Tuesday, June 15, 2010

Seminary Shenanigans 3

The following is my research paper on the biblical permissibility of capital punishment for my Christian Ethics course. I oppose the current practice of capital punishment because I believe the temptation to statism is too great a danger when a secular state takes it upon itself to put criminals to death. It seems that the only situation in which capital punishment is ultimately sensible is in the context of a thoroughly Christian society. At the same time, though, it seems that perhaps such a society would instinctively recoil from imposing the ultimate punishment on murderers out of a Christian sense of mercy. However, a Christian society would likewise impose weighty punishments on murderers out of a Christian sense of justice. Love, in order for it to be truly Christian love, must take account both of mercy and justice.

The Permissibility and Wisdom of Capital Punishment in Biblical Ethical Considerations

Perhaps no contemporary hot-button issue is as divisive between Americans of Christian faith as the issue of capital punishment. Christian people of both liberal and conservative politics are found on retentionist and abolitionist sides of this debate, as well as those hailing from traditions as diverse as Roman Catholicism, mainline Protestantism, and Protestant evangelicalism and thus coming at the issue from an array of perspectives regarding Scriptural interpretation ranging from most liberal uses of Holy Writ to more moderate ones as well as to those that are conservative and even biblicist in orientation. Religiously conservative Christians who support the use of the death penalty often see at the root of the arguments of Christians whose convictions run the other direction humanistic or theologically liberal premises that are unfaithful to genuine biblical concerns.[1] Whether that is the case or not, a 2001 poll conducted by the Pew Forum on Religion and Public Life showed that among the 23% of respondents for whom religion was the most important determining factor in their view of the death penalty, 42% of these opposed capital punishment while only 15% supported it.[2] The truth is that Christians arguing for either retentionist or abolitionist positions have precedents well-established in the Scriptures and in faithful authorities from throughout the record of Christian tradition from which to draw in support of their views.

As one would expect in regard to a question like capital punishment, Christians on either side of this issue are gripped by the sense that matters of justice and human dignity reaching to the very core of their faith are in play. Proponents of the death penalty see in the imposition of this penalty for murderers a fundamental protection of the sanctity of human life and a just exercise of retribution against individuals who have committed heinous acts against God, their victims and victims' families, and society-at-large. Opponents, on the other hand, view capital punishment as an unnecessarily harsh act of violence that runs counter to Christ’s example of forgiveness and mercy and, rather than protect the violated sanctity of the lives of victims, further trivializes life and destabilizes society by perpetuating the cycle of violence. Who is correct? Is capital punishment or some lesser penalty such as life imprisonment a more just sentence for those convicted of premeditated murder? As an evangelical Protestant, for me the question can only begin with whether or not capital punishment is biblically permissible. If the answer is affirmative, the discussion must not end there but encompass the further question of whether God's wisdom would lead us to utilize the penalty of capital punishment in all situations where it is applicable.

Before we can appropriately seek a biblical answer to the question of what Christians should believe and do in regard to public reckoning with convicted murderers of fellow members of society, we must establish an ethical framework from within which to carry forth said examination. I am assuming as an ethical framework for this discussion a teleological ethic that has as its end the glory of God as reflected in "the way of life that conforms to the will of God as revealed in Christ and the holy Scriptures and illuminated by the Holy Spirit."[3] As opposed to a purely utilitarian ethic that has in view only the consequences of actions and thus judges them only according to their results, the ethic I am utilizing incorporates deontological standards of intrinsic right and wrong built into the end of God's glory.[4] God's will, which reflects his glory, is intrinsically worthy of following and is therefore an absolute standard by which human beings are bound. This absolute standard, of course, is reflected in God's revealed will in Christ and the Scriptures. As a result, our first task regarding the ethics of capital punishment is to determine if it is a practice that is consistent with the perfect will of God as revealed in his Word. We will later deal with a few additional ethical and contextual concerns that will be instructive in the Holy Spirit's process of helping us to discern whether utilizing capital punishment in all situations where it is applicable is wise, but the witness of God's Word will be our first concern.

