It was amusing to see both atheists and religious believers wrangling over biblical rationalizations for the death penalty in their responses to my column earlier this week about the retirement of Justice John Paul Stevens from the Supreme Court. No doubt this dispute was prompted by the citation of Justice Antonin Scalia’s religious justification for the death penalty, which amounts to: God has the power of life and death and lawful governments derive their power from God; ergo, capital punishment is both morally and legally permissible. It is clear, however, that neither atheism nor religion per se is a predictable, decisive factor in public or individual attitudes toward capital punishment. However people choose to rationalize their position, capital puniishment is an emotional issue.
Scalia was half-right in his contention that “the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition [of capital punishment] has taken its firmest hold in