Limiting Capital Punishment for Those Who Disrespect Limits

The death penalty continues to be a hot button issue in American politics, and an issue that can sway voters as they choose their presidential candidate.  Witness the reaction when  the Supreme Court Justices Bar Death Penalty for the Rape of a Child   as repoted on 26 June 2008  in  The New York Times. “Both major presidential candidates criticized the decision.”  America which loves its personal freedoms does tend to believe that vengeful punishment is appropriate for heinous crimes.   Though it is not clear that such laws actually protect victims by deterring crime, they do impose maximum responsibility on those who commit such crimes.  As can be inferred from the response of both Senators McCain and Obama, they believe Americans want capital punishment for some violent crimes.  In this they are following American popular opinion.

The Supreme Court however has been moving in the direction of limiting capital punishment.  “The decision was the third in the last six years to place a categorical limitation on capital punishment. In 2002, the court barred the execution of mentally retarded defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18.”  In the most recent ruling,  “Justice Kennedy said, ‘we have no confidence that the imposition of the death penalty would not be so arbitrary as to be freakish.’  … He continued, ‘We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim.'”  The ruling has broad implications as there were in the U.S. in 2005 alone,  5,702 reported cases of rape of children under 12.   Advocates dealing with these incidents note that often they involve family members, and that having the death penalty as a punishment might actually deter families from reporting such rapes rather than detering men from committing such crimes.

 In the 26 June 2008 National Public Radio news report, High Court Bans Death Penalty for Raping Children, Justice Kennedy opined: “The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability.”

His opinion for the majority is in line with what The New York Times editorial, Anger and Restraint, says:  “For the law to be just, it must temper society’s anger over even the most horrible acts with decency and restraint. …Justice Kennedy’s opinion had a proper and welcome skepticism about the death penalty in general, warning that ‘when the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.'”

For Christians who support the Sanctity of Human Life, further limitations on the death penalty and on society and government sanctioned violence is welcomed.

Old Testament Law which does allow the death penalty for certain crimes also says “When a man causes a disfigurement in his neighbor, as he has done it shall be done to him,  fracture for fracture, eye for eye, tooth for tooth; as he has disfigured a man, he shall be disfigured” (Leviticus 24:19-20).  This would not allow the death penalty for a rapist, but might permit some form of severe physical punishment for the person convicted of rape.  Deuteronomy 19:21 makes such a punishment almost mandatory: “Your eye shall not pity; it shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot”.   The Law is clear about not turning the rapist into some kind of victim by showing pity for them.  On the other hand, it clearly limits the amount of punishment which can be imposed on someone who does wrong.   Thus God Himself imposes restraint on justice.  And Christians follow a Lord who advocates mercy, which no doubt is what is influencing the Justices of the Supreme Court as they interpret the Eighth Amendment which addresses the issue of cruel and unusual punishment.

Of interest in their judgment is also this line reported in The New York Times:  “The court’s modern precedents interpret the Eighth Amendment according to ‘the evolving standards of decency that mark the progress of a maturing society.'” In other words, the Supreme Court recognizes in law that the moral standards of a society can and do change and the court takes this into account when rendering its decisions.   Such flexibility in the law, and even “re-interpretation” of the law has brought about some deep and good changes in the U.S. – take the issue of slavery or women’s suffrage.  It also can put conservatives on edge as they wonder if there are any fixed standards.   But as the nation lives and deals with new contingencies – the terrorist attacks of 9/11 for example – it is healthy for the court to be able to consider evolving standards to meet the challenges before us.

The Enlightenment: Potentially and Potently Good and Evil

The Enlightenment is an historical period in Western European thought which came into vogue and power in the 18th Century, about the time that the United States was being formed as a nation.   The ideals of The Enlightenment greatly shaped the values of America’s founding fathers – Jefferson, Adams, Franklin, Washington, etc.  The ideals of The Enlightenment shaped our Declaration of Independence and our Constitution, and are somewhat enshrined in American thinking and self perception.   The advocates of the Enlightenment had a goal which was to have individuals escape the constraints which history imposes on cultures – cultural and ethnic prejudices.  From their perspective history and culture tends to blind people by imposing assumptions on them. 

