguments for and against the death penalty are varied and nuanced. However, the fundamental arguments on both sides of the debate have remained (essentially) the same since the early 19th century. Opponents of capital punishment have consistently argued that the death penalty devalues life, is not an effective deterrent, leaves open the possibility of executing the innocent, and is an expensive alternative to life in prison.[xv] Although each of these foundational arguments has some moral component, the suppositions that life is precious and the possibility of executing the innocent are, to some degree, moral arguments that have grown out of theological arguments. If these arguments merely expressed the morality of contemporary America, it may be easier to believe that they were not influenced by theological positions to any recognizable degree. However, the fact that these arguments originated in an era when Americans were either more religious or more influenced by theological arguments than today, and have remained basically the same, supports the notion that these moral arguments cannot be divorced from the original theological arguments. Furthermore, the opponents of capital punishment in the United States regularly employ religious figures or theological arguments to provide legitimacy for their moral positions.[xvi] Setting aside the deterrent question and the cost-effectiveness argument, the other arguments are purely moral. The idea that life is valuable, as well as the possibility of executing the innocent, are largely indistinguishable from the theological arguments that humanity is the imago dei (Latin, “Image of God”). Although one does not have to believe in a god or a higher power to espouse the value of human life, it is intellectually dishonest to completely unhinge an argument for the value and dignity of life from its theological origins.
Likewise, the arguments in support of capital punishment have been essentially the same for generations. Namely, the death penalty is an effective deterrent, retribution is a legitimate response of a civilized government (e.g., “an eye-for-an-eye,” and the “state has the power of the sword”), and justice for victims. Although the deterrent argument is modestly influenced by morality, the principle of lex talionis is based on a moral concept of justice and is closely related to moral argument that victims receive justice in the execution of a murderer. Of these arguments, retribution has a long history of theological support. The incorporation of the Old Testament into Christianity, via the acceptance or canonization of the Old Testament books into the Christian Bible, ensured that the doctrine of lex talionis would influence Christian theologians throughout the centuries. This principle of punishment is based on Exodus 21:23-27, which has been interpreted to legitimize a proportionate system of retribution.[xvii] Applying this theory would demand that a convicted murderer be required to surrender his life in an equal or proportionate exchange. Even if one were to set aside the Old Testament concept of retribution, the Apostle Paul’s admonition in his letter to the church at Rome, has been used for nearly two millennia, in varying degrees, to support capital punishment (cf. Romans 13). The use of capital punishment is Christendom throughout the history of the church is both questionable and, at times, reprehensible. The way the church defined capital offenses and applied the death penalty is not with the purview of this article. The historical application and abuses of capital punishment in Christian nations, while providing valid reasons to criticize theological interpretations of the Bible, need not be without spot or blemish to be considered in understanding how Christians have used the Bible to validate their moral positions on capital punishment. However, there are differences of opinion on how to interpret and apply the Apostle Paul’s alleged endorsement of the state having the power to execute condemned criminals, which suggests that the issue will remain controversial among Christians of all denominations.
It is difficult, if not impossible, in a country wherein the majority of the people either openly practice religion or live as non-believers in a society that is still influenced (either directly or indirectly) by religion, that moral positions on capital punishment are not still influenced by theological arguments. The arguments for and against the death penalty used in Michigan, Utah, and New Jersey demonstrate that the same moral arguments and the underlying theological positions that influenced legislators in the 19th century, still influence the moral arguments used to either uphold or abolish the death penalty in contemporary America.
Moral Arguments Used to Justify Michigan’s Abolition of Capital Punishment
As the first state to abolish the death penalty, Michigan has served, in some respects, as an example for other states to do likewise. In 1846, the Michigan legislature abolished the death penalty for murder.[xviii] Thus, the state became the first English-speaking jurisdiction in the world to statutorily abolish capital punishment.[xix] The prohibition against the death penalty was written into the state constitution in 1963, which means capital punishment can only be reinstated through a state constitutional amendment.[xx]
Although there are several factors that influenced Michigan’s legislature, such as a post-enlightenment ideology, the worldview of the New Englanders who had settled the Michigan territory and religious revivalists, abolitionist sentiment appears to have been established fairly early in the state’s history. In fact, in 1844, only seven years after becoming a state, a joint committee of the State’s legislative bodies submitted four primary reasons that capital punishment should be abolished in the state.[xxi] The first was an argument for efficiency and expediency, namely, that sentencing murders to death slowed the overall trial process. Second, the legislators were concerned that carrying out the death penalty left open the possibility that the State could execute an innocent person. This fear was more than theoretical because in 1837 the Canadian government took Patrick Fitzpatrick from Michigan across the border and executed him. Several years later, a different person confessed to the crimes for which the innocent man was executed.[xxii] Third, and most significant for this article, the committee argued that capital punishment had no basis in the Bible. Ironically, the majority stated that the religious argument was not relevant in the current debate, but then dedicated significant space to make a biblical case against capital punishment. The notion that a theological argument was irrelevant is unconvincing and defeated in the committee’s own use of a religious text and a particular hermeneutic to justify their abolitionist views. Not surprisingly, the minority (those who supported capital punishment) also used biblical arguments in support of their view.[xxiii] The dividing line was drawn on interpretive grounds, with one side appealing to the four canonical Gospels, and the other side making an appeal to the unity of Scripture and asserting the relevance of Old Testament texts such as Genesis 9:6.[xxiv] Finally, the committee argued that the death penalty was an irreversible punishment. Although this fourth factor is closely related to the committee’s concern about executing the innocent, it appears that this last factor had more to do with the concept of rehabilitation. In the end, the committee’s arguments were largely based on moral grounds, with the only possible exception being expediency.
