CAPITAL PUNISHMENT: THE UNITED STATES STRUGGLES WITH ITS APPLICATION

• First a review of the decision itself.  The case (Baze v. Rees) originated in Kentucky, which is one of 35 states that use lethal injection as the means for capital punishment.  (The injection is actually a three-drug “cocktail” that induces loss of consciousness, causes paralysis and stops the heart.)  The primary constitutional question which was asked of the Court was whether this method, which can cause pain and which is often administered by those with inadequate training, violates the 8th Amendment’s ban on cruel and unusual punishment.  Chief Justice John Roberts, writing the opinion, found that Kentucky’s procedures do not violate the 8th Amendment’s ban on cruel and unusual punishment.  Even if the procedure does inflict pain, the case failed to show that the risk of harm was “objectively intolerable.”  In other words, death row inmates must prove not only a demonstrated risk of severe pain but also that the risk is substantial when compared with available alternatives.  Six justices concurred with Roberts, to varying degrees.  Justices Clarence Thomas and Antonin Scalia argued that an execution is acceptable unless there is one “deliberately designed to inflict pain.”  In his concurring opinion, Justice Stevens argued that the death penalty carries such high risks of error and discrimination, that it is unconstitutional.  He did vote to uphold Kentucky’s practice because of precedent, but strongly suggested that legislatures and courts take up the constitutional question of capital punishment and declare it a violation of the 8th Amendment. 

• Second, how will this decision impact the other states that practice lethal injection?  (Nebraska is the only state that still uses the electric chair.)  In light of this decision, executions in several states will no doubt resume.  For example, in Texas, Alabama and other Southern states with large death row populations, executions will resume using lethal injection.  But there will no doubt be a significant number of fresh legal challenges to lethal injection based on the new standard handed down by the Court.  In other words, the moratorium on the death penalty will resume in many states, but the legal challenges will continue.  In short, in terms of ending the debate, the Baze case settled very little.

• Third, does Scripture help in this matter?  As with the issue of war, capital punishment is filled with intellectual and theological tension.  This point in Perspective One does not deal with how capital punishment is practiced in the United States or any other country.  Instead, the focus is the issue of capital punishment and whether one can make a biblical defense of it as a responsibility of the state.  If humans bear God’s image (Genesis 1:26-27), then taking the life of an image-bearer in a premeditated act of murder ethically demands just punishment.  Killing a human being is an attack on the creator God.  It is a rejection of His sovereignty over human life (see Deuteronomy 32:39).  But is it just to make the punishment capital?  I will argue yes.  There are several key biblical passages that make the case for capital punishment as a just obligation of the state:

1. Genesis 9:6.  As Noah exits the ark, God establishes a new relationship with the human race and a new code on which to base human relationships.  Because of the Flood’s destruction of all life, future generations might conclude that life is cheap to God and assume the same now for humans.  However, the covenant affirms the sacredness of human life and that murder is punishable by losing one’s life.  The text, therefore, institutes the principle of talionic justice, or law of like punishment.  It is not a harsh principle of justice, for it establishes the premise that the punishment should fit the crime.  It is summarized elsewhere in God’s Word as “an eye for an eye and a tooth for a tooth” (Exodus 21:23-25).  The point of this covenant with Noah, then, is that God took justice out of the hands of the families of the deceased and placed it in the hands of human government, thereby eliminating the personal revenge and emotional anger.
2. The Mosaic Law.  God’s moral law revealed to Moses was not the first time God delegated the authority of capital punishment.  It is central to Genesis 9:6 and is clearly implied in Genesis 4 in His dialogue with Cain (see especially verses 10 and 14).  What God did with the Mosaic law was broaden the responsibility to include many other offenses: murder (Exodus 21:12; Numbers 35:16-31; working on the Sabbath (Exodus 35:2); cursing father and mother (Leviticus 20:9); adultery (Leviticus 20:10); incest (Leviticus 20:11-12); sodomy (Leviticus 20:13, 15-16); false prophesying (Deuteronomy 13:1-10, 18:20); idolatry (Deuteronomy 21:18-21); rape (Deuteronomy 22:25); keeping an ox that has killed a human being (Exodus 21:29); kidnapping (Exodus 21:16); and intrusion of an alien into a sacred place (Numbers 1:51, 3:10, 38, 17:7).  The form of execution was normally stoning or burning.
3. Romans 13:1-7.  Verse 4 is the key verse in this critical section on the authority of the state in our lives.  It gives the state the authority to wield the “sword” in its role as the punisher of evil: “he (the civil ruler) bear not the sword in vain; for he is the minister of God, an avenger to execute wrath upon him that doeth evil.”  The word used for sword here is machaira, which refers not only to a sword used in battle, but also to a sword used in executions, as when Herod killed James, the brother of John, in Acts 12:1-2.  Paul’s use of this word gives strong support to the state receiving from God the authority to execute.  It gives no help in deciding which crimes are punishable by capital punishment.

In summary, the principle of talionic justice, implied in Genesis 4:10 and 16, was clearly instituted in Genesis 9:6 and reaffirmed quite broadly in the Mosaic law.  It is likewise power delegated to the state according to Romans 13:4.  The New Testament did not negate the Old Testament standard of capital punishment.  The continuity of the Testaments is affirmed.

• Is capital punishment a deterrent?  Both the criminal justice system and theologians are divided as to whether capital punishment deters criminal behavior.  When comparing crime rates in states that use capital punishment with those that do not, it is impossible to argue that capital punishment is a deterrent.  It seems that one can make criminal justice statistics say whatever you want them to say.  But, from the perspective of Scripture, this is beside the point.  The view of capital punishment defended here gives focus to the fundamental biblical reason for capital punishment, namely killing an image bearer of God demands taking the life of the murderer based on the principle of talionic justice.  Whether this form of justice deters further murders is almost irrelevant to the issue.  Justice demands payment and the universal and binding principle that God instituted in Genesis 9:6 is as applicable today as it was in Noah’s day.

See the New York Times (17 April 2008) on the case, the accompanying article by Adam Liptack, and the accompanying editorial in the editorial page.  Also see James P. Eckman, Biblical Ethics, pp. 67-70.