Morals Blogs: Capital Punishment 5: Historic Abuses

Historic Abuses of Capital Punishment

One reason our generation – right around the Western world – has turned against the very idea of capital punishment is the awful historic abuses of it. We are now only just climbing out of some dark days of draconian punishment.

Because of this I wish to emphasis that I am in no way advocating turning the clock back to those dark days!.

I think that the abuses of capital punishment broadly fall into two classes:

1. Condemning the innocent and 2. Punishment that outweighs the crime.

1. Condemning the innocent.

This is a thing which throughout the Bible is said with great emphasis to be both abhorrent to God and totally contrary to his moral nature. He will never condemn the innocent. He will not leave unpunished humans who condemn the innocent. It is, unfortunately a very common sin committed by humans. It is always evil when intentional. It demands reform of our system of justice when it is accidental. Let us quickly survey its various faces:

a) Judicial murder.

This one is near the top of the list for individual scale human evil. When the very system intended to produce justice is perverted to perform murder it is a whole degree of magnitude more evil than straight out murder.

In the Old Testament one classic instance is depicted in the story of Naboth's Vineyard.

Nearly three thousand years ago the king of Israel wanted the family vineyard of a citizen named Naboth for a palace veggie garden. Naboth wouldn't sell. The King's wife, a foreign lady called Jezebel, told her husband that in her culture kings don't take “No” for an answer. She sent a letter under King Ahab's seal to the leaders of Naboth's town. They were ordered to falsely charge Naboth with blasphemy and sedition, fake the necessary evidence, then try, convict and execute him.

God's anger at this abuse of the justice system should scare even the most ruthless tyrant. The prophet Elijah was sent to tell Ahab that (among other things): “Where the dogs licked up Naboth's blood they will lick up yours!” Years later when Ahab's army commanders saw the blood from Ahab's fatal wound being washed from his chariot and dogs licking it up they recall those words, and realise that this is indeed the very place where Naboth was executed. God could hardly have made his feelings any clearer!

Jesus' crucifixion is the great example of a judicial murder in the New Testament and the unequalled instance of human evil.

Throughout history people in authority have resorted to murdering people who got in their way by perverting justice to condemn the innocent. It indeed is a very great evil and we must fight it wherever it rears its ugly head.

b) Mob Hysteria

Another perversion of justice is where mob hysteria rules. It is like, but different to judicial murder.

Classic cases are the infamous witchcraft trials. Mob hysteria fuelled the hunting down, baseless accusation, phony trial and execution of totally innocent people.

We should indeed be revolted by these. But transferring our revulsion on to “capital punishment” is not the right response. It also happens in jurisdictions where there is no capital punishment. True the victims are not executed, but the harm inflicted on them may be almost as great!

My point again is that these historic abuses are indeed great evils. They are wrongly used as popular considerations against capital punishment. They are abuses – deal with them as such.

c) Failure of Due Process

In the Old Testament the rule was laid down “do not convict anyone on the evidence of only one witness.” and as a strong deterrent to false witnesses: “anyone who gives false testimony in a trial must suffer the punishment that the wrongly accused person would have suffered.”

of Daniel devising a way to show that two scoundrels who accused a woman of adultery were lying. In the story the lying witnesses are then stoned to death and the innocent woman exonerated.

The Old Testament was, even in civil cases, very strong on the ideal of a fair trial. With commands like “Do not side with the mob” : “Do no favour the poor, or toady to the rich in their court case” “Judge fairly and do not accept a bribe”

Outside the Bible, even one Roman Emperor persecuting Christians instructed one of his provincial governors: “Do not entertain an anonymous charge against any person”

In the English judicial tradition there has over many centuries grown up rules of fair trial – often termed “due process”. Things like the presumption of innocence and the right to remain silent are well known. Others like rules of evidence are more of a puzzle to the general public. They have grown over the centuries from practical experience that on the whole they give the best chance of avoiding a wrong verdict.

Together these things add up to a “fair trial”.

In jurisdictions where due process is not guaranteed we rightly feel motivated to oppose capital punishment.

d) Mistakes Happen.

Even where there is a tradition of a fair trial, mistakes happen. Guilty people walk free because they have a good lawyer; sometimes innocent people are wrongly convicted.

One way jurists have tried to balance the need to have a justice system that does function with the need to minimise miscarriages of justice is to change the burden of proof with the harm that would be caused by a wrong verdict.