In 1962, after numerous attempts to reinstate the death penalty, a state constitutional convention met to address issues in relation to the state’s constitution, which by that time had nearly 70 amendments. The constitutional convention passed a proposal to abolish the death penalty for all crimes by a vote of 108 to 3.[xxv] The constitution was ratified in a close election on April 1, 1963. A leading figure in the Michigan abolitionist movement, Eugene Wagner, attempted to capture the thrust of the arguments against capital punishment that influenced the 1963 Constitution’s prohibition of death by the state in all cases.[xxvi] His arguments, although nuanced, where essentially the same as those made in 1844, the only exception being a focus on the disparate use of the death penalty between whites and non-whites.[xxvii] Although the attention given to inequality in the application of the death was a relatively recent argument in the mid-20th century, the argument is nonetheless moral in nature.
While it may be in vogue to deny the role of moral arguments in shaping contemporary jurisprudence, the arguments against the death penalty are generally still the same and largely based on a person or group’s concept of morality. Although terms such as “biblical” or “theological” have been replaced with less specific phrases such as “right” or “wrong,” those in the debate are essentially pointing to the same foundational concepts. Namely, that there is an identifiable standard of what is permissible and impermissible, and that standard should govern whether the state can execute a condemned criminal. Michigan’s long history of prohibiting capital punishment, which now covers more than 150 years of American history, demonstrates that moral arguments rooted in theology, particularly interpretations of the Bible, were an effective tool in the abolition of the death penalty for the first time in American history. Although one may argue that morality and societal norms have dramatically shifted in the past since Michigan first abolished the death penalty, the moral arguments against capital punishment have remained virtually unchanged. Thus, it is not unreasonable to suggest that the contemporary opponents of capital punishment in America, who are using the same moral arguments, did not formulate their views in a vacuum. That is, their moral arguments are not novel but stand upon the shoulders of these earlier generations who articulated theological positions in support of their moral arguments.
Moral Arguments Used to Support the Death Penalty in Utah
In Furman V. Georgia, Furman, a mentally challenged man, was convicted of rape and murder. He was sentenced to death for these crimes. [xxviii] He appealed his sentence all the way to the Supreme Court of the United States. The Supreme Court of the United States held that in this case the death penalty violated the 8th Amendment’s prohibition against cruel and unusual punishment. As a result of this decision, there was a five-year moratorium on capital punishment in the United States. However, because the holding applied to the way specific state constitutions were written, states quickly moved to rewrite their constitutions to reinstate the death penalty.[xxix] After the Supreme of the United States’ decision in Furman v. Georgia, Utah was the first state to resume executions.[xxx] On January 17, 1977, Gary Gilmore was executed by firing squad. Among the states that currently have laws permitting the death penalty, Utah is the only state in modern history to have executed a convicted criminal by firing squad. Ironically, prior to 1980, Utah gave the condemned the option between either death by hanging or by firing squad; if he refused to choose, he received death by firing squad.[xxxi] Most recently, in 2010, convicted murder, Ronnie Lee Gardner, was executed by firing squad in Utah. Far from what one might imagine based on the sensationalized portrays of executions by firing squads in movies, those present reported a quick and meticulously orchestrated event with a sober, prepackaged ending.[xxxii] After the firing squad option was removed in Utah, it was, in 2015, reinstated by governor, Gary Herbert. [xxxiii]
What arguments could a reasonable person make to justify executing a convicted murder by firing squad? The Utah legislative debate on House Bill 11 during the 2015 General Session Day 19 reveals that the firing squad option was reinstated if lethal injection would, at any point, no longer be an option, either because the drugs used in lethal injection aren’t available or if lethal injection is deemed unconstitutional.[xxxiv] Two legislatures argued that the firing squad is a humane method of executing a condemned person sentenced to death. Although at first blush, this argument may appear to be convoluted, the representative gave a detailed comparison between lethal injection and death by firing squad that was generally reasonable. However, a second representative speaking in favor of the bill stated the bill was justifiable because if a condemned criminal wanted to donate his organs, the firing squad was the only means of carrying out those wishes.[xxxv] Although neither of these reasons may be compelling to justify the State of Utah executing a convicted murder by firing squad, they may reveal how entrenched the pro-capital punishment sentiment is in Utah.
