Today’s essay by Daryl Charles makes the case for capital punishment for those guilty of premeditated murder. Tomorrow’s essay will be a reply by John O’Callaghan, who argues for the abolition of the death penalty.
Our culture is morally confused about many things. Conservative Christians tend to focus on concerns about hot button issues like abortion, sexuality, relativism, and education. But one phenomenon that is overlooked but no less urgent is murder. A mere listing of mass killings occurring in the United States in recent years boggles the mind. The year 2022 alone, by all counts, surely must be record-setting. As I write (early October of 2022), one reads that a fifteen-year-old in Raleigh, North Carolina goes on a shooting spree, killing five (including his brother and an off-duty police officer) as he walks through a neighborhood; that five people have been shot in a northern South Carolina home; that in Bristol, Connecticut, two police officers are fatally shot and a third wounded in responding to a domestic violence call (which is said to have been a ploy to lure the officers); and that a thirty-two-year-old is charged with two counts of murder and six of attempted murder following a stabbing melee on the Las Vegas Strip. In the same week we read that four bodies have been found in the Oklahoma River. And this just in: a Florida jury recommends a life sentence without parole instead of the death penalty for the man who murdered seventeen people at Marjory Stoneman Douglas High School in 2018.
These randomly selected tragedies, of course, only identify the tip of the iceberg. Most of our cities are currently reeling from the sheer frequency of killings that have descended on our streets, our neighborhoods, our families, and even our schools. In the four months of June, July, August, and September of 2022, there were respectively 73, 100, 71, and 70 mass shootings, with the total numbers of injured or dead being 297, 439, 262, and 272 respectively. Tucked away in these numbers are the horrendous tragedies and suffering that have visited communities such as Orlando, Uvalde, and Buffalo. According to the Marshall Project, more mass shootings (i.e., of four or more victims) have occurred in the last five years than in any other half decade since 1966.
The barbarism behind increasing murder rates suggests that debates over capital punishment should intensify. But this has not been the case. In fact, what is striking is the relative absence of discussion and debate of the death penalty. On the rare occasions when the death penalty is discussed today, it is almost always viewed unfavorably. The abolitionist argument takes any number of forms: the mental health of the murderer; the possibility of prematurely ending a criminal’s rehabilitation; debates over deterrence; the misconstruction of retribution as revenge (i.e., retributivism); fallibility of the criminal justice system; and modern notions of “civility.” Religiously motivated abolitionists sometimes point to the annulment of the Mosaic code, assumed ethical discontinuity between the Old and New Testaments; and Christ’s teaching on forgiveness.
We have grown intolerant of meting out punishment that is perceived as “cruel” or “barbaric.” Strangely, however, our abhorrence of penal “barbarity” is displayed against the backdrop of increasingly barbaric criminal acts themselves. Indeed, until very recently, capital punishment was almost universally affirmed biblically, morally, and legally.
Christian History and Capital Punishment
Even though abolitionist arguments have been dominant in recent decades, it is worth recalling that for most of history, a variety of civilizations have used the death penalty and grounded it in serious moral reflection. Capital punishment was practiced in the earliest recorded history. Its prescription appears in the mid-eighteenth-century-BC Code of Hammurabi, in sixteenth-century-BC Assyrian codes, in fifteenth-century-BC Hittite codes, in the thirteenth-century Mosaic Code, as well as in ancient Greek and Roman law.
Among the church fathers, one finds varying perspectives on the death penalty, although there is a general recognition of the state’s responsibility to implement capital justice. Tertullian (late second century) and Lactantius (late third century) affirmed that in the case of murder divine law consistently required a life for a life. Both Augustine (late fourth and early fifth century) and Theodosius II (mid-fifth century) acknowledged the state’s role in mediating capital sanctions. In addition, various councils from the seventh century (the Eleventh Council of Toledo) to the thirteenth (the Fourth Lateran Council) followed the lead of Leo the Great (fifth century) in forbidding clerics from engagement in matters of capital justice, even as they understood the state’s legitimate role in facilitating such matters.
In the Summa Contra Gentiles, Aquinas insisted that the community had both the right and the duty to “cut away” an individual in order “to safeguard the common good.” The common good, he reasoned, is “better than the good of the individual,” notably because “certain pestilent fellows” who serve as “a hindrance to the common good, that is, to the concord of human society.” Such persons, he concluded, therefore “are to be withdrawn by death from the society of men.”
Late medieval and Reformation-era theologians also affirmed the state’s duty before God to impose capital sanctions upon murderers. Even the so-called “left wing” of the Protestant reform movement—from which much modern religious opposition to capital punishment is thought to derive—recognized the death penalty. The Schleitheim Confession of 1527, an exemplary document adopted by the Swiss Brethren (the progenitors of earliest Anabaptism), reads: “The sword is an ordinance of God. … Princes and Rulers are ordained for the punishment of evildoers and putting them to death.” This Anabaptist declaration concurs with the 1580 Lutheran Formula of Concord, which prescribes for “wild and intractable men” a commensurate “external punishment.” In summary, the patristic, medieval, and late medieval periods generally mirror the church’s tacit acknowledgment of capital punishment in cases of murder.
