On Capital Punishment - Prepared by Elder Dave Herrod

Capital Punishment

Should the government take the life of a person who has been convicted of certain crimes? State statutes define the crimes for which capital punishment is specified, but the primary question is whether governments should have the right to carry out capital punishment at all. This was the issue recently addressed by the legislature of New Hampshire.

1. Background

On April 17, 2014 the New Hampshire Senate voted 12-12 on a bill to repeal the death penalty. The Senate then voted to table the bill, meaning it could be brought up for reconsideration later in the legislative session. The bill had overwhelmingly passed the House, and Governor Maggie Hassan indicated she would have signed the bill if it passed the Senate. In 2000 legislators voted to repeal the death penalty, but then-governor Jeanne Shaheen vetoed the bill. In 2009, the House also passed a repeal bill. New Hampshire has not had an execution since 1939.

The current capital sentencing statute in New Hampshire was enacted in 1977. It provides for the death penalty in cases of “capital murder” where a person knowingly causes the death of:

• A law enforcement officer or a judicial officer acting in the line of duty or when the death is caused as a consequence of or in retaliation for such person’s actions in the line of duty;
• “Another”¹ before, after, or while engaged in the commission of or while attempting to commit kidnapping;
• Another by criminally soliciting a person to cause said death or after having been criminally solicited by another for his personal pecuniary gain;
• Another after being sentenced to life imprisonment without parole;
• Another before, after, or while engaged in the commission of, or while attempting to commit aggravated felonious sexual assault;
• Another before, after, or while engaged in the commission of, or while attempting to commit certain defined drug offenses.

In 2012 New Hampshire state representative Phil Greazzo, who simultaneously proposed a broad expansion of the death penalty to include any intentional murder, also offered an alternative bill to abolish the death penalty entirely because he felt the 1977 statute was “so unfair”.  He said he would rather have lawmakers do away with the punishment altogether than maintain the status quo, which restricts the death penalty to certain murders, such as killing a law enforcement officer.  Greazzo pointed out the inconsistencies of the current statute saying, “If I hire someone to commit a murder for me, that would bring the death penalty.  If I did it myself, there's no death penalty.”  In proposing both the expansion and repeal bills, Greazzo said he intended that lawmakers consider a full range of possibilities for improving the current law.  

On November 6, 2013 the New Hampshire Supreme Court issued a lengthy ruling upholding the conviction and death sentence of Michael Addison, the state's only death row inmate. Addison was convicted in Superior Court of the capital murder of Manchester Police Officer Michael Briggs and sentenced to death. The case is the first death-penalty appeal to be decided by the New Hampshire Supreme Court in decades. The court in affirming Addison’s conviction addressed and rejected twenty-two issues raised by the defendant:

• Trial issues - venue, peremptory challenges and challenges for cause to prospective jurors, prior crimes evidence under New Hampshire Rules of Evidence 404(b), and the jury instruction on reasonable doubt.
• Sentencing - the defendant's custodial statement, victim impact evidence, evidence of conditions of confinement, evidence of and jury instruction on mode of execution, prior crimes evidence, and closing argument.
• Constitutional and statutory issues - the constitutionality of the capital punishment statute, the narrowing function of the statutory aggravating factors, the statutory burdens of proof, the inapplicability of the rules of evidence, the impact of race in capital sentencing, the process of "death qualifying" the jury, the non-statutory aggravating factors' compliance with certain constitutional requirements, and the defendant’s post-verdict request for discovery.

The opinion said additional briefing and oral argument would be required before deciding "whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."

