"WHAT'S GOING ON?": CHRISTIAN ETHICS AND
THE MODERN AMERICAN DEAm PENALTY
by Timothy W. Floy"
I.
DIE CURRENT CONTEXT OF THE DEATH PENALTV DEBATE. . . .. 931
The Legal Context ofthe Debate
" 933
The Morality ofthe Death Penalty
936
nm JUST WAR TRADITION IN CHRISTIAN DlOumrr
939
A. Legitimate Authority
941
B. Justifiable Cause
941
C. Proportionality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 941
D. Right Intention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 941
E. Reasonable Chance ofSuccess
942
F. Last Resort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 942
G. Discrimination and Proportionality in the Waging ofthe
War. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 942
A.
B.
II.
III. APPLYING THE JUST WAR CRITERIA TO THE MODERN AMERICAN
DEATH PENALTY ....•..••..•.....•.....•........•..... 943
A.
B.
C.
D.
E.
F.
G.
IV.
943
944
944
944
945
946
946
CHRISTIAN ETHICS AND RETRIBUTIVIST JUSTIFICATIONS FOR THE
DEATH PENALTY .........•.•...•....••.............•.. 947
A.
B.
C.
V.
Legitimate Authority
Justifiable Cause
Proportionality... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Right Intention .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Reasonable Chance ofSuccess
Last Resort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Discrimination: Avoiding Harm to the Innocent
Ineffective Assistance ofCounsel
949
Racial Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 950
Geography and Other Accidental Circumstances ... . . . . .. 951
CONCLUSION..... . . • . • . . . . . . . . . . . . • . . . . • • . . • . . . . . . . .. 952
I. THE CURRENT CONTEXT OF THE DEATH PENALTY DEBATE
The death penalty has become an increasingly significant issue in
American public life. There are now more people-over 3600--0n death row
than at any time in our history. Executions in some states have become almost
routine; in 2000 the state of Texas set the modem record for the number of
executions by one state in a year, and Oklahoma in the first month of2001 set
• J. Hadley Edgar Professor ofLaw, Texas Tech University School ofLaw, 1989. B.A., Emory
University, 1977; M.A.,1977; J.D., University ofGeorgia, 1980.
931
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a pace that would surpass even that ofTexas. I The federal government is now
sentencing people to death and has resumed executions for the first time in
nearly forty years.
Yet, at the same time, an increasing number of voices express
reservations about the death penalty. Public opinion polls show that support
for capital punishment among the general public has declined by fifteen to
twenty points in the past couple of years. Governor George Ryan of Illinois,
citing severe problems in the administration ofcapital punishment in his state,
including the fact the number of innocent people freed from death row
exceeded the number of those executed, has declared a moratorium on
executions.2 Conservative commentators such as George Will and Pat
Robertson have expressed doubts about the current death penalty policy in this
country. Furthermore, the United States is increasingly isolated on the
international scene; over eighty percent of all executions in the world took
place last year in four countries: the United States, China, Iran, and the
Congo. Our European allies, all of whom have abolished the death penalty,
express increasing dismay at the United States's continuing insistence in
imposing and carrying out the death penalty.3
The death penalty is emerging as a powerful political issue, and the issue
is not going away any time soon. There are currently more people on death
row than ever, and the pace ofexecutions is picking up. Because executions
are done in the name ofand on behalfofall the people, everyone has a moral
stake in the issue. And because the federal government now employs the
death penalty, the issue affects all Americans, even those in the states that
rarely or never carry out the death penalty. In such a climate, all citizens have
an obligation to think through their position on the death penalty, and it is
important that we discuss our reasons for supporting or rejecting the death
penalty.
For those persons whose religious faith is a central part oftheir identity,
thinking about an issue like the death penalty cannot be done without
reference to that faith. Moreover, most Americans express religious beliefs.
Over ninety percent of Americans assert a belief in God.4 And for many of
those, their faith is central to their being.
I am a Christian. My own views on the death penalty are inevitably
shaped by my faith, as is no doubt the case with many Americans. In this
I. See Death Penalty Information Center: Exeadions in the u.s. 2001, at bUp:Jlwww.deaIh
penaltyinfo.orgfdpicexecOI.btml (last updated JIIIIC 26, 200I) [hereinafter Dealb Penalty Information
Cen1er website]. This website contains a wealth of statistical and other information. OIl the death penalty
in America.
2. See stl:pbeo Bright, W"1ll the Death Penally Remain Alhle In the T_~Fint Ce1lllll'y? 2001
WlSC. L. REv. 1,6(2001).
3. Id.at34.
4. GARRy WILLS, 1JNDEll GoD: RELIGION AND AME1uCAN Pouncs 16 (1990) (citing GEoRGE
GAu.UP, JR. & JIM CASTEW, DIE PEoPLE'S REuGION: AMERICAN FAITH IN THE 90S 75 (1989».
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CHRISTIAN ETHICS AND THE DEATH PENALTY
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essay, I will grapple with the morality of the death penalty in the context of
my own faith tradition.s
I realize that many people fear that whenever religion enters a discussion
of important issues, reasoned debate goes out the window. It does seem that
too often religious assertions quickly lead to impasse. But if we can focus the
analysis on the evidence about how capital punishment really works, rather
than abstract propositions, I believe that certain ethical ideas drawn from
Christian tradition can shed light on the issue.
The great theologian and moral philosopher H. Richard Niebuhr said that
the first task of ethics is to see the world clearly. Before we answer the
question, "what should I do?" we should first ask ourselves, "what is going
on?"6 In this essay, I will explore what is going on with the death penalty in
America today.
A. The Legal Context ofthe Debate
The first aspect of "what is going on" with regard to the death penalty is
the legal landscape. Over the past thirty years, the United States Supreme
Court is the institution that has most dramatically shaped the practice of the
death penalty in this country. The Supreme Court's Eighth Amendment
jurisprudence has delineated the contours of what is permissible and
impermissible in the administration of the death penalty.
In 1972, in Furman v. Georgia, the United States Supreme Court held
unconstitutional the death penalty as it was then administered nationwide. 7
The five justices in the majority held that the death penalty was being applied
in an arbitrary and capricious manner and therefore violated the ban on cruel
and unusual punishment in the Eighth Amendment.s Justice Stewart famously
wrote that the death penalty, absent guid.elines and checks on discretion to
insure a uniform application, is cruel and unusual "in the same way that being
5. 1 will analyze this issue from my own perspective within the Christian tradition, but I
recognize fully that many religious and philosophical traditions are represented in the United States today.
My point is that all Americans should think about and form conclusions about the morality of the death
penalty. My point is emphatically not that all Americans should employ the Christian tradition for that
purpose.