Before turning to the biblical witness regarding capital punishment, I must define the limits of my inquiry for this paper. The concept of retribution as fundamental to systems of government and justice has been under fire since the Enlightenment, but I am prevented by lack of space from wading into that controversy at present. Furthermore, deterrence, protection of society, and rehabilitation, either taken together or individually, are highly problematic as the primary bases for punishment.[5] Retribution, with its penalties based on proportionality to criminal conduct, its respect for the individuality and moral culpability of criminals, its protection of guilty parties against the revenge of victims, and its publicly mediated processes of investigation, trial, and punishment, remains the surest, most equitable, and most effective basis for law and order, reflecting also the holiness and righteousness of God.[6] Retribution being such, we would do well to heed Gilbert Meilaender's caution that "the greatest danger in discussions of the death penalty is that we may end up adopting viewpoints which turn out to undercut the very rationale for government, punishment, or justice."[7] We may indeed be compelled to leave the death penalty behind as a defective expression of retribution, but we dare not leave retribution behind as foundational to our systems of law and order.

Genesis 9:6
The first overt mention of capital punishment in the biblical witness is in Genesis 9 immediately prior to God establishing his covenant with Noah, his descendents, and the remnant of animal life following the Deluge. God opens his address to Noah and his sons by re-commissioning humanity to "increase in number and fill the earth" (v. 1). God also authorizes human beings for the first time to make use of the Earth's animal life for food, provided they do not consume the blood. To this one note of restriction on the eating of animal flesh, God adds that the flesh and blood of his people are even more precious to him than that of the beasts of the field:

And for your lifeblood I will surely demand an accounting. I will demand an accounting from every animal. And from each man, too, I will demand an accounting for the life of his fellow man.

"Whoever sheds the blood of man,
by man shall his blood be shed;
for in the image of God
has God made man." (vv. 5-6 NIV)
God then proceeds to give his covenant to humanity and to the remnant of animal life that he will never again destroy the Earth with a flood, signifying his promise with the rainbow.

The chief controversy in interpreting this passage is in regard to the function of verse 6. Bible scholar Claus Westermann admits that there is no scholarly consensus on whether Genesis 9:6 is a legal penalty, a prophetic admonition, or a proverb.[8] Christian death penalty retentionists like H. Wayne House and the late Dutch Bible scholar, J. Douma, stake their claim to Genesis 9:6 being a universal legal penalty for murder. [9] This interpretation is based largely on the way they read Genesis 9:1-7 as part of the Noachian Covenant and not just as a prologue to the covenant that is properly contained only in verses 8-17. The Noachian Covenant is thus taken not just as God's promise not to destroy the Earth again but as his holistic and gracious provision of a new civil order for humanity to replace the one that had been destroyed in the Flood. Of course, one of the most important aspects of this new civil order is God's provision for the punishment of murder—a provision by which God shows the high value he continues to place on those who bear his image and by which he provides for the retributive punishment that grounds all civil order.[10] Holders of this view regard Genesis 9:6 as having universal applicability because of its context after the Flood but also because the covenant was made with Noah—"the representative head of the new order of mankind, not just Jews, but of mankind in general."[11]

Christian death penalty abolitionists like the late Mennonite scholar, John Howard Yoder, and Baptist professors, Michael Westmoreland-White and Glen Stassen, however, regard Genesis 9:6 as pure proverbial wisdom,[12] particularly in light of the cautionary way in which Jesus quotes the passage in Matthew 26:52. Militating also for a proverbial reading of the passage is the fact that the language is less indicative of legislation than of a poetic recital of wisdom about "how things are in fact, in primitive and ancient societies."[13] Abolitionists also point beyond linguistic factors to contextual evidence to show that Genesis 9:6 is not a legal penalty but a proverb. For instance, many view Genesis 9:1-7 merely as a prologue to the covenant in verses 8-17. The prologue contains blessings from God, and the covenant, of course, contains the divine promise and the sign of the rainbow but no human requirements. Additionally, verse 6 does not specify who will shed the blood of the killer. The "mandate" to carry out retribution would not create an organized civil order, as the human community in the passage consists only of one extended family and family-based vengeance would have been assumed.[14]

The retentionist and abolitionist interpretations of Genesis 9:6 I have examined above both appear flawed. The retentionist view mischaracterizes Genesis 9:1-17 as being covenantal from beginning to end. Verses 1-7 constitute a prologue to the covenant consisting entirely of blessings from God; it contains no conditions for divine blessing or curses for covenant failures. The covenant is properly contained only in verses 8-17, and it is not contractual in nature. God's promise to never again flood the Earth is unconditional; the only human response is to graciously accept God's promise.[15] As a result, there is no penalty in Genesis 9 for choosing to punish a murderer by nonlethal means. Capital punishment is here a gracious gift by God for social order and for the safeguarding of the sanctity of human life. Though the principle of blood for blood is universally valid here by virtue of it being given through Noah, the penalty of capital punishment need not be applied in an absolute, one-size-fits-all manner. Capital punishment is certainly sanctioned in this passage as a means of punishing murder, but, as the Old Testament examples of Cain, Moses, and David indicate, showing mercy to murderers is clearly permissible as well.