A 2016 poll of Utah citizens revealed that over 70% believed that the State should impose the death penalty in capital murder cases.[xxxvi] This support is significantly higher than nation-wide polling. A Gallup poll conducted in 2016 revealed that 60% of Americans support the death penalty in the case of a convicted murder.[xxxvii] The statistically higher level of support for the death penalty in Utah as compared to nationwide polling should not surprise the informed observer because Utah’s citizens are predominately members of the Church of Jesus Christ of Latter-Day Saints (LDS), also known as Mormons. Although the percentage of Mormons living in Utah has declined, they still make up the majority of the population with 62% of the citizens identifying as members of the LDS church.[xxxviii] More importantly, approximately 90% of the state legislators identify as Mormons.[xxxix] These majorities, both in the population and the statehouse, become even more important when one recognizes the hierarchical structure of the LDS church and the importance that is placed on the church’s doctrine. The LDS church is led by a quorum of 12 living apostles who elect one of their own to serve as president of the church. The president is considered a living prophet who receives direct revelation from God.[xl]
Although there may be some parallels to the role and influence of the Cardinals and the Pope in Catholicism with that of the Quorum and President in Mormonism, there are significant differences that are important for understanding the role religion plays among Mormons in Utah. These differences provide a basic understanding of the role theology plays in moral arguments in Utah, particularly those used to uphold capital punishment in the state. First, the head of the LDS lives in the United States, and specifically in Utah. The Pope lives in the Vatican, which is located in Rome, Italy. This fact is important when one recognizes that Salt Lake City, Utah is viewed as the New Jerusalem. Thus, in some respects, Mormons view Utah as a modern-day Holy Land, wherein the prophet of God resides. Second, the President of the LDS and his quorum of Apostles are not bound by prior revelation or doctrinal rulings; they may receive new and (seemingly) contradictory revelation. For example, the revelation that was received in order for Utah to receive statehood seems to contradict prior written revelation. That is, prior to Utah’s petition for statehood, plural marriage was a central doctrine of the church and enumerated in the canonical writings of the LDS church. For example, the founder Joseph Smith, who is considered a prophet by the LDS church, claimed to have received revelation that plural marriage was an eternal covenant that could not be broken, which was recorded in the Doctrines and Covenants, chapter 132.[xli] In 1890, the LDS church issued a manifesto requiring all Mormons to observe anti-polygamy laws. This new revelation paved the way for Utah to receive statehood just six years later in 1896.[xlii] The role that the LDS church leadership plays in shaping official theological beliefs is a significant reason that Utah, unlike states that are predominately Catholic, continues to support and uphold the death penalty.
In Mormonism, the most significant theological foundation for the moral arguments in favor of the death penalty is the doctrine of blood atonement. Early church leaders and recognized prophets taught that some sins were so severe that they could only be atoned for by the shedding of the guilty party’s blood. In act of penance, the condemned surrenders his life, either voluntarily or involuntarily, in a final act of atonement, which purportedly absolves him of the most heinous of sins. The LDS prophet, Brigham Young, explained the doctrine in a hypothetical scenario in which a Mormon man discovered his wife in bed engaging in sexual relations with another man, and the Mormon man killed his wife and her cohort. According to Young, their execution was considered a blood atonement for their sins.[xliii] Thus, the innocent party would have been assisting the guilty parties in receiving absolution for their sins by executing them on the spot.[xliv] The doctrine of blood atonement was proclaimed and made popular by LDS prophet, Brigham Young and his contemporaries. Although the LDS church claims that blood atonement was never officially accepted as church doctrine, the fact that is was espoused by a recognized prophet of the church provided enough credence for the doctrine that it took root within the church. Furthermore, other prominent church leaders have endorsed the doctrine as revelatory and authoritative.[xlv] More importantly, the doctrine wasn’t removed from official church doctrine until 1978, when the church underwent a major doctrinal overhaul that included permitting black males to join the church’s priesthood.[xlvi] The major doctrinal shifts, such as confronting racism in the church, overshadowed the quiet removal of the doctrine of blood atonement; thus, it is still considered by many Mormons to be a legitimate doctrine. Regardless of the debates within Mormonism concerning the legitimacy of the doctrine, it is still widely recognized as a valid doctrine by the laity.[xlvii]
The doctrine of blood atonement requires that the guilty party’s blood literally be spilled. In other words, dying by lethal injection would not permit the guilty party to be absolved of such heinous sins as adultery, rape, or murder. When Ronnie Lee Gardner was sentenced to death in Utah, after exhausting his appeals, he requested death by firing squad, which was granted and carried out by five law enforcement officers. Thus, according to the doctrine of blood atonement, Gardner would have been absolved of his sins. One Mormon historian, William Bagley, believes that death by firing squad is rooted in Utah’s history as a Mormon sanctuary. He stated, “We have the last firing squads in the country as a legacy of Mormon theology.”[xlviii]
Due to the significance of the doctrine of blood atonement in both official and unofficial Mormon theology, as well as the recency in which it was removed from official doctrine, it is reasonable to conclude the theological position will continue to influence the moral arguments in support of the death penalty in Utah. Furthermore, the LDS church continues to hold the death penalty as a legitimate punishment to be carried out by the State.[xlix] Until the church’s theological position changes, abolishing capital punishment in Utah will be extremely difficult.