6. H. RIOiARD NIEBUHR, nm REsPONSIBLE SELF 60 (Harper & Row 1963). Niebuhr suggested
that "What is going on?" is a more fruitful starting point than "What is my goal or ideal?" or "What is the
law or principle involved?" For a discussion of the relevance ofH. Richard Niebuhr's thought to legal
ethics, see Timothy W. Floyd, Realism, Responsibi/ily, and the Good Lawyer: Niebuhrian Perspectives
on Legal Ethics, 67 NOTRE DAME L. REv. 587 (1992). Nebuhr asked the question first, but Marvin Gaye's
classic What's Going On makes a similar point (and sounds better): "Mother, mother, there's too many
of you crying; Brother, brother, brother, there's far too many of you dying." MARVIN GA YE, WHAT'S
GoING ON (Motown Records 1971).
7. 408 U.S. 238, 239-40 (1972) (per curiam).
8. [d. at 256 (Douglas, 1., concurring), 295 (Brennan, 1., concurring), 310 (Stewart, I.,
concurring), 313 (While, I., concurring), 364-69 (Marshall, 1., concurring).
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struck by lightning is cruel and unusual."9 Justice White wrote that the death
penalty must be applied with a "meaningful basis for distinguishing the few
cases in which it is imposed from the many in which it is not."IO
The Furman ruling had the effect ofcommuting to life imprisonment the
death sentences of everyone then on death row. l1 The Court's opinions in
Furman, however, suggested that a majority of the Court did not believe that
the death penalty was inherently and inevitably unconstitutional. 12 In response
to Furman, many states redrafted their death penalty statutes.
In 1976, the Court held that the new Georgia statute, drafted after
Furman, was constitutional.13 The holding in Gregg and subsequent cases set
the constitutional parameters for the death penalty as it has developed in the
last quarter century. The Supreme Court has imposed two general
requirements. First, the statutory scheme must guide and channel the
sentencer's discretion so as to avoid the arbitrary imposition of the death
penalty.14 The statute must narrow the class of murders for which the death
penalty is eligible. The sentencer must determine the specific aggravating
characteristics ofthe crime that distinguish the gravity ofthe offense so as to
justify a death sentence. 15 Second, the state may not limit the sentencer's
consideration of any relevant mitigating evidence that might influence the
sentencer to decline to impose the death penalty; the sentencing scheme must
permit the sentencer to give effect to any and all mitigating evidence. 16
The key to these constitutional requirements is that the sentencer must
make an individualized determination that the death penalty is warranted. For
that reason, the Supreme Court has held that statues mandating a sentence of
death for certain crimes are unconstitutional. 17 The jurors must make "a
reasoned moral response" to the particular defendant and the particular crime
in determining whether the defendant deserves to live or die. IS In every case,
the jury must make the highly individual decision: does this particular
defendant deserve to die?
The United States Supreme Court has held that the cruel and unusual
punishments clause of the Eighth Amendment requires that a sentence be
proportionate to the crime. 19 In determining whether the death penalty is a
proportional punishment, the Court engages in a proportionality review,
9. Id. at 309 (Stewart, J., concurring).
10. Id. at313 (Whitc,J., concurring).
11. See id. at 240.
12. See id.
13. Gregg v. Georgia, 428 U.S. 153,207 (1976).
14. See Zant v. Stephens, 462 U.S. 862, 878 (1983).
IS. Id.
16. Penry v. Lynaugh. 492 U.S. 302, 319 (1989).
17. Roberts Y. Louisiana, 428 U.S. 325, 333 (1976); Woodson Y. North Carolina, 428 U.S. 280,
304 (1976).
18. California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring).
19. Coker v. Georgia, 433 U.S. 584, 592 (1977).
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CHRISTIAN ETHICS AND THE DEATH PENALTY
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analyzing whether a particular sentence amounts to the unnecessary and
wanton infliction of pain or is grossly disproportionate to the severity of the
offense. 2o For that reason, the Supreme Court has held that it is
unconstitutional to execute a person for rape when the life of the victim has
not been taken?1 The Court applied the same reasoning in invalidating death
sentences for robbery and kidnaping. 22 The Court has also held that those
convicted of felony murder who did not either intend to kill or act with
reckless disregard for human life may not be executed.23
In addition, the Court has invalidated as disproportionate death sentences
for certain classes of persons regardless of their crimes. The Court has held
that a death sentence cannot be imposed ona person who was fifteen at the
time of the crime.24 The Court, however, has been reluctant to extend this
proportionately analysis and has upheld, as constitutional, executing someone
who was sixteen at the time of the crime.25 Finally, although the Court has
held it unconstitutional to execute someone who becomes insane while
awaiting execution,26 the Court has refused to hold that it is categorically
unconstitutional to execute the mentally retarded. 27
The Supreme Court's death penalty cases also use the term
"proportionality" in a somewhat different sense. The Court has held that a
death penalty scheme must consider whether an aggravating factor "genuinely
narrow[s] the class of persons eligible for the death penalty and ... [thus]
reasonably justify the imposition of a more severe sentence on the defendant
compared to others found guilty of murder."28 In Gregg v. Georgia,29 the
Supreme Court noted with approval that the Georgia Supreme Court engaged
in a "proportionality review" ofevery death sentence in the state.30 The court
examined the facts of each case in which the death penalty was imposed in
order to determine whether there was overall proportionality in the sentences
imposed by the state.31 The purpose of such a review is to ensure that similar
cases are treated similarly.J2 In subsequent cases, however, the United States
20. [d.
21. [d. at 600.
22. Hooks v. Georgia, 433 U.S. 917,917 (1977); see also Hooks v. Georgia, 210 S.E2d 668, 66971 (Ga. 1974) (describing the facts of the case).
23. TISOn v. Arizona, 481 U.S. 137, 158 (1987); Enmund v. Florida, 458 U.S. 782, 8oo-0l (1982).
24. Thompson v. Oldahoma, 487 U.S. 815,830 (1988).
25. See Stanford v. Ke~tucky, 492 U.S. 361, 380 (1989).
26. Ford v. Wainwright, 477 U.S. 399, 409·10 (1986).
27. Penry v. Lynaugh, 492 U.s. 302, 338-39 (1989). The Supreme Court has the issue of mental
retardation before it again; in the next term, the Court will revisit the question whether the Eighth
Amendment prohibits the execution of the mentally retarded in McCarver Y. North Carolina, 121 S. Ct.
1401 (2001) (mem.).
28. Zant v. Stephens, 462 U.S. 862,877 (1983).
29. 428 U.S. 153 (1976).
30. [d. at 204.
31. [d.
