The Death of Capital Punishment?
By / Feb 24

On Sunday, Pope Francis made a stunning appeal to the world’s governing class to abolish the death penalty. In our corner of the world, the machinery is already in place to do just that. Just last year, on the Supreme Court’s final day in session, Justice Stephen Breyer issued a forty-page denial of the constitutionality of the death penalty.

In addition to showcasing judicial cleverness — choosing the Court’s final day to attack that most final of punishments — Breyer’s opinion telegraphed what will be the Court’s next offensive against what it deems a relic of outmoded morality. Indeed, there is reason to believe the death penalty’s days are numbered. Consider the following: Breyer’s dissent was joined by Justice Ruth Bader Ginsburg, which means only three more votes are needed to secure a victory. Though they didn’t sign their names to Breyer’s dissent, is there any doubt as to how Justices Elena Kagan and Sonia Sotomayor will vote? If those votes are indeed secured, only one additional vote is needed to abolish the death penalty. Justices John Roberts, Samuel Alito, and Clarence Thomas won’t support the measure, making it likely that Justice Anthony Kennedy is again left to decide matters. Justice Antonin Scalia’s death throws some uncertainty into the question, since it is not yet known who will replace him. But it cannot be denied that abolitionism now has a plausible path to victory. Breyer’s dissent should therefore not be seen as a purely academic exercise, but rather as the opening salvo of the Court’s coming examination of capital punishment.

Breyer’s opinion thus coincides with a positive political moment for abolitionism: in addition to the Pope’s recent comments, the reality is that Republican support is decreasing. On top of that, a report from last year suggested President Obama could soon try to use his political capital to help overturn the death penalty, a practice he finds “deeply troubling.” Although Democratic frontrunner Hillary Clinton affirmed the death penalty in a recent debate, her support for it was so qualified it hardly registered as an endorsement of it. Now is therefore the perfect time to ask: Should conservatives support the death penalty?

Throughout history, capital punishment has been justified on a number of grounds. Some, such as the philosopher Immanuel Kant, adduce philosophical arguments to show that it is the punishment that justice demands. Others, such as the economist Isaac Ehrlich, support capital punishment on empirical grounds, arguing that it is better than alternative punishments in securing socially desirable outcomes, such as the safety of the population. Conservatives have challenged both claims.

In an article for Bloomberg View, Ramesh Ponnuru makes his case for why we shouldn’t be executioners.

The state has the legitimate authority to execute criminals, but it should refrain if it has other means of protecting people from them…. We shouldn’t execute people. But not because we might hurt people in the process, and not even because we might on some very rare occasion kill innocent people. We shouldn’t execute people who are unquestionably guilty because we don’t have to do it.

Writing in the wake of Oklahoma’s infamous botched execution of 2014, readers might have expected Ponnuru’s argument to rely on the gruesome reports of the pain experienced by the murderer. But Ponnuru’s preeminent concern is the safety of society at large, which is reflected in his view of punishment as essentially being a means of optimizing this safety. Since we can achieve this outcome without recourse to the death penalty, we should abolish the practice.

Unfortunately, Ponnuru misunderstands the nature of punishment. Asking “Should we allow capital punishment?” is a good question, but it follows the conceptually prior question, “How should we view punishment?” If we want clarity concerning particular forms of punishment, we should first clarify our stance on punishment more generally.

Let’s make a distinction between backward-looking and forward-looking conceptions of punishment. These are not value judgments; “backward” here is not intended pejoratively, and “forward” is not being used as a term of praise. Rather, a backward-looking conception is one that focuses on the act — which has already occurred, and is thus in the past — in order to determine which punishment is needed to redress the balance of justice in society. A forward-looking view, for its part, asks how we can, through the instrumentality of punishment, harness the state’s monopoly on legitimate power to generate socially beneficial outcomes. This is not a new debate: for a long time Immanuel Kant’s retributive theory of punishment has gone up against John Stuart Mill’s utilitarian conception.

Ponnuru’s conception is entirely forward-looking. Though he is not a utilitarian, when Ponnuru offers the safety of society as his main criterion, this overrides a consideration of the nature of the act committed. Of course, looking back at the act itself does not force one to support the death penalty. Ponnuru could look back and find that the act in question only merits a sentence of life without parole. The problem is that Ponnuru does not build into his calculus the importance of looking back. The result is a view that sees punishment primarily as a vehicle for social improvement, and only secondarily as a justice-restoring mechanism.

