A Call to Dialogue on Capital Punishment

By Dan Van Ness
Dan Van Ness explores three questions about the death penalty


One of the more pressing criminal justice issues in the 1990s is capital punishment. Approximately 2,800 men and women are now on death row in the United States. Courts are becoming reluctant to delay executions, and the U.S. Supreme Court has settled most of the key constitutional issues in death penalty cases.

In a major change in public opinion from 30 years ago, most Americans now favor capital punishment, although not dogmatically1. When people are presented with stringent alternatives (such as life in prison without parole), support for the death penalty drops considerably.

The public is not alone. The U.S. Supreme Court ruled in 1972 that executions are not inherently "cruel and unusual punishment." Courts have spent the last two decades determining how states can conduct death penalty proceedings constitutionally, and legislatures have been quick to modify state procedures to accommodate the courts' rulings. Prosecutors and judges have increasingly sought and imposed the death penalty.

The court-imposed moratorium on executions lasted only from the mid-1960s to the mid-1970s. Consequently, the country may soon witness daily executions. Some will welcome this and others bitterly oppose it.

Those who oppose the death penalty are not without support. Fourteen states and the District of Columbia have no death penalty statute2. New Hampshire has yet to impose a death sentence. And, of course, states that have passed capital punishment legislation can always repeal it.

Christians are typically divided on this issue. Some emphasize the Old Testament, particularly the books of the Law. Others focus on the words and actions of Jesus, or on the absence of explicit teaching on the subject in the New Testament. Still others explore practical issues concerning the death penalty, such as deterrence or the possibility of erroneous conviction.

Each of these concerns is important. But dialogue is sometimes frustrated by the lack of a useful, common approach.

The purpose of this working paper is to facilitate dialogue by raising three questions. Each question leads logically to the next. The questions are:

  1. Does Scripture prohibit, mandate, or permit capital punishment? If Scripture prohibits it, the next questions are irrelevant. But if Scripture mandates or permits the death penalty, the second question must be raised.
  2. According to Scripture, under what conditions may a state exercise capital punishment? After exploring these conditions, those who hold that Scripture merely permits capital punishment must proceed to the third question.
  3. What principles should guide the state in determining whether to exercise the death penalty?

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Question One:
Is capital punishment mandated, prohibited, or permitted?

Let's summarize the arguments for each position:

"Scripture mandates capital punishment."

The principal argument is that because life is sacred, those who wrongfully take another human life must lose their own. This is a form of restitution, a matter of justice-the state purging itself of those who shed innocent blood.

Proponents of this position cite three scriptural arguments for it: the "creation mandate" of Genesis 9:6; the Mosaic Law, which calls for the execution of certain offenders; and New Testament passages that imply the authority of the state to execute.

Genesis 9:6 says: "Whoever sheds the blood of a human, by a human shall that person's blood be shed; for in his own image God made human-kind" (NRSV). This is part of a larger covenant that God made with Noah after the flood. It not only reflects the great value of human life but also gives the reason for that value: Human beings are made in God's image.

The absolute language of Genesis 9:6 suggests that all those who kill another human being must be killed. And since this mandate was given long before the Mosaic Law to all who survived the flood, it apparently has universal application.

When God gave the law to the children of Israel at Mount Sinai, He included this provision. In fact, the law ordained execution for several offenses:

  1. Murder, but not for accidental killings (Ex. 21:12-14; Lev. 24:17; Num. 35:16-28)
  2. Striking or cursing a parent (Ex. 21:15; Lev. 20:9)
  3. Kidnapping (Ex. 21:16; Deut. 24:7)
  4. Adultery (Lev. 20:10; Deut. 22:22-24)
  5. Incest (Lev. 20:11-12, 14)
  6. Bestiality (Ex. 22:19; Lev. 20:15-16)
  7. Sodomy or homosexuality (Lev. 20:13)
  8. Unchastity (Deut. 22:20-21)
  9. Rape of a betrothed virgin (Deut. 22:25-27)
  10. Witchcraft (Ex. 22:18)
  11. Offering human sacrifices (Lev. 20:2)
  12. Incorrigible delinquency (Deut. 21:18-21)
  13. Blasphemy (Lev. 24:11-16)
  14. Breaking the Sabbath (Ex. 35:2; Num. 15:32-26)
  15. Worshiping or enticing to worship false gods (Ex. 22:20; Deut. 13:1-11)
  16. Refusing to abide by a court decision (Deut. 17:12)3