The abolitionist view that would reduce Genesis 9:6 to a mere proverb or admonition cannot account for the strength of the explicit words of the text, the force of which begin building in verse 5: "For your lifeblood, I will surely demand an account. . . ." Genesis 9:6 may not be backed up with curses, but God still demands accountability for the shedding of the blood of his people. Capital punishment is given here to humanity as a gift to be used with sober discretion. Even when mercy is granted, however, the wisdom of Genesis 9:6 teaches that murder is a crime that deserves death.[16] Additionally, though retentionists may try to prove too much when it comes to the establishment of civil government in this passage, abolitionists neglect the fact that the principle of retribution underlying Genesis 9:6 assumed great importance in the civil order that came to be established under the Mosaic Law.[17] Furthermore, this principle in some sense is embodied in the criminal codes of all nations today.[18]

The Law of Moses
According to the list compiled by Michael Westmoreland-White and Glen Stassen, the Torah contains at least twenty-five offenses that merit the death penalty, including various sexual crimes, murder, worship of pagan gods, sorcery, false prophecy, and cursing one's parents, among others.[19]

In spite of the significant number of crimes in the Torah that carry a death sentence, death penalty abolitionists see capital punishment as inconsistent with the Sixth Commandment.[20] Indeed, the Commandment is rendered too narrowly when translated as it is in the New International Version, "You shall not murder" (Exodus 20:13; Deut. 5:17).[21] However, though other kinds of killings than murder are prohibited by the Sixth Commandment,[22] if we are to maintain biblical integrity, we must insist that what has been sanctioned in Scripture—the death penalty at least twenty-five times in the Torah—is not prohibited by contemporaneous revelation.

The question for Christians, however, is whether capital punishment is consistent with God's complete and final revelation in Jesus Christ and the New Testament that bears witness to him. It is clear that capital punishment is sanctioned, even commanded, in the Old Testament, but what for those of us who are not under Law but grace? Most death penalty retensionists support capital punishment for murder on the basis of Genesis 9:6 but do not use the provisions of the Mosaic Law for capital punishment to support their position. This is on the basis that the civil commands of the Mosaic Law were only valid for the nation of Israel. The Mosaic civil commands were given to Israel alone of all nations because of God's redemptive work for the entire world through her. They were never issued for all the nations of the world as, for instance, was Genesis 9:6. This is why, with the exception of theonomists, Christian death penalty advocates generally do not support the application of capital punishment to crimes other than premeditated murder, as the Mosaic Law does.[23] This reasoning appears biblically sound. Abolitionists .reject the validity of Mosaic provisions for capital punishment on the basis that these laws were issued primarily for the purposes of expiation.[24] Indeed, the purpose for the penalty of death described in passages such as Leviticus 20:1-5 and Deuteronomy 17:8-13 and 19:19-21 is for ritual cleansing, "purging the evil," and the like.[25] As Westmoreland-White and Stassen note, "For Christians, for whom expiation has been accomplished once for all in Jesus Christ, it would be blasphemous to argue that capital punishment is needed to atone for or expiate sin."[26] That is quite true, but it is really beside the point, since Christian retentionists do not view the death penalty as performing an expiatory function. At any rate, it is quite clear that both the civil and expiatory provisions of the Mosaic Law are no longer in effect for Christians and thus should have no direct bearing on our current considerations of capital punishment.