32. Id. at 205.
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Supreme Court held that a capital defendant does not have a constitutional
right to such a proportionality review of his individual sentence.33
The Court's response to claims ofracial bias in the administration of the
death penalty is likewise fairly well settled at this point. In McClesky v.
Kemp, the United States Supreme Court dealt with a study by Professor David
Baldus of homicides in Georgia over a six-year period. 34 Baldus found that
blacks convicted of killing whites were sentenced to death in twenty-two
percent of cases in which the death penalty was legally available, whereas
whites convicted ofkilling blacks received a death sentence only three percent
of the time. The odds of receiving a death sentence were a little more than
four times higher for murderers of whites than for murderers of blacks. The
Supreme Court accepted the validity of the Baldus study.35 Nonetheless, the
Court refused to reverse the conviction, holding that the evidence failed to
prove racial discrimination against this particular defendant. Since McClesky,
claims of racial bias have met with little success in the courts.
At this point, in contrast to the decade immediately following Furman,
the general legal and constitutional principles governing the death penalty are
fairly settled. Although the Supreme Court still regularly decides death
penalty cases, it has been a long time since the Court has decided a death
penalty case with far-reaching consequences. The cases that have been
decided recently have tended to be fairly narrow applications of well-settled
principles.36
B. The Morality ofthe Death Penalty
For the first time in a generation, the Supreme Court is not where the
action is on the death penalty front. Instead, the death penalty has emerged
as an important political issue. The Supreme Court can only decide the
constitutional parameters ofthe issue. Whether the death penalty is right and
appropriate should be decided by the people.
But too often, debates over the death penalty remain at a high level of
abstraction. In deliberating moral justifications for the death penalty, our task
must not stop with determining whether capital punishment is morally
justifiable in the abstract or whether the death penalty can ever be justified.
If we are really to deal with the morality of the death penalty in America at
33.
34.
35.
Pulley v. Harris, 465 U.S. 37, 50 (1984).
481 U.S. 279 (1987).
See id. at 291-312.
36. See. e.g., Shafer v. South Carolina, 121 S. Ct. 1263 (2001) (reaffinning and applying the
settled holding concerning the infonning ofjurors of the defendant's ineligibility for parole); Jones v.
United States, 527 U.S. 373 (1999) (concerning relatively narrow statutory questions under the Federal
Death Penalty Act of 1994).
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CHRISTIAN ETHICS AND THE DEATH PENALTY
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the tum of the millennium, we must analyze the death penalty as it actually
exists and is carried out in the here and now.
Here is an example of a prominent American's discussing the morality
ofthe death penalty. During the third and final presidential debate ofthe 2000
campaign, the following exchange occurred:
Mr. LEHRER: Governor, next question is for you, and Leo Anderson will
ask it.
Mr. ANDERSON: In one of the last debates held, the subject of capital
punishment came up, and in your response to the question, you seemed to
overly enjoy, as a matter of fact, proud that Texas led the nation in execution
of prisoners. Sir, did I misread your response, and are you really, really
proud of the fact that Texas is number one in executions?
Gov. GEORGE W. BUSH: No, I'm not proud of that. The death penalty is
very serious business, Leo. It's an issue that good people obviously disagree
on. I take my job seriously, and if you think I was proud of it, I think you
misread me, I do. I was sworn to uphold the laws of my state. During the
course of the campaign in 1994 I was asked, "Do you support the death
penalty?" I said I did if administered fairly and justly, because I believe it
saves lives, Leo. I do. I think if it' s administered swiftly, justly and fairly, it
saves lives.
One of the things that happens when you're a governor ... oftentimes
you have to make tough decisions. You can't let public persuasion sway you
because the job is to enforce the law, and that's what I did, sir. There have
been some tough cases come across my desk. Some of the hardest moments
since I've been the governor of the state of Texas is to deal with those cases.
But my job is to ask two questions, sir: Is the person guilty of the crime, and
did the person have full access to the courts of law? And I can tell you,
looking at you right now, in all cases those answers were affmnative.
I'm not proud of any record. I'm proud of the fact that violent crime
is down in the state of Texas. I'm proud of the fact ... that we hold people
accountable, but I'm not proud of any record, sir. I'm not.
After Vice President Al Gore's response, Moderator Jim Lehrer then
asked a follow up question:
Mr. LEHRER: Do both of you believe that the death penalty actually deters
crime? Governor?
Gov. BUSH: I do. That's the only reason to be for it. I don't-let me fmish,
sir.
Mr. LEHRER: Sure.
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Gov. BUSH: I don't thin/c you should support the death penalty to seek
revenge. I don't thin/c that's right. I think the reason to support the death
penalty is because it saves other people's lives. 37
President Bush's response in this debate is an excellent starting point for
His statements on the death
penalty are remarkable in several respects. As Governor ofTexas, he presided
over more executions than anyone in modem American history.38 That
circumstance has no doubt forced him to grapple with moral justifications for
the death penalty. His answer is filled with phrases that indicate moral
struggle over the issue: the death penalty is "very serious business;" "some of
the hardest moments since I've been governor" have been over the issue; "I'm
not proud of any record;" and "good people obviously disagree."
President Bush's comments are also remarkable in the grounds he uses
to justify the death penalty. On that point, he is not ambivalent. He sets forth
quite definite ideas about proper and improper moral justifications for the
death penalty. In insisting that deterrence ("it saves other people's lives") is
the only reason to support the" death penalty, his justification for the death
penalty rests squarely on consequentialist or utilitarian grounds. That is, the
benefits of the death penalty (saving lives and reducing violent crime)
outweigh the costs (taking of human life). Moreover, he flatly rejects
retribution or "revenge" as a proper justification for the death penalty. He
explicitly rejects the idea that, because ofthe nature ofthe crime or the nature
of the person who committed the crime, some persons deserve to die at the
hands of the state.
President George W. Bush is a Christian, and not just a nominal or
occasional one. He has repeatedly recounted his own conversion experience
and has stated that his religious faith is the most important thing in his life. 39
When, during one of the primary debates, he was asked to name the
philosopher who has most influenced his political beliefs, he named Jesus
Christ. 4O As a Christian, President Bush had to reconcile his enforcement of
the death penalty in Texas with his faith.
Several aspects of President Bush's answer in that debate-the tone of
regret, the insistence that the motivation in taking a life must always and only
be to save lives, and the rejection of revenge as a motivation-struck me as
a: discussion ofthe morality ofthe death penalty.
37. Election 2000 Presk/entlal Debate, at http://www.e::-span.orglcampaignlooO/transcriptldebate
_101700.asp (Oct. 17,2000) (emphasis added).
38. Robert Sherrill, Death Trip: 17Ie American Way ofExecution, THE NATION (Jan. 8. 2001).
available at http://www.thenation.comldoc:.mhtml?i=20010108&c=2&s=sherrill. One hundred fifty-two
people were executed by the State ofTexas while Bush was governor.
