Friday, February 11, 2011

The Case Regarding Capital Punishment

   Capital punishment, popularly referred to as the “death penalty” is a long standing practice in jurisprudence. There is a very strong belief on the part of many deeply religious people that the Biblical admonition, “an eye for an eye” (Lev. 24:20) provides complete justification for sentencing someone to death who has been convicted of first degree murder in a court of law. 
    Since the Supreme Court allowed states to reintroduce the death penalty following the case of Gregg v. Georgia in 1977, there have been numerous people executed, particularly in the states of Florida and Texas, and this has helped to fuel the debate over whether or not capital punishment should be used in the United States.
    This debate has encompassed a variety of factors including legal, moral, ethical, religious, and economic.  From an economic standpoint it is not inexpensive to keep someone on death row.  Based upon the appeals process, most people who are convicted of first degree murder and sentenced to death spend a minimum of ten years on death row before actually having their sentence carried out.  In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for forty (40) years.1 While the person may live considerably longer if he or she is sentenced to life in prison, the overall cost to the taxpayer, with regard to this particular inmate, would be much lower.
    A major ethical consideration is the fact that the United States is the only “first world” nation which still has the death penalty available as an option.  The main motivation behind the death penalty was to assure the public that the person convicted of first degree murder would never be a threat to neither the family of the person he or she murdered nor anyone else in society. It was also understood to be a deterrent for others who may consider going out and murdering innocent people.
    If the state was to guarantee that a convicted murderer would spend the rest of his or her natural life in prison, without the possibility of parole, it would assure both the family of the murder victim, as well as society at large, that this particular person will never be a threat to anyone ever again.  Maintaining public safety is one of the primary responsibilities of any government and it would be up to the various state legislatures to mandate sentencing guidelines regarding those convicted of a capital offense.
    As far as the deterrent factor is concerned, the only thing that anyone can guarantee regarding the death penalty is that the person who was executed will definitely be deterred from ever hurting anyone else.  Even though Florida and Texas have the highest number of executions of any of the fifty states, there are still numerous cases in those states right now where people are being tried for capital murder and the death penalty will be a factor at sentencing, if the person is convicted.  
     Several states which had the death penalty as an option available to prosecutors have since removed it as an option. For example, in the state of New Jersey, the death penalty is no longer an option.  Even though it has been on the books for decades, the last person to be executed in that state was Bruno Hauptmann, who was convicted in 1935 of the kidnapping and murder of Charles A. Lindbergh, Jr..  Following the election of George Pataki as governor of New York in 1996, the death penalty was reinstituted there.  The last person to be executed in New York State was Eddie Lee May, convicted of murdering someone in a Yonkers, NY bar and put to death in 1963. 
    Another ethical and legal issue is the tremendous disparity between black and white criminals. Statistically, African Americans who commit capital crimes are much more likely to be sentenced to death than white defendants.  A major factor is the level of legal representation that African American defendants can afford. Unless they are fortunate enough to be able to retain a prominent criminal defense attorney pro-bono, most African American defendants will be represented by a public defender who may have no previous experience trying a capital case. While there are certainly many white defendants who will also be represented by a public defender, most would have the resources necessary to be able to hire their own attorney.   
   Arbitrariness is another point to consider.  Based upon June 2, 2006 statistics there have been 1,025 executions nationwide since the Gregg decision in 1977.
80% of the executions involved murders of white victims. Nationwide, less than 50% of all murder victims are white.  82% of the executions took place in the South (which is easily confirmed by the fact that Texas, Florida, and Louisiana have the most executions nationwide).  45% of the executions were in only two states: Texas and Virginia.  Only four executions, less than 1%, were in the Northeast, all were defendants who waived their appeals.
   In 2004, there were 16,137 murders, 125 death sentences, and 59 executions. The annual number of death sentences has dropped by sixty (60) percent in the past five years.  Most states with the death penalty have not had an execution since 2005.  Executions in 2006 were about half the number in 1999.