While no New Testament passage expressly mandates capital punishment, several imply its appropriateness. For example, in Romans 13 Paul calls his readers to submit to the authority of civil government, reminding them: "But if you do what is wrong, you should be afraid, for the authority does not bear the sword in vain!" (v. 4, NRSV). In its ultimate use, the word sword implies execution.

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"Scripture prohibits capital punishment."

Old Testament law clearly calls for capital punishment. So those who believe Scripture prohibits capital punishment argue that the developments of the New Testament era supersede Old Testament law. These developments include the dissolution of the nation of Israel, the atonement of Christ, and the teachings of Christ.

Israel was a theocracy, a nation ruled directly by God. Therefore, its law was unique. Provisions for executing false teachers and those sacrificing to false gods are examples of laws that sprang from Israel's unique position as a nation God called to be holy. When Israel ceased to exist as a nation, its law was nullified.

Even the execution of murderers stemmed, at least in part, from God's special relationship to Israel. Numbers 35 says that the blood of a murder victim "pollutes the land," a pollution that must be cleansed by the death of the murderer. If the murderer could not be found, an animal was to be sacrificed to God to purge the community of guilt (Deut. 21).

Christ's death on the cross ended the need for blood recompense and blood sacrifice. That is, the sacrifice of Jesus, the Lamb of God, replaced animal sacrifice. The substitutionary death of Jesus, the God-man, made it unnecessary to execute murderers to maintain humankind's dignity and value (Gen. 9:6). The death of Christ forever established humanity's value. Hebrews 9:14 says: "How much more, then, will the blood of Christ, who through the eternal Spirit offered himself unblemished to God, cleanse our consciences from acts that lead to death, so that we may serve the living God!" (NIV).

Christ's teaching emphasizes forgiveness and the willingness to suffer evil rather than resist it by force.
4 This may not be definitive on the issue of the state's authority to execute. But it demonstrates a different response to evil than that established on Mount Sinai. Christ's example in not demanding death for the adulteress supports this argument (John 8).

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"Scripture permits capital punishment."

Those who argue that the Bible permits capital punishment see strengths in both the pro and con arguments. However, they hold that God's dealings with capital cases in both the Old and New Testaments show that capital punishment is neither prohibited nor mandated.

As noted earlier, Scripture includes many provisions for capital punishment, beginning with Genesis 9:6 and continuing in the Mosaic Law. The Law significantly limited the scope of Genesis 9:6. For example, persons guilty of manslaughter or of accidentally causing another's death were exempted.

Jewish interpretation of the law reflects a great reluctance to impose the death penalty. For example: Circumstantial evidence was not admitted; eyewitnesses must have warned the accused that he or she was about to commit a capital crime; if the witnesses' testimonies differed, the accused was acquitted; those presumed to lack compassion could not rule on a capital case; and delays in the execution were sought if there was any chance of finding more favorable evidence or more effective arguments in defense.

Perhaps the most compelling arguments against the view that capital punishment is mandated are the examples of capital criminals who were not executed. When God punished Cain for murdering Abel, He not only spared his life (he was punished through banishment) but also marked him so others would not kill him for his crime. He promised to punish sevenfold anyone who killed Cain (Gen. 4:10-16).

David committed adultery with Bathsheba, then plotted to kill her husband, Uriah. But God did not demand David's death. Instead, He took the life of David and Bathsheba's first child (2 Sam. 11-12).