The Enlightenment really begins the form of thinking in which an individual is considered to be the smallest social unit, and the individual’s rights are defended against the rights or demands of any social group – family, clan, village, race, nation, religion. (We are so steeped in Enlightenment radical individualism that it is hard for us to even image a time and culture where people thought in terms of family, clan, people, rather than in individuals.  Who is your family? Who are your people? Are questions once commonly asked of those seeking marriage in a time when persons were seen as belonging to some social unit). The Enlightenment radicalizes the individual to the point that he/she is not even thought of as a social being with a family history as this imposes too many constraints on the person.   Generally Enlightenment thinkers felt the cultural prejudices imposed on individuals through tradition and custom had to be seen for what they were: not objective truths, but merely the prejudices and subjective opinions of a limited culture. Enlightenment thinkers generally assumed that education is what helped free a person from cultural and traditional determinism.  Thomas Jefferson for example described his ideal of “America” as a “crusade against ignorance.” 

Immanual Kant defined the Enlightenment as a time when humans realized they could use their own understanding to comprehend the universe and did not have to rely on the tutelage of others. This means every human authority and tradition was open to critical examination by everyone.  As a result the individual became valued over any social group and people began to speak more and more in terms of individual or human rights.  The beliefs, assumptions and traditions of society and religion all could then be questioned by an individual.  In some sense it became the individual not a social group which determined what is true, what is to be valued, what is to be believed.

Enlightenment thinking allowed people to question the very nature of truth as well as to question the assumptions and beliefs of established society and religion. It opened the door for the development of modern scientific thinking which is based in observation, skepticism, and the need for objective proofs.   In many modern societies science came to replace religion as the defining modem for truth.   The Enlightenment was a time in which people began to see a difference between truth based upon faith, and truth based upon testable and provable facts and reason.   The Enlightenment’s tension between faith and reason is somewhat the issue of whether we can find a “natural” explanation for everything, and thus don’t need a God to further explain the world.

The ideals of the Enlightenment in the United States also created the milieu in which the idea of the separation of church and state and the ideals of religious tolerance came to be seen as normative.   That process unfolded over many years and some see it as one of the great accomplishments of the Enlightenment.  The American Revolution caused the holders of different religious beliefs to lay aside their differences in order to work for the common good.  They reasoned that the vision which held them together superseded their faith differences.

However, today some religious leaders have viewed the Enlightenment in a negative or hostile manner.  Religious groups often think in terms of family or church/perish/congregation, and see all the members of a family as belonging to the religious group.   The Enlightenment thinkers would say no one is owned by anyone else – even your children don’t “belong” to you as they are really individuals in the making and they owe loyalty to no one.   The Enlightenment emphasis on the individual is thus sometimes in tension with the goal of religions to overcome the limits of self (and self centeredness) and to create community, brotherhood, or unity among people.

Human rights, the rights of the individual, are also ideas that have emerged from the Enlightenment.  The human rights emphasis on radical individualism has caused some religious traditions – Islam, Orthodox Christianity and Roman Catholicism – to question these Enlightenment ideals as being based not in God but in atheistic humanism.  Many modern religious criticisms of “secular humanism” are actually attacking Enlightenment principles. 

One critique of Enlightenment thinking is that it assumes all human problems can be solved by reason alone.  Evil in Enlightenment thinking is not real – it is merely an abstract idea that can be reasoned or educated away. But has human experience upheld such a notion of evil – that it is a mere idea that can be eliminated by enough education, or has evil proven itself to be quite real and really destructive and something beyond which education/enlightenment can correct?  The major Western religious tradition of Judaism, Christianity and Islam do not in general assume that ignorance is the main human problem.  All of these traditions see sin and evil at the heart of what ails humanity. 

Interestingly enough the Enlightenment’s drive to free individuals from the constraints of the past is going to give rise to the secular and atheistic ideals of 20th Century fascism and communism.  In both these systems there was a drive to shape and govern nations by purely rationalistic principles – to use human reason freed from ancient philosophical constraint and from religious revelation to create a whole new world.   The end result of these two children of the Enlightenment (communism and Nazi fascism as embodied in their 20th century leaders Stalin and Hitler) was a disastrous, destructive and deadly reign of terror in two nations which then engulfed the world in a holocaustic hell in which tens of millions perished.