Moral Arguments Used to Justify Abolishing the Death Penalty in New Jersey
New Jersey is a recent example of a state that abolished the death penalty. In 2007, the remaining eight inmates on death row had their death sentences commuted to life sentences without the possibility of parole.[l] In 2005, state legislators voted to suspend executions and appointed a commission to study the fairness and expense of capital punishment. After the committee reported its findings, a bill to replace the death penalty with a sentence of life without the possibility of parole passed both the Senate and General Assembly and was signed into the law by Governor Jon Corzine.[li]
The commission appointed by the state legislature analyzed seven issues in relation to capital punishment, and an eighth in relation to supporting the murder victims’ families.[lii] Of these seven, two can reasonably be categorized as purely moral questions. First, the commission considered whether the death penalty was inconsistent with evolving standards of decency.[liii] Second, they weighed the penological interest in executing a small number of persons guilty of murder against the risk of making an irreversible mistake (i.e., killing an innocent person).[liv]
The commission concluded that there was increasing evidence that capital punishment was inconsistent with the evolving standards of decency.[lv] After providing polling data that convincingly demonstrated that support for the death penalty had dropped substantially in New Jersey, the commission presented testimony from religious leaders who had testified before the commission.[lvi] Understandably, with New Jersey’s large Catholic population, the Commission invited the Bishop of the Catholic Diocese of Trenton, Rev. John M. Smith to testify. Smith stated that the death penalty is not consistent with evolving standards of decency. He further testified that the United States Conference of Catholic Bishops recently launched a campaign to end capital punishment, and provided a statement by the Catholic Bishops of New Jersey urging the State to abolish the death penalty.[lvii] Likewise, as the state with the fourth-largest Jewish population in the United States, the commission interviewed one of the state’s leading Rabbis, Gerald Zelizer of Congregation Neve Shalom in Metuchen.[lviii] Zelizer testified that the Conservative and Reform sects of Judaism had passed several resolutions the prior decade calling of the complete elimination of the death penalty because it violated their religious principles.[lix] He further testified that Judaism had likewise gone through an evolution of morality concerning the death penalty. Nearly two millennia ago, Judaism, according to Rabbi Zelizer, had eliminated the possibility of executions. Moreover, he attempted to draw parallels between the moral evolution in Judaism and the evolving morals of the people of New Jersey concerning opposition to capital punishment. He stated that the fear of executing innocent people and that there were other ways to deal with criminals were reasons that the opinions about the death penalty in New Jersey have evolved.[lx]
Although the commission addressed a second moral issue by examining the possibility of executing an innocent person, it made no reference to theological positions or religious leaders in its findings. However, the commission did interview the assistant director of Centurion Ministries, which is located in Princeton, New Jersey.[lxi] Centurion, according to its mission page, “was the first organization in the world dedicated to the vindication of the wrongly convicted. Since 1983, we have freed 63 men and women who were serving life or death sentences for crimes they did not commit.”[lxii] Moreover, Centurion ministries began when the founder, Jim McCloskey, felt a call to Christian ministry and entered Princeton Seminary to earn a Master of Divinity degree.[lxiii] Although Centurion does not list any specific doctrinal positions, it is reasonable to deduce that theological beliefs influenced the founding of the ministry; namely, because the founder felt a call to Christian ministry and received credentials in divinity. The fact that the commission used the ministry’s work and testimony in its findings further suggests the role that religion and theology play in the ongoing debate about the morality of the death penalty.
The abolition of the death penalty in New Jersey was the result of a coalition of secular and religious institutions and people. While theology may not have been significant in each issue that the New Jersey commission considered, the fact that two of the seven primary issues included testimony from religious leaders, who themselves are recognized as theological authorities in their respective religious communities, and the testimony of a Christian ministry committed to exonerating the innocent, it is reasonable to conclude that theological beliefs played an important role in formulating the moral arguments against capital punishment in New Jersey.[lxiv]
The history of the death penalty in Michigan, Utah, and New Jersey demonstrates that theology, whether articulated in formal theological arguments or announced by leading religious leaders, has and continues to play a significant role in the moral arguments for and against the death penalty. Furthermore, the synopsis of each state’s expansion or abolition of the death penalty was influenced, in varying degrees, by theological positions about capital punishment. While theological arguments were once at the center of the debate for an against capital punishment, they are now part of a more comprehensive approach that includes issues about the effectiveness and economics of capital punishment. Yet, theology and theologians continue to shape aspects of the debate, particularly issues surrounding the sanctity of life, the importance of retribution, and the danger of executing innocent persons.