In John 8, Christ was asked to support the execution of a woman taken in adultery. He not only refused to condemn her but also suggested that only those without sin were qualified to perform the execution. He also did not condemn His disciples for doing unlawful work on the Sabbath (Luke 6:1-5).

Paul urged Philemon to accept Onesimus back into his household, even though runaway slaves were subject to death under Roman law.

Of course, God can always set aside His law. But in each of these examples, there is no indication that He was doing so. Instead, it appears that the punishment of death was a sanction that could be imposed but was not required.

The New Testament references to capital punishment are tangential. New Testament passages clearly assume the existence of the death penalty. For example, when Pilate asked Christ, "Don't you realize I have power either to free you or to crucify you?" Christ answered that all civil leaders receive their authority from God.
7 One would not expect Christ, at this point in His trial, to get into an argument over the death penalty.

Romans 13 probably comes closest to addressing the state's authority to execute. However, it refers to the state as having the "authority of the sword," not the obligation to execute. While this passage establishes the state's power to punish wrongdoers and exercise deadly force, if necessary, in administering justice, it does not require the state to execute murderers.

Christ said He did not come to abolish the law but to fulfill it. He declined to enforce the death penalty in the one capital case presented to Him, the woman taken in adultery.

So, is capital punishment mandated, prohibited, or permitted? Those who believe it is prohibited need go no further. But those who conclude it is either mandated or permitted must move to the second question.

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Question Two:
According to Scripture, under what conditions may a state exercise capital punishment?

The Old Testament Law didn't simply address the "whether" of capital punishment; it also spoke of the "how." Elaborate technical procedures were established for admitting evidence, appealing a verdict, and conducting an execution.

Each of these provisions need not be literally carried out today for death penalty statutes to meet biblical standards. For example, Deuteronomy 17 required the condemning witnesses to throw the first stones.8 This is impossible today, because stoning is not a current method of execution and would certainly be held unconstitutional.

However, there are principles behind this provision. It made witnesses responsible for the consequences of their testimony, thus encouraging truthfulness. It also required witnesses to dissociate themselves from the conduct of the accused.

What principles, then, can be drawn from the procedures established by the Mosaic law?

    The Mosaic 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" (Ex. 21:23-25 NIV).

The principle is that punishment must be proportionate to the offense. The extreme sanction of death should be considered only in the most serious offenses.

    Before a murderer could be executed, two witnesses had to confirm his or her guilt (Deut. 17:6; Num. 35:30).

This meant that capital crimes required a higher standard of proof than other offenses. Deuteronomy 19 says that two witnesses are needed to establish any case. But a party to the dispute, such as the victim, could be one of the witnesses. For example, the Pharisees accused Christ of blasphemy, challenging His claim to be sent from God. Christ said: "In your law it is written that the testimony of two witnesses is valid. I testify on my own behalf, and the Father who sent me testifies on my behalf" (John 8:17-18, NRSV).

The purpose of the Deuteronomy 19 provision was to avoid a "swearing contest" between the victim and the accused as the only witnesses. The victim had to support his charge with at least one other witness in order to prevail.

But a murder victim cannot testify. Thus, a murder case required at least two outside witnesses, instead of just one. These witnesses were required to participate in the execution to underscore the seriousness of the charge and encourage truthful testimony. The Jews apparently observed this technical requirement because they considered executing an innocent person a greater offense than letting a murderer go unpunished.9

  1. INTENT Numbers 35:22-24 exempts from the death penalty those who kill accidentally. The law therefore limited the "creation covenant" of Genesis 9:6 to those who kill intentionally. This suggests another principle of restraint-capital punishment should not be imposed when the offender did not act intentionally.
    Several provisions of the law insured that executions took place only after appropriate judicial procedure. For example, Numbers 35 provided for 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 presented his or her defense.

As noted earlier, Numbers 35 also said two eyewitnesses were required before the accused could be executed. And Deuteronomy 17:8-9 provided that priests or judges should hear any difficult case.

