Assessing the Death Penalty: Let the Punishment Fit the Time

By Danny Abbott

Christianity in the United States has had a unique experience compared to the rest of the western world. U.S. church attendance is substantially higher than most other western democracies (noteworthy exceptions include Ireland and Malta). Since World War II, similar democracies with our shared western heritage - the Netherlands, Canada, Australia, France and numerous others - have become increasingly secular. American citizens still self-report in high numbers to be "born-again" Christians. The United States, however, despite its high level of self-identification with Christianity, has nevertheless retained the death penalty in the federal government and majority of states, and shows few signs of abandoning the practice.

Despite increasing secularization, the rest of the western world has in some ways caught up with mainstream Orthodox Christian teaching opposing the death penalty.

In a recent issue of In Communion, the journal of the Orthodox Peace Fellowship, Fr. Ted Bobosh recalled that years ago he was present when the Orthodox Church of America voted in favor of a resolution condemning the death penalty. Recently, Metropolitan Evangelos of the New Jersey Greek Orthodox Metropolis of New Jersey applauded the state's abolition of the capital punishment. Perhaps most interestingly of all, Fr. Ted noted that in 988, when Saint Vladimir, prince of Kiev, converted to Christianity, he banned capital punishment. In May 1998, almost a thousand years after the mass baptism of the people of Kiev, the late Patriarch of Russia, Alexei II, spoke out against capital punishment. In an interview in the newspaper "Ochnaya Stavka," published by Russia's Prosecutor-General's office, Patriarch Alexei stated that capital punishment is tantamount to premeditated murder and that it violates the biblical commandment of "Thou shalt not kill."

Traditionally "Orthodox countries," with the exception of Belarus, banned the death penalty following the collapse of the Soviet Union. Russia itself has refrained from executing criminals since 1996.

Multiple multilateral conventions adopted since World War II have either banned capital punishment or limited its use to crimes committed during times of war. Major conventions, such as the European Convention on Human Rights, American Convention on Human Rights, and importantly the International Covenant on Civil and Political Rights, have all been amended to ban the death penalty. The United States was a signatory to the American Convention on Human Rights and the International Covenant on Civil and Political Rights, but never ratified the amended versions banning the death penalty. Although the multilateral conventions banning the death penalty were only legally binding in countries in which they were ratified, they did reflect the growing consensus that the death penalty is illegal under international law.

Briefly, from 1972 until 1976, the United States banned the practice of the death penalty. In the seminal case regarding capital punishment in the United States, Furman v. Georgia, the Supreme Court held that the practice of the death penalty violated the Eighth Amendment of the Constitution's prohibition against "cruel and unusual punishments" essentially because it was carried out in an irrational manner. Justice Byron White stated that there "was no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." The Court also noted that African-Americans were also much more likely to have the death penalty imposed than white defendants. The Supreme Court, however, did not hold that capital punishment was a violation of the Eighth Amendment per se but that the penalty's application was unconstitutional.

In 1976 the Supreme Court held, in Gregg v. Georgia, that the death penalty was not a violation of the Eighth Amendment and that with proper safeguards the practice could be constitutional. Justice Thurgood Marshall dissented that the death penalty is unconstitutional, no matter the circumstances and noted a study by a United Nations Committee that stated it is "generally agreed between the retentionists and abolitionists, whatever their opinion about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of crime."

Thirty-two years later, the available data still does not suggest that the use of the death penalty deters crime, despite deterrence being the justification often used for the practice's retention. Years of longitudinal data have consistently confirmed that, in American states with the death penalty, the murder rate is in fact significantly higher than in states in which the death penalty has been abolished. The FBI's study, "Crime in the United States," noted that in the years between 1996 and 2006, in states retaining the death penalty, the murder rate ranged from a low of 5.7 per 100,000 people in 2000, to a high of 7.72 per 100,000.

During that period the murder rate peaked in abolitionist states at 5.36 per 100,000 in 1996. In terms of percentage, the murder rate ranged from 28% to 46% higher in states that retain the death penalty in the period studied. Deterrence has not been demonstrated but a positive correlation between the application of the death penalty and higher murder rates is consistently shown. This should not be counter-intuitive, given that it is not entirely logical that the public will be taught that the taking of life is wrong via the state sanctioned killing of another human being.

While internationally the practice of the death penalty has increasingly become seen as an ineffective and barbaric form of punishment, the execution of juveniles and the mentally retarded has come to be seen as particularly egregious. Worse, the United States has practiced both until very recently and only then was the practice abolished by Supreme Court decisions determined by narrow majorities.

Critics of international laws often argue that it is completely voluntary, unlike other legal disciplines such as contract or property law. However, it is accepted, in virtually every legal system, that some practices and crimes are considered to be so egregious that any court in the world has jurisdiction over them. This applies without regard to where the crime took place (a concept referred to as universal jurisdiction). Such crimes are referred to as jus cogens, and under international law no deviation is ever tolerated. Despite the critics of international law, the concept of jus cogens is recognized and enforced in the federal courts of the United States. Examples of jus cogens include such heinous acts as piracy, torture, genocide, slavery, "crimes against humanity," sexual slavery and according to almost all international legal experts, the execution of juvenile offenders and the mentally retarded.

