A Supreme Court Justice And A Public Defender's Opinions

Finishing up my book, I read two chapters, "God's Justice and Ours: The Morality of Judicial Participation in the Death Penalty" by Antonin Scalia as well as "The Problem of Forgiveness: Reflections of a Public Defender and a Murder Victim's Family Member" by Jeanne Bishop. It was quite an interesting read with both of these essays being diametrically opposed in many ways.

I will begin with Justice Scalia's essay. He structures his essay into two parts: the legal and the moral justification for the preservation of the death penalty. Scalia believes without a doubt that the Constitution is "dead" or enduring. Many propose that the Constitution is living in that its interpretation changes with the time. However, Scalia believes that the Constitution should be interpreted as when it was written. Therefore, capital punishment was permitted when the Eight Amendment (concerning cruel and unusual punishment) was adopted so it is permissible today. Scalia points out that because the constitution is dead and that Supreme Court Justices are only supposed to interpret it, any change regarding the death penalty must be pushed through Congress as they are the instruments of evolution. Moving on, Scalia says that the book's arguments, in which this essay is compiled, has nothing to do with how he votes but if he should be a judge at all. He writes, "The choice for the judge who believes the death penalty to be immoral is resignation" (234). Thus, Scalia, as a practicing Catholic, discusses if his faith dictates that the death penalty is immoral. He quotes from St. Paul and sums the passage up as thus, "The core of his message is that government -- however you want to limit that concept -- derives its moral authority from God" (235). Therefore, Scalia believes that the government has an authority derived from God that individuals do not have and that authority includes capital punishment. This seemingly contradicts the Evangelium Vitae in which the Pope declares that capital punishment, because of advances in penal system and thus less need for defense, is irrelevant and essentially non-permissible. Scalia believes that steady improvements in the penal system does not make the death penalty any less deserved for heinous crimes -- in fact, nicer and more humane prisons that are more characteristic of this century make the death penalty more necessary.
In regards to Scalia's essay, I had many problems with his logic. He believes that government is divinely inspired with God given authority but I take fault with that. The passage from St. Paul he quoted said nothing of governments but rather "higher powers" and "rulers". I don't think that necessarily referred to secular and fallible governments. There are all types of higher powers and rulers in the world, such as those in the church. How can Scalia decide what is a legitimate authority in the world and distinguish between a democracy such as ours in America and a democracy in Zimbabwe? Both are technically democracies and Paul gives us no directions in which to distinguish them. If Scalia cannot use Paul's words against Zimbabwe's "democracy" then he cannot use it for America's democracy. I also think that Scalia's argument was so obviously biased from the start as he even admits in the conclusion that if he had found the death penalty immoral, he'd have to quit his job and he really would not like to do that. Having this bias at the beginning truly limits where his logic can take him as he thinks about whether the death penalty is truly permissible morally and within his own church.
Jeanne Bishop's essay serves as a counterweight to Scalia's article. Bishop's pregnant sister, as well as her sister's husband, were brutally murdered in Chicago and the perpetrator was not given the death penalty as he was only 16, under the minimum age of 17. What makes Bishop's experience unique is that she was investigated for six months as a prime suspect and that trial eventually lead to her becoming a public defender, "Those hellish months taught me  an unforgettably lesson about the power of government over the individual" (266). Bishop realized how many mistakes can be made and how helpless the defendant can be. She even mentions Justice Scalia's referral of mistakes in death penalty cases as "foot faults", a tennis term for an accidental error of stepping out of bounds. Bishop remarks, "In a proceeding where human life is at stake, this use of a sports metaphor is inaccurate at best, callous at worst" (267). Bishop goes on to explain the false promises that the death penalty makes regarding closure, justice, deterrence, and the cost. She even goes on to make critical arguments against Scalia's essay. One of the most profound is against his argument that the church tradition (with the exception of Evangelium Vitae) has always allowed the death penalty. She says that while that may be the church's tradition, it is not Christ's tradition. Bishop notes that hate has become a creed of comfort in our society and even within our church. She ends her essay describing the scene of her sister's death, where she had written "love you" in her blood on the floor next to her executed husband as she died herself. Bishop recounts, "That was the moment, finally, when my mother cried in from of me. 'It's true, isn't it?' she asked. 'Love is stronger than death'" (276).
While Scalia's argument seemed biased, superficial, and unfaithful, Bishop's argument was thoughtful, convicting and selfless. One of the arguments she made in regards to the false promise of justice was especially convicting. Bishop writes, "Imagine if all my sister's killer could give me in return for my loved ones were his life. His life is not worth theirs" (268). Many have argued that justice is an eye for an eye and use that as reason for capital punishment. However, after reading Bishop's account, I realized that a loss of loved one will never be replaced in worth. Their murderer will never mean as much as the loved one did so why even have capital punishment? There are so many faults with the 'eye for an eye' argument, most already mentioned in my synopsis of previous chapters and this is just another one of them. I also enjoyed thoroughly her arguments against Scalia's essay as something in my gut told me they were not faithful and she articulated it perfectly. While her experience with capital punishment as both a family member of a victim as well as a public defender of murderers gives her a lot of legitimacy, she goes beyond that and makes valid points about how the death penalty could never be faithful to Christ.