2. Relevant biblical teaching

The rights and duties of civil government²

In the early history of the human race God brought a massive flood on the earth, destroying all human beings except the eight who were rescued in the ark: Noah, his wife, his three sons and their wives. When the flood ended, Noah and his family came out of the ark and started human society all over again. At that point God gave instructions regarding the life they were about to begin including the following passage:

Genesis 9:1-6

9 And God blessed Noah and his sons and said to them, “Be fruitful and multiply and fill the earth. ² The fear of you and the dread of you shall be upon every beast of the earth and upon every bird of the heavens, upon everything that creeps on the ground and all the fish of the sea. Into your hand they are delivered. ³ Every moving thing that lives shall be food for you. And as I gave you the green plants, I give you everything. ⁴ But you shall not eat flesh with its life, that is, its blood. ⁵ And for your lifeblood I will require a reckoning: from every beast I will require it and from man. From his fellow man I will require a reckoning for the life of man.

⁶ “Whoever sheds the blood of man,
    by man shall his blood be shed,

for God made man in his own image.

The verb “shed” in verse 9 is translated from the Hebrew verb “shaphak”, which means “pour out, shed, pour, cast and gush out” and, although used this way in other verses3, arguably could mean injury not causing death. However, the use of the verb to describe both the wrong (“sheds the blood of man”) and the penalty (“by man shall his blood be shed”) makes it clear, as justice would require, that if the wrong is the wrongful taking of human life (murder as we understand it) the punishment is the taking of the life of the murderer.

It is also clear that the execution of the murderer is not going to be carried out directly by God, but by a human agent to whom God has given dominion over the earth (“I give you everything.”)v . This action is therefore not some human invention, but is instituted to carry out God's own requirement of justice for the intentional, unjustified taking of a human life.

The reason God gives for this ultimate punishment is the immense value of human life: "for God made man in his own image". To murder a human being is to murder someone who is more like God and any other creature on earth so that the murder of another human being is in a sense an attack against God himself for it is an attack against God’s representative on earth.

This passage comes long before the establishment of the nation of Israel or the giving of the laws of the Mosaic covenant and is therefore not limited to the nation of Israel or to a specific period of time (although later passages in the Old Testament show that God did institute the death penalty for the crime of murder in Israel⁴). The covenant with Noah applies to all human beings on earth for all generations:

Genesis 9:16-17: ¹⁶ When the bow is in the clouds, I will see it and remember the everlasting covenant between God and every living creature of all flesh that is on the earth.” ¹⁷ God said to Noah, “This is the sign of the covenant that I have established between me and all flesh that is on the earth.”

Romans 13:1-7 is the first of two primary New Testament passages that teach about civil government:

Romans 13:1-7: Submission to the Authorities 13 Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. ² Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. ³ For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, ⁴ for he is God's servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God's wrath on the wrongdoer. ⁵ Therefore one must be in subjection, not only to avoid God's wrath but also for the sake of conscience. ⁶ For because of this you also pay taxes, for the authorities are ministers of God, attending to this very thing. ⁷ Pay to all what is owed to them: taxes to whom taxes are owed, revenue to whom revenue is owed, respect to whom respect is owed, honor to whom honor is owed.

First, Paul says that the civil government is to be “God’s servant” and “bears the sword” for this reason (not “in vain”) in the case of wrongdoing. Whether the “sword” is explicitly the instrument by which people are put to death⁵ or a symbol of governmental authority, the next sentence makes it clear that Paul’s understanding of the role of the civil government ("the servant of God, an avenger who carries out God's wrath on the wrongdoer") is consistent with the teaching of Genesis 9 that where God requires a reckoning for wrongdoing (“Whoever sheds the blood of man, by man shall his blood be shed.”) this reckoning will be carried out through human agents, specifically civil government.

The second primary New Testament passage on civil government is 1 Peter 2:13-14:

1 Peter 2:13-14: Submission to Authority ¹³ Be subject for the Lord's sake to every human institution, whether it be to the emperor as supreme, ¹⁴ or to governors as sent by him to punish those who do evil and to praise those who do good.

Peter is also teaching that God has instituted civil government (“sent by him”) to bring God's punishment to the wrongdoer. In the case of murder, consistent with Genesis 9:5-6, that punishment is death.

God clearly gives to civil government the right and the responsibility to carry out capital punishment for the crime of murder in carrying out God’s justice. As to whether other crimes are worthy of capital punishment the Bible does not give explicit instruction⁶, although a good rule could be a determination of the extent to which their consequences and the evil they involve are sufficiently near to murder.