In popular terms, we don't make a federal case” out of something trivial. In court civil cases are often decided on “the balance of probabilities” while criminal trials require the case to be proved “beyond all reasonable doubt”.

For capital crimes the bar should be set even higher. One Judge Blackwell famously said: “I would rather release ten guilty murderers than hang one innocent man.” However, historically, capital cases have not uniformly required a greater degree of certainty than that for imprisonment.

Nothing in human affairs is perfect, nothing is certain. Opponents of capital punishment are quite right to point to the numerous cases where even after a fair trial, an innocent person has been convicted. An innocent person imprisoned can be released, and some compensation for the harm done to them can be made but wrongful executions cannot be remedied in this world.

My conclusion is: when capital punishment is re-introduced it should require strong safeguards against all these abuses. Including for instance a higher standard of certainty even than required in the best jurisdictions at present for 'life' imprisonment.

That this must be achieved is a matter we ordinary citizens can decide.

How this can best be achieved is however a matter for experts in jurisprudence and drafting laws to consider.

Next Post: Does the punishment fit the Crime?

Morals Blogs: Capital Punishment: Expunging Communal Guilt

Capital Punishment Pt. 4

3. Expunging Communal Guilt

This reason was often described in the Bible as the result of heinous crimes “polluting the land”. However it seems to me best explained in modern terms as something like:“expunging communal guilt”. The point seems to be that dealing with the moral aftermath of serious crimes actually requires repudiation of the crime by the community. In practical terms this generally means that the community must punish the offender.

Consider Numbers 35:33: “Do not pollute the land where you are. Bloodshed pollutes the land, and atonement cannot be made for the land on which blood has been shed except by the blood of the one who shed it.”

Even those who may dispute what I have said above must admit that this text is giving a further reason for executing the murderer. Granted it may be debatable exactly how that applies in our modern society, but it must alert us to dimensions of crimes such as murder with which we are, in our present post-modern reverie, unfamiliar – or to put it bluntly: there is much more to 'crime and punishment' than the anti-punishment lobby understands!

This concept of the community repudiating the actions of a murderer is further explained in Deuteronomy 21. Here what is described is the community's response to an unsolved murder. There is an elaborate ritual in which the community leaders must swear before God (once again an action that us moderns treat with contempt but which ancients who possessed a far greater fear of sacrilege held inviolate) that they did not do it and are not concealing evidence of who did. “They shall declare: 'Our hands did not shed this blood, nor did our eyes see it done. … do not hold your people guilty of the blood of an innocent man.' ... So you will purge from yourselves the guilt of shedding innocent blood.”

Certainly there is a recurring theme in the Bible of God punishing an entire nation or society for its sins. This is disturbing to us moderns. Even if we rise to the idea of any punishment for sins, we want to see it as strictly individual. We look with horror at our forebears carrying out “punitive raids” against communities from which individuals had committed atrocities. But what if the truth actually lies somewhere between us and our forebears? What if there is a communal or corporate dimension to evil which we are overlooking?

From my reading of the Bible to date – and the texts cited above are examples – there certainly is a societal dimension. It seems to be tied – particularly in the above texts – to whether or not the community distances itself from the evil done. I am guessing a bit here – but suppose it is like our modern concept of being an “accessory” to a crime. If a person aids and encourages a criminal act then they become an “accessory before the fact” and in most jurisdictions liable to the same punishment as the person who actually committed the crime. Someone who helps cover up the crime becomes an “accessory after the fact” with lesser penalties.

So as a society, if we all collude to create the pretence that something God regards as very evil is not evil, are we not acting together like an accessory before the fact? There was a popular sociology book some decades ago entitled “The Social Construction of Reality”. As I recall its thesis was that a great deal of our “world taken for granted” is actually something generated by our society and instilled during our upbringing. So my extension of that idea is that if as a society we are “soft” on really evil crimes, then we are conspiring to create a false reality. A reality which encourages evil thinking and by that route encourages evil crimes to be committed. (I mean as a separate route or enabling factor from failure of fear of punishment).

In this case the idea of communal guilt is at least plausible. Conversely, reinforcing social practices that discourage evil, could plausibly be termed expunging communal guilt.