Responsibility, Vengeance, and the Death Penalty

In the fallen world, the center is at the same time the boundary. Man stands between law and fulfillment. He has the law, but he cannot fulfill it. Now Christ stands where man fails towards the law. Christ as the center means that he is the fulfillment of the law. So he is in turn the boundary and the judgment of man, but at the same time the beginning of his new existence, its center. Christ as the center of human existence means that he is man's judgment and his justification.
Dietrich Bonhoeffer
Christ the Center


This quote by Bonhoeffer opened up Victor Anderson's essay entitled, "Responsibility, Vengeance and the Death Penalty" and sufficiently summarized much of Anderson's position on the death penalty. This becomes apparent towards the end of the essay. Anderson divides his position into the Divine command (a theology based on Karl Barth), Vengeance as a dark symbol (a theology based on Edward Farley), and the Responsibilist Approach (a theology based on H. Richard Niebuhr. With all of these theologies, he critically analyzes their positions and concludes what he sees as viable in answering  the question of the death penalty. Divine command ethics asserts that theology and ethics are intertwined as any ethics with philosophy as its basis brings about general human ethics which is "philosophically universalizable" (197). Barth does not want to ask "What is the good?" but rather "Who am I?" as this question will dictate what one should do or what the good is. Divine command ethics essentially has God alone at the center of moral life. However, the part of divine command ethics that interests Anderson is the idea of the divine yes versus the divine no. The divine yes is that God commands us to live and to be. The opposite of this is death and vengeance as the divine no. Anderson and Barth both believe that God has used the divine yes more than the divine no. Anderson writes, "For Christian ethics, this priority of the divine yes over no suggests that God acts for humanity as the gracious God who commands the creature to live and be" (198). This theology of the divine no demands that we act in mercy in grace as God has. However, much to Anderson's dismay, Barth finds room for the death penalty in this theology: in the case of treason or tyranny. Anderson wonders why grace, mercy, and God's judgement in Jesus Christ is not extended to the tyrant and traitor. Anderson moves on to discuss Vengeance as a Dark Symbol. He reiterates Farley's ideas that vengeance is co-present with the idea of justice. Justice regulates vengeance so it does not overtake the entire social order. Vengeance works as a dark symbol in our lives in that they, "sustain, enchant, and empower forms of community that often rival the best intentions of Christian community" (204). The divine yes brings forth the triumph of grace over vengeance, a dark symbol that can poison our mission to build Christian community on this earth. Niebuhr proposed the responsibilist approach to the death penalty. This theology is not about command or obedience, but rather responsibility. Humans are in constant dialogue with each other, answering action committed onto them. This is where the Bonhoeffer quote is brought into the discussion by Anderson, "I take this to mean that Christ has already stood in both the judgment of every person and in justification of all. As I understand the gospel, this judgement is unrepeatable, for it was once and for all a judgement of death" (209). Therefore, we should respond to any action done upon us with mercy instead of judgement. The theme of our dialogue with the world should be mercy and grace.
I appreciated the divine command ethics in its reframing the question from "what is the good?" to "who am I?". It addresses the same question that many previous authors have touched on in this book in discussing the theoretical foundations of arguments we make or "moral anthropology". I think we can easily get lost in superficial arguments in regards to fallibility of convictions or defense of society without really understanding the moral presuppositions that we are putting forth. By asking "who am I?" instead of "what is the good?" we don't waste time arguing about what the good is which will never be similar to someone who didn't believe in the same answer as you as to "who am I?".  Moving on to the divine yes and divine no, while it sounds great it seems less defendable and substantiated by actual evidence. Even if you could count how many times God used the divine yes and the divine no, it is easy for someone to point out that some divine yes's or divine no's may be worth more than others. This argument seems to subjective to hold up in an argument for a long time. It is nice to say that God uses the divine yes more than the divine no, but I don't think the argument will hold if you dig much deeper than that. I would not use this argument when seriously discussing why I  am against the death penalty as I think other reasons are far more defensible.