The Gospel According to John Wayne

The Gospel according to John Wayne 

It seems as if the American idea is that the response to evil is “kill it.” We seem to think if we could kill evil, then paradise would be free of the serpent. This I think is why we still have the death penalty in the US. It certainly is the Hollywood version of what to do with evil – kill it, blow it up, shoot it, beat it to a bloody pulp.

A friend told me this is why American kids grow up so in love with violence: violence is presented as the only way to defeat evil. But then comes the other element of American pluralism and relativism which says: but what is evil? And so we train our children to violently oppose evil but then can’t quite define what evil is since everything is acceptable and there are no clear definitions of what evil is. So the violence in America is often senseless. When nothing is recognized as evil, neither can anything be recognized as good; so more confusion sets in.

Characters played by John Wayne at least had a sense of right and wrong. Certainly those of us who grew up in the Cold War were taught there are good guys and bad guys. But today, we can’t tell who is good and who is evil.

In The People of the Lie , Scott Peck challenges the psychiatric/psychological community into recognizing that perhaps there exists a personality which is evil – he labels it the “Evil Personality Disorder.” He says his life as a psychiatrist has led him to believe that there really are those individuals who live by a different set of morality and values then most of us, and that by our standards they are evil – they are willing to lie, cheat, steal, kill, maim, hurt and destroy life. Peck thinks they should be recognized as such and then society needs to come up with a way to deal with them.

Ultimately he believes that the way to deal with them is not to kill them but to love them, though he admits that they may never recognize that love,  and may in fact hate and rebel against it. But he seems to think if we surround them with love, that is the only true way to deal with their evil and distorted thinking.

Killing “evil” is quick and often easy. We do it in countless ways – we dump thousands of pounds of pesticides on our gardens, farms and homes to rid ourselves of all types of unwanted and destructive pests – insects, animals, weeds, blights, fungi and diseases. We seem to carry that thinking into many aspects of our fight to survive on earth. We believe that is the way we won World War II, and it was our ultimate weapon against communism.

“You cannot kill an idea,” Leo Tolstoy wrote, yet we try to uproot all evil in the world by killing it. Evil doesn’t die so easily. The Cross is God’s weapon against evil. Not by arming and equipping His saints do we destroy death, but God does it by death itself. Was it Emperor Theodosius who boasted that his armies could eventually defeat Satan? That idea is alive and well in America today where we believe a bigger, stronger, better equipped army and police force will eventually take care of all the evil in the world.

See also my Can Evil be Killed?  And  Capital Punishment

Doing What we are Supposed to Do

“The book, A STRANGER TO MYSELF,  is the autobiographical description of  WWII German soldier named Willie Reese, who, from ages 20-23 fought in the German army on the Russian front beginning in 1941.    As the war continues Willie increasingly becomes detached from humanity and simply becomes a soldier as his moment in history requires of him.   He is simply doing what he is “supposed” to do.  The “War” becomes the justification for whatever he or others do, no matter how barbaric or inhuman.   The book offers for us a glimpse into human nature.   When we each merely do what we are “supposed to do”, we lose our humanity and our being in God’s image and likeness.    When leadership demands in the church that we “pay and obey” and we comply by doing nothing more than what we are “supposed to do”, we, too become the “Willie Reeses” of the Orthodox Church.  
“Doing what we are supposed” is not the same as taking up the cross and following Christ.  In the first we quit thinking and choosing and become passive, dejected, demoralized slaves.   In the second, we freely, willingly and voluntarily accept victorious martyrdom.     We are not called to mindless obedience in Christianity.  Even in the Hesychast tradition of silent prayer, one puts the mind in the heart, where both work together for the salvation of the world and to the glory of God.

“Doing what we are supposed to do” is not the basis for Christian morality.   Obedience is not the energy motivating the disciples of Christ.  Love is.