Though the civil commands of the Mosaic Law themselves no longer have direct bearing on Christian considerations of capital punishment, we must add a discussion of the famous "eye for eye, tooth for tooth" passages—the lex talionis—because they contain a principle that remains relevant to our discussion. Three such passages exist. The first instance is Exodus 21:22-25, in which two men are fighting and a pregnant woman is injured. In the case of a miscarriage, a monetary fine is prescribed, but in the case of the woman's death, the one who injured her must pay "life for life, eye for eye, tooth for tooth." The second instance is Leviticus 24:18-22, in the context of God's instructions to the people on how to deal with a man who has cursed the Holy Name. They are to take the blasphemer outside of camp and execute him by stoning. The lex talionis is offered as the rationale. Apparently, cursing God is equivalent to killing a man, as the formula is expressed in "eye for eye" and not "curse for curse" terms. The third instance is Deuteronomy 19:16-21, in which a false witness is being punished for his crime. As punishment, the false witness is to receive the penalty the accused would have received if found guilty. The formula is again offered in "eye for eye" terms. As opposed to the common understanding of these passages, what is being advocated here is not private vengeance or a perverse symmetrical justice that would have us "lie to a liar, rape a rapist, or steal from a thief."[27] Rather, the lex talionis expresses an important aspect of all controlled, publicly-mediated retribution—the sense that punishments be appropriate and proportional to crimes.[28] Right or wrong, capital punishment for murder is certainly an attempt to apply the principle of punishment that is relevant to and proportional to the crime committed.

The Teaching and Example of Jesus Christ
As we come to the aspects of the teaching and example of Jesus Christ that bear most heavily on the issue of capital punishment, we recognize the special weight the incarnate Word of God carries in Christian revelation. Indeed, as Westmoreland-White and Stassen state it, Christ's life, teaching, death, and resurrection constitute the "hermeneutical Rosetta Stone of biblical interpretation."[29] An important aspect of Jesus' ministry that must be noted in the current discussion is the apparent tension in his mission between fulfilling the Law of Moses to its every "jot and tittle" (Matthew 5:17-19) and to abrogating certain aspects of the same in the lives of his followers (Mark 7:19, for instance). Closer inspection reveals that this tension is only apparent. Jesus fulfills the Law and dies a sacrificial death to free his elect from its demands. Abrogation of the sacrificial and ceremonial aspects of the Mosaic Law for believers thus comes through God's mercy and not a rearrangement of his standards. Furthermore, where the Law remains in effect, as embodied in the Sermon on the Mount, Christ's teaching represents the clarification of the essence of the Law, which had become obscured by the accumulation of centuries of Jewish traditionalism. In this light, Christ's moral teaching actually raised the standard for his followers in comparison to the Law as it was understood in first-century Israel (Matthew 5:20-48).

Considering that the civil and ceremonial aspects of the Law have been abrogated in Christ and that the ethic he establishes for his followers in the Sermon on the Mount is radically oriented toward mercy, may we assume that the Lord does not countenance capital punishment? An examination of three of the six antitheses of Matthew 5 is required before we can judge whether this is indeed the case. In the first antithesis, Jesus answers the perception that the Sixth Commandment consists entirely of avoiding the physical act of murder by teaching that to be angry with one's brother is to invite judgment and to call him a fool is to invite damnation (vv. 21-22). Retensionists view as significant for their position that fact that Jesus here affirms that murder is a crime meriting judgment. [30] Also significant, they claim, is the fact that Jesus does not rebuke the Roman or Jewish authorities for their use of capital punishment in this instance or any other.[31] These interpretations are inconclusive. The fact that Jesus does not speak directly to capital punishment need not imply his approval of the practice[32] and his acknowledgement that murder is a crime deserving of death does not prove his support for the death penalty. What abolitionists emphasize about this passage, on the other hand, is Jesus' admonition to seek reconciliation with one's offended brother or sister and thereby break the cycles of hatred and retribution that are inconsistent with the life of worship and peace in the community of believers (vv. 23-26).[33] The focus on reconciliation in this passage, however, cannot be interpreted so as to obviate punishment in general for criminal offenses. This seems a particularly pertinent place to note Gilbert Meilaender's aforementioned concern that we avoid adopting positions on the death penalty that undermine the rationale for government and justice altogether.