   From the standpoint of safeguarding the public, it is believed by many that the death penalty is applied to those who are “the worst of the worst” in order to ensure that they are unable to harm others ever again.  This is not always the case.  The following individuals did not receive the death penalty even though either the state or the United States Government had the sentence available: Gary Ridgway (WA) who confessed to killing 48 women, Zacarias Moussaoui (Federal) who admitted to conspiracy leading to the September 11, 2001 terror attacks, Steve (the “Rifleman”) Flemmi (Federal) who confessed to killing ten people, Eric Rudolph (Federal) who confessed to killing two people including a doctor and setting off bombs at the Olympics in Atlanta and at a gay nightclub. Ted Kaczynski who confessed to being the “Unabomber”, and Larry Bright (IL) who confessed in May 2006 to killing eight black women.  He burned some of his victims to ash and bits of bone in his mother’s backyard.
   The death penalty is also failing to meet public policy objectives such as protecting the innocent or deterring murder. Since 1973, one hundred twenty three (123) people who were sentenced to death have been exonerated.  There is increasing evidence that innocent people have been exonerated in recent years. Investigations into the cases of Cameron Willingham (TX), Ruben Cantu (TX), and Larry Griffin (MO) indicate that they were all likely innocent of the crime for which they were convicted.
   States with the death penalty consistently have a higher (rather than lower) murder rate than states without the death penalty. The South, which accounts for 80% of the executions in the country, has the highest murder rate. The Northeast, which has the fewest executions, has the lowest murder rate.2
   What do Judaism and Catholicism have to say about capital punishment? While not condemned by Jewish tradition as immoral, the death penalty has special safeguards since it is irreversible.  Although rabbinic authorities did not impose the same stringent restrictions on Noachide Courts (courts which deals with cases involving non-Jews) as on their own, there are good reasons why we are United States citizens should do so. We live in a time with a punitive option which Jewish tradition lacked, namely, prisons. This new factor, plus the following considerations constitute a moral challenge to the death penalty in our nation’s current penal system.
    First, there is always the problem of mistaken identity. The rabbis of the Talmud imposed the requirement of two eyewitnesses to address this concern. These two eyewitnesses would have been people who had each forewarned the potential offender against committing the crime. Circumstantial evidence, no matter how persuasive, could not meet this two witness evidentiary test.  This Jewish demand for certainty is morally compelling and, as such, is appropriate for our secular courts as well.
    The second problem is the capriciousness of the death penalty today. Recent statistics clearly indicate that the race of the victim is a critical variable in the imposition of the death penalty.3 In calling for the death penalty in the Book of Leviticus, the text emphasizes: “You shall have one standard for stranger and citizen alike, for I am the Lord thy God” (Lev. 24:21-22).  Where racial issues are a factor in sentencing, the death penalty should not be imposed.
    The third consideration has to do with the role of the state as teacher. Law and its enforcement are essential educational tools for the state.  Since life is spiritually precious, the state must not utilize the death penalty as simply another form of punishment.  A clear line must be drawn to limit the death penalty so as not to allow for an ever-expanding category of execution as the penalty becomes more and more familiar.
   The sparing use of the death penalty in the State of Israel is a positive model for us.  The death penalty is imposed only in the rare cases of treason or genocide, crimes against the entire people.  The last person executed in Israel was Adolf Eichmann (1906-1962), a Nazi war criminal and architect of the Holocaust, in 1962. Given Eichmann’s role in the death of over six million Jewish people in Nazi concentration camps during World War II, his execution made a statement that his crime of genocide demanded retribution of the most extreme kind.  In allowing the execution of Eichmann, the Israeli government is drawing a line just short of saying that executions are forbidden altogether.4
    Imprisonment does not appear in the Bible.  In the Talmud it is introduced only in a very limited way.  Hakhnasah lekippah, confinement in a cell, is noted in at least one place as a suitable punishment for the person who committed murder but for whom the stringent procedural rules were not met. Such cells were different conditions from modern prisons—people’s lives would be shortened because of the difficult conditions under which they were kept. Still, the option of prison perhaps allowed the rabbis of the Talmud to refine the evidentiary rules of capital cases.  Since they had no actual power to inflict death, they could only write about the importance of imposing the death penalty with great stringency.5 
    Judaism teaches us that capital punishment is a power which God has given to human courts. Yet the rabbis teach that courts should use their power with the greatest of care, leading to the rarity of its imposition.  For all the practical reasons suggested, the death penalty should not be used for the murderers on death row.  Today, with a developed prison system, we should tighten sentencing laws and enhance their speed to serve as a deterrent and as a substitute for the death penalty.6