Each of these demonstrates that due process of law was required in all cases. The accused must be brought to trial, the trial must be supervised by persons qualified to do so, and certainty of guilt must be reached by a specific, technical procedure.

The issue was not simply whether the accused were guilty; it was also whether they had a fair chance to prove their innocence.

    Deuteronomy 24:16 says people cannot be held responsible for the crimes of their parents or children. This reflects two concepts: that a person is responsible for one's own actions, and that one is not responsible for the actions of another.
    Recognizing that wealth or indigence could influence the outcome of legal proceedings, the law stipulated that neither the rich nor the poor should have an advantage (Ex. 23:3, 6). The principle is that there should be equal justice regardless of economic or social status.
    Although the law sounds bloodthirsty, it was applied 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. Turn! Turn from your evil ways! Why will you die, O house of Israel?" (NIV). The lawgiver Himself was reluctant to impose the death penalty, preferring that the wrongdoers repent.

Perhaps this underlies the call for Christians to forego revenge (Rom. 12:19-21). "Be reluctant to demand satisfaction" is the message. And, as we have seen earlier, the Jewish tradition shows great reluctance to impose the death penalty.

Reluctance is not refusal. But it does imply that execution should be a last resort, and, as Ezekiel 33 suggests, repentance or contrition could commute the death sentence.

Seven biblical principles, then, govern capital punishment: proportionality, certainty of guilt, intent, due process, individual responsibility, fairness, and reluctance to execute. A discussion of whether United States criminal procedures meet these conditions is in the Appendix.

Those who hold that the Bible mandates capital punishment conclude their analysis here. But those who believe that capital punishment is permitted must consider the third question.

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Question Three:
What principles should guide the state in determining whether to exercise the death penalty?

For those who hold that the state is permitted to execute wrongdoers, the key question is this: Is there a unique benefit to using the death penalty, or can other (less severe) sanctions accomplish the same ends?

Here the discussion includes pragmatic consideration-what methods best meet the objectives of criminal punishment. This is not to suggest, however, that Christians should set aside biblical principles in search of what works best. Pragmatic considerations must always be governed by biblical principles of justice.

Christians have sought this balance on similar issues, such as the issue of just war. Most Christians regard war as evil in principle, but an evil which may be justified under certain conditions. Thus, if war is the only way to protect innocent people from hostile aggressors, it is justifiable.11

Likewise, capital punishment is justified if: (1) it is practiced in harmony with biblical principles, and (2) it achieves good ends which cannot be reached any other way. The three reasons most often given for using the death penalty are general deterrence, specific deterrence, and punishment.

  1. General deterrence is the theory that when one person is punished for his or her crime, other potential offenders decide not to commit that crime for fear of being similarly punished. It is a common-sense theory with the misfortune of being virtually impossible to prove. In fact, every study but one has documented that executions do not deter crime. The one exception has received much publicity, and much criticism, but has not been successfully replicated by any other researcher. Capital punishment proponent Ernest van den Haag, after reviewing all the research, found the evidence inconclusive.12

    However, reason suggests that for deterrence to operate, offenders must (1) care what will happen to them, (2) expect to be caught and convicted, and (3) take time to consider (1) and (2).

    But these conditions are rarely met. According to the FBI, 55 percent of all homicides are committed by a relative or acquaintance of the victim, usually during an argument. Relatively few are premeditated. There is little evidence of whether they would have been substantially less deterred by the prospect of another sentence-life imprisonment, for example.

    Scripture cites deterrence as a basis for the death penalty in three kinds of crimes, all premeditated. Deuteronomy 17:12-13 names willful contempt of court as a capital offense. According to verse 13, the execution was clearly meant as a deterrent: "All the people will hear and be afraid, and will not be contemptuous again" (NIV).

    Deuteronomy 19:16-21 gives a similar situation: one who willfully gave false testimony in court. If the falsehood was revealed, the witness received the punishment the accused would have gotten. In capital cases, of course, this meant death.