The fifth antithesis of the Sermon on the Mount is also valid to the question of capital punishment. To those who would use "eye for eye, and tooth for tooth" (v. 38) to justify the seeking of vengeance against their neighbors, Jesus gives a startling and often mistranslated command in Matthew 5:39. Rather than "Do not resist an evil person," as it is usually rendered, the work of Clarence Jordan and Walter Wink reveals verse 39 to more properly read, "Do not retaliate or resist violently or revengefully, by evil means."[34] Rather than being an impracticable command to practice nonresistance to evil, this teaching is thus a transformative injunction to overcome evil with good and to "go the extra mile" to bring about reconciliation, even with the hated Roman oppressor (vv. 39-42).[35] In interpreting this passage, retentionists point to the distinction between retaliation, or private vengeance, and publicly-mediated retribution. According to House, the Sermon on the Mount refocuses the Law to deal entirely with believers' personal interactions; therefore, its principles do not apply to governmental actions.[36] Abolitionists rightly reply that Jesus does not limit his teachings or his lordship to individual relationships.[37] In attempting to answer the question of the extent to which Christ's teachings should shape the administration of civil government, we must keep in mind the eschatological horizon of the Christian faith. [38] Prior to Christ's second coming, the administrations of civil government and of the community of believers necessarily operate according to somewhat different principles. However, in light of the coming day when the kingdoms of this earth will become the Kingdom of Jesus Christ, Gospel principles cannot be ruled out of bounds by Christians in their considerations of government policies even at this point in history.

In the sixth antithesis of the Sermon on the Mount, Jesus corrects the entirely un-biblical notion of "Love your neighbor and hate your enemy" with the command, "Love your enemies and pray for those who persecute you" (Matthew 5:43-44). Jesus goes on to exhort his followers to pursue peace and reconciliation with all, following God's perfect example in refusing to distinguish between friends and enemies in the exercise of mercy (vv. 45-48).[39] Once again, the way of Jesus calls for the radical pursuit of peace and reconciliation. Though we do not yet live during the time when swords will be beaten into plowshares, one cannot help but be struck by Christ's insistence that his followers work diligently for the redemption of even the worst of the worst. Punishment in general for criminal offenses does not contradict this pursuit, but capital punishment ends all opportunities for reconciliation.

Another significant episode in the ministry of Jesus that bears heavily on our consideration of the death penalty is John 8:1-11—the account of the woman caught in adultery. Abolitionists seize quite readily on Jesus' response to the scribes and Pharisees, "If any one of you is without sin, let him be the first to throw a stone at her" (8:7b), inferring that only the sinless are qualified to execute others.[40] This argument would be spurious if applied to punishment in general, as Yoder does,[41] but could be valid in relation to a punishment as ultimate as the death penalty. Retentionists, however, point to the overall context of this encounter to show that Jesus does not condemn the exercise of the death penalty but the treachery of the Pharisees in setting a trap for him (8:6).[42] Jesus' opponents are also culpable here in their failure to follow the stipulations of the Law they appear so zealous to keep. They have broken the Law in condemning the woman because they do not have the necessary number of witnesses present to try and convict her in the first place, and they do not have present the man she committed adultery with, whom the Law also stipulates should be executed (Lev. 20:10; Deut. 22:22-24).[43] Furthermore, the Jewish authorities had never carried out this law with any regularity, and, under Roman rule, they did not have the authority to carry out capital sentences.[44] As the retentionists suppose, Jesus is undoubtedly challenging his opponents' treachery and hypocrisy in his statement from verse 7, but, considering that "God did not send his Son into the world to condemn the world, but to save the world through him" (John 3:18) and the fact that Jesus does not give the slightest mention in this passage to the scribes and Pharisees' failure to bring the witnesses or the man, it seems impossible that, had they actually followed the Law, Christ would have condemned her.[45] No; consistent with the rest of his ministry, the Lord of mercy pardons the woman as we expect, directing her to "Go and sin no more" (John 8:11 NKJV). Jesus clearly places a premium on mercy to sinners, but does he intend for this mercy to carry over into the civil order? We must look to apostolic teaching for further clarification.

Romans 13:1-7
The most in-depth passage of apostolic teaching that bears directly on the issue of capital punishment is Paul's discussion of the civil authorities in Romans 13:1-7. We can summarize the contents of the passage as follows:

· Human government is instituted by God. (v. 1)
· Human government should be obeyed (v. 1-2) because it is God's servant to do the righteous good (vv. 3-4); it is God's servant to punish wrongdoers (v. 4); and conscience tells us to obey. (v. 5)
· Government has the right of taxation. (vv. 6-7)
· Government has the right to use the sword. (v. 4)