Christian Witness, Moral Anthropology and the Death Penalty

"What role ought religious beliefs play in a pluralistic democratic society that often presumes strict boundaries between private faith and political life?" (141)

This is the question that Richard W. Garnett strives to address in his essay. He makes two arguments in this attempt: (1) that we shouldn't impose 'strict boundaries' as it is dishonest and distorting, and (2) we should bear authentic Christian witness to 'moral truth about human persons' not try to 'baptize policy analyses'. Garnett begins with establishing what type of argument this will be. He said that we need to make sure our presuppositions are truthful in order to continue moral analysis afterward. This is what he calls moral anthropology. In order to make sure we get the right answer about the death penalty we need to understand, "who these condemned persons are, what they were made to be and why it should make a difference" (144). As Christians, we have a countercultural idea about the specialness of human beings, that they are God's creation, imago dei, and therefore their value is unmeasurable. Regarding religious witness in the public arena, Garnett argues that faith has a legitimate place there. In fact, it is the opposite of liberalism to suggest that christianity is any less fit as a source of values than any other source. With that established, the question becomes, "if Christian believers - as Christian believers - do elect to engage the world, what should we say?"(152). What we should not say is something that is watered down to punditry. Garnett wants Christians define and speak of the moral truths about the human person, starting with the anthropological premise that humans being are sacred. This is followed by the moral claim that some things should never be done to a human being, such as capital punishment. Establishing this anthropological premise is important because it keeps us from joining in discussions about "human fallibility, discrimination, rehabilitation, or cost" (155). This discussions still share the same presupposition about humanity that those who are for the death penalty carry. Garnett demands that Christians turn those anthropological presuppositions on its head and be able to argue why someone who is 100% guilty of murder should not be executed. This is Christian moral anthropology, that our greatness comes not from our abilities to shape our destiny but being creatures of a loving God. Believing this does not allow any Christian to suppose that capital punishment is aligned with the dignity of the human person.

This is by far the best article I have read in this book so far (and I realize that I have probably already said that on a previous blog post but I really mean it this time). I previously have had my feet in two camps, involving myself in "human fallibility, discrimination, rehabilitation, or cost" discussion as well as the discussion about whether capital punishment is deserved by anyone. I have never realized until reading this article how different the moral suppositions of both these camps are so different. More shocking to me is that the former camp has the same supposition as that of those who support the death penalty. They both believe that not every human is infinitely valuable and not all humans share the same level of dignity. I think Garnett has offered up a position that is the most Christian as it is truly countercultural and not of this world, which are defining characteristics of Christianity. Our Christian moral anthropology or "story" should be different than the world's. It's easy to get caught up in superficial arguments about things such as the fallibility of the courts without realizing what the moral suppositions for those arguments are. It's hard for me to see now how Christians can believe we are created imago dei yet argue a position that devalues human worth.