A CLOSER EXAMINATION OF THE COMPETING THEOLOGICAL VIEWS ON CAPITAL PUNISHMENT
While there is no consensus on the origins, authenticity, or accuracy of the Bible among contemporary theologians, the text of the Old and New Testaments are universally used by both liberal and conservative theologians in support of their arguments for and against capital punishment. At both ends of the spectrum, theologians appeal to interpretations and applications of the biblical text to either substantiate or support their positions. On the end, conservatives, who believe that the Bible is inspired by God, appeal to various verses, such as Genesis 9:6 and Romans 13, as texts in support of capital punishment. At the opposite end of the spectrum, liberal theologians (both Jewish and Christian) rely heavily upon the history of biblical interpretation, claiming that the majority of both Jews and Christians throughout history have understood and used the scriptures as the basis for opposing capital punishment. Understanding the different ways theologians interpret and apply the biblical text is important if one is going to understand the theological arguments that affect and shape the moral arguments for and against capital punishment.
Theological Arguments: The Progressive Position on the Death Penalty
The progressive or liberal theological position on the death penalty is primarily based on an alleged dichotomy between the law, as enumerated in the Old Testament, and the mercy displayed in the life of Jesus of Nazareth (i.e., Jesus Christ), which is recorded in the four canonical Gospels. To understand this apparent contradiction, one must differentiate between the Old and New Testaments and read them as two distinct works, with each representing a different religion. For example, instead of referring to the 39 books (Genesis – Malachi) as the Old Testament, progressive scholars refer to them as the Jewish Scriptures or as the Hebrew Bible. Likewise, the 27 books of the New Testament (Matthew – Revelation) are referred to as the Christian scriptures. Although using different nomenclatures to describe a recognizable division int the Bible may seem harmless, the contrast is intentionally used to draw a distinct line in how each is to be interpreted.
The progressive position on the death penalty is based on a specific hermeneutical principle; namely, that the Old Testament (i.e., Jewish Scriptures) are not to be read literally, nor are they literally applicable to modern society. For example, Genesis 9:6, which states, “Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image,”[lxv] is not to be read literally nor applied to modern criminal laws. The reasons such verses are (largely) irrelevant in the progressive view is described by James Megivern, who writes, “There is nothing so fruitless as wrangling over the meaning of the Bible when the real object of the debate should be the presuppositions brought to its interpretation.” [lxvi] That is, debating the meaning of the aforementioned text is, according to Megivern, not the goal of biblical interpretation. Instead, he suggests that one must consider the cultural, political, and religious beliefs one is attempting to substantiate before reading the text, only then can one effectively (and accurately) read the Bible. Thus, the meaning (or revelation) is not, according to progressives, encapsulated in the text but found in the reader’s own biased reading. Therefore, reading a biblical text that is contrary to modern standards of decency or the evolving social norms is unacceptable. Megivern decries those who would read the Bible otherwise, writing, “the biblical literalism that dominated the past has given way to methods that demand greater sophistication in using the Bible.” [lxvii] Megervin’s reading of the Mosaic law is a drastic shift from both the orthodox Jewish and historic Christian readings. He writes, “Language has many uses. Law codes are not automatically to be understood literally as simple mirrors of practice. One function of [the Mosaic Law’s] judicial death threat was to get people’s attention, to lay down a solemn warning, to alert all to the extreme seriousness of certain misdeeds.”[lxviii] Megivern believes that capital punishment, as prescribed in the Mosaic law, was simply pedagogical and not actually carried out.[lxix] He refers to these texts in the Old Testament as “dead letters.”[lxx]
Megivern’s approach to reading and interpreting the Bible, particularly the Old Testament, is representative of progressive theologians. Adopting this approach allows both Jews and Christians to read the Old Testament in a way that is compatible with modern societal ethics and norms. Thus, one is not required to read the nearly 40 offenses that required the death penalty in the Old Testament as either literal or applicable. Instead, they can be read in light of contemporary norms and be relegated to providing warnings, values, or principles that can be shaped or modified to justify modern moral arguments.
Theological Arguments: The Conservative Position on the Death Penalty
The two primary arguments used by conservative theologians to support capital punishment are in direct contrast to those espoused by progressive theologians. First, conservative theologians view the Bible as one divinely inspired book and considered both the Old and New Testaments as Christian scriptures. Second, they interpret biblical texts, such as Genesis 9:6 and Romans 13, as binding on both Christians and contemporary governments. For example, their interpretation of Romans 13:1-7 is used to justify governmental authority over its citizens. This interpretation views the government as the agent of God. Furthermore, carrying out executions is viewed as a legitimate exercise of civil government. This belief is based on conservative scholars’ interpretation of Romans 13:4, which says, “But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer.”[lxxi] By bearing the sword, the government is justified in executing the condemned.
Likewise, conservative scholars interpret Genesis 9:6 as providing a timeless justification for capital punishment.[lxxii] That is, the command in Genesis 9:6 is given immediately after the flood narrative and predates the Mosaic Law, which is given at Sinai and recorded in Exodus, Numbers, Leviticus, and Deuteronomy.[lxxiii] Thus, it is considered a principle text that supports the establishment of civil government and both supersedes the Mosaic law and continues even after the fulfillment of the Law by Jesus Christ. Furthermore, it is common for conservative theologians to view the Romans 13 passage as an exposition or continuation of the command in Genesis 9:6.[lxxiv]
While it may difficult for those outside of conservative churches to appreciate the interpretative methods and conclusions espoused by conservative theologians, their influence is still significant in the Southern states. The Southern Baptist Convention (SBC), which is the largest protestant denomination in the United States with 46,000 churches and 16 million members, is one of the few groups to openly support capital punishment. The SBC’s resolution, which passed in 2000, emphatically supports capital punishment, stating, “WHEREAS, God authorized capital punishment for murder after the Noahic Flood, validating its legitimacy in human society (Genesis 9:6).” One would be remiss to not consider the impact that this theological statement has on clergy and laity in SBC churches throughout the South. The theological arguments in support of capital punishment in the states where the SBC has a significant presence will make abolishing the death penalty a long and difficult challenge, if not impossible.