Death penalty retentionists view this passage as the closest thing to an explicit New Testament warrant for the death penalty that exists. This passage, they argue, teaches that civil government is a legitimate authority put in place by God, and that one of its express purposes for existence is to punish wrongdoers, even with death. That the civil authority may use lethal force in executing its ordinance is implied in Paul's use of the term "sword," which represents an instrument of warfare and execution or the most significant item in the arsenal of the judicial power[46]—a power which in the Roman context regularly put criminal offenders to death. Death penalty abolitionists, however, in their interpretation of this passage, put more emphasis on government's need to be subject to God than on Christians' need to be subject to the authorities,[47] which causes them to arrive at different conclusions. Mennonite peace scholar, Millard Lind, for instance, views Romans 13:1-7 as Paul's call for his readers to resist evil and exert "gospel pressure" on the Roman authorities by being "subject" to their "anti-Christ" authority—a subjection characterized more by passive nonviolent resistance than obedience.[48] Rome's authority is illegitimate, not just because she is pagan and she persecutes Christians but because she puts real criminals to death. Paul's use of "sword" cannot be referring in any way to the execution of criminals[49] because governments that are truly subject to God do not put people to death. As Yoder argues:

"If it is as the apostles said, that Jesus Christ . . . rules at the right hand of God over the powers of the world, then the purpose, goals, and standards of that rule can be no other than this same Jesus revealed to us, when in the flesh he came not to destroy but to save. On the grounds of his rule, it can then not be the duty of governments to destroy life.[50]
One could not be more unambiguous on whether Gospel principles should spill over into civil administration.

In spite of the force of such arguments, they do not arise from the text of Romans 13:1-7 or its context. Though Paul envelopes this text with admonitions that sound like the Sermon on the Mount in their emphasis on peace and reconciliation, he does not do so to put to shame the retributive justice of the Roman authorities, as Lind argues, but to convince his hearers not to take vengeance in their own hands because God will punish wrongdoers through the instrumentality of the governing authorities.[51] The text also clearly teaches a higher view of government than many Anabaptist interpreters grant. Other than Jesus Christ himself, no one was more intimately acquainted with the wicked and anti-Christian conduct that characterized much of Roman rule than St. Paul, yet he still affirms that the Roman authorities should be rendered honor because of the God-ordained function of rewarding the good and punishing the wicked they carry out.[52] The governing authorities are not to be grudgingly "obeyed" just because of the threat of punishment or simply for the purposes of witness but also for conscience's sake. The Roman authorities may not always exercise their authority correctly, but Paul could not be clearer that their authority is nonetheless established by God and thus legitimate.

In spite of strong countervailing currents in the teachings and example of our most merciful Lord, the Scriptures present capital punishment as a still permissible means of punishing those guilty of premeditated murder. The plain reading of Genesis 9:6 and an interpretation of Romans 13:1-7 guided by exegetical rather then eisegetical principles reveals that lethal offenses justly invite lethal punishments, with God's explicit permission being given to use capital punishment. Contrary, however, to the tone of H. Wayne House's strong retentionist argument, Scripture does not teach that the exercise of capital punishment for murderers is absolutely obligatory in all cases. The validity of the death penalty as a means of punishing murderers rests on the clear teaching of Scripture, but, attending to the contexts of Genesis 9:6 and Romans 13:1-7, the passages in which God most explicitly provides warrant for capital punishment, God institutes the death penalty for the good of humanity . God did not create humans for the death penalty but the death penalty for the protection and dignity of human persons and societies. Retributive punishment is reflective of the just character of God, displays his holy wrath toward sin, and is the most solid foundation for the systems of law and order that protect human persons and societies, but capital punishment is not so fundamental to the overall principle of retributive justice that opting not to utilize the death penalty in the case of premeditated murder would overthrow that principle altogether. Scripture undeniably teaches that God demands an accounting for the shedding of human blood, but, as the biblical witness also clearly indicates, God reserves the right to show mercy to murderers and punish them with lesser though still proportional punishments. As J. Douma notes, "Destruction of the image of God in man is avenged with other punishments as well." This is especially the case in light of modern developments in jurisprudence and penology, such as imprisonment.[53]

In light of the realities that murder is a heinous crime that must be requited and that the Christian faith moves us to a mercy that does not diminish the significance of sin but nevertheless forgives, University of Texas professor of philosophy and government, J. Budziszewski's, argument that mercy can be shown to murderers "when the purposes of punishment can be satisfied better by bloodless means than bloody means" is prudent.[54] In outlining the current Roman Catholic position on capital punishment as expressed in Pope John Paul II's encyclical Evangelium vitae, Avery Cardinal Dulles lists several factors in contemporary American society that render capital punishment more problematic and thus less effective than, say, life imprisonment, in satisfying the retributive purposes of punishment. Included among these factors are the following:

