The death penalty is the most significant moral issue on which I have changed my mind. In law school, I was a full-throated supporter, but I have come to the view that, as currently practiced in the United States, the death penalty is unjust as the Bible defines justice.
This is not to say that capital punishment is categorically unjust. To the contrary, Scripture expressly authorizes it.1 A sentence of death for those who murder is part of the Noahic covenant (Gen. 9:6)—an ordinance “as universal and comprehensive, as were to be the posterity of Noah; . . . an ordinance of humanity and of civil society, the world over.”2 The penalty is repeated in the Mosaic law (Ex. 21:14; Lev. 24:17; Num. 35:31). And Romans 13 speaks of a God-ordained government bearing “the sword,” which is obviously an instrument of death. Commenting on this passage, Cheever observed that the apostle Paul is “clearly sanctioning capital punishment under the Christian dispensation, and referring it to the ordinance of God.”3 Elsewhere, Paul acknowledges crimes “worthy of death” (Acts 25:11 KJV). In sum, the biblical record is overwhelming in its affirmation of the death penalty as a just punishment for certain crimes. As Augustine concludes, if “a judge or his agent executes a convicted criminal, . . . [t]hey do not seem to me to be sinning.”4
The threat of a penalty that severe communicates the gravity of the crime and the value of its victims (Gen. 9:6). Though the death penalty is undoubtedly harsh, holding it out as a real threat that a society will promptly administer can be an act of love if intended to dissuade people from committing the most serious of evils and to thereby protect society from harm. That some, perhaps even many, will not heed the warning does not diminish its love.
But to say that Scripture authorizes the death penalty is not to say that Scripture does so without condition. And it is those conditions that many Christian arguments in favor of the death penalty fail to consider. My concern with the death penalty is not that it is, as a categorical matter, unjust, but rather that as currently (and historically) administered in the United States, it is unjust. Whatever the theoretical possibility that a people could justly administer the death penalty, the American system of doing so falls short of that standard in at least two respects: impartiality and accuracy.
More than two hundred years of history and careful data analysis show that the death penalty in the United States has been deeply infected by racial bias. When Warren McCleskey brought his case to the US Supreme Court in 1986, Justice Scalia conceded what the Baldus study plainly showed—that even after Furman v. Georgia (the 1972 case in which the US Supreme Court declared that the death penalty in its then-current form was unconstitutionally arbitrary), the death penalty still bore racial overtones. Decisions about who is sentenced to die are tainted by the race of the person murdered. As Justice Scalia acknowledged in 1987, this was not an issue in need of “more proof.”5 But, in fact, more proof has been offered. Numerous studies since Baldus’s have reached the same conclusion and some have further demonstrated that the race of the defendant likewise influences who is sentenced to death.6
Even more troubling is the evidence that race plays a role not only in who is sentenced to die but also in who is ultimately put to death. In 2020, two professors expanded David Baldus’s data to determine whether a further racial disparity existed in who, among those sentenced to death, was ultimately executed. The conclusions were shocking: the execution rate is seventeen times greater for those convicted of killing a White victim as opposed to a Black victim.7 Somehow, race is affecting not only prosecutorial and jury decisions but also the decisions of appellate courts and officials (whether governors or clemency boards) granting relief after conviction.
Loving my neighbor as myself demands that we use all reasonable means to clean up the system.
A common response I have encountered to statistics of these sorts is that, in the United States, Black people commit a disproportionate number of murders relative to their representation in the population at large.8 What the data also shows, however, is that most murders are intra-racial, not inter-racial. In other words, most murders by Black people are of Black victims, and the same for Whites.9 Thus, were race not playing a role in death penalty decisions, we would expect to see most of the Black defendants sentenced to death to be in cases where they murdered a fellow Black person. In fact, the statistics show precisely the opposite.10
8,790 people have been sentenced to death in the United States since 1973. One hundred and eighty-four of those men and women were exonerated as of the end of 2022.11 They were innocent of the crimes of which they were convicted and sentenced to die. In other words, we know that at least 2 percent of people sentenced to death since 1973 were wrongly condemned.
Even if we have identified all of those wrongly convicted and the error rate is “only” 2 percent, that is an error rate higher than I am willing to tolerate. And I have no such confidence that we have identified all the erroneous capital convictions.12 In a justice system that injects race into jury selection in trials before elected judges who run on “tough on crime” campaign platforms with defendants represented by overworked and underfunded defense teams while the prosecution conceals exculpatory evidence without consequence, I am unwilling to wager another man’s life. I would not wager my own under those conditions. Loving my neighbor as myself demands that we use all reasonable means to clean up the system. Absent that, we have no divine authority to administer the death penalty.