    In regard to Catholic Church, St. Thomas Aquinas (1225-1275) addressed the issue of capital punishment in his writings and expressed the position that the state has the right to put someone to death for the good of the state. This position is consistent with the one held by Judaism.  The important thing to keep in mind that there is a major difference between can and should.  The idea that something is legal does not mean that it is automatically moral.  Until the second part of the nineteenth century in the United States it was legal to treat African Americans as property and deny them the same basic rights that any other person born in the United States are entitled to simply because of the color of their skin.
    Over seven hundred years after the death of St. Thomas Aquinas, Pope John Paul II (1978-2006) addressed the issue of capital punishment in his encyclical Evangelium Vitae (The Gospel of Life).  Many commentators argued that in this encyclical Pope John Paul declared that Catholics were forbidden from being pro-death penalty.  The pope said no such thing.  What he actually taught was that while the state does have the right to use capital punishment in order to maintain public safety, he could not envision a situation where the death penalty would be a viable option since life in prison without parole is available. 
   The topic of vengeance also comes into play with regard to capital punishment. The state has an obligation to see that the perpetrator is brought to justice and made to pay for their crime.  There is very little, if anything, which can truly bring closure to the family of a murder victim.  Putting someone to death for their crime does nothing to bring the victim back and can actually become a source of vengeance for the victim’s family.  Forcing someone to live with the consequences of their actions for decades and have to mentally reflect upon what they did every day can be, for some, a much greater punishment than being put to death in the most humane way possible.
   When it comes to making an ethical decision, it is important that one be consistent.  One way of helping to assure consistency is to adopt an ethical methodology where you can arrive at a given position regardless of where you might fall in the equation.  For example, one might profess to be opposed to capital punishment; however, when one of their friends or relatives becomes a victim of a crime that same person then changes his or her mind.  One might profess to be a death penalty supporter until one of their relatives is convicted of a capital offense and sentenced to death.
    This decision making process is also true when it comes to issue of abortion. There are some who profess to be opposed to abortion until it is their wife, girlfriend or daughter who gets pregnant and then abortion becomes a viable option.  It is easy to hold a moral position in the abstract; however, it is in a concrete situation where one actually has to stand by and support a given position.
    Another position which has been expressed over the years is “I am personally opposed to ________, but I will not impose my views on others.”  This is a common position among those in public office.  As a believer you are not asked to impose your views on anyone; however, you are asked to give witness to the Truth.  Many, if not most, positions held by the Catholic Church on a variety of issues are neither popular nor politically expedient.  Based upon the Gospels, the same was true of Our Lord Himself.  We are called to profess the truth in love regardless of whether or not the prevailing culture likes it.
   As long as capital punishment is legal in the United States it will continue to be a highly debated topic.  There will be those who will advocate for a “death penalty express lane” where the number of appeals available are limited to one or two and the prisoner is put to death in a matter of months instead of years.  There will also be those who will speak out against capital punishment as cruel and unusual punishment and advocate for its demise. 
    In order to take a position on an issue it is important to know the facts. As indicated, there is nothing inconsistent between Jewish tradition and capital punishment. Also, there is no Catholic teaching which states that one cannot be a devout Catholic and still be pro-capital punishment. Keeping these facts in mind, it is also important that one look at the various issues which are addressed in the capital punishment debate so that he or she can make up their mind about where they stand on the issue.
    From an emotional standpoint, it is very easy to justify capital punishment when discussing men such as Ted Bundy or Timothy McVeigh. However, it is given the finality of capital punishment; it is extremely difficult for the state to justify executing an innocent person on the grounds that “we made a mistake”.

                                                                  End Notes

1)    The Dallas Morning News (March 8, 1992)
2)     “Arbitrariness and the Death Penalty”
3)    Barry D. Cytron and Earl Schwartz “When Life is in the Balance” United Synagogue, 1986, pp. 185-188
4)    “The Jewish Tradition and Capital Punishment” by Elie Spitz in Contemporary Jewish Ethics and Morality: A Reader (ed. by Elliot N. Dorff and Louis E. Newman) NY: Oxford University Press, pp. 344-349
5)    Spitz, p. 348
6)    Spitz, p. 349

J. David Bleich “Capital Punishment in the Noachide Code” in Jewish Law in Our Times (ed. by Ruth Link-Salinger), NY: Bloch Publishing Co., 1982

Barry D. Cytron and Earl Schwartz “When Life is in the Balance” United Synagogue, 1986

Elliot N. Dorff and Louis E. Newman (eds.) Contemporary Jewish Ethics and Morality: A Reader (NY: Oxford University Press, 1995)

Basil F. Herring Jewish Ethics and Halakhah for Our Times (NJ: KTAV Publishing House, 1984)

Dennis Prager “Capital Punishment: A Rorschach Test” Ultimate Issues 5, no. 2 (Spring 1989)

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