· The inequitable application of the death sentence by courts and juries that are prejudiced against blacks and other minorities.
· The inability of poor and uneducated clients to obtain adequate legal counsel.
· The likelihood of miscarriages of justice due to the above considerations.
· The likelihood that innocent persons have been unjustly executed.
· The failure of modern democratic society to perceive the judgment of the state as legitimately embodying a transcendent order of justice.
· The urgency of manifesting respect for the value and dignity of human life at a time when assaults on innocent human life through abortion, euthanasia, and violent crime are widely prevalent.[55]

Though these factors do not in and of themselves merit the categorical abolition of the death penalty, the modern democratic state's failure to understand its authority as deriving from the ordinance of God, is serious enough to move Christians to call for a moratorium on capital punishment until states once again recognize their authority as arising not from the will of the people but from its institution by God within a transcendent order of justice. The former view causes the validity of the death penalty to rest upon utilitarian principles, which can be manipulated to the destruction of liberty and justice by the state that views its authority as arising from a less than transcendent source. Though my insistence that the death penalty exists for the good of society may smack of this very utilitarianism I decry, I would equally strongly assert that capital punishment utilized outside of the context of retribution anchored within a God-instituted order of justice is not good for society. Outside of this context, human authorities are succumbing to the temptation to statist idolatry when they exercise such ultimate judgment over individuals as they do in putting them to death. Meilaender expresses this judgment well:

Perhaps counterintuitively, and certainly contrary to what many religious folk might suggest, I think the death penalty would be least problematic in a genuinely religious society. Camus suggested—insightfully—that capital punishment could be justified only where there was a socially shared religious belief that the final verdict on any person’s life is given by God, not by us.[56]
I thus must conclude that capital punishment exercised outside of such a context is not consistent with biblical ethical standards. Within the context of a God-ordained order of justice, however, the ability to fulfill the retributive purposes of punishment through life imprisonment combined with the Gospel imperative for mercy would move us, I believe, to utilize the death penalty but rarely.