Biblical Perspectives

The next chapter of this anthology is entitled, "Biblical Perspectives on the Death Penalty" written by Michael L. Westmoreland-White and Glen H. Stassen. This chapter focused specifically on biblical passages and creed. The authors analyzed the many ways the passages and idea of the crucifixion are used to argue for and against the death penalty. While there were many examples, the most significant passage for Christian death penalty advocates has been Genesis 9:6 which more or less says that whoever sheds the blood of someone, their blood will also be shed. Many DP advocates have interpreted this as a law code but the authors in fact point out that it is more likely it was a karmic proverb. The verse is structured in poetic recital and rhymes in Hebrew, so it is not structure in legal language. The authors interpreted this to mean that in the order of the world, those who murder will most likely be murdered eventually, either as a legal penalty or something informal like vengeance. However, this verse is most definitely not in imperative language and therefore not a legal penalty. The authors go on to address Lex Talonis which is also known as the "an eye for an eye" law code. Rather than how its interpreted as a minimum standard of justice it is actually a maximum standard of justice. The authors note, "The Lex Talonis is not a demand to force symmetrical justice on persons who would otherwise be inclined to overly merciful, but rather limits escalating vengeance cycles" (129). There is room for mercy in this law code, which in fact is only mentioned three times in the Old Testament anyways. The authors then move to the crucifixion of Jesus as a symbol that is inherently against capital punishment. Jesus was falsely convicted of threatening the temple, preaching sedition against Rome, and blasphemy. For this, he was subject to capital punishment. As the authors write, "Every time we contemplate Christ's cross, or partake of the Lord's Supper, we are reminded that the death penalty allows legal execution of innocent person. We should be biased against executing criminals, since our Lord was executed as one" (136). They conclude on the cross as being the ultimate defense against the death penalty and leave little room for those who honor the cross to think any differently.

I appreciated this chapter because I never thought about looking for imperative language when determining whether something in the Bible was poetic or legal code. I agree with the authors on their interpretation as God obviously did not enforce that outcome with many of the people who are mentioned in the Bible (i.e. Cain, Moses, King David). It is also fascinating to compare these proverbs with the way God actually acted toward His people in those biblical narratives. It almost seems like He is a just god and has a moral code He expects His people to live up to, yet He can't help but show mercy when they fall short. To think of Him this way gives us a standard of how to live mercifully, not only because that is how God acts, but also because we have been shown so much mercy. I was also struck by the juxtaposition of taking communion and the death penalty. I do not see how one can possibly truly believe in Jesus as someone who was the victim of government and its fallibility yet think that our government is somehow more able to make decisions on capital punishment. Unlike Mohammed of Islam who was a warrior and political leader, Jesus was outside of the political and governmental system and eventually a victim of it. This seems to be a fact that is often overlooked. It was no single man that killed Jesus, but a state-ordered crucifixion. That cannot be a coincidence. It must be an integral part of the story.