But of course punishment need not be viewed unidirectionally. Ponnuru is wrong not because he adopts a forward-looking conception of punishment, but because he ignores the most salient aspect of punishment, which is that it serves as a response to an act which deserves or merits it. Again, his mistake is not that sees in the mechanism of punishment the capacity to achieve socially beneficial outcomes. His error is to fail to appreciate punishment’s primary role as a justice-restoring apparatus. As the philosopher Igor Primoratz wrote, “the offense is the sole ground of the state’s right and duty to punish.”

The deficiencies in Ponnuru’s view are teased out by a simple thought experiment that has its origins in Kant. Under Ponnuru’s understanding, if suddenly everyone on earth disappeared save for one person who had committed a murder and was awaiting execution, the justification for the murderer’s death sentence would have disappeared along with the people. Since there is no longer a society to keep safe, there is no longer a reason to punish the wrongdoer. But there is something off about this result. Many of us would conclude that the murderer has done something that merits punishment, regardless of whether there is a society left to deliberate about it or not.

Over and above his neglect of a retributive rationale for punishment, Ponnuru also fails to give any support for his empirical claim that the death penalty is not needed in order to maximize safety. On the contrary, a regime which bans capital punishment is one in which the surpassing value of life is insufficiently respected. To keep the death penalty option off the table is to tell society that wanton destruction of human life is not taken seriously enough to warrant the forfeiture of the offender’s life. This can’t help but lead to a depreciation of life in other respects. By contrast, when the state holds up life as so valuable, so precious, that to wrongly take it is to forfeit one’s own, it broadcasts to all its members the significance of life. Thus it’s the death penalty and not life imprisonment which best reflects life’s weightiness and resists its devaluation, and a state which includes it joins that class of governments for whom murder is not just murder, but desecration.

Jay Sekulow, of the American Center for Law and Justice, is another conservative who opposes the death penalty. He explains:

I’m opposed to the death penalty…because…the taking of life is not the way to handle even the most significant of crimes…Who amongst anyone is not above redemption? I think we have to be careful in executing final judgment. The one thing my faith teaches me—I don’t get to play God. I think you are short-cutting the whole process of redemption…I don’t want to be the person that stops that process from taking place.

Sekulow’s reasoning is in one sense commendable but in another quite baffling. He introduces theological considerations, a move that is most welcome in a world aggressively hostile to their application in the public square. Yet since redemptive concerns are not, under any theological framework I’m aware of, relevant to the justification of punishment in a legal sense, Sekulow’s challenge to the death penalty cannot be seen as a serious one. What do the redemptive prospects of the wrongdoer have to do with a punishment’s justification? The death penalty is not a ministry. Sekulow’s bizarre spiritual concerns aside, his argument is ultimately a moral one. He sees a moral problem with “the taking of life” in response to even the worst of crimes.

The basis for the death penalty, under a retributive theory of punishment, is the lex talionis, or eye-for-an-eye principle. Part of the reason for retributivism’s association with Judeo-Christian ethics comes from formulations such as Numbers 35:31, which says “You shall accept no ransom for the life of a murderer who is guilty of death; but he shall be put to death.” This suggests what makes a punishment right is its retributive function; in this and all cases, the offense requires a proportionate loss to be inflicted on the wrongdoer. Since human life is invaluable, no amount of money can be given as “ransom.” As the philosopher G. W. F. Hegel put it: “Since life is the full compass of a man’s existence, the punishment [for murder] cannot simply consist in a ‘value’, for none is great enough, but can consist only in taking away a second life.”

Contrary to Sekulow’s suggestion, what is most secure about capital punishment is its moral justification. What continues to be the strongest case against it stems from procedural or practical concerns, not from theoretical ones. Our biggest problem is that human error is ineradicable. We can put in place a blinding number of safeguards, we can implement all the accountability measures our imaginations can dream up, yet the possibility that new injustices will nevertheless occur cannot be ruled out. Justice Breyer’s recent dissent is awash with such instances. In 1972 the death penalty was ruled unconstitutional based on these very concerns. Since then Congress has rehabilitated it by implementing reforms intended to avoid the worries that led to its judicial disrepute all those decades ago. If Justice Breyer is right that today’s version violates the eighth amendment’s ban on cruel and unusual punishment (see Scalia’s rebuttal to Breyer’s application of the eighth amendment), it is unclear whether capital punishment will be able to enjoy another revival, since such a conclusion would involve pessimism about the death penalty’s ability to ever be able to eliminate its inequitable and arbitrary implementation.