[1] H. Wayne House expresses this sentiment in "In Favor of the Death Penalty," H. Wayne House and John Howard Yoder, The Death Penalty Debate: Two Opposing Views of Capital Punishment (Dallas: Word, 1991), 11.
[2] "Faith-Based Funding Backed, But Church-State Doubts Abound," The Pew Research Center For the People and the Press, 10 April 2001, http://people-press.org/report/15/faith-based-funding-backed-but-church-state-doubts-abound (23 March 2010) quoted in Religion and the Death Penalty: A Call for Reckoning, ed. Erik C. Owens, John D. Carlson, and Eric P. Elshtain (Grand Rapids, MI: Eerdmans, 2004), 8.
[3] David Clyde Jones, Biblical Christian Ethics (Grand Rapids, MI: Baker, 1994), 16.
[4] Ibid., 20-21.
[5] House treats each justification for punishment, describing a number of objections against each in "In Favor of the Death Penalty," The Death Penalty Debate, 17-20.
[6] Ibid., 21-24.
[7] Gilbert Meilaender, "The Death Penalty: A Protestant Perspective," in Religion and the Death Penalty: A Call for Reckoning, ed. Erik C. Owens, John D. Carlson, and Eric P. Elshtain (Grand Rapids, MI: Eerdmans, 2004), 49.
[8] Claus Westermann, Genesis 1-11 (Minneapolis: Augsburg, 1984), 467 quoted in Michael L. Westmoreland-White and Glen H. Stassen, "Biblical Perspectives on the Death Penalty," in Religion and the Death Penalty: a Call for Reckoning, ed. Erik C. Owens, John D. Carlson, and Eric P. Elshtain (Grand Rapids, MI: Eerdmans, 2004), 127.
[9] House treats this passage in "In Favor," 36-40; J. Douma covers it as part of his treatment of the death penalty in his chapter on the Sixth Commandment in The Ten Commandments: Manual for the Christian Life, 1992, trans. Nelson D. Kloosterman (Phillipsburg, N.J.: Presbyterian & Reformed, 1996), 235.
[10] House, "In Favor," 36-40.
[11] Ibid., 39.
[12] Yoder treats this passage in "Against the Death Penalty," 119-24. Westmoreland-White and Stassen treat this passage in "Biblical Perspectives on the Death Penalty," 126-28.
[13] Yoder, "Against," 120.
[14] Westmoreland-White and Stassen, "Biblical Perspectives," 127-28.
[15] Ibid., 127.
[16] Ibid., 128.
[17] House, "In Favor," 54.
[18] Douma, The Ten Commandments, 238.
[19] Westmoreland-White and Stassen, "Biblical Perspectives," 124.
[20] Ibid., 123; Yoder, "Against," 174; Millard Lind, The Sound of Sheer Silence and the Killing State: The Death Penalty and the Bible (Telford, PA: Cascadia, 2004), 52-53.
[21] Douma renders the Commandment as prohibiting "unlawful killing;" The Ten Commandments, 214.
[22] Douma outlines the killings specifically prohibited by the Sixth Commandment in ibid., 214-16.
[23] House, "In Favor," 50-53, 55.
[24] Westmoreland-White and Stassen, "Biblical Perspectives," 125. Yoder sees Genesis 9:6 as expiatory in nature as well; "Against," 127.
[25] Westmoreland-White and Stassen, "Biblical Perspectives," 125.
[26] Ibid., 125-26.
[27] Lewis Smedes, Mere Morality (Grand Rapids, MI: Eerdmans, 1983), 122 quoted in Westmoreland-White and Stassen, "Biblical Perspectives," 129.
[28] Westmoreland-White and Stassen, "Biblical Perspectives," 129; Douma, The Ten Commandments, 238.
[29] Westmoreland-White and Stassen, "Biblical Perspectives," 123.
[30] House, "In Favor," 62-63.
[31] Idem.
[32] Yoder quite eloquently expresses this point in "Against," 140-41.
[33] Westmoreland-White and Stassen, "Biblical Perspectives," 132-33; Lind, The Sound of Sheer Silence, 124-25.
[34] Walter Wink, "Beyond Just War and Pacifism: Jesus’ Nonviolent Way," Review and Expositor 89:2 (Spring 1992): 199 quoted in Westmoreland-White and Stassen, "Biblical Perspectives," 134.
[35] Westmoreland-White and Stassen, "Biblical Perspectives," 135.
[36] House, "In Favor," 62.
[37] Westmoreland-White and Stassen, "Biblical Perspectives," 133.
[38] Meilaender, "A Protestant Perspective," 53.
[39] Westmoreland-White and Stassen, "Biblical Perspectives," 135.
[40] Idem.; Yoder, "Against," 140.
[41] Idem.
[42] House, "In Favor," 63. In directing us to look at the overall context of the passage, retentionists also point out that the crime here is adultery and not murder; therefore, since the civil portion of the Mosaic Law has been abrogated with its death sentence for adultery, the mercy Christ shows the woman here cannot be extrapolated to apply to the punishment for murder, which is provided for under Genesis 9:6; ibid., 64.
[43] House, "In Favor," 64.
[44] Yoder, "Against," 140.
[45] Westmoreland-White and Stassen, "Biblical Perspectives," 136.
[46] House, "In Favor," 68-69; Douma, The Ten Commandments, 235.
[47] Yoder, "Against," 144-45; Douma, The Ten Commandments, 202.
[48] Lind, The Sound of Sheer Silence, 126.
[49] Yoder argues that the sword refers to judicial authority but it is not a reference to the death penalty because Paul does not specify punishments in verse 4; "Against," 146. Westmoreland-White and Stassen assert the sword was "the kind worn by policemen who accompanied tax collectors;" "Biblical Perspectives," 137.
[50] Yoder, "Against," 145.
[51] House, "In Favor," 68; Douma, The Ten Commandments, 235-36.
[52] Ibid., 202.
[53] Ibid., 239.
[54] J. Budziszewski, "Categorical Pardon: On the Argument for Abolishing Capital Punishment," in Religion and the Death Penalty: A Call for Reckoning, ed. Erik C. Owens, John D. Carlson, and Eric P. Elshtain (Grand Rapids, MI: Eerdmans, 2004), 113.
[55] Avery Cardinal Dulles, "Catholic Teaching on the Death Penalty: Has It Changed?," in Religion and the Death Penalty: A Call for Reckoning, ed. Erik C. Owens, John D. Carlson, and Eric P. Elshtain (Grand Rapids, MI: Eerdmans, 2004), 29.
[56] Meilaender, "A Protestant Perspective," 55.

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