39. Deann Alford. Bush's Faith-Based Pions, CHRISTIANITY TODAY (Oct 25, 1999), at
http://www.christianitytoday.comlctl9tclpte020.html.
40. Thomas Hambrick-Stone, JeSUS, Political Philosopher, RELIGION IN mE NEWS (Spring 2000),
at http://www.trincoll.eduldeptslcsrpllRlNVoI3Nolljesus.J)hilosopher.htm.
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CHRISTIAN ETHICS AND THE DEATH PENALTY
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familiar. Upon reflection, I realized that those statements resonated with a
particular tradition in Christian ethical thought: the just war tradition.
The just war tradition is the traditional Christian position on the moral
justification for killing human life while engaged in warfare. 4 • Significantly,
for purposes ofthe death penalty debate, the just war tradition does not assert
that war is always right or always wrong. Instead, it is a set of principles or
criteria to help Christians determine whether any particular and concrete use
of military force is morally justified.
For that reason, I believe the just war tradition may shed light on the
morality of the death penalty as applied in the United States today.
II. THE JUST WAR TRADITION IN CHRISTIAN DlOUGHT
A follower ofJesus Christ cannot easily countenance the taking ofhuman
Jife. 42 The teachings of Jesus, especially in the Sermon on the Mount,
command his followers to tum the other cheek, not to resist an evildoer, and
to love their enemies.43 When Jesus was arrested in the Garden of
Gethsemane, he rebuked his disciple for using his sword in defense: "Put your
sword back into its place; for all who take the sword will perish by the
sword."44 Saint Paul's letter to the Romans contains much in the same vein:
"do not repay anyone evil for evil. . .. Beloved, never avenge yourselves, but
leave room for the wrath of God: 'vengeance is mine,' says the Lord...45 The
rest of the New Testament is just as emphatic in calling upon believers to
reject violence; Christians are to accept suffering rather than inflict it.46 Thus,
it is not surprising that some Christian theologians have insisted for centuries
that the taking of human life is a moral evil that must be avoided if at all
possible.4? Nonetheless, at least since the conversion ofConstantine and the
Edict of Milan (313 A.D.), Christian thinkers have struggled with the morality
of the state's taking of human life.
Most commonly, the issue ofthe moral justification for the taking of life
is concerned with warfare, and the circumstances under which Christians may
participate in war. For the first two or three centuries ofthe Christian church,
leaders of the church disapproved of Christians serving in the Roman army.
Once the Emperor Constantine converted to Christianity, more Christians
committed themselves to serving the state, including serving in the Army.
Saint Augustine offered moral justifi~ons for the use ofkilling force by the
41.
42.
43.
44.
45.
RICHARD J. REGAN, JUST WAR: PRINCIPLES AND CASES 9 (1996).
ld. at 5.
Matthew 5:38-48.
Matthew 26:52.
Romans 12:17-19.
46.
RICHARD HAYS, THE MORAL VISION OF THE NEW TEsTAMENT 332 (1996).
REGAN,.rupra note 41, at 5.
47.
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state. Although Augustine asserted that the law of love as commanded by
Jesus prohibits killing others in self defense. he believed that Christians were
morally justified in coming to the aid of others. in the form of deadly force if
necessary. Aquinas went further and held that wars could be justified under
certain conditions. The seeds laid by Augustine and Aquinas developed into
a fun blown theory ofjustifiable war as set forth by Francisco de Vitoria and
Francisco Suarez.48 The just war tradition is the official teaching ofthe largest
Christian body. the Roman Catholic Church. It is also the official position of
many Protestants: Anglicans (Thirty-nine Articles 1571); Presbyterians;
Congregationalists; others in the Calvinist tradition (Westminster Confession
1648); and Lutherans (Augsberg Confession 1530).49
The Christian "just war" tradition identifies when the taking up of arms
in war is morally justified and when it is not. Just war principles recognize
that taking up arms against fellow human beings is a moral evil. But it also
recognizes the tragic necessity in a fallen world of choosing the lesser of two
evils. so Indeed. most Christians throughout history have believed that
resorting to war is sometimes morally justifiable. Although the Christian
tradition holds a long history of pacifism. most Christians have not been. and
are not now. pacifists. That is. most Christians do not believe that it is always
wrong to use violence against another human being. Christians have found
that sometimes the use of violence against other people is justifiable.
Sometimes we must choose between wrongdoers and innocent victims.
The wrongdoer is a child of God and comes within God's inclusive covenant
of love for all humanity.s1 But Christians also are called to resist evil and
oppression. That obligation sometimes requires the use of coercive force.
even deadly force. if necessary to protect innocent victims. Most Christians.
for example. believe it is morally permissible to take a human life if necessary
to save an innocent life. as in the use of deadly force in self defense or in the
defense of others. As Paul Ramsey puts the matter: "When choice must be
made between the perpetrator of injustice and the many victims of it, the latter
may and should be preferred. "52
The just war tradition includes a list of criteria to be applied in
determining the "justness" of taking of human life during a particular war.
Generally. each one of the criteria must be satisfied for the war to be
considered just. Although the list of criteria varies somewhat from time to
48.
Id. at 6-18.
49.
JOHN HOWARD YODER, WHEN WAR IS UNJUST 1 (2d ed. 1996).
50.
See REGAN, supra note 41, at 19.
51.
JOSEPH ALLEN, loVE AND CONFLICT: A COVENAmAL MODEL OF CHRISTIAN ETHICS 181
(1983).
52.
Id. (quoting PAUL RAMSEY, THE JUST WAR 143 (1968» (emphasis removed).
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CHRISTIAN ETfflCS AND THE DEATH PENALTY
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941
time and from theorist to theorist,53 the list ofcriteria usually includes the following.
A. Legitimate Authority
The just war tradition requires that those who are legally authorized must
decide whether to wage war. S4 That is, the decision to wage a war can be
made only by a sovereign government, and the carrying out of war should
only be by soldiers under oath and under the control of the sovereign.55 This
criterion excludes war waged by private citizens or by bandits and
privateers. 56
B. Justifiable Cause
Under just war principles, one may not wage war unless the cause is
"just."57 In other words, the state must have a very good reason to go to war,
usually "to right a grave wrong or to defend a crucial right...58 The aim of a
nation waging war must be to rectify or prevent wrongful action by another
nation against itself or a third nation. Frequently, nation states justify war by
fighting to defend the nation and its citizens against attacks. 59 This criterion
would not be met in wars of aggression or of conquest.