Muslim Perspectives

In this section, I read "The Death Penalty, Mercy, and Islam: A Call for Retrospection" by Khaled Abou El Fadl. El Fadl starts off his essay be reiterating the gravity of a killing state and capital punishment itself. Life belongs to the divine territory and therefore when one thinks about capital punishment, "one is treading upon divine territory and one does so at great peril to one's soul and ultimate well-being in the hereafter" (El Fadl 73). A killing state only kills as an act on God's behalf, not for security purposes or general consensus by the citizens, and this burden of responsibility is heavy. El Fadl brings up the idea of shubha which is doubt that God has authorized your actions or choices. The presence of shubha in a possible sentencing demands the preservation of the accused's life. Before concluding, the author cautions against two things. The first is against the value of a state "that is willing to share the seat of judgement with God and kill" (El Fadl 77). The second caution is against focusing on past Muslim practice in regards to the death penalty but rather to focus on better fulfilling the ideals of Islam. The author writes, "Islam is the product of the constant and evolving dynamic between the divine and the temporal -- between the scripted text, the unscripted text of creation and the reader of these texts" (El Fadl 78). El Fadl concludes that the only version of Justice based off Islam has to be premised on mercy and regard for the sanctity of human life. Decisions about the life and death are too serious for fickle states to handle.
I really enjoyed El Fadl's essay, especially his emphasis on how serious life and extermination of life is, whether through murder or capital punishment. In the previous essays, some authors did not seem to understand that concept as they purported that God will correct in the afterlife any wrongful death sentences we may commit in our time on life. And they believed that He would do so without any consequence to the executioners. This is a very contradictory belief. On one hand, humans want to be able to make decisions about life and death. Yet, they understand that only God can know what action truly is just and accordingly can dispense justice. They are treading on divine territory and know it but still don't want to acknowledge divine (or afterlife) consequences for their actions. I sympathize much more with El Fadl's position. I also enjoyed El Fadl's definition of Islam as fluid and dynamic. I think that allowing new information and experiences to inform how we read religious texts is not only legitimate but helpful. Perspectives that create tradition in Christianity or Islam or any other religion were equally fallible centuries ago as they are now. Time does not determine the legitimacy of a certain tradition.

What is Punishment For Pacifists?

This section is entitled "Punishing Christians: A Pacifist Approach to the Issue of Capital Punishment" by Stanley Hauerwas. As this is an essay about Christian pacifism, Hauer referenced Yoder, "Yoder rightly thought those committed to Christian nonviolence cannot avoid providing an account -- or even more important, alternative practices -- of and for punishment" (Hauerwas 58). Many think that Christian pacifism cannot provide a space for punishment but Hauerwas disagrees. The author is not found of the most popular theories of punishment and especially capitol punishment such as rehabilitation or protection from society. He writes that they only obscure what is really happening unless those theories are grounded in Christian theology. The most compelling aspects of that theology are the ideas of forgiveness and hope. Hauerwas believes those ideas can be transformative and their absence destructive, "Absence of hope and forgiveness means 'prisons become human warehouses and both offenders and those who operate the criminal justice system have great difficulty in seeing their experience and their work as significant and meaningful" (Hauerwas 61). Keeping this in mind, we can understand the proper role of punishment in society and the church. Hauerwas brings up the position of Oliver O'Donovan on Pope John Paul II's Evangelium Vitae to show that humanistic ideologies are the wrong reason to abolish the death penalty. O'Donovan believes that the death penalty should remain because the crucifixion exemplified the linkage between judgement on sin and death. Hauerwas disagrees saying that the end of punishment has been transformed by Jesus's crucifixion. He writes, "Christian punishment is properly understood to be excommunication, or binding and loosing...To be excommunicated is not to be 'thrown out' but rather to be told that we are already 'outside'" (Hauerwas 71). This is how the author believes we can form a Christian community in the world that can punish in a way appropriate, "for a people who believe that we have been freed" (Hauerwas 72).

I really appreciated O'Donovan's thoughtful and theologically based position on the death penalty although like Hauerwas, I still oppose the death penalty. Most of the "biblical" justifications for the application of the death penalty have involved Old Testament references or 1 Peter 2:13. O'Donovan was the first justification I have heard that was not a superficial reading of the Bible. Hauerwas writes about O'Donovan, "All Christians have to say that death is not part of God's 'original created order. Death is not just death, but judgement on sin. Without such a view on the linkage between judgement and death Christ becomes another victim of injustice rather than one that bore our sins and suffered our death" (Hauerwas 67). This is a very thoughtful interpretation although I have to agree with the author when he noted that the crucifixion transformed punishment and death, it was not a static symbol for sin and judgement. I also think the ideas of integrating hope and reconciliation into our prison systems can be very effective. Without such ideas, there is not bridge between prison and life after prison. A prisoner cannot enter back into a community in a positive way without hope of a better life and reconciliation with its members.