Theological Arguments: The Catholic Position on the Death Penalty
Pope John Paul II’s Evangelium Vitae (trans. The Gospel of Life), published in 1995, was focused primarily on reiterating the Catholic Church’s pro-life doctrines. Yet, the Pope’s admonition pronounced a tentative position on capital punishment.[lxxv] This pronouncement by the Bishop of Rome created a doctrinal shift in the Church to such a degree that a new catechism had to be published, although an updated catechism had been published just a few years prior. Commenting on the doctrinal changes, the then-Cardinal Joseph Ratzinger (who later became Pope and changed his name to Benedict XVI) explained the theological shift on the capital punishment as doctrinal progress.[lxxvi] The Cardinal explained that the new encyclical’s teaching, which restricted the use of the death penalty to very rare, practically nonexistent cases, represented an important doctrinal progress that would require some reformation of what had been written in the Catholic Catechism.[lxxvii] These rare cases were limited to the most extreme circumstances, such as when the only way to prevent the condemned murder form murdering again is to execute him. It is difficult to imagine how such a case could be both feasible and justifiable in any culture, let alone in Western civilizations. Before executing the condemned, it is entirely possible to completely isolate him from any human contact by placing him in permanent solitary confinement. Thus, in reality, the Catholic church had adopted an abolitionist position. A trained canon lawyer could have, at the time of the Pope’s proclamation, simultaneously argued that the Church’s official position was in support of capital punishment and that the Church cannot condone the application of the death penalty in any contemporary context. In an attempt to balance the tension between the Church’s historic support of capital punishment and the evolving positions of its priests and laity, the church proffered a position that was inconsistent. This attempt to walk the theological line may explain the divide among Catholic support and opposition of the death penalty in the United States. As recently as 2016, Catholics were divided with 53% in favor of the death penalty and 42% opposing the death penalty.[lxxviii]
However, in the summer of 2018, the current Pope Francis took the final step to making official what had in reality been the church’s position since Pope John Paul II’s Evangelium Vitae by publicly proclaiming that capital punishment is inadmissible and an attack on the dignity of the person.[lxxix] This theological statement will undoubtedly embolden Catholic legislators, both Republican and Democrat, to openly oppose capital punishment. John Gehring, the Catholic program director at Faith Public Life stated that he believed that the Pope’s public proclamation was meant to influence politicians in an attempt to elevate the abolition of capital punishment as a definitive pro-life issue.[lxxx] This theological shift will likely embolden Catholics who already opposed capital punishment. Furthermore, by making opposition to capital punishment official Church doctrine, the Pope has provided a religious validation for Catholics who had supported the death penalty to now oppose it.
As societal norms and moral standards continue to shift in the United States it is likely that more states will abolish the death penalty. Likewise, the theological opposition to the death penalty promulgated by the current Pope of the Catholic Church will also provide greater support for abolition in states with large Catholic populations. However, states where Southern Baptists or Mormons have a significant population will likely continue to keep the death penalty on the books for years to come. Southern Baptists and Mormons, although they differ on the final source of authority and are theologically distinct from one another, are both highly committed and effectively organized to provide substantial support for capital punishment in their respective states.
Any attempt to engage in the moral debate must not neglect consideration of the theological positions in support and opposition of the death penalty. Although biblical principles are not at the center of the secular debate to the degree they were when Michigan abolished capital punishment, theological arguments founded in either biblical texts or illustrated in the life of Jesus do still play a significant role in contemporary moral arguments, both for and against the death penalty. Ignoring the influence of theology, which varies in degree and by state, will leave a substantial gap in the larger conversation on the morality of capital punishment.
By Dr. Thomas W. Francis Jr.
Note: This article was written as an objective research paper meant to present competing views. My evaluation or presentation of any particular view should not be construed as an endorsement or condemnation of that position. To be clear, I believe that the Bible is one coherent book that contains the divine and authoritative revelation of God. Furthermore, I believe that the Old and New Testament texts are inspired, inerrant, and infallible. Finally, I believe that capital punishment is a legitimate exercise of the State’s God-given authority. However, I believe that the death penalty should be reserved for only the most extreme and heinous crimes.