C. Proportionality
There must be a due proportion between the wrong to be prevented or
rectified and the human and material destruction that war can reasonably be
expected to cause. Before a country goes to war, it must anticipate that the
wrong threatened should equal or surpass the destructive costs of waging
war. 60
D. Right Intention
This is the "subjective" side of the requirement ofjust cause.61 One who
wages war must do so for the right reasons; the motivation must be to prevent
53. YODER, IUpra note 49, at 2 n.2. That is why I follow Yoder in using the tenn just war
"tradition" rather 1ban just war doctrine or just war theory. Yoder, in Appendix V of his book, has the most
complete set ofjust war criteria that I have seen.
54. REoAN, IUpra note 41, at 20.
55.
Jd.
56.
57.
58.
59.
60.
61.
YODER, IUpra note 49, at 148.
REoAN, IUpra note 41, at 17.
ALLEN, IUpra note 51, at 202.
1lEGAN, IUpra note 41, at 48.
Jd.
Jd. at 84.
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or remove the hannful effects ofthe wrongdoing. The intention cannot be to
obliterate the other; the goal must not be to destroy the wrongdoer. 62
Combatants must always remember that the enemy is also a child ofGod with
sacred worth and dignity. No violent coercion is ever justified if it inherently
expresses contempt for the object.63 Although killing is sometimes a tragic
necessity in order to prevent a greater hann, one should not desire to kill the
enemy out of a beliefthat the enemy inherently deserves to die.
E. Reasonable Chance ofSuccess
This criterion requires the actor to estimate the likelihood that the
benefits of resorting to war will, in fact, occur. That is, no matter how
legitimate the goal of a war, it is not justifiable to wage war if that goal
cannot realistically be achieved.
F. Last Resort
War is not permissible unless all other reasonable means of resolving the
problem have been tried without success.64 Diplomacy and negotiation are
essential.65 If there is a way short of war to achieve a just peace, that
alternative must be tried if it is reasonable to try it.66
G. Discrimination and Proportionality in the Waging ofthe War
Just war tradition sometimes draws a distinction between jus ad bellum
Gustification for the decision to wage a war) andjus in bello Gustification for
conduct in the actual waging of war). The jus in bello criteria include
Adiscrimination: that the means employed must minimize the possibility of
harm to noncombatants. As to proportionality in bello, the force used must
be the least amount necessary to achieve the goal ofthe war.
At its best, the just war tradition has served to limit war. Those who
would conscientiously apply and follow the just war criteria are not blind
adherents of their own national interest; they are not crusaders who· identify
their cause unambiguously with the will of God; and they do not kill
indiscriminately. Instead, they soberly accept responsibility for violence to
the minimum extent necessary to establish a just peace. Indeed, just war
adherents and pacifists are not always on opposite sides when debating the
62.
Jd. at 85.
63.
ALLEN, supra note 5I, at 206.
REGAN, supra note 41, at 64.
Jd.
Jd.
64.
65.
66.
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CHRISTIAN ETHICS AND THE DEATH PENALTY
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morality ofwar. They may often fmd common ground in opposing particular
wars. 67
However, in practice the just war tradition has commonly been used to
rationalize and give legitimacy to any war that a nation wages. 68 Nonetheless,
the existence of the just war tradition continues to shape debates over the
justification for war. Indeed, the just war tradition is alive and well: at the
time of the Persian Gulfwar, many commentators discussed the morality of
that war by employing the criteria of the just war tradition. 69
III. ApPLYING THE JUST WAR CRITERIA TO THE MODERN.AMERICAN
DEATH PENALTV
Although the focus ofthe just war criteria is on war, the criteria provide
a useful framework to analyze the state's use of coercion and violence against
other human beings. With very little modification, the just war criteria work
well in examining the modem American practice of the death penalty.
A. Legitimate Authority
In the context of war, the requirement of legitimate authority is intended
to limit violence; if anyone and everyone could wage war, a society would
soon be in chaos. Additionally, this requirement keeps military authorities
subject to properly constituted political authority, and requires that political
leaders follow legitimate constitutional requirements.
This criterion applies to the criminal justice process, for the same
reasons. Allowing citizens to exercise violence in their private capacities
would threaten the basic order of society. In the context ofthe death penalty,
this principle rules out vigilantism and private acts ofvengeance. If there are
circumstances in which a murderer's life must be taken, the execution is
legitimate only if carried out by the state. At a basic level, this criterion is
satisfied by the modem American practice ofthe death penalty. Executions
are exclusively the province of the government and constitutional
requirements limit the authority of governmental officials to carry out the
death penalty. In stark contrast, a regime in which lynchings were permitted
either openly or tacitly, such as the American South in the first half of the
twentieth century, would not meet this criteria.
The decision to seek the death penalty in our system is vested in public
prosecutors. Those officials properly consult with the families of murder.
67. YODER, supra note 49, at lOS.
68. Cf id. at 103 (discussing the need to strictly apply the just war tradition to post World War
11 conflicts such as the Vietnam war).
69. REGAN, supra note 41, at I72-7S (citing JOHNSON" WEIGEL, EDS.. JusT WAR AND GuLF WAR
(1991».
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victims in making that decision. When a family has been through the tragedy
and shock oflosing a loved one to murder, they should feel that they are a part
of the process that brings the murderer to justice. On the other hand, we
sometimes hear prosecutors speak as though they have delegated their
decision to seek the death penalty to the family of the victim. Such a practice
would violate the criterion oflegitimate authority. Using the public monopoly
over executions to favor private vengeance of some victims but not others is
not appropriate under this criterion.
B. Justifiable Cause
This criterion requires a weighing of the harm of execution against the
harm to be prevented by executions. The criterion ofjustifiable cause allows
the taking of human life only in order to save more human lives. Interestingly,
President Bush seems to embrace this criterion. He has been quite clear: the
only justification for the death penalty is to save Iives. 70 If taking the lives of
murderers does in fact protect innocent lives, the cause is arguably just.
However, any reason for executing convicted defendants other than saving
innocent lives would not meet this criterion. As I will discuss below,
however, many assert reasons other than saving of lives as justifiable cause
for carrying out the death penalty.
C. Proportionality
The criterion of proportionality is arguably met by the modem American
death penalty. As noted above, the United States Supreme Court has
emphasized that the death penalty must be proportionate to the crime. The
State may not constitutionally take a life unless innocent life was taken by the
defendant.
D. Right Intention
This criterion requires a focus on the motivation of the decision maker.
The actors (prosecutors, judges, and juries) must be motivated by the desire
to accomplish the purpose of the death penalty. And that purpose cannot
simply be to eradicate the wrongdoer; the actors must be motivated to prevent,
remove, or reduce the harmful effects of the wrongdoer. Since the harmful
effect of a murder cannot be undone, the motivation must be to prevent this
from happening again. Many supporters of the death penalty, including
President Bush in his debate answer, state that it is warranted because it saves
lives.