    Deuteronomy 21:18-21 concerns children who persistently rebelled against their parents. The parents were to publicly declare that their child would not obey them, and the child was to be executed. Here again, the phrase is repeated, "And all Israel will hear of it and be afraid."

    But the Bible does not give deterrence as a reason for executing murderers. This does not prove that executing murderers has no deterrent effect, of course. But it does show the weakness of general deterrence - it can deter only premeditated crimes.

    If it can be shown that executions deter crime, this becomes a powerful argument for the death penalty. But this has yet to be shown. In fact, the evidence suggests the opposite.

    Three studies have examined the impact of capital punishment law revisions in seven states by comparing the resulting change in homicide rates in those states with the rates in surrounding states. For example, Oregon abolished capital punishment in the early 1960s. A study compared the homicide rate in Oregon with those in Washington, Idaho, California, and Nevada. Although homicide rates increased in all five states, they actually went up less in Oregon than in the other states.

    This was borne out in six of seven states studied. Only one state showed evidence that capital punishment deterred; in the others it had the opposite effect!13

  2. Specific deterrence is the theory that punishing an offender will prevent him or her from committing further crimes. Obviously, someone who has been executed will never murder again. What is not so obvious is whether such an extreme sanction is necessary to achieve this purpose. Imprisoning murderers for life, under appropriate security, also prevents them from killing.
  3. Punishment is the theory that a penalty must follow an offense. Retributionists argue that other considerations, such as deterrence and rehabilitation, are not as important as establishing the law by penalizing its violators. This is a strong argument-punishment is clearly important.

    However, retributionists differ over whether capital punishment is an appropriate punishment. Many have argued that imprisonment punishes as well as or better than execution, mainly because they believe it is almost impossible to be certain of guilt.14

    Death is irreversible. If an innocent person is mistakenly executed, there is no remedy. In itself, this does not prove that the state should not practice capital punishment. But it does require Christians who advocate capital punishment to show that it serves a purpose that outweighs its finality.

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Capital punishment stirs the emotions of both its advocates and opponents. Debates, which often degenerate into name-calling, are actually much more complicated than the debaters may suggest. Proponents are not necessarily vengeful, unforgiving advocates of "legalized lynching." Opponents are not necessarily weak-hearted, viewing the world through rose-colored glasses, ignoring justice in their desire to be merciful. Undoubtedly there are such people in both camps, but such stereotypes are unfair.

It is hoped that this outline for discussion will facilitate dialogue that produces "light" rather than "heat" on this critical issue - literally an issue of life and death.

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Biblical Conditions and U.S. Criminal Procedure

It is outside the scope of this paper to thoroughly critique current United States capital punishment laws on whether they adequately incorporate the biblical principles listed on pages 9-13. However, we can make two observations:

  1. Some biblical principles are recognized in practice. Interestingly, many of these principles have been reflected in the court challenges of death penalty statutes in the last two decades. The following are representative examples:

    One early, successful challenge to the death penalty was over the issue of execution following conviction for rape. Of 455 persons executed for rape since 1930, 405 were black and 2 were members of other minorities. So the argument was based not only in terms of proportionality (execution was too severe a sanction for rape) but also in terms of fairness (it was imposed in a racially discriminatory way). The result was Coker v. Georgia, 433 U.S. 584 (1977), which held that imposing the death penalty for rape of an adult woman was "grossly disproportionate and excessive punishment" and therefore cruel and unusual.

    In 1972 one reason the U.S. Supreme Court declared then-existing death laws unconstitutional was they lacked fairness. Furman v. Georgia, 408 U.S. 238 (1972), held that rational standards must be established for judges considering the death penalty, partly because the lack of such standards resulted in racial inequities.

