by Fr. Jacques-Jude Lpine
Now when morning was come, all the chief priests and the elders of the people took counsel against Jesus to put him to death. (Matt, 27:1)
The death penalty has very direct connections with the Christian faith. Jesus Christ himself was a victim of the death penalty. We also are confronted with his act of preventing the execution of an adulterous woman. Christ’s message, the Gospel, is an invitation to us to imitate God’s unlimited and nonviolent love towards all human beings, without any exception. This divine love naturally excludes killing as the expression of its ultimate negation.
Opposition to the death penalty, however, does not depend only on religious conviction, Christian or otherwise. Secular thinking also provides a solid and relevant critique. Several times I have seen a student change his mind regarding capital punishment after reflecting on secular arguments.
I will start by reviewing secular arguments against the death penalty and only then move on to what has been my greatest source of bewilderment when debating this issue with my students, which is their refusal to discuss their support of the death penalty after having been in close contact with a violent crime. This will lead to what I believe to be, beyond its political and societal aspects, the spiritual dimension of the issue, its deeply individual and personal stakes.
Secular arguments against the death penalty: These arguments have been very well presented by Lawrence Hinman, Professor of Philosophy at the University of San Diego, who considers them as looking either backward or forward. The backward-looking argument considers the crime for which a person has been convicted and follows the line of “the punishment should fit the crime,” a modern rendition of the “Lex Talionis” – the law of retribution – associated with the Old Testament.
The Lex Talionis: There are some major problems with this conception of justice as pure retribution. If justice is about mirroring the crime, then what distinguishes it from an institutionalized form of revenge? History tells us that the emergence of a judiciary system represents a major political achievement against the devastating consequences of the cycles of revenge in ancient societies. A punishment that “fits the crime” to the point of mirroring it, therefore, is a regression towards some of the most primitive and violent social orders. Along the line of this problem, another immediately follows. Is it possible for those who administer the death penalty not to abase themselves to the same level as the criminal they are punishing? Few crimes are “clean ones.” Most involve considerable suffering, even torture, on behalf of the victim. How should the punishment fit the crime in such cases? Should the criminal be tortured to death?
The reference to the Lex Talionis also needs to be examined. All too often, it is misunderstood as a call to revenge, whereas, in the context of the Old Testament, it signifies the very opposite. In a world where revenge means endless cycles of killing, “An eye for an eye” meant only one death and no more than one. The Lex Talionis is, in fact, a milestone in the gradual revelation of the total nonviolence of God that culminates at the Cross and in the teaching of Jesus. Those Christians who refer to the Lex Talionis to justify the death penalty are victims of their ignorance of the step-by-step way God reveals Himself to humanity. From this point of view as from many others, the New Testament completes the Old One. “An eye for an eye” was already a major step forward, an exodus from the grip of violent thinking of ancient societies. Only centuries later, in the teaching of Christ, do we hear the words, “turn the other cheek.” They seem to be teachings in conflict, but in fact there is a continuity, an evolution that makes the earlier law obsolete.
The sanctity of life: The argument that executions are a means of defending the sanctity of life would barely deserve to be mentioned, given its lack of rational consistency, were it not a phrase so often heard among the supporters of the death penalty. How someone can contend that a criminal who has acted against the sanctity of the life of another human being should be put to death without realizing the self-contradiction inherent in this argument is amazing. Perhaps such a superficial argument deserves a simple answer, like the cartoon showing an execution with the guillotine (this and all forms of execution were abolished in France by Franois Mitterand), followed by the execution of the executioner, followed by the execution of the executioner of the executioner, etc, ad infinitum. One is reminded of the question: Why do we kill people who kill people to show that killing people is wrong?
When this argument is made from an explicitly Christian point of view, the issue at stake is larger than the one of the death penalty. It’s the need to discover the fundamentally nonviolent character of the Judeo-Christian revelation, as shown by Ren Girard and developed by such theologians as the members of the Colloquium on Violence and religion.
The deterrence argument: The major forward-looking argument, instead of looking back at particular crimes, looks at potential future crimes and how to avoid them. Surely, it is argued, the death penalty will have a deterrent effect on potential murderers. However, the deterrence argument has no solid, factual, statistical ground. It would have some value if statistics could demonstrate a lower murder rate in countries or states where the death penalty is enforced as opposed to a higher one in countries without death penalty. (There is a major technical obstacle to the interpretation of data, which is the vast number of extraneous social factors, besides the death penalty, that intervene in the murder rate of any country or region at any period of time.)
Hinman also asks: if the death penalty has a deterrent effect, then wouldn’t it make sense to make it swift and highly publicized through the media? For the moment, in the US, the average waiting period for a convict on death row is about seventeen years. In our media-driven society, a major “story” becomes old after a few months at the very most. The news of the execution of a convict for a crime that people barely remember raises little interest, apart from the morbid appeal elicited from the re-publicizing of the crime’s details. If the news of the crime were almost immediately followed by the execution of the murderer, live and in color, on TV and YouTube, would this not be a real booster for the deterrence effect of the death penalty? If so, why not advocate such a system? (Of course, Hinman is aware of the fact that long delays, essential for the careful workings of the legal system, are not supported by all proponents of the death penalty. However, his argumentation ad absurdum is still valid, and introduces an important point.)
Hinman points out the fact that most partisans of the death penalty do not want the public to see the reality behind the words. I usually show my students the end of the movie, Dead Man Walking, pointing out that when a convict has been condemned to death, it does not only mean that society considers this person as having lost his or her right to live. It also means that someone, one way or another, actually has to kill this person. In a democratic system where law and policy makers are elected based on our agreement with their program, we all participate, to some degree, in this execution. This is also why the death penalty is not a purely theoretical issue. A popular movement against it can, one day, abolish it, as happened with slavery and later racial segregation in the US.