Justice Breyer’s argument that it is unacceptable for racial, geographical, and economic factors to be more decisive in capital cases than the offender’s culpability should resonate with all of us. Still, we need to recognize that this is not an argument against the death penalty itself, but rather against our non-ideal implementation of it. As long as the death penalty’s greatest challenge remains fundamentally procedural rather than philosophical, the Court’s arguments won’t go any distance toward impugning the rightness of capital punishment. We’re all too aware by now that what the Justices declare is not necessarily what justice declares.

*The view expressed in this commentary belongs solely to the author and is not necessarily the view of the ERLC.

Russell Moore Responds to Pope Francis and the Death Penalty
By / Feb 22

WASHINGTON, D.C, Feb. 22, 2016Russell Moore, president of the Southern Baptist Conventions Ethics & Religious Liberty Commission, expressed concern in a “blog”:http://www.russellmoore.com/2016/02/21/is-the-pope-right-about-the-death-penalty/ today with Pope Francis recent comments regarding the death penalty. Pope Francis recently commented that the death penalty is, in all circumstances, a violation of the biblical command not to murder.

In response, Moore wrote, If one believes the state can order the military to kill opposing combatants in war, one does not, by definition, believe that every instance of the state killing is a violation of the commandment not to murder.

Moore expressed appreciation for the Popes commitment to human life, but said the Bible does not support Pope Francis argument.

The new covenant applies a command of capital punishment in the old covenant to church excommunication in the new (1 Cor. 5:13; Deut. 13:5), Moore said. Even so, the point here is that the Mosaic Law itself draws a distinction between murder and lawful execution by the state.

Moore pointed out that while reasonable persons can disagree on the prudential wisdom of capital punishments, The Pope is here making more than just a prudential argument. He is applying the commandment against murder to every application of capital punishment. On that, I believe he is wrong.

Moore concluded by noting that we must not lost the distinction between the innocent and the guilty, saying We may disagree, with good arguments on both sides, about the death penalty. But as we do so, we must not lose the distinction the Bible makes between the innocent and the guilty. The gospel shows us forgiveness for the guilty through the sin-absorbing atonement of Christ, not through the states refusal to carry out temporal justice.

The Southern Baptist Convention is Americas largest Protestant denomination with more than 15.8 million members in over 46,000 churches nationwide. The Ethics & Religious Liberty Commission is the SBCs ethics, religious liberty and public policy agency with offices in Nashville, Tenn., and Washington, D.C.

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Evangelicals and Pope Francis’s Encyclical on the Environment
By / Jun 17

On June 18th, 2015, Pope Francis will issue an encyclical on the environment. Many are assuming the Pope will openly affirm data from popularly accepted climate models, which predict significant ongoing problems due to human-caused release of greenhouse gases. Because of the politically charged nature of the issue of climate change, this new statement is drawing a great deal of advance interest.

An encyclical is an official statement, in this case from the Pope, which illuminates or emphasizes doctrine of the Roman Catholic Church. Although papal encyclicals are not considered infallible ex-cathedra teachings, they are authoritative for Catholics because they represent teachings approved by the Pope.

The title of the forthcoming encyclical, Laudato Si, gives some indication of its content. The phrase, which roughly translates to “praised be,” comes from a song written by Saint Francis of Assisi, who is a favorite saint for environmentalists. The song, Canticle of the Sun, recounts ways the creation praises God by reflecting his glory. In many ways, the song parallels the ideas presented in Psalm 19:1–6.

Many environmentalists are openly hopeful this encyclical will provide a major victory in the fight for universal affirmation of their climate change models. Given that climate scientists from the United Nations are advising him, this is a strong possibility. Many environmentalists are waiting in anticipation of the increased support of over 1 billion Roman Catholics worldwide due to the authority given to this teaching from the Pope. However, that anticipation may lead to some confusion immediately after the Vatican releases the encyclical, much like analysis of some of Pope Francis’ comments on previous issues.

Initial reports about the encyclical are likely to report affirmation of specific policies promoted by some environmentalists. For example, if the Pope affirms popular climate models, some media outlets may spin that as support for a tax on carbon emissions or population control measures. However, affirmation of a certain climate model does not present a blank check to activists to enlist every Roman Catholic for every policy proposed in the name of the environment.