Forgiveness

Many people seem to think that if a loved one has been murdered they should forgive the murderer and never seek that the wrongdoer be punished by the civil government. However, that is not the solution Paul gives in Romans 12:19. He doesn't say that we are to forgive everyone who has done wrong to us and not seek to be avenged but rather he tells us to give up any desire to seek revenge ourselves and instead give it over to the civil government as he says, “Beloved, never avenge yourselves, but leave it to the wrath of God."

Leaving the civil government to carry out justice frees the believer to do good, even to those who have wronged him. As Paul says, "if your enemy is hungry, feed him: if he is thirsty, give him something to drink"⁷. In that way they will "overcome evil with good"⁸, and that good comes not only through giving food and water but also through the justice system of the civil government, which is "God's servant for your good".

A rightful desire for God's vengeance to come through government is not "satisfying revenge" and therefore inconsistent with forgiveness but is satisfying God's requirement of justice and reflects the appropriate desire for God's justice in human hearts:

Revelation 6:9-10: ⁹ When he opened the fifth seal, I saw under the altar the souls of those who had been slain for the word of God and for the witness they had borne. ¹⁰ They cried out with a loud voice, “O Sovereign Lord, holy and true, how long before you will judge and avenge our blood on those who dwell on the earth?”

These souls, now completely free from sin, are crying out for God to avenge their murders and to take vengeance on those who have murdered them, and it is exactly this action of committing judgment into the hands of God that allows us to give up the desire to seek it for ourselves thereby freeing us to continue to show acts of personal mercy even as Jesus did:

Luke 23:34: ³⁴ And Jesus said, “Father, forgive them, for they know not what they do.”And they cast lots to divide his garments.

1 Peter 2:23: ²³ When he was reviled, he did not revile in return; when he suffered, he did not threaten, but continued entrusting himself to him who judges justly.

People may think that chastity is the most unpopular Christian doctrine, but C.S. Lewis thinks forgiveness may be even more unpopular particularly as Christians are called to forgive their enemies. Although everyone probably agrees with forgiveness as a virtue in the abstract, when they have something particularly egregious to forgive they resist not because they think the virtue is too difficult but because, in the circumstances, they think it hateful and contemptible to forgive really bad behavior.

Christians pray for forgiveness as they forgive the sins of others, and Lewis believes they are not offered forgiveness on any other terms. Forgiveness is a choice we make through a decision of our will, motivated by obedience to God and his command to forgive. We forgive by faith, out of obedience. Since forgiveness often goes against our inclination or even our reason, we must forgive by faith, whether we feel like it or not. We must trust God to do the work in us that needs to be done so that the forgiveness will be complete. God completes the work in his time. We must continue to forgive (our job), by faith, until the work of forgiveness (the Lord's job), is done in our hearts.

And, if we are called to love our neighbor as ourselves, we need a better understanding of how we love ourselves. Since we don’t love ourselves because we think we are “nice” or because we enjoy our own company, it is a relief to understand we need not have these feelings for our enemies. Also if we continue to love ourselves despite our bad actions we begin to understand what it means to “hate the sin but not the sinner”. The idea is that we should be sorry that another has sinned and hope for some “cure” in the future. But Lewis says:

“Loving your enemy certainly does not mean not punishing him any more than loving myself means I ought not subject myself to punishment. The commandment is a prohibition against murder, not against killing. All killing is not murder any more than all sexual activity is adultery. The real point of Christian morality for a creature who will live forever is the evolution of the soul. A Christian may kill if necessary, but he must not hate or enjoy hating. We may punish if necessary, but we must not enjoy it.

We love ourselves simply because it is our self, and we should love others in the same way. Fortunately God has given us the perfect example, because that is how he loves us.”⁹

We will know the work of forgiveness is complete when we experience the freedom that comes as a result. We are the ones who suffer most when we choose not to forgive. As we forgive, God sets our hearts free from the anger, bitterness, resentment and hurt that previously imprisoned us.