    The principle of responsibility was reflected in a 1988 Supreme Court decision - Thompson v. Oklahoma, 487 U.S. 815 (1988) - in which execution was prohibited when the defendant was under age sixteen when the crime was comniitted. The court noted that this reflected a general community understanding that while juveniles may be held accountable for their behavior, they often have less culpability than mature adults. In the following year it was ruled that the death penalty is not unconstitutional when a sixteen- or seventeen-year-old commits the crime (Stanford v. Kentucky, 492 U.S. 361 [19891).

    In 1982 the Court ruled that intent to kill was critical in determining whether death was constitutionally permissible. Enmund v. Florida, 102 S.C. 3368, involved the driver of a getaway car at a robbery, during which the codefendants killed the victims. The court held it would be cruel and unusual punishment to execute Enmund because he hadn't agreed to the murder. Further, under the principle of individual responsibility, he couldn't he executed for his codefendants' actions and was instead given a life sentence.

    More recently, however, the Court ruled in Tison v. Arizona, 481 U.S. 137 (1987), that the issue is not actual intent but whether the accomplice participated in a major way in a felony resulting in murder and acted with reckless indifference to the value of human life. The case involved two brothers who helped their father and a companion escape from prison. On the way home (but during the sons' momentary absence), the father and companion killed a family of three. Although there had been no planning among the four to kill the three, the sons were given the death penalty.

    There were overtones of reluctance in the 1976 Woodson v. North Carolina, 428 U.S. 28, decision that mandatory death penalty laws were unconstitutional because they did not permit courts to consider mitigating factors. (Under mandatory death penalty laws, David, Cain, Moses, and the adulteress would all have been executed.) The Court held that courts must duly regard the particular circumstances of a crime and the character and background of the defendant.

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  2. But death penalty laws do not incorporate some biblical principles. namely Certainty of guilt, fairness, and reluctance.

    Certainty of Guilt
    Charlie Brooks was executed in December 1982, despite serious doubts about his personal involvement in the murder of which he was convicted. In fact, the prosecutor pleaded that his death sentence be commuted, because no one knew whether he or his codefendant (who was given a prison sentence in return for his testimony at trial) actually committed the murder."

    John Spenkelink was the first person executed against his will after the Supreme Court's 1972 decision in Furman v. Georgia. (Gary Gilmore's earlier execution had been at his own request.)

    Spenkelink was an ex-offender with a history of nonviolent convictions. He had picked up a hitchhiker who was 20 years older than he and who also had an extensive criminal background. During the two weeks they traveled together, the hitchhiker assaulted and sodomized Spenkelink. Finally, Spenkelink shot and killed the hitchhiker.

    There were no witnesses to the shooting. Spenkelink testified he shot in self-defense, but the jury convicted him of first-degree murder. He was sentenced to death and executed, still protesting his innocence.

    William F. Buckley investigated Spenkelink's conviction and concluded:

    a. Spenkelink did not have a history of pathological violence; b. his guilt - of first degree murder - was not beyond a reasonable doubt; and c. the idiosyncratic decision by a governor of Florida to issue a death warrant against Spenkelink, when he had to choose from a number of quite uncommon murderers . . . suggested that the governor may intentionally have put forward a flimsy victim in order to engage public emotion against reinstitution of capital punishment. As it happened, it fell to that governors successor to make the decision whether to grant clemency, and the decision was negative."16

    In many other cases, defendants have been sentenced to death, but later were either acquitted in a new trial or pardoned when others confessed to the murder. One author found 11 such cases in recent years.17 Undoubtedly there are others in which lack of legal and investigative assistance has all but eliminated the defendants' opportunities to clear their names.

    No state has required a standard of proof of guilt 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. This omission is particularly important in light of the Supreme Court's ruling in Herrera v. Collins, 113 S.Ct. 853 (1993), that the federal courts will not consider a claim of actual innocence in a habeas corpus proceeding initiated by a death-row inmate. Herrera had offered newly discovered evidence, 10 years after his conviction, that the murders for which he was awaiting execution had actually been committed by his brother. The Court held that federal habeas relief is available only to address whether the Constitution has been violated, not whether the death row inmate is actually innocent. Determination of innocence, the Court held, is made at the original trial and in a request for executive clemency.