70.
See text accompanying supra note 37.
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This is where the just war criteria as applied to the modern American
death penalty cases start to break down. The Supreme Court has held that
capital defendants always have the right to an individualized detennination of
moral culpability. The sentencer is expressly told to make an individual
judgment to whether this defendant deserves to die. Therefore, the current
American death penalty system does not allow the sentencer to exercise "right
intention."
Basing the detennination of whether to execute the defendant on such a
decision does not meet the just war criterion of right intention. Rather, the
application ofthis criterion would require the jury to consider whether a death
sentence in the case before them would likely save lives. But it is difficult to
imagine how a jury in a particular case could make that determination.
as
E. Reasonable Chance ofSuccess
This criterion is at the heart of President Bush's and many others'
justification for the death penalty. "Success" for the death penalty is defined
as saving lives. But under that rationale, the death penalty would be justified
if and only if it has a deterrent effect on future murders. The previous
criterion, right intention, focuses on the reasons for the death penalty. This
criterion focuses on whether the death penalty actually serves those reasons.
Some insist that common sense tells us that the death penalty deters
future murderers. My own common sense and experience with violent crime
tells me the opposite. But we need not rely on competing versions of common
sense. This is an empirical question, capable of measurement with the
methods of social science, and the issue has been studied. Over 200 studies
have been conducted to determine whether the death penalty acts as a
deterrent. The evidence simply does not support the theory that the death
penalty deters future murders. In fact, the evidence overwhelmingly indicates
that the death penalty has no deterrent effect. 71
A survey by the New York Times found that states without the death
penalty have lower homicide rates than states with the death penalty.72 The
Times reports that ten of the twelve states without the death penalty have
homicide rates below the national average, whereas half ofthe states with the
death penalty have homicide rates above the national average. 73 During the
last twenty years, the homicide rate in states with the death penalty has been
48% to 101 % higher than in states without the death penalty. 74
71. See MARK COSTANzo,luST REvENGE 95·104 (1997).
72. See Raymond Bonner &. Ford Fcssender, SIDJes with No Death Penalty Shore Lowe, Homicide
Rates, N.Y. TIMES, Sept. 22, 2000, available at 2000 WL31911614.
73. ld.
74. ld.
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Several recent studies on deterrence throw further doubt on the deterrent
effect of sentencing people to death or executing people for homicide. In one
study, executions in Texas between 1984 and 1997 were examined." The
authors speculated that if a deterrent effect were to exist, it would be found in
Texas because of the high number of death sentences and executions within
the state.76 Using patterns in executions during the study period and the
relatively steady rate of murders in Texas, the authors found no evidence of
a deterrent effect.77 The study concluded that the number of executions was
unrelated to murder rates in general, and that the number of executions was
unrelated to felony rates. 78
F. Last Resort
Under this criterion, the state's taking ofHfe through the death penalty
can be justified only if no other option can achieve the same purposes. But
most states, and the federal government, now have an alternative to the death
penalty that serves the same purposes without taking a life: a sentence of life
without parole (LWOP).
Some critics express concern that a life sentence does not leave innocent
persons as secure as a death sentence because a prisoner serving life could
either kill in prison or escape and kill again. But killing all murderers on the
chance that a few of them might kill a prison guard or another inmate, or
someday escape from prison, would hardly be proportionate to the threat. Of
the more than 2000 prisoners whose death sentences were commuted to life
imprisonment as a result of Furman, only seven ever killed again. 79
G. Discrimination: Avoiding Harm to the Innocent
There is far too great a risk of executing the innocent in our current
system. Since 1973, over ninety people in twenty-two states have been
released from death row because they were innocent.80 Many of these cases
were resolved not because ofthe normal appeals process, but rather as a result
of new scientific techniques, investigations by journalists, and the dedicated
work of expert attorneys, not available to the typical death row inmate. 8•
75. Jon Sorensen et aI., CopUtlJ Punishment and Dete1P'ence: Examining the Effect ofExecutions
on Murder in TUtU, 45 CRIME AND DELINQ. 481, 484 (1999).
76. Id. at 483.
77. Id. at 486-89.
78.
79.
Id.
See James W. Marquart & Jonathan R. Sorensen, A National Study ofFunnan-eommuted
Inmates: Assessing the 17rreat to Society From CapiwlOffenders. 23 LoY. LA. LAw REv. 26 (1989).
80. Bright, 811pra note 2, at S.
81. For more information on independent attempts to exonerate death row inmates, see Death
Penalty Information Center website, 811pra note I.
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In fact, law and the courts are not much help to someone on death row
who has a claim of innocence. The United States Supreme Court has held that
it is not a constitutional violation to execute a defendant who is actually
innocent of the crime. 82 In order to obtain post-conviction relief from the
courts, it is not enough for the defendant to prove his innocence; he must also
prove an independent constitutional violation in his conviction or sentence. 83
When Governor Ryan ofIllinois declared a moratorium, Illinois had had
thirteen exonerations and twelve executions. Of the thirteen innocent people,
some exonerations were wrongfully convicted based on police or
prosecutorial misconduct, some were based upon DNA testing, and in some
cases, journalism students from Northwestern University played a key role in
finding and presenting the evidence to secure the release of the wrongfully
condemned.
The recent book Actual Innocence by Barry Scheck et al., documents
many reasons that so many innocent persons are sentenced to death. 84 The
increasing number of innocent defendants found on death row reveals that the
process for sentencing people to death is fraught with fundamental errors
which cannot be remedied once an execution occurs. a, The current trend of
an increasing number of death penalty cases and greatly restricted
opportunities to challenge an unconstitutional sentence means that the
execution of innocent people is inevitable. The problem of sentencing
innocent people to death is likely to worsen. Federal funding for death
penalty resource centers has been completely withdrawn; it is difficult to find
counsel willing and able to represent those on death row.
President Bush insisted in his debate response that all persons executed
while he was Governor of Texas were guilty of the crime charged. I am
certain that he wants to believe that But that is a fact that he cannot and does
not know; it is an assertion more of faith than of evidence. Indeed, the odds
are excellent that he could be wrong about that fact. A system that would be
justifiable in every other respect cannot be just if it contains such a high risk
of executing the innocent.
IV. CHRISTIAN ETHICS AND RETRJBUTIVIST JUSTIFICATIONS FOR THE
DEATH PENALTV
President Bush's comments in the debate were striking in that he so
clearly rejected the idea of revenge or retribution as a justification for the
death penalty. I agree with the President; killing for revenge is flatly
inconsistent with the Christian faith, at least as I understand it.
82.
83.
84.
85.