2 See: http://www.uibk.ac.at/theol/cover
Human error: How many people have been convicted and executed by mistake? The Innocence Project, in just a few decades, has exonerated over two hundred people in the US. We will never know how many, before them, were executed for crimes they did not commit. Even the use of advanced technology such as DNA analysis cannot guarantee that only criminals would be executed. The question for the supporters of the death penalty is, what proportion of execution of innocents is acceptable?
Socio-economic interferences in the legal system: Not only is infallibility of the justice system impossible, but in its current form in the USA, the outcome of a trial is highly dependent on social and economic factors. Statistics, this time, are available and relevant. In the US, in 2005, 1,805 death row inmates were white versus 1,372 blacks. Now, blacks represent about 12% of the population. This means that, from a proportional point of view, almost ten times more blacks are on death row than whites. Many factors are involved, but one thing is for sure: justice is affected by factors others than the guilt or innocence of people. As the
3 Some sociologists have argued that, instead of having a deterrent effect, the death penalty fosters violent crime, as it sends the message that taking the life of some people is acceptable.
lawyer of murderer Matthew Poncelet (whose story was dramatized in Dead Man Walking) says during his last appeal, “If Matthew could have afforded a good lawyer, he would not be here today, asking you for his life…”
The voice of the Victim: There is another argument in favor of the death penalty which I periodically encounter among my students. This could be called the voice of the victims. Although I live in a relatively peaceful part of the US, where violent crime is a rare occurrence, I have met a number of people who have one or more relatives who died in a violent crime. One administrator at my workplace lost his sister, killed by two teenagers. A few weeks ago, a local teenager and a police officer were killed in a rampage. When I have students in my class who have lost someone in a crime, the majority of them are in favor of the death penalty. They do not want to discuss it, implying, sometimes arguing, that the suffering caused by their loss entitles them to their point of view and legitimates their refusal to hear arguments against it.
Their suffering is very real, almost palpable, and I have learned to deal respectfully and carefully with this situation when it arises in the classroom. They have taught me that the refusal to deal with the issue does not necessarily arise from a resentment or desire for seeing their loved one avenged. In fact, the silence they feel entitled to is the outward expression of their state of mind; the debate they do not want to be involved in within the classroom is the same debate that they are trying to repress within themselves. This self-imposed inner paralysis causes an aggravation of their sufferings, even though it seems to be the only way to be “at peace” with themselves, the one they lost, the murderer, society, and even God. Being victimized themselves, they try to give voice to the loved one they lost by agreeing with society’s decision to take the life of the murderer. The execution brings “closure,” it is often said. But what is closure? It only means that everything that could be done to repair the damage has been done, as far as society is concerned. At the personal level, “closure” is close to the acceptance of despair, as nothing has changed with the death of the murderer. To be at peace might only mean to allow time to partially alleviate the suffering until death claims us.
It appears to me that this process of self-repression is not simply about arguments. It is about someone, the Divine Victim who is making His way through these arguments to the minds and souls of these persons and their sufferings. This can actually become a privileged time for an encounter with the Innocent Victim who is at the place of these suffering people and their loved ones, and even at the place of the murderer, as the executed one. His own voice, which we as Christians have a responsibility to mediate to others when the time is right, brings about deliverance from this despair caused by death, which is inseparable from the other side of the central part of the Gospel’s message: the loving forgiveness God constantly offers to us, even when we choose not to accept it. His forgiveness extends to the murderer as well as to those who refused to forgive the murderer – and who have become associated with a new murder in doing so.
The suffering caused by inner repression can gradually be healed. Granting forgiveness heals the one who forgives. Reconciliation within oneself is taking place. Forgiveness is a psychological, emotional and intellectual experience that restructures our whole perspective on others and life. This is also true from the point of view of the one who accepts forgiveness. Moreover, unlike other experiences, it also has a spiritual dimension. It is an experience of the Holy Spirit Who, in the Gospel of John, is called by Jesus the Paracletos, often translated as the Counselor, the Comforter. This term has a stronger original meaning. Its Latin equivalent – advocatus – has given us the modern word, advocate: the one who comforts those who are accused and speaks in their favor, like a defense lawyers in a tribunal. Forgiving, thus, implies paying attention to the Divine Advocate speaking in favor of those who are accused.
This is an encounter with the God Who, on the Cross, forgave even his murderers. Forgiving is always a spiritual experience of encounter with the God Who, on the Cross, forgave his murderers. As Christians, it is our responsibility to bring this experience to its theological fullness. Coming after the kind of inner paralysis that characterizes the refusal to forgive, it is a resurrection with a small “r.” It is in the Resurrection of Jesus, as the loving and forgiving Victim, that human forgiveness and respect for life, as the gifts of God by excellence, find the fullness of their meaning and, ultimately, make perfect sense.
Can this personal experience have a social translation? The fact that many countries have renounced the death penalty points toward a positive answer to this question. This change has to be appreciated within the context of other changes happening in other cultures of the world, a new awareness of victims. Isn’t this awareness, despite its ambiguities, contradictions, commercial and legal exploitations and limits, at least an echo of the Voice of the Victim among us all?
Fr. Jacques-Jude Lpine is a priest of the Orthodox Church in America, a teacher (US and world history, cultural anthropology, ethics, and cinema), and also director of the media center of a New Hampshire school inspired by the Montessori philosophy. He was born and raised in Paris, France, and studied in the Near East, Belgium, New York and California.
* * *
from the Summer 2007 issue of In Communion / IC 46
* * *