3. Objections to capital punishment from the Bible¹⁰

Exodus 20:13

The instruction in Exodus 20:13, "You shall not murder," does not prohibit the death penalty on the basis that civil government should not "murder" a criminal. Murder is commonly defined as ‘the intentional, unjustified killing of a human being.” As noted above, capital punishment administered by the civil government is entirely justified biblically by Genesis 9:1-6, Romans 13:1-7 and 1 Peter 2:13-14.

Some Bible translations¹¹ use the word “kill” rather than “murder” in Exodus 20:13 leading some to say the Bible therefore contains a general prohibition against all “killing.” Rather than argue about whether the Hebrew verb used in Exodus 20:13 refers to what we would call murder in a criminal sense today or refers to judicial execution¹², we know God commanded that the death penalty be carried out in the laws He gave in the Mosaic covenant¹³. It would not be logical to conclude that in one book of the Bible God generally prohibited what He specifically commanded in another.

Matthew 5:38-39

Matthew 5:38-39: Retaliation ³⁸ “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ ³⁹ But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also.

In this verse Jesus is speaking to individual persons and instructing them in their relationships with other individuals and is similar to Romans 12:19 where Paul prohibits personal vengeance. Jesus is not talking about the responsibility of governments or telling governments how they should act with respect to the punishment of crimes.

Matthew 22:39

Matthew 22:39: ³⁹ And a second is like it: You shall love your neighbor as yourself.

The real question here is whether it is possible to love one's neighbor, in obedience to this command, and at the same time support the action of the civil government in putting him to death for murder. This objection seeks to contrast Jesus’ command here with Old Testament commands about the death penalty, but Jesus is actually quoting from the Old Testament:

Leviticus 19:18: ¹⁸ You shall not take vengeance or bear a grudge against the sons of your own people, but you shall love your neighbor as yourself: I am the Lord.

In the same context of God's instruction quoted by Jesus He also commanded the death penalty for certain crimes¹⁴, so that God clearly commanded both love for one's neighbor and the death penalty, for example, for people who put their children to death in sacrificing to idols.

Matthew 26:52

When Jesus is being arrested, Peter drew his sword and struck the servant of the high priest, but Jesus told Peter to put his sword back into its place and said, “For all those who take the sword will perish by the sword." This verse cannot fairly be taken as a command to people serving as agents of government ignoring who Peter was and what his role was when this incident took place. Jesus was not saying that no soldier or policeman should ever have weapons. He was telling his disciple Peter not to attempt to resist those who were arresting Jesus. (It's also interesting that Peter who had been traveling with Jesus regularly for three years was carrying a sword as many people did at that time for self-defense. Jesus never taught that it was wrong to carry a sword for self-defense and seems to have approved swords for this very purpose¹⁵.) In addition, Jesus did not tell Peter to give the sword away or throw it away but to put its put it back in its place. It was apparently right for Peter to carry the sword, just not to use it to prevent Jesus’ arrest and crucifixion, so that, "all who take the sword will perish by the sword" must mean that those who take up the sword in an attempt to prevent the work of advancing the kingdom of God will not succeed. If Jesus’ followers had attempted to forcibly overthrow the Roman government as a means of advancing their view of how the kingdom of God should proceed, Jesus is telling them they would fail and "perish by the sword."

John 8:2-11

The Old Testament commands the death penalty for the crime of adultery¹⁶, but in John 8:2-11 there is a story of a woman caught in adultery where Jesus says, "Let him who is without sin among you be the first to throw stones at her.” There are several reasons this passage does not support an argument against the death penalty for murder. First, even if the text is used to argue against the death penalty for adultery, it is not a story about a murderer and therefore doesn’t address the use of the death penalty for that crime. Second, the Roman government prohibited anyone from carrying out the death penalty except the Roman officials themselves, and here Jesus was not allowing himself to be drawn into a situation where the Jewish leaders might use his words to sanction the death penalty for this woman in contravention of Roman law or, if he said the woman should be released, to appear to be condoning adultery. Finally, the entire story¹⁷ is in a passage of doubtful biblical origin.