See Hem:ra v. Collins, 506 U.S. 390,417 (1993).
Jd. at 416-17.
BARRY SCHECK BY AL., AcruAL INNOCENCE (2000).
Jd.
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However, in America today we hear of retribution as a rationale for the
. death penalty much more commonly than we hear of deterrence.86 And
although I do not, many persons, including many Christians, accept the
morality and justice of revenge. On an abstract or philosophical level, we are
not likely to convince one another that revenge is or is not proper. But
agreement at a philosophical or abstract level that revenge is proper is not
necessary to consider whether the modem American death penalty, as it
actually exists, properly serves retributivist purposes.
Biblical support for the retributivist position exists. God's covenant with
Noah after the flood declares: "Whoever sheds the blood of man, by man
shall his blood be shed; for in the image of God has God made man."87
Mosaic law also clearly authorizes-even commands-the death penalty for
numerous offenses." Although the New Testament does not generally support
a retributionist theory, retributionists emphasize one verse from Paul's letter
to the Romans: "The government is instituted by God ... it is the servant of
God to execute wrath on the wrongdoer. n89 These arguments are influential:
when Texas adopted its death penalty statute in 1973, three co-sponsors of the
bill cited biblical passages which they claimed supported capital punishment,90
However, the actual practice of the death penalty does not fit very well
with Biblical authorizations of the death penalty. If the moral justification for
capital punishment is to carry out biblical law on the death penalty, the
modern American death penalty is grossly underinclusive. We don'lexecute
for the vast majority of capital offenses in Old Testament.91 The Bible
authorizes death for a multitude of crimes, including contempt for parental
authority, defiling sacred places or objects, sorcery, bestiality, adultery, incest,
blasphemy, homosexual conduct, harlotry, and false prophecy. Yet no one
suggests that our criminal justice system should now make all these offenses
capital crimes.
The more sophisticated retributionist arguments insist that certain
conduct causes the actor to forfeit his right to live. This argument emphasizes
the sanctity of life: the person who intentionally murders has taken the life of
a person created in the image of God. To do anything less than take the life
of the killer does not take seriously enough the sanctity of life ofthe victim.
To respect the dignity of both victim and murderer, the murderer must suffer
86. See. e.g., Matthew 5:38 ("Eye for eye, and tooth for tooth .... Ifsomeone strikes you in the
right cheek, tum to him the other also.").
87. Genesis 9:6.
88. COSTANZO, supra note 71. at II.
89. Romans 13:4.
90. Holberg v. State, 38 S.W.3d 137, 139 (Tex. Crim. App. 2000).
91. Neither does the modern state of Israel. It long ago abolished the death penalty for all except
Nazi war criminals. For that matter, although the Torah does delineate many possible capital offenses,
these were interpreted so stricdy and required such heavy proof that ancient Israel rarely carried out the
death penalty.
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CHRISTIAN ETHICS AND THE DEATH PENALTY
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capital punishment. 92 The proposition is that some people, because of the
heinousness oftheir crimes, have forfeited their right to live; justice demands
the ultimate penalty for some wrongdoers.
Once again, however, this argument breaks down when we examine the
actual practice-what is really going on-in the modern American death
penalty system. The American criminal justice system is not refined
sufficiently to separate the wheat from the chaff in this manner. Our criminal
justice system simply does not and cannot select the worst, and only the worst,
of all murderers for execution. Fewer than two percent of all persons who
commit criminal homicide are sentenced to death. 93 Although some
politicians claim that the death penalty is reserved for only the very worst of
those murderers, that is simply not the case.
The real factors that lead some murderers to receive the death penalty,
while the vast majority do not, have little or nothing to do with the severity of
the crime or the moral depravity of the defendant. Instead, three factors
account most significantly for the selection of who is actually sentenced to
death: (1) the competence oftrial and appellate counsel for the defendant, (2)
race, and (3) geography. There is also a large element of sheer dumb luck that
goes into these determinations. These factors have nothing to do with the
moral culpability ofthe defendant and undermine a retributionist argument in
favor of the death penalty.
A. Ineffective Assistance ofCounsel
Nearly everyone accused of a capital crime is indigent. Their attorneys
are appointed and paid for by the states. Far too often, those attorneys have
rendered extremely ineffective and inadequate assistance, partly due to the
state's lack of funding for an effective capital defense for the indigent.
Stephen Bright has demonstrated that the death sentence is imposed "not for
the worst crime but for the worst lawyer;" Bright documents a depressing
number of cases in which defense counsel performed in an abysmal manner. 94
As Bright contends, "[a]rbitrary results, which are all too common in death
penalty cases, frequently stem from inadequacy of counsel. The process of
sorting out who is most deserving of society's ultimate punishment does not
work when the most fundamental component of the adversary system,
competent counsel, is missing."9s
92.
H. WAYNE HousE, The New Testament and Moral Argumentsfor Capital Punishment, in THE
DEATH PENALTY IN AMERICA 415, 427 (Hugo Adam Bedau ed., 1997).
93.
94.
Death Penalty Information Center website, supra note I.
Stephen Bright, Counselfor tIu! Poor: 'The Death Sentence Notfor the Worst Crime butfor
the Worst Lawyer, 103 YALEL.J.1835 (1994).
95. Jd. at 1837.
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Courts are loath to reverse convictions based upon ineffective assistance
of counsel. One egregious example'offederal courts' willingness to ignore
ineffective assistance ofcounsel is a case from Harris County, Texas, the trial
of Calvin Burdine. In Burdine \I. Johnson,96 a federal district judge ruled that
the defendant was entitled to a new trial because his court-appointed lawyer
slept through substantial portions of his trial: "A sleeping counsel is
equivalent to no counsel at all."97 On appeal, however, the United States
Court ofAppeals for the Fifth Circuit reversed.98 They acknowledged that the
lawyer, Joe Frank Cannon (who is now deceased), fell asleep at various times
during the trial. One juror testified that Cannon was asleep during "quite a
bit" of the trial. And a court clerk testified that she had seen him sleeping "a
lot" and "for long periods of time" during the questioning of witnesses.
But the Fifth Circuit majority said it was impossible to determine just
when Cannon was sleeping; thus, there was no way to know whether anything
prejudicial to his client occurred while Cannon slept. "In sum, on this record,
we cannot determine whether Cannon slept during a 'critical stage' of
Burdine's trial."99 Judge Benavides wrote a blistering dissent: "Burdine
should be entitled to a new trial with the benefit ofcounsel who does not sleep
during substantial portions of his trial. In my opinion, it shocks the
conscience that a defendant could be sentenced to death under the
circumstances surrounding counsel's representation ofBurdine."IOO
A system that executes persons "not for the worst crime but for the worst
lawyer" cannot possibly be just.