I think it is probably “Sociology 1.01” that strong social taboos are only maintained when the communal abhorrence of breaking them is reflected the punishment of any offenders. We easily see that if the worst thing you can do in some “primitive” society is to tear down the town's idol: we don't need two guesses to work out that the locals will kill you if you do!

Significantly, in modern society crimes once seen as truly evil such as rape and murder attract relatively lenient punishment. But 'sins' against social-progressive dogma – such as making homophobic, racist or sexist comments even in jest, are punished via both the new social media and the established media (generally without any opportunity for defence let alone a fair trial) most severely – public humiliation and hounding from society, even loss of employment.

This suggests to me that the movement against capital punishment was just one pincer arm of the movement to destroy traditional morality and replace it with the new and terrible morality of their “brave new world”.

It is certainly “Ethics 1.01” that what a society punishes and to what extent reveals its moral values. Further, the extent to which truly evil deeds can move a society to moral outrage reveals reveals that society's own moral fibre. I will say again that the quote I put in earlier where progressives claim that “No community which executes criminals can be called 'civilised'.” or the punchierversion: “any society which executes evildoers is itself evil” are in fact stating the exact opposite of the true situation.

If there is no crime that can be done which is so terrible, so shocking, so depraved, so evil in a society that the people decree: “for that you die!” then that society has lost moral feeling. And that society is morally an accessory before the fact. That is I think the truth seen both by the Bible and ancient ethicists like Aristotle.

Conclusion: Yes! There is a place for capital punishment. … But as to what that place is … That is quite another thing.

Next post: Historic abuses of capital punishment

Capital Punishment : Is it ever right?

This post I am considering one question only: Is capital punishment ever right.

This may seem a 'no-brainer' given the Biblical texts I have previously cited. However since in Australia and many other Western countries capital punishment is not allowed, regardless of the magnitude or depravity of the crime it cannot be taken for granted. Also the anti capital punishment lobby generally puts the case that it is never justified. For instance from time to time the media reports some comment to the effect: “No community which executes criminals can be called civilised” and similar ideas. So the question does need to be asked and answered.

There is another reason I want to look first at whether execution is ever right: If capital punishment can never be justified then there is nothing more to discuss. One can only say: “Capital punishment is antiquated and barbaric and thankfully human civilisation has grown past it”. If, on the other hand there is conceivably some, no matter how rare, situation in which it would be justified, then a great deal remains to be explored and said.  For instance one can ask: Just how terrible a crime does warrant killing the criminal? What legal safeguards would be required over and above those for imprisonment? and so forth.

We might find that our current distaste for capital punishment is actually rooted in a true feeling that it has often involved failures of “fair trial” and even murder dressed up as lawful execution. These then become important issues in their own right.

We might find that there are other considerations which would make actually executing a criminal exceedingly rare. However all these questions are irrelevant unless we can conceive of a circumstance where executing a criminal would be right.

I have previously quoted from Genesis 9 “ … Whoever sheds the blood of man, by man shall his blood be shed for in the image of God has God made man.”

So immediately we have one circumstance – murder – where for society to execute the murderer is specifically allowed by God.

However I will not at this point say “case proved” because it is not quite as simple as that!

Opponents to capital punishment have generally cited reasons: “retribution is wrong”, “violence begets violence”, “deterrence doesn't work” and so forth. The merits of these do need to be considered. Also the Bible does give reasons for capital punishment. These reasons need to be teased out and considered – something I think has been too much neglected!

Let's look first at some of the reasons the Bible gives for the death sentence in extreme cases.

1. Retribution.

Yes, I did say that bad word: retribution. Current social philosophy and tissue-box Christianity have combined to ridicule this notion almost to extinction. They are wrong, quite wrong!

Retribution is valid: But retribution belongs to God.

So true, we as individuals must turn the other cheek when we feel slighted. We must not seek vengeance for personal wrongs. We must not even begin to think that we can be forgiven our sins by God if we refuse to forgive those who sin against us.

God, on the other hand does not have to forgive! He has the perfect moral right, and the moral prerogative as judge of all the world to exact vengeance. (Yes, and he also has the unquestionable moral right to forgive – because Jesus Christ, God the Son, died for our sins and rose again from the dead)

So, some scripture to back this up:

Genesis 50: 15ff especially v.19: Joseph's brothers are afraid he will avenge himself on them for the terrible wrong they did to him many years earlier, he answers: “Am I in the place of God?” and assures them he will treat them kindly

Read almost any book of the Old Testament and you will come across mention of God punishing nations and individuals.