The content of this forthcoming encyclical will probably not be earth-shatteringly new. The Pope is likely to call members of the Roman Catholic Church to be better stewards of the created order. He is also likely to affirm that abuse of God’s creation is a sin. He will probably remind his Church that many times the poor have the least ability to survive and recover from natural disasters, and thus mitigating natural disasters is a part of caring for the poor. These are basic, biblical ideas that the Catholic Church has previously affirmed and should resonate with both Protestants and Catholics.

Despite all of the ongoing discussion, we do not yet know what the content of the encyclical is. If it contains an open affirmation of human-caused climate change, that will be heralded as a major victory for some environmentalists who often describe resistance by people of faith to aspects of the environmental movement as part of a war between religion and science. Often, in reality, this resistance is actually over concerns about the potential impacts of proposed laws beyond the intended effect. Papal affirmation of popularly accepted models of climate change will not undermine the basic concerns all Christians should have for the welfare of all humans, including the global poor.

When the encyclical is released to the public, initial reports will probably be based on a cursory analysis of the letter and wishful extrapolation. However, this will be a carefully reasoned document that theologians and scientists have painstakingly groomed and the Pope has finally approved in light of historic Roman Catholic teaching. The document will deserve careful study instead of a cursory search for headline quotes and supporting proof texts.

Whatever the content of the new encyclical is, we must read it in concert with previous teachings of the Church. Laudato Si will not undermine the Catholic Church’s basic teachings about the value of human life nor authorize concern for the environment to the neglect of concerns for human flourishing. The basic teachings about the special place for humans in creation as stewards exercising responsible dominion over the created order have been a central teaching in the Catholic tradition. Additionally, opposition to population control measures through the prohibition of most forms of birth control and rejection of abortion are rooted in the foundations of Catholic social teaching.

In addition to these basic, biblical forms of stewardship, the Roman Catholic Church has consistently emphasized the principle of subsidiarity, which encourages finding solutions in communities closer to the problem. It pushes against collectivism and excessive governmental coercion. Subsidiarity affirms the dignity of humans and the importance of human freedom. We should keep these things in mind in light of the content of Laudato Si.

We must always filter policies and personal lifestyle choices through a set of considerations that include the flourishing of all of creation. Humans are a part of creation. However, humans are unique in creation, because we are made in the image of God (Gen 1:27).We are the only part of the created order that has the mandate and power to subdue the earth (Gen 1:28–30). Worship of the creation instead of the Creator is idolatry (Rom 1:24–25). These concepts have been consistent parts of traditional Catholic teaching, and Pope Francis will not change that.

In other words, any potential environmental regulations must also take into account the secondary effect of limiting development and economic progress among the poor. We should not create environmental rules, presumably to benefit the global poor, which prevent the global poor from overcoming their poverty.

Unthinking use of resources is contrary to just stewardship. It is, after all, God’s earth and not ours. However, failing to use available resources to eliminate physical and spiritual poverty reflects attitudes that are just as morally bankrupt. Not all economic development is good, but neither is it all bad. We must use the best information we have available to make wise personal and policy choices. Nothing in the forthcoming encyclical can change these responsibilities.

Evangelicals will benefit from carefully reading what Pope Francis publishes instead of reacting to pre-written or hastily compiled news stories. Hurling anathemas over disagreements about data and biblical interpretation has rarely done good for the gospel. It is unlikely to do so in this case. If the Pope affirms human-caused climate change, it is likely to cause a surge in support for radical climate action from people of faith. In the end, however, concern for climate change does not diminish our responsibility to be concerned for the flourishing of all of creation, which includes continued pursuit of stewardship that responsibly balances the welfare of both human and non-human creation.

The view expressed in this commentary belongs solely to the author and is not necessarily the view of the ERLC.

Panem and the Polis
By / Jul 30

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In his recent apostolic exhortation, “Evangelii Gaudium,” Pope Francis asserts that “inequality is the root of social ills.” Within the context of his discussion, it is evident that Francis is not advocating for equality in an absolute sense. He is, rather, discussing the kind of unjust inequality that results from structural evil. In this way, observes Francis, injustice carries within it the seeds of social unrest. This is as true for unjust inequality as it is for unjust equality. For as the formal principle of justice teaches, there is no greater injustice than to treat unequal things equally and equal things unequally. Or as Aristotle put it following Plato, we must “treat like cases as like.” Suzanne Collins’s Hunger Games trilogy is a stark illustration of the effects of tyranny based on formal injustice, which, in Francis’s words, come to expression in a political economy “of exclusion and inequality.”