    Again, Jewish practice is informative in this respect:

    If the accused was found guilty and was being led to the place of execution, there still was a provision in his behalf. As he was led to the place of execution, a herald preceded him, calling out his name, his crime, when and where it was committed, and the names of those upon the basis of whose testimony he was condemned. The herald proclaimed that anyone who possessed any evidence favorable to the condemned should hasten to produce it. Should such evidence be forthcoming or should the condemned man declare that he can prove his innocence, a stay of execution was granted. If the convict's testimony proved to be ineffective, he was still allowed to make another attempt at proving himself innocent, since two scholars walked along with him for the purpose ofjudging whether any further testimony that he might offer would justify a delay in execution."18

    Furthermore, there is significant evidence that the death penalty is applied unfairly. Despite court-ordered sentencing reform, the death sentence is still affected by the race of the victim and the offender.

    A study comparing death penalty probabilities for various racial combinations of offender and victim demonstrated that the death sentence was most often imposed when a black killed a white. Whites who killed whites were sentenced to death one-third less often, and only a small fraction of persons (black or white) who killed blacks were executed. In fact, the difference was so pronounced that the authors concluded: "Among felony killings, for which the death penalty is more apt to be used, race of victims is the chief basis of differential treatment."19

    A recent case on racial discrimination was McCleskey v. Kemp, 481 U.S. 279 (1987). McCleskey, a black, was convicted and sentenced to death for the murder of a white police officer during a robbery. The Supreme Court upheld the death sentence. Statistical evidence that demonstrates disparity in the imposition of capital punishment due to the race of a victim or defendant was held to be insufficient to show a denial of equal protection or a violation of the Eighth Amendment. To prevail under the equal protection clause, a defendant must show that the decision-makers in his or her case acted with discriminatory purpose.

    Finally, there seems to be a growing lack of reluctance to execute. As courts have painstakingly reviewed capital cases, states have passed new death penalty statutes, and courts are imposing the sentence more often. Between 1930 and 1972, approximately 3,860 persons were executed (a rate of 90 per year). Since then, around 5,000 have been sentenced to death (a rate of almost 250 per year).
    20 While most of these men and women have not yet been executed, the courts imposing the sentence (and the legislatures passing the enabling laws) have concluded that they should be put to death. For many, it is simply a matter of time before that sentence is carried out.

    Explanations offered for this increase in sentencing to 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 reason, the trial courts, legislatures, and general public no longer appear reluctant to execute.

    These shortcomings raise questions about whether Christians can support most of the existing death penalty laws - until these shortcomings are adequately addressed.