God’s actions

Another argument against the death penalty is that God's own actions show that murderers should not be put to death, because God himself spared Cane after he murdered Abel¹⁸ and spared the life of King David when David caused the death of Bathsheba's husband, Uriah¹⁹. This argument conflates the responsibility of civil government with the freedom of God. Of course God can pardon some people until the day of final judgment and execute immediate judgment on others. We see in other passages that God executed immediate judgment that ended people’s lives as with the fire from heaven on Sodom and Gomorrah²⁰, the flood²¹, Korah, Dathan and Abirim²², Nadab and Abihu²³ or Uzzah²⁴.

A "whole life ethic"

Some opponents of the death penalty have argued that Christians should apply a "whole life ethic," in which they oppose all intentional taking of human life including abortion, euthanasia, capital punishment and war. Cardinal Bernardin of Chicago stated, "The spectrum of life cuts across the issues of genetics, abortion, capital punishment, modern warfare and care of the terminally ill." Pope John Paul II also advocated this position.

A position does not become more meaningful by giving it a label ("whole life ethic"). The fact that genetics, abortion, capital punishment, modern warfare and care of the terminally ill all involve “life” does not make them the same logically or biblically. This kind of thinking can be used to support almost any position.

All these arguments suffer from the same weakness. It is not sound biblical interpretation to attempt to argue from "implications" in passages that do not speak explicitly about a subject in order to use them to deny the teaching of those passages that address the subject directly. We need a “whole Bible ethic” faithful to the teaching of the entire Bible on any subject.

4. Statements in favor of repeal of capital punishment in New Hampshire

Senator Bob Odell, one of two Republicans who voted in favor of repeal, had previously supported the death penalty, but said he could not explain an execution to his grandchildren.

Boston Globe

• Death-penalty prosecutions are expensive.
• Verdicts often reflect racial bias.
• There’s little evidence that executions actually deter violent crime.
• A state with a libertarian heritage like New Hampshire’s should regard with deep suspicion a punishment that can only make sense if the government has the right suspect 100 percent of the time.
• In response to the argument that prosecutors need the death penalty as a bargaining tool, the editors said, "[T]hat’s among the weakest of reasons to keep the death penalty, because it could serve to coerce an innocent or less culpable defendant into taking a plea bargain just to avoid the possibility of death."

Joseph Nadeau and John Broderick (two former justices of the New Hampshire Supreme Court)

• The death penalty lacks a deterrent effect, saying, "New Hampshire has not executed anyone for three quarters of a century. Yet, it registered the second lowest murder rate in the nation every year of this century."
• Murder rates are higher in “heavy-use” death penalty states than is states without the death penalty.
• The decision to seek the death penalty is often "random" and "easily influenced by public opinion, political pressure and media attention."
• The sentence of life without parole is an appropriate alternative, protecting society and punishing the offender.
• "Abolishing the death penalty will not compromise public safety, but it may replace rage with reason, retribution with self-respect, and enrich the character of our people as a whole.”

Criminal Justice Committee Chair Laura Pantelakos:

• Racial inequities in the system led her to change her vote, citing different outcomes in recent cases for a black and a white defendant.
• Pantelakos, who has a grandson about to become a police officer, asked, “Why is a police officer’s life more valuable than an engineer’s?”

Representative Dennis Fields:

• Fields said he was swayed by the families of murder victims who testified they did not want another life taken in their names. He added, “I do not want to take another life; I’m not God.”

House Majority Leader Stephen Shurtleff:

• Shurtleff said, “I would like to think with age comes wisdom. So today I will be voting for repeal.”
• He added after the vote, “It really is a barbaric practice and the time is now to put it aside, and I think to give somebody life imprisonment so they can think every day about what they’ve done is more of a punishment than ending their life.”