B. Racial Bias
Empirical studies underscore a persistent pattern of racial disparities in
death penalty cases. In nearly every study, there is a pattern ofeither race-ofvictim or race-of-defendant discrimination, or both. IOI
The fmdings of racial bias in the Baldus study of homicides in Georgia
at issue in McCles/cy have been replicated throughout the country.l02 For
example, Baldus and his colleagues have analyzed the relationship between
race and the death penalty in Phiiadelphia. IOO The study reveals that the odds
96.
66 F. Supp. 2d 8S4 (S.D. Tex. 1999).
ld. at 866 (citing Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984».
98. 231 F.3d 950, 965 (5th Cir. 2000) (rehearing granted).
99. ld. at 964.
100. ld. at 965 (Benavides, J., dissenting).
101. U.S. General Accounting Office, Demh PenJIlty Sentencing: Research lndicaus Pattern of
Racial Disparities, In THE DEATH PENALTY IN AMERICA 268. 271-72 (Hugo Adam Bedau cd., 1997).
102. David C. Baldus et aI., &clal Discrimination and the /JeQIh Penally In the P08t-Funnan Era:
An Empirical and Legal Overview, with beent FIndIn8'from Philadelphia, 83 CORNELL L. REv. 1638,
1675 (1998).
103. ld. at 1675-1710.
97.
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CHRISTIAN ETHICS AND THE DEATH PENALTY
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of receiving a death sentence are nearly four times higher if the defendant is
black. I04 Another study has found that the key decision makers in death cases
around the country are almost exclusively white men. 105 Of the chief district
attorneys in counties using the death penalty in the United States, nearly
ninety-eight percent are white and only one percent are African-American. 106
The decisions about who lives and who dies are being made along racial lines
by a nearly all-white group of prosecutors.
The federal government's new death penalty system is also not immune
from this disease of racial bias. In fact, the federal death penalty has shown
greater racial disparities than any state.IO? The DOJ's own study revealed that
in the past five years eighty percent of the cases submitted by federal
prosecutors for death penalty review have involved racial minorities as
defendants. 108 In almost half of those cases, the defendant was AfricanAmerican. 109 Sixteen ofthe nineteen persons on federal death row (84%) are
racial minorities. llo No state has nearly that high a percentage of minorities
on death row. III
Such a system of injustice is not merely unfair and unconstitutional-it
is contrary to fundamental principles of the Christian faith. Whatever the
validity of the notion that certain defendants deserve to die, no one can
seriously claim that the race of the defendant or the race of the victim have
anything to do with moral culpability.
C. Geography and Other Accidental Circumstances
Where a person happens to commit a murder has much more to do with
whether he will receive the death penalty than does the nature of the crime or
of the defendant. Certain states regularly sentence people to death, and others
do not. Even within a state like Texas, certain counties seek the death penalty
much more than do others. Harris County (Houston) accounts for one-third
of Texas's death row, while Dallas has only one quarter of Houston's total
104. Id.
lOS. Jef&ey 1. Pokorak, Probing the Capital Prosecutor's Perspective: Roce ofthe Discretionary
Actors, 83 CORNELL L. REv. 1811, 1817 (1998).
106. Id.
107. The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for
Capital Case Reviews (Dep't ofJustice, June 6, 2001), available at http://www.usdoj.gov/dag/pubdocl
deathpenaltystudy.htm.
108. Id.
109. Id.
110. Death Penalty Infonnation Center: Federal Death Row Prisoners, at http://www.deathpenalty
info.org/fedprisoners.html (last visited June 28, 2001). United States Attorney General John Ashcroft
recently stated that he believes there is no evidence of racial or ethnic bias in federal death penalty
prosecutions. See Michelle Mittelstadt, Some Urge More Study ofDeath Penalty, Bias, DALLAS MORNING
NEWS, June 14,2001, at A7.
III. Id.
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despite a higher murder rate. Likewise in Pennsylvania, convicted murderers
in Philadelphia are far more likely to receive a death sentence than those in
Pittsburgh or any other community in the state. 112
The federal death penalty, which in theory applies equally nationwide,
is also fraught with this kind of geographic arbitrariness. Five ofthe ninetyfour federal judicial districts account for over forty percent ofthe capital case
submissions to the 'Attorney General. Over two thirds of the persons on the
federal death row come from only three states: Texas, Virginia, and
Missouri. 113
Place is not the only arbitrary factor. Because death penalty cases are so
expensive, factors such as when during the fiscal year the case comes up and
whether the county has already had its limit ofcapital cases make a difference
in whether the defendant will live or die. The nearness in time of the next
election for the prosecutor can also be a significant factor in whether the
prosecutor seeks the death penalty.
Geography is a wholly arbitrary way to detennine which murderers most
deserve to die. It is no more tied to the moral culpability ofthe defendant than
are race and the quality of the defense lawyer.
V. CONCLUSION
Because the state is taking lives in the name of all of us, all of us have a
responsibility to pay careful attention to what is going on. At an abstract
level, we may disagree over whether the state is ever justified in taking the life
of one of its citizens. We may also disagree over the nature of vengeance and
whether some people deserve the ultimate punishment.
We may never agree about the abstract principles of deterrence and
retribution. But agreeing on principles is not the primary ethical task. H.
Richard Niebuhr emphasized that our first responsibility in ethics is to see
clearly. We must pay careful attention to context; we first need to know
"what's going on?"
When we do, we see that the actual practice of the death penalty in
America cannot be justified. There is no evidence that the death penalty as
administered serves as a deterrent. It does not and cannot save lives.
Moreover, a system ostensibly designed to save the lives of the innocent is
regularly sentencing innocent persons to death.
Retribution or revenge also fails as ajustification for the modem death
penalty in America. Even if we grant the premise that the worst of the worst,
those who commit the most heinous of murders, deserve to be killed, the
actual practice does not separate the most deserving of death. We are
112. See Bright, supra note 2, at IS.
113. The Federal Death Penalty System: A Statistical Survey (Dep't of Justice, Sept. 12,2000),
available at http://www.usdoj.gov/dag/pubdocJdpsurvey.html.
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2001]
CHRISTIAN ETHICS AND THE DEATH PENALTY
953
choosing persons for death based upon race, poverty, geography, and the
happenstance of the ability of appointed counsel.
We must be willing to look with clear vision at the real world of capital
punishment in America today. If we do that, surely we will see that we are
killing people unnecessarily. May God give us the grace to see clearly! 114
114.
1 thank Daisy Hurst Floyd for very helpful suggestions on this essay.
HeinOnline -- 32 Tex. Tech L. Rev. 953 2000-2001
HeinOnline -- 32 Tex. Tech L. Rev. 954 2000-2001