Before you even think of saying “Oh, but Jesus was different” - No! On the contrary Jesus spoke more about judgement that anyone else! Call to mind his typically blunt warnings such as:

“What does it profit a man to gain the whole world, yet forfeit his soul?”

“If anyone causes one of these little ones who believe in me to sin, it would be better for him to be thrown into the sea with a large millstone tied around his neck.”

“It is better to enter the kingdom of God with one eye than to have two eyes and be thrown into hell.”

The parable of the tenants end with a shocking “He (meaning God) will come and kill those tenants (meaning the religious leaders of Jesus day ...)”

The parable of the unforgiving servant ends: “In anger his master turned him over to the jailers until he should pay back all he owed. This is how my heavenly Father will treat you unless you forgive your brother from your heart.” Which neatly ties together the reason we must forgive after experiencing the enormous magnitude of God's forgiveness towards us; and God's freedom to forgive or to condemn.

The parable of the ten minas ends: “But those enemies of mine who did not want me to be a king over them – bring them here and kill them in front of me.” In an obvious reference to those who opposed Jesus then, and presumably also those who oppose him now.

Jesus said of the people who claim to serve him but do not act in accordance with his commandments: “There will be weeping and gnashing of teeth when you see … in the kingdom of God but you yourselves are thrown out.”

That is just a smattering, skim through the Gospels and you will find plenty more. The point is that Jesus did not trivialise the reality of God's judgement, rather he gave it full strength to give full contrast to the superabundant mercy of God in providing a way of forgiveness through his Son.

Just two of the many passages in this vein in the New Testament letters;

2 Thessalonians 1: 5ff “God is just: He will pay back trouble to those who trouble you … He will punish … they will be punished with everlasting destruction ...”

Hebrews 10: 30ff “For we know him who said: 'It is mine to avenge; I will repay' … it is a dreadful thing to fall into the hands of the living God.”

So: Retribution is just a fact – but – retribution belongs to God.

“proper authorities” govern – whether they acknowledge it or not – as God's agents. No! Not in the propaganda sense of “the divine right of kings” or any nonsense like that; but in the model of shepherds who are there to protect and feed a flock and to work to enable that flock to flourish. That is the Biblical model! (and a story for another day)

“proper authorities” have a delegated function to exercise a little of God's prerogative of administering retributive justice.

So while as individuals we must forgive, as legislators, judges, police and other functionaries of a lawful justice system we have a small role in meting out some of God's judgement on evildoers.

This is a hard concept – well no – it should be blindingly obvious! But we have been blinded by current philosophies to the extent where the obvious has become invisible! Just one quote to set us on the path to recovering a right perspective on this:

Romans 13: “ … the authorities that exist have been established by God … the one in authority … is God's servant to do you good, but if you do wrong, be afraid, for he does not bear the sword for nothing. He is God's servant, an agent of wrath bringing punishment on the wrongdoer.”

So there exist instances where the proper authorities acting in their official capacity need to mete out retributive justice as agents and servants of God. Mostly God's judgement is reserved for the Day of Judgement, but as – Luther I think it was – pointed out, he gives little bits of judgement in advance.

I have also previously quoted from Exodus 21. Here I will put in a larger section, verses 12 – 14.

“Anyone who strikes a man and kills him shall surely be put to death. However if he does not do it intentionally, but God lets it happen, he is to flee to a place I will designate. But If a man schemes and kills another man deliberately, take him away from my altar and put him to death.”

Perhaps us moderns do not realise quite how shocking this provision was in the eyes of the ancients. For a person to cling to the altar of a deity was to claim that deity's protection: few would dare touch them for fear of being guilty of sacrilege. But for murderers, God decrees that there is no divine protection that can be claimed: even the most sacred space cannot harbour them from execution.

So one reason why there can be a death penalty is so that the proper authorities can exercise a role God has given them by having the ultimate sanction (death) as retributive punishment for the worst crimes.

NEXT POST: Deterrence

Absolute Rule or Blanket Rule

Absolute Rule or Blanket Rule

PLEASE NOTE:

I have deleted this post due to a semantics problem! 

For an explanation and discussion please see the next post :

"Moral new-speak: they've stolen our words"