Republican Representative Robbie Parsons:

• Parsons, who voted to expand the death penalty in the past, ultimately found the inequities in the system unacceptable and voted for repeal.

Representative Renny Cushing:

• The sponsor of the bill, said, “I view them now as the voice of experience, and how our thinking has changed in New Hampshire and the rest of the country.”

John Breckenridge (former partner of the police officer murdered by the only inmate currently on death row in New Hampshire – Michael Addison):

• "Given the Catholic view on the sanctity of life and our modern prison system and the means we have to protect society, it became clear to me that as a Catholic I could not justify the very pre-meditated act of executing someone who – for all the evil of his crime and all the permanent hurt he caused others – still lives in the possibility of spiritual redemption. That’s where my journey brought me. Do I want to visit Michael Addison or invite him into my home? I do not. Do I occasionally pray for him and his family? I do."

Bernice King (the youngest daughter of Martin Luther King, Jr.):

• "I can’t accept the judgment that killers need to be killed, a practice that merely perpetuates the cycle of violence."
• King called the death penalty "unworthy of a civilized society," and warned that "retribution cannot light the way to the genuine healing that we need in the wake of heinous acts of violence."
• King pointed to the number of people freed from death row after being exonerated as "evidence that mistakes can and do get made in a justice system run by fallible human beings."
• King invoked her father's message of nonviolence, quoting from his Nobel Prize acceptance speech, “'Nonviolence is the answer to the crucial political and moral questions of our time: the need for man to overcome oppression and violence without resorting to oppression and violence.'"

The Concord Monitor of New Hampshire:

• The paper contrasted the case of Michael Addison, the state's only death row inmate, to that of John Brooks, who was convicted of hiring three hit-men to kill a handyman, whom Brooks believed had stolen from him. Brooks received a sentence of life without parole. The Monitor noted, "Brooks was rich and white; Addison was poor and black.... Addison’s victim had the full force of New Hampshire law enforcement watching every twist and turn of the case; Brooks’s victim was little known and quickly forgotten. Different lawyers, different juries, different cases. But it’s difficult not to step back and wonder about the fairness of it all."
• "New Hampshire hasn’t used its death penalty in more than 70 years. We will be a better, fairer, more humane state without it."

1 As used in this section … the meaning of “another” does not include a foetus [sic].

2 Politics According to the Bible, Wayne Grudem

3 Genesis 37:22, 1 Kings 2:31 and Ezekiel 22:4

4 Numbers 35:16-34

5 Deuteronomy 13:15, Deuteronomy 20:13, Acts 12:2, Acts 16:27, Hebrews 11:37 and Revelation 13:10

6 The laws in the Mosaic covenant in Exodus, Leviticus, Numbers and Deuteronomy were intended for the people of Israel at that particular time in history. There is no suggestion in the rest of the Bible that those uses of the death penalty should be applied to civil governments today.

7 Romans 12:20

8 Romans 12:21

9 Mere Christianity, Book Three Christian Behavior, Chapter 7 Forgiveness

10 Politics According to the Bible, Wayne Grudem

11 American Standard Version, King James Version and Revised Standard Version

12 Numbers 35:16: 16  “But if he struck him down with an iron object, so that he died, he is a murderer. The murderer shall be put to death.

13 Numbers 35:16 -21 and Numbers 35:30-34

14 Leviticus 20:2: ² “Say to the people of Israel, Any one of the people of Israel or of the strangers who sojourn in Israel who gives any of his children to Molech shall surely be put to death. The people of the land shall stone him with stones. Leviticus 20:10: Punishments for Sexual Immorality ¹⁰ “If a man commits adultery with the wife of his neighbor, both the adulterer and the adulteress shall surely be put to death.

15 Luke 22:38

16 Deuteronomy 22:23-24

17 John 7:53-8:11

18 Genesis 4:8-16

19 2 Samuel 12:13

20 Genesis 19:24-29

21 Genesis 6-9

22 Numbers 16:31-33

23 Leviticus 10:1-2

24 2 Samuel 6:7