The concept of jus cogens is taken so seriously in international law that the Vienna Convention on the Law of Treaties renders any agreement in violation of it completely void.

The Inter-American Commission on Human Rights declared in 2002 that customary international law had evolved to the point that the execution of juveniles constituted jus cogens. By 1990, the remaining eight countries known to execute juvenile offenders were Pakistan, Saudi Arabia, Yemen, Nigeria, Congo, China, and the United States. Missing from the list were the countries President Bush's labeled as belonging to the "axis of evil": Iran, Iraq, and North Korea. By early 2005, all of the aforementioned nations had either outlawed the execution of juveniles or gone on record disavowing the practice, leaving the United States as the international community's sole offender.

One is left to wonder about the implications of what would have transpired had the United States been in compliance with international law regarding the execution of minors, and had Iraq been in violation prior to the removal of Saddam Hussein. Obviously the United States would have gone to war with Iraq regardless, but had the Hussein regime executed minors in violation of international law and the United States had not, one can easily imagine that apologists for the Iraqi War would use it as one more justification for the initial invasion.

In Thompson v. Oklahoma, the U.S. Supreme Court held in 1988 that the execution of a 15-year-old violated the Constitution's ban against cruel and unusual punishment. Nevertheless the decision was 5-3 and Justice Scalia argued that executing a 15-year-old did not violate the Constitution. The Supreme Court in a subsequent 1989 decision, Stanford v. Kentucky, held that executing 16- and 17-year-olds was not a violation of the Eighth Amendment. The issue was finally revisited in 2005 by the Court in Roper v. Simmons, when the Court noted that allowing the practice of executing 16- and 17-year-olds would leave the United States essentially alone in the world. Again, however, the vote was 5-4.

The international community had for quite some time expressed particular frustration over execution of the mentally retarded in the United States. In 1989 the U.N. Economic and Social Council recommended that nations take steps to eliminate capital punishment for people "suffering from mental retardation." The European Parliament passed a resolution in 1995 expressing that the death penalty is "cruel and inhuman" in every instance, but emphasized that the American practice of allowing the execution of the mentally retarded was particularly disturbing.

Finally, in 2002, in Atkins v. Virginia, the Court held (in a 6-3 vote) that the execution of the mentally retarded was unconstitutional. The dissenting judges, Clarence Thomas, William Rehnquist and Antonin Scalia, complained that the majority had relied on following international trends and foreign laws in reaching its decision. They argued that what is "cruel and unusual punishment" should be determined only by "American conceptions of decency."

The international community's opinion of U.S. retention of the death penalty has continually regressed and diminished the standing of the U.S. as a protector of human rights and as a society in which the sanctity of human life is valued.

As early as 1989, the European Court of Human Rights, in Soering v. United Kingdom, forbade the United Kingdom from allowing the extradition of a young German national to the United States when any possibility existed that the defendant would face the death penalty. On the condition that he not be subject to execution, the defendant was eventually extradited to the U.S., where he is now serving two life sentences in a Virginia prison.

The decision was extremely important because it set precedent for what would become customary international law on the manner in which countries banning the death penalty treat extraditions when there is the possibility that a defendant will be extradited to the United States for a crime carrying the possibility of the death penalty.

In a very similar decision in 2001, United States v. Burns, the Canadian Supreme Court held it was a violation of Canada's Constitution and of international law to allow the extradition of a criminal defendant to the United States where the possibility of capital punishment exists. Interestingly, in the body of the decision the Court noted that Amnesty International had made the argument that among nations banning the death penalty, Canada was the only country at that time that allowed the extradition of defendants where the possibility of the death penalty existed. The Canadian Supreme Court, while not conceding or affirming Amnesty International's point, it did not challenge or offer evidence to the contrary. The Canadian Supreme Court cited a resolution of the U.N. Commission on Human Rights regarding extradition: "States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that capital punishment will not be carried out." The decision made the international legal standard concerning the illegality of extraditing defendants to the United States where the death penalty can be sought part of Canadian domestic law.

In 1992, Paul Efthemios Tsongas, a Greek Orthodox contender for the U.S. Presidency, stated during a debate that he would prefer that the murderer of his wife, should such an event occur, be rehabilitated rather than to receive the death penalty. This was viewed by most as a blunder. Some have argued this statement prevented him from being elected president. However, what people considered laughable was entirely consistent with Orthodox Christianity. (Former Governor Michael Dukakis, another Orthodox Christian, exhibited a spirit of forgiveness rather than vengeance and exhibited concern for the reform of a sinner.)

Our nation's love affair with capital punishment is entirely irrational. The United States was at one time the world's foremost defender of human rights. However, we have retained a practice that has cost us the respect of our allies and that puts us in company of some of the world's foremost human rights abusers.

Given the correlation between higher murder rates in jurisdictions retaining the death penalty, the U.S. loses more than just respect around the world. We also generate higher loss of human life and produce a public that becomes even more desensitized regarding the sanctity of life.

Orthodox Christians should regard capital punishment as being similar in nature to abortion and euthanasia, and act accordingly. As citizens of a democracy, Americans are able to express their beliefs concerning the death penalty and its inconsistency with Jesus' teachings to their elected representatives.

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Danny Abbott has a law degree and currently works as an insurance claims analyst and adjudicator

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