There has been much debate about the place of capital punishment in Catholic social thought, but the pre-2018 version of the Catechism of the Catholic Church articulates the most sound position on the topic:
Preserving the common good of society requires rendering the aggressor unable to inflict harm. For this reason the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty. (no. 2266, emphasis added)
The Church’s teaching on the death penalty historically finds expression in Thomas Aquinas’s question “Is it legitimate to kill sinners?” (S.T. II-II, Q. 64.2). His response is predicated on “the common good,” with an analogy. If the well-being of the whole physical body requires the amputation of a limb, the treatment is to be commended. “Therefore if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good, for a little leaven sours the whole lump.” What is forbidden, Aquinas argues later, is to take the life of an innocent person (Q. 64.6).
It is no surprise that for most of Christian history, the death penalty was widely embraced. To understand the theological basis for capital punishment, we must first look to the nature of law. Fundamental to the biblical story is the depiction of the Creator as Lawgiver. Law, as the reader of the biblical narrative discovers, is of no human origin, nor does it issue out of pragmatic or popular consent. Its authority issues not out of cultural or intellectual enlightenment but from the universal created order. Whether individual cultures and regimes recognize this reality is, of course, another matter. Yet the effects of moral law are as the law of gravity: its disregard always and everywhere results in the rotting of social culture.
In a remarkable—though little remembered—series of homilies in 1976 (eventually published under the title Sign of Contradiction), Karol Wojtyła, at the time Archbishop of Cracow, delivered a sustained reflection on the question of man’s purification from sin in the present life. Guilt incurred by sin, he observed, constitutes a debt in the present order that must be paid. Punitive dealings, thus, provide necessary atonement and restore the balance of justice and moral order that has been disturbed. In theological terms, they prepare the human being for a destiny in eternity.
In Sign of Contradiction, we find the necessary response to religious abolitionists who ground their bias against capital punishment in a particular (mis)reading of Jesus’ teaching in the Sermon on the Mount and a purported “forgiveness” ethic. Pitting a misinterpreted Jesus against Paul, they ignore ethical continuity in the broader sweep of biblical revelation and prefer, based on the flaws of human government, to dismiss its divinely instituted commission to punish evil and reward good.
This defect in religious thinking—“the cross is not a sword”—demonstrates conspicuous disregard for what is recorded in the text of Genesis 9, where God makes his covenant with Noah after the flood, the implications of which are stated in universal terms. It is precisely because the human being is fashioned in the image of God that one who purposely sheds the blood of another must die. Genesis 9:5–6 is to be understood foremost as an institution that protects life, in accordance with the Decalogue’s pronouncement “Thou shalt not murder.” The rationale for this morale imperative is none other than the safeguarding of human life. Retribution discourages invasions on the sanctity of the human creature. (Here let us pause for a moment: any society that advances an “inversion ethic” of killing human beings in utero while refusing to take the life of a convicted murderer should strike us as barbaric.) The Genesis narrative suggests that premeditated murder is an assault on human life and is comparable, as it were, to an assault on the very being of God. The fact that justice demands punishment befitting the crime—i.e., just retribution—reveals the essential difference in character between revenge and retribution.
Having been created in the imago Dei, human life is a sacred trust. The implication is clear: murder—i.e., the deliberate extermination of a life by another human being—is tantamount to killing God in effigy. Moreover, as confirmed in Mosaic legislation, premeditated murder is the one crime for which there exists no restitution. As C. S. Lewis noted in his wonderfully prescient essay, “The Humanitarian Theory of Punishment,” to be punished however severely because we in fact deserve it is to be treated as a human being created in the very image of God.
Justice, Charity, and Restitution
When a murder occurs in our community, we are obliged, regardless of our comfort level, to clear our throat as it were and make a public, communal declaration. The deliberate extermination of another human being is an absolute evil and therefore absolutely intolerable. Period. This was the argument advanced by David Gelernter in a 1998 Commentary essay. Gelernter, a professor of computer science at Yale who was letter-bombed in June of 1993, almost lost his life. The essence of Gelernter’s argument was that we execute murderers in order to make a communal statement: deliberate murder embodies evil so terrible that it defiles the community, and as a result the community needs catharsis that occurs through criminal justice properly construed. Gelernter correctly noted that in the face of murder, contemporary society, however, is more prone to shrug it off than to exact just retribution and affirm binding moral standards.
Justice has classically been defined as rendering to each person what is due. Desert, then, is foundational to ethics; it is a part of the human moral intuition. Parents know this, children know it, and indeed people from Kansas to Canada to Kenya to Kazakhstan know it as well. Retributive justice, then, is a social good, for it corrects social imbalances and perversions. Herein we find the wedding of justice and charity. When through social attitudes and the rule of law we affirm retributive justice, we are addressing several levels of “imbalance” and disturbance: we are attentive to (1) the victimized party who has been wronged, (2) society at large, which has been offended and is watching, and (3) future offenders who might be tempted to do evil. This trifold application of justice, as Augustine and Aquinas understood it, was in fact an application of charity. And as an extreme example, both saw going to war as an act that can express the wedding of charity and justice properly construed: it is charitable to prevent the criminal (whether domestically or in war) from doing evil, and it is charitable toward society, which needs protecting.
Punishment for a crime and restitution for the victim are interrelated concepts. In the case of premeditated murder, compensation is not available. Hence, as much of human history attests and as the biblical witness affirms, it is the one crime that carries a mandatory death sentence. To suggest or argue that the ultimate human crime should not be met with the ultimate punishment being meted out by civil authorities, at least in a relatively free society, is not some “higher” ethic as some might contend; nor is it “Christian” by any stretch of the imagination. Rather, it is a moral travesty because it fails to comprehend the nature and meaning of the imago Dei.
Civilized societies do not tolerate the murder of innocent human beings; uncivilized regimes do.