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  1. Carolyn Skorneek, "Poll Finds Death Penalty Quickly Gives Way to Other Options,' Associated Press, 18 April 1993, PM cycle, Washington Dateline section.back
  2. "Death Row, U.S.A.," Typewritten document, Winter 1993 [i.e., January 1994], and "Execution Update," 2 February 1994, NAACP Legal Defense and Educational Fund, New York. The Legal Defense Fund has monitored death penalty laws for more than 30 years and has mounted successful constitutional arguments against it in courts across the country. It regularly publishes this statistical report on the status of death penalty laws, court challenges, and individuals on death row. Its address is 99 Hudson Street, #1600, New York, NY 10013-2897. back
  3. Rousas John Rushdoony, The Institutes of Biblical Law (Philipsburg, NJ: Presbyterian and Reformed Publishing Company, 1973), p. 235. back
  4. It is not within the scope of this paper to discuss which of Christ's teachings are addressed to individuals, the church, or to civil authorities. The argument, however, is that regardless of who is addressed, the tenor of Christ's teachings is different from that of the law. back
  5. See Numbers 35:6-29 for an explanation of the cities of refuge and how they protected those who had unintentionally killed another. back
  6. Israel J. Kazis, "Judaism and the Death Penalty," in The Death Penalty in America, ed. Hugo A. Bedau (New York: Anchor Books, 1964), pp. 172-174. back
  7. John 19:10-11 NIV. back
  8. While this provision was mentioned in the context of idolatry, it was apparently also the accepted procedure for at least some other offenses (Num. 15:32-36; John 8: 1-1 1). back
  9. Gleason Archer, in the Encyclopedia of Bible Difficulties (Grand Rapids: Zondervan Publishing House, 1982), pp. 143-145, argues that since this provision might exclude imposition of the death penalty in all but 10 percent of murder cases, the Jews must have allowed circumstantial and physical evidence to stand as "witnesses." However, Deuteronomy 21 gives a purification procedure for times when it could not be established who had committed a murder. The elders were required to testify, "Our hands have not shed this blood, nor did our eyes see it." The Bible nowhere mentions circumstantial evidence. And witnesses were required to participate in the execution. This suggests that "witness" in fact means eyewitness. back
  10. The principle of individual responsibility could also affect the use of the insanity defense in capital cases. However, other principles such as intent must also be considered. back
  11. The three questions that outline this paper could also be applied to the issue of war - is it prohibited, mandated, or permitted?
    Some Christians, the pacifists, have concluded that war is always wrong, and that Christians should never participate. Some non-Christian religions believe that God can command war (as did the Christian crusaders once). Muslims have traditionally relied on the sword to extend their influence through jihad.
    A more moderate view seeks a balance between biblical principles and pragmatic considerations. Thus, certain conditions must exist before a war can be considered "just."
    1. A just cause: There is a real and certain danger.
    2. Competent authority: The war has been declared by the appropriate public officials.
    3. Comparative justice: The values and rights at stake are important enough to overcome the reasons against war.
    4. Right intention: Peace and reconciliation remain the objectives throughout the war.
    5. Last resort: All peaceful alternatives have been exhausted.
    6. Probability of success: Resort to force in a hopeless situation is inappropriate.
    7. Proportionality: The damage the war causes does not outweigh the anticipated benefits.

    [This summary is taken from a pastoral letter issued by the National Conference of Catholic Bishops, "The Challenge of Peace: God's Promise and Our Responses" (Washington, D.C.: United States Catholic Conference, 1983), pp. 28-31.]back

  12. Ernest van den Haag and John Conrad, The Death Penalty: A Debate (New York: Plenum Press, 1983), pp. 65, 140. back
  13. The three studies are summarized in W.J. Bowers and G.L. Pierce, "Deterrence or Brutilization: What is the Effect of Executions?" Crime and Delinquency, October 1980, pp. 462-463, n. 33. back
  14. van den Haag and Conrad, pp. 17-52. back
  15. Charles W. Colson, "That Execution Wasn't Painless," Washington Post, December 11, 1982. back
  16. William F. Buckley, "Why Spenkelink Should Have Lived," Washington Star, June 9, 1979. back
  17. Jack Greenberg, "Capital Punishment as a System," 91 Yale Lj 908, April 1982, pp. 919-920. back
  18. Kazis, p. 174. back
  19. W.J. Bowers and G.L. Pierce, "Post-Furman Arbitrariness and Discrimination," Crime and Delinquency, October, 1980, p. 600. back
  20. Ibid., p. 575; and Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Capital Punishment 1992, by Lawrence A. Greenfeld and James J. Stephan, bulletin (Washington, 1993), p. 10.back

About the Author
Daniel W. Van Ness is an attorney who practiced law in inner-city Chicago before overseeing the criminal justice reform efforts of Prison Fellowship for 12 years. He has received the J.D. from De Paul University College of Law and the LL.M. degree from Georgetown University Law Center. At the time of publication, Van Ness is a visiting professor at the University of Detroit-Mercy School of Law. He is the author of two books, including Crime and Its Victims, winner of the Gold Medallion Book Award. He has also contributed to many other books and publications, and has written for scholarly journals in the field of criminal justice.

Prison Fellowship � 2001 (This link may not work.)