[i]Innocence Project; accessed on October 9, 2019; https://www.innocenceproject.org/cameron-todd-willingham-wrongfully-convicted-and-executed-in-texas/
[iv] Borger, Julian, “A glance, a nod, silence and death.” The Guardian (June 11, 2001), accessed October 9, 2019; https://www.theguardian.com/world/2001/jun/12/mcveigh.usa
[v] For the purposes of this paper, the phrases “moral argument” and “theological argument” will not be used synonymously. Moral arguments are arguments that may or may not be based on a religious or theological position, and may be held or espoused by secularist or religious persons. Moral arguments, as used in this paper, do not require any reference to a religion, philosophy, or ideology; they may, in fact, be entirely subjective. However, theological arguments are those based on a recognized and revelatory religion (e.g., Christianity, Mormonism). Although non-religious persons use theological arguments, theological arguments do not merely become moral arguments because they are espoused by a non-theologian. Theological arguments are distinguishable primarily because they appeal to some form of revelation, whether in written or oral form.
[vi] God and the Executioner: The Influence of Western Religion on the Death Penalty. Davison M. Douglas
[vii]Throughout this paper, unless otherwise specified, I will use the phrase “death penalty” as a synonym for capital punishment.
[viii]In addition to the federal government and the United States Military, the following states have retained the death penalty: Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming.
[ix]States that have abolished the death penalty or declared it unconstitutional: Alaska, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, Washington, West Virginia, and Wisconsin.
[x]The first state to abolish the death penalty was Michigan in 1847. The most recent state to abolish capital punishment was New Hampshire in 2019.
[xi]Death Penalty, Gallup, accessed October 9, 2019; https://news.gallup.com/poll/1606/death-penalty.aspx
[xv] Ethics Guide, “Arguments against capital punishment,” BBC, accessed October 9, 2019; http://www.bbc.co.uk/ethics/capitalpunishment/against_1.shtml
[xvi] National Coalition to Abolish the Death Penalty, “People of Faith Speak Out,” accessed October 9, 2019; http://www.ncadp.org/pages/faith-in-action; See also, Church & Society, The United Methodist Church, “We unequivocally oppose the death penalty and urge its elimination from all criminal codes,” accessed on November 1, 2019; https://www.umcjustice.org/what-we-care-about/civil-and-human-rights/death-penalty
[xvii] New World Encyclopedia, “Lex talionis,” accessed November 1, 2019; https://www.newworldencyclopedia.org/entry/lex_talionis
[xviii] House Joint Resolution H as introduced First Analysis (4-21-99), 1.
[xxi]Death Penalty Information Center podcast transcript; accessed October 9, 2019; https://files.deathpenaltyinfo.org/legacy/podcast/resources/podcastMI.pdf
[xxii] Podcast transcript on Michigan abolition of death penalty, “In 1837, a seemingly ordinary execution took place in Canada when an accused murderer named Patrick Fitzpatrick was put to death. Fitzpatrick had steadfastly maintained his innocence and he might have been exonerated, but unfortunately, a confession by the real murderer did not occur until shortly after Fitzpatrick’s execution. This case had a profound effect on legislators not only in Canada but also in the nearby territory of Michigan. Only ten years after this fatal mistake, Michigan became the first English speaking jurisdiction, and the first US state, to abolish the death penalty for all crimes other than treason. Michigan’s path to abolition paved the way for many other US states and foreign countries to end capital punishment.”
[xxiii]For the purposes of this paper, unless otherwise specified, I will use the terms “biblical” and “theological” interchangeably in relation to theological arguments for and against capital punishment. Although different religious ideologies have and will continue to have an impact on moral issues in America, the most prevalent theological arguments in the past 200 years of political and legal debate have been largely shaped by interpretations of the Bible. Furthermore, the four major religions in the United States, either by size or status, Christianity, Mormonism, Judaism, and Islam all recognize the Bible, in so form and to some extent, as authoritative.
[xxiv] Michigan Constitutional History, page. 40; Genesis 9:6 “Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image” (English Standard Version).