Inequality as such, especially when understood as a reflection of a diversity of talents, dispositions and gifts, is not an evil, but is rather the source of rich social strength. Thus, observed Pope Leo XIII in the 1891 social encyclical Rerum Novarum, “But although all citizens, without exception, can and ought to contribute to that common good in which individuals share so advantageously to themselves, yet it should not be supposed that all can contribute in the like way and to the same extent. No matter what changes may occur in forms of government, there will ever be differences and inequalities of condition in the State. Society cannot exist or be conceived of without them.” Likewise the Dutch Reformed theologian and politician Abraham Kuyper put it, “The mere fact that God created a man and a woman proves indisputably that identical uniformity was not part of the plan of creation. So we may draw no other conclusion than that the rich variety among people, in terms of aptitude and talent, came forth from the creation itself and belongs to the essence of human nature.”

It is when inequality is unjust that it becomes a pestilence to social life. Indeed, there is such a thing as social unrest that arises because of unjust equality, and particularly in cases of an equality that is circumscribed for a few and which excludes others. The common sense nature of this is manifest in the observation of Kevin Starr, a professor of history and policy, planning and development at USC: “You can’t have a city of just rich people. A city needs restaurant workers, a city needs schoolteachers, a city needs taxi drivers.”

The need for a diversity of people to fulfill the necessary tasks for the maintenance and flourishing of a social organism as complex as a city is apparent in Collins’s Hunger Games. The social sin of  the fictional nation Panem is that it has violated the first order of society: it has created a class of labor excluded from political, economic and social life. Panem is an archetypal extractive political economy, a tyranny of elites upheld by the coercive power of police brutality.

The residents of the districts are expected to provide for the material comforts of the Capitol elite with the fruits of their toil. This is essentially an institutionalization of theft, in which those in the districts are systematically disenfranchised and dispossessed by the political elites. Panem’s Capitol is essentially a city of rich people who are served both within the city and in the districts by a permanent underclass of bondservants. Aristotle’s description of unjust inequality serves as an apt summary of Panem: “Thus arises a city, not of freemen, but of masters and slaves, the one despising, the other envying.”

The instability of Panem’s tyrannical social structure arises precisely from the injustice of this system, an inevitable consequence of deviating from the norm of equality before the law and solidarity in society. This is evident when compared to an Aristotelian vision of the polis, which was understood to be the defining feature of human sociality. Aristotle famously described the human person as a “political” being (zōon politikon), sometimes translated as a “social animal.” But for Aristotle, this meant more than the mere relationality and codependency of the human person as expressed within the context of the family, for instance. The political nature of the human person meant existing within a defined set of social relationships institutionalized in the interaction between urban and pastoral settings, which allowed for a self-sustaining social organism. The polis was thus not limited to the urban center, which depended on the agricultural output of farms for its existence. Rather, the polis included both the city as well as surrounding farmland. And, most significantly, a farmer was no less a citizen of the polis than was a city dweller.

This did not mean that there was absolute equality, of course. There were rich and poor in the polis, and there were people who pursued a variety of vocations. But in terms of their identity as participants, with rights and responsibilities, the class of members in the polis was not limited by urban vs. rural residence.  As Andrew Szegedy-Maszak of Wesleyan University puts it, the polis always “included both the urban center, called the Astu, and the landscape around it, the farmland, the agricultural area. No matter if you were living in downtown Athens, or out in Dhekelia, you were equally a citizen of Athens.” Something similar should be true of Panem, but instead citizenship privilege is limited to the elite class of Capitol residents.

There were other restrictions reflective of the particular Greek cultural setting, of course, which mirror in some ways the systematic exclusion of Panem’s social structure. The citizen of the Greek polis was always an adult male. The citizen was also always a native, and even more significantly was also a freeman. So even in Aristotle’s ideal vision of a polis there were various forms of disenfranchisement, including slavery. Since participation in the life of the polis was characteristic of humanity, a consequence of these kinds of institutions meant that those who lived in them were, by definition, less than fully human.

And yet in spite of these defects, the Aristotelian polis did reflect a central fact of human social life that remains relevant for discussions of demographics and changing landscapes in our world today. The positive ideal of the Greek polis and the negative example of Panem show that you cannot have a city simply of elites, and that the rights and responsibilities of citizenship cannot be limited merely to a particular economic class. This kind of formal equality is the basis for social justice and human flourishing. Or as Aristotle put it, “Justice is the bond of men in states,” and so injustice will always and everywhere sow the seeds of political dissolution.