- Wayne Grudem, Christian Ethics: An Introduction to Biblical Moral Reasoning (Wheaton, IL: Crossway, 2018), 505–12
- Cheever, A Defence of Capital Punishment (New York: Wiley and Putnam, 1846), 138. Cheever makes the most comprehensive and compelling exegetical, theological, and philosophical case for capital punishment that I have encountered.
- Cheever, A Defence of Capital Punishment, 151.
- Augustine, On the Free Choice of the Will, On Grace and Free Choice, and Other Writings, ed. and trans. Peter King (Cambridge: Cambridge University Press, 2010), 8. Elsewhere, Augustine argues that it is right and proper to intercede for even the guilty who are condemned to death. Augustine, “Letter 153: Augustine to Macedonius,” in Letters 100–155, trans. Roland Teske, ed. Boniface Ramsey, in The Works of Saint Augustine: A Translation for the 21st Century (Hyde Park, NY: New City, 2003), 390–404.
- Memorandum to the Conference from Justice Antonin Scalia of January 6, 1987, 1, McCleskey v. Kemp, Supreme Court Case Files Collection, Powell Papers, Lewis F. Powell Jr. Archives, Washington & Lee University School of Law, Virginia, accessed November 23, 2021, https://scholarlycommons.law.wlu.edu/casefiles/249/.
- Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (US General Accounting Office, February 1999), https:// www.gao.gov/assets/ggd-90-57.pdf; David C. Baldus, George Woodworth, and Catherine M. Grosso, “Race and Proportionality since McCleskey v. Kemp (1987): Different Actors with Mixed Strategies of Denial and Avoidance,” Columbia Human Rights Law Review 39, no. 1 (2007): 143–77, https://doi.org/10.17613/4547-jy12; David C. Baldus and George Woodworth, “Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research,” Criminal Law Bulletin 39, no. 2 (2003): 194–226; David C. Baldus, George Woodworth, David Zuckerman, and Neil Alan Weiner, “Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia,” Cornell Law Review 83, no. 6 (1998): 1638–769, https://scholarship.law.cornell.edu/clr/vol83/iss6/6.
- Scott Phillips and Justin Marceau, “Whom the State Kills,” Harvard Civil Rights—Civil Liberties Law Review 55, no. 2 (2020): 585–656, https://search.informit.org/doi/10.3316/agispt.20201019038355.
- In the most recent year for which data is available, Black people committed 56 percent of murders in the United States in which the race of the perpetrator is known. “Expanded Homicide Data Table 3: Murder Offenders by Age, Sex, Race, and Ethnicity,” 2019 Crime in the United States, Federal Bureau of Investigation, accessed April 22, 2022, https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/tables/expanded-homicide-data-table-3.xls.
- In the most recent year for which data is available, 91 percent of Black murder victims were killed by Blacks, while 81 percent of White murder victims were killed by Whites. “Expanded Homicide Data Table 6: Murder: Race, Sex, and Ethnicity of Victim by Race, Sex, and Ethnicity of Offender,” 2019 Crime in the United States, Federal Bureau of Investigation, accessed April 22, 2022, https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/tables/expanded-homicide-data-table-6.xls.
- Seth Kotch and Robert P. Mosteller, “The Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina,” North Carolina Law Review 88, no. 6 (2010): 2097–98, https:// scholarship .law .unc .edu /nclr /vol88 /iss6/4.
- “Innocence Database,” Death Penalty Information Center, accessed January 13, 2023, https:// death penalty info .org.
- There is reason to believe that the error rate in capital cases is more than 4 percent. Samuel R. Gross, Barbara O’Brien, Chen Hu, and Edward H. Kennedy, “Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death,”Proceedings of the National Academy of Sciences 111, no. 20 (May 20, 2014): 7234, https://doi.org/10.1073/pnas.1306417111. At least twenty-one cases have been identified since Furman in which there are serious concerns that an innocent person was executed, one of whom is Ledell Lee who was executed in Arkansas in 2017. “Executed but Possibly Innocent,” Death Penalty Information Center, accessed January 13, 2023, https://deathpenaltyinfo.org; Hannah Knowles, “Four Years after a Man’s Execution, Lawyers Say DNA from the Murder Weapon Points to Someone Else,” Washington Post, May 4, 2021, https://www.washingtonpost.com/.
This article is adapted from Reforming Criminal Justice: A Christian Proposal by Matthew T. Martens.
God’s Word paints a picture of a future when death will be swallowed up in Christ’s victory on the cross and where believers will live eternally with him.
The American justice system has an accuracy problem. And this accuracy problem is a justice problem—a biblical justice problem.
We are like the Israelites: When God gave them his Sabbaths of rest in a land of rest, he had more work to do to make them believe it than he had to overcome their enemies and obtain it for them.
The real question is whether or not we would want justice without Jesus. And there are two reasons why the answer to that question should be ‘no.’