Greg Marcar is a Research Affiliate at the Center for Theology and Public Issues at the University of Otago, where he is also a Teaching Fellow within the Theology program. Greg is a 2019 alumnus of the ICLRS Religion and the Rule of Law Young Scholars Fellowship Program.

This post is derived from Marcar’s article “Revisiting Death’s Difference: The Philosophical Anthropology of the U.S. Death Penalty and the Impossibility of Capital Due Process”, British Journal of American Legal Studies | Ahead of Print, 21 April 2020.

Introduction

Few judicial issues are as polarising in the U.S. as the death penalty. Akin perhaps to abortion, attitudes towards capital punishment can often approximate a litmus test for liberal and conservative dispositions. For many of its legal and political opponents, the death penalty is a quintessentially disproportionate punishment, and thus contrary to the Eighth Amendment’s prohibition on “cruel and unusual punishments.” For many of its supporters, the death penalty is not only congruent with the Eighth Amendment (particularly under a historically-focussed “originalist” reading);[1] it also instantiates the moral principle that those who commit the most horrendous acts within society must face the ultimate sanction. Between these positions, the possibilities for mediation appear slim. This is also true within religious thought, where assertions concerning the dignity of every human being and the value of forgiveness are often mirrored by equally forceful assertions concerning the sanctity of human life and the need for a retributive punishment of murderers which reflects this sanctity.[2]

Whether in the legal, political or religious sphere, conversation on this topic can therefore quickly find itself at a formidable impasse. How should we proceed? First, I suggest, by taking a step back. Rather than first deliberating about whether the noose fits human beings, I posit that we first interrogate the nature of what type of being would fit: what must be believed about the person in the dock for state execution to be a proportionate punishment?

The Philosophical Anthropology of Capital Punishment: A Brief Summary

To this end, in my recent article Revisiting Death’s Difference, I set out to examine the penal aims of deterrence, retribution and incapacitation and ask what, in each case, must be supposed in order for these ends to be proportionally achievable when the punishment is death. In short, I argue that due in part to the existential severity of death, the nature of State agency, and the existence of life imprisonment as an alternative sentence, non-empirical and morally evaluative assumptions must be made in order to believe that the U.S. death penalty could be a proportionate punishment.

These are anthropological assumptions, insofar as they concern not simply what an individual has done, but who—or what—they essentially are: highly calculating (deterrence; retribution), critically dangerous (deterrence; incapacitation) and/or irretrievably depraved (retribution; incapacitation). Due to the irreversible nature of death, moreover, the epistemological confidence with which one holds these beliefs must be of a qualitatively different order to that which is involved in sentences of correctable (or at least, compensable) punishment. Whereas non-capital sentencing judgements may be based on the kind of balance-of-probability analyses involved in answering many empirical questions, the certainty demanded by the terminal nature of a death-sentence is more akin to the non-probabilistic certainty associated with religious faith. The anthropology which underpins the death penalty cannot thus be engaged on a purely scientific or deductive basis: fundamentally it is a matter of belief, rather than evidence.

Possible Implications for Religious Critique

At first sight, it might appear here as if we might have merely substituted one conversational dead-end for another. What are the possible implications of this argument? In Revisiting Death’s Difference, I conclude by arguing that the underlying philosophical anthropology of capital punishment (as it currently exists in the United States) raises some intractable difficulties for the prospect of legal due process. Here, I would like instead to say a brief word about how this argument might reframe the state of Christian critique (or lack thereof) towards the death penalty.

In The Death Penalty: An Historical and Theological Survey, James J. Megivern provides an extensive and thoughtful overview of how the death penalty has been approached theologically from the first century to the twentieth. His theological canvassing of the issue is unique, which in itself perhaps says something instructive about the state of theological critique. In the final chapter of his account, Megivern summarises that capital punishment amounts to “a deliberate act of killing, traditionally approved and uncritically blessed by the church”, in face of which “[o]ne can only ask why and how” the practice “was able to squeeze its way onto a sacred pedestal and gain its long-privileged support historically in moral theology.”[3] Despite the various ways in which moral theologians have sought to check or qualify the practice of state execution,[4] Christianity as a whole has historically been reluctant to denounce the death penalty in absolute and unequivocal terms. Although the landscape here may well be changing,[5] it remains the case that within the United States, Evangelical protestant Christians (considered as a demographic) continue to be among capital punishment’s most fervent supporters.[6]

This curious alignment, it may be suggested, remains tenable on the assumption that the goals of penal justice which the state pursues through capital punishment—namely, the aforementioned goals of retribution, deterrence and incapacitation—are non-religious or “secular” in nature, and therefore need not be interrogated concerning their (in)compatibility with prior religious commitments. Once it is acknowledged that support for the death penalty itself entails non-empirical, morally evaluative beliefs, however, then one’s other faith-based convictions can no longer be left at the door of the voting booth, legislature, courthouse or governor’s office when the death penalty is being considered.

Further, those who profess faith commitments which entail a contrary philosophical anthropology to that of capital punishment cannot be “neutral” on the matter, but must choose to which of these conflicting anthropological belief-sets they wish to subscribe. Insofar as someone subscribes to alternative religious commitments, she must then acknowledge that she cannot continue to support the death penalty in good conscience. This approach may not break the impasse between of opposing moral viewpoints on capital punishment, but it does potentially, at least, demand that those who identify as religious clarify upon which ground they stand.

[1] This perspective was perhaps most famously and effectively championed on the judicial bench by the Antonin Scalia, who served on the U.S. Supreme Court from 1986-2016. See for instance Antonin Scalia. “God’s justice and ours.” First Things (2002): 17-21.

[2] Among the most heavily cited passages of scripture on this point is Genesis 9:6 (“[w]hoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image”) and Romans 13:1-4 (“Let every person be subject to the governing authorities…for he does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer”).

[3] James J. Megivern, The Death Penalty: An Historical and Theological Survey (Mahwah, NJ: Paulist Press, 1997), 457.

[4] Christian theologians in this category include Tertullian (155-220), Augustine (354-430), Karl Barth (1886-1968), Pope John Paul II (1920-2005), John Howard Yoder (1927-1997) and Stanley Hauerwas (1940-present).

[5] In late 2018 for instance, the Roman Catholic Church officially revised its Catechism to state in unequivocal terms that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.” Holy See Press Office, “New revision of number 2267 of the Catechism of the Catholic Church on the death penalty – Rescriptum ‘ex Audentia SS.mi’, 02.08.2018”, accessible at http://press.vatican.va/content/salastampa/en/bollettino/pubblico/2018/08/02/180802a.html.

[6] See Pew Research Center, April, 2015, “Less Support for Death Penalty, Especially Among Democrats”. According to this report, support amongst white evangelical protestants in America is around 71%