Jewish and Protestant Tradition

In this section, David Novak and Gilbert Meilaender discuss the Jewish and Protestant tradition respectively in regards to its approach to the topic of the death penalty.
In "Can Capital Punishment Ever Be Justified in the Jewish Tradition?" David Novak uses the Torah and the Talmud to support his beliefs on the Jewish approach to capital punishment. One of the first points he made was a precaution to the reader before taking any sides of the debate, "In the process of becoming more normatively focused, such specific judgements only tentative and suggestive at present, should still have some direct relevance to a particular situation or case of deep moral concern" (32). Novak is advising the reader to make sure their position on capital punishment is not abstract but can make logical sense within the context in the world. He cites the examples of Osama Bin Laden and Adolf Eichmann as references. Novak goes on to make a distinction between private crimes and public crimes. In private crimes, in which one person murders another person, one can only be sentenced to death on the principle of hatra'ah, or forewarning. The murderer must have been warned before committing the crime of what he/she was doing and the consequences by witnesses to the murder. This makes capital punishment very rare. In public crimes, which is when someone orders another to kill, the principle of forewarning is addressed differently. The person who ordered the crime is thought to have already known the consequences and therefore is subject to capital punishment.
In "The Death Penality: A Protestant Perspective," Gilbert Meilaender attempts to lay out the Protestant perspective on capital punishment. Meilaender is quick to note that there is no uniquely Protestant position on every issue unlike Catholicism. In Protestant Christianity, certain concerns (i.e. death penalty) are not forbidden or required but rather permitted. Meilaender defends the death penalty as public retribution referencing Genesis 9:6. He says that murder is private and demeaning to God's image but capital punishment is not also demeaning to God's image because it is a public and state act. This state act is on behalf of us all according to Meilaender. The author also agrees with Reinhold Niebuhr who distinguished between the equality of sin under God versus the inequality of guilt in the world. Meilaender says the the only reason we can execute someone is because our public order has been wronged, and not as a deterrent. He does not believe that the execution should be made public as it is making the death of the person a means to an end. Meilaender concludes his essay by reiterating Albert Camus that capital punishment would be least problematic in a genuinely religious society. He explains thus, "We would know that our earthly verdict could be overturned at the ultimate tribunal. in such a society it would make good sense, having sentenced a convict to death, to add, 'may God have mercy on your soul'" (55). Meilaender is stating that not only does Protestantism permit the death penalty, but in fact capital punishment is most appropriate in such a society due to the possibility of the correcting power of God's perfect justice.
There are many problems with the logic of Meilaender and his argument. He spends much of his essay quoting Bible passages about punishment as a response to the great harm our sin can bring to others. The author seems to want to treat punishment and the death penalty as one in the same instead of seeing the death penalty as a particular type of punishment that warrants a specific treatment. He spends too much time justifying why punishment is a God-ordained act rather than addressing the serious nature of the death penalty. Meilaender also claims that since the government is acting in everyone's behalf when executing someone, it is not demeaning to the image of God. But is the state really acting on everyone's behalf? What about the ubiquitous outcry surrounding the execution of Troy Davis in the last month whose conviction was founded only on circumstantial evidence? What about the fact that only 61% of Americans support the use of the death penalty in the case of murder? There is no truth to the statement that the government is actin on our behalf. Even if it was, it is logically fallible to say that because a group (the government) murders a person, it is not demeaning to God's image. A person made in God's image (Genesis 9:6) is still killed. How that person was killed does not matter. I also believe that his belief in the appropriateness of capital punishment in a religious society is flawed. It seems that saying our decisions on Earth (such as unjustly executing someone) can be corrected in Heaven by God is trying to cop-out of taking responsibility for our earthly actions. This logic can be extrapolated to justify any mistake we may make out of careless disregard.