[xxv] Death Penalty Information Center, “Michigan,” Date Accessed: October 1, 2019; https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/michigan
[xxviii] 408 U.S. 238 (1972)
[xxix] History of the Death Penalty: Reinstating the Death Penalty; accessed: November 1, 2019; https://deathpenaltycurriculum.org/student/c/about/history/history-6.htm
[xxx] Death Penalty Information Center, “Utah,” accessed; November 1, 2019; https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/utah
[xxxi] Gillespie, Kay, “Capital Punishment in Utah,” Utah History Encyclopedia; accessed November 1, 2019; https://www.uen.org/utah_history_encyclopedia/c/CAPITAL_PUNISHMENT.shtml
[xxxii] Dobner, Jennifer, “Eyewitness: Ronnie Lee Gardner execution,” (June 18, 2010), The Telegraph; accessed on October 10, 2019; https://www.telegraph.co.uk/news/worldnews/northamerica/usa/7837976/Eyewitness-Ronnie-Lee-Gardner-execution.html
[xxxiii] Utah State Legislature, H.B. 11 Death Penalty Procedure Amendments, accessed October 9, 2019; https://le.utah.gov/~2015/bills/static/HB0011.html
[xxxiv] Id., House – 2015 General Session – Day 19, Video of Floor Debate, accessed October 9, 2019; https://le.utah.gov/av/floorArchive.jsp?markerID=90707
[xxxvi] “Support for death penalty stronger in Utah than nationally, poll shows,” The Salt Lake Tribune; accessed October 9, 2019; https://archive.sltrib.com/article.php?id=4452272&itype=CMSID
[xxxvii] “Death Penalty,” Gallup; accessed October 9, 2019.; https://news.gallup.com/poll/1606/death-penalty.aspx
[xxxviii] “Fewer Mormons live in Utah’s biggest county, poll figures show,” The Spectrum (December 15, 2018); accessed on October 10, 2019; https://www.thespectrum.com/story/news/2018/12/15/mormons-utah-fewer-lds-church-members-live-salt-lake-county/2323877002/
[xxxix] “Mormons account for nearly 90 percent of state Legislature,” AP News (January 27, 2019); accessed November 15, 2019; https://apnews.com/286983987f484cb182fba9334c52a617
[xli] “Doctrines and Covenants: 132,” The Church of Jesus Christ of Latter Days Saints, accessed: November 15, 2019; https://www.churchofjesuschrist.org/study/scriptures/dc-testament/dc/132?lang=eng
[xlii] “Utah’s very interesting path to statehood,” Constitution Daily; accessed November 15, 2019; https://constitutioncenter.org/blog/utahs-very-interesting-path-to-statehood
[xlv] Mason, Patrick, “For Mormons, a Contested Legacy on Capital Punishment,” The Table (January 19, 2016); accessed November 15, 2019; https://religionandpolitics.org/2016/01/19/for-mormons-a-contested-legacy-on-capital-punishment/
[xlvi] Turner, John, “Why Race is Still a Problem for Mormons,” The New York Times (August 18, 2012); accessed November 15, 2019; https://www.nytimes.com/2012/08/19/opinion/sunday/racism-and-the-mormon-church.html
[xlvii] Although the official LDS church does not officially endorse the doctrine of blood atonement, there are a number of different Mormon denominations that consider the doctrine as valid.
[xlviii] “Execution by Firing Squad Will Be First in 14 years,” All Things Considered, NPR (June 17, 2010); accessed: November 15, 2019; https://www.npr.org/templates/story/story.php?storyId=127905527
[xlix] The LDS church’s public statement on the death penalty is that the Church neither endorses or opposes capital punishment. https://newsroom.churchofjesuschrist.org/official-statement/capital-punishment
[l] Death Penalty Information Center, “New Jersey,” accessed on November 1, 2019; https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/new-jersey
[lii] New Jersey Death Penalty Study Commission Report, January 2007; accessed November 1, 2019; https://www.njleg.state.nj.us/committees/dpsc_final.pdf
[liii] Id., 23.
[lv] Id., 35.
[lvi] Id., 36.
[lxi] Id., 52.
[lxv] Bible Gateway; accessed: November 1, 2019; https://www.biblegateway.com/passage/?search=Genesis+9%3A6&version=ESV
[lxvi] Megirven, James, The Death Penalty: An Historical and Theological Survey, Paulist Press: New York (1997), 9.
[lxvii] Id., 9.
[lxviii] Id., 11-12
[lxix] Id., 12.
[lxxi] Bible Gateway, accessed: November 1, 2019; https://www.biblegateway.com/passage/?search=Romans+13&version=ESV
[lxxii] The conservative position is only one strand of a larger protestant or evangelical understanding of the Bible. For an overview of multiple protestant interpretations of Genesis 9 and Romans 13, see John S. Feinberg and Paul D. Feinberg, “Ethics for a Brave New World.” Crossway Books: Wheaton, Illinois (1993).
[lxxiii] This view is consistent with Dispensational theology which has been made popular by the Scofield Study Bible and theologians such as Charles Ryrie and John MacArthur.
[lxxiv] Id., p. 140.
[lxxv] Garcia, Benjamin, Brind’Amour, Katherine, “Evangelium Vitae (1995), by Pope John Paul II”. Embryo Project Encyclopedia (2007-11-11). ISSN: 1940-5030 http://embryo.asu.edu/handle/10776/1735; Frontline, The Death Penalty: Pro and Con, https://www.pbs.org/wgbh/pages/frontline/angel/procon/popestate.html
[lxxvi]Megirven, James, The Death Penalty: An Historical and Theological Survey, Paulist Press: New York (1997), 1.
[lxxviii] Berkowitz, Bonnie, Joe Fox, and Madison Walls, “On death penalty, pope diverges from his U.S. flock; The Washington Post (August 3, 2018); accessed November 1, 2019; https://www.washingtonpost.com/graphics/2018/politics/death-penalty-catholics/
[lxxix] Harlan, Chico, “Pope Francis changes Catholic Church teaching to say death penalty is inadmissible,” The Washington Post (August 2, 2018); accessed: November 1, 2019; https://www.washingtonpost.com/world/pope-francis-changes-catholic-church-teaching-to-say-death-penalty-is-inadmissible/2018/08/02/0d69ef5e-9647-11e8-80e1-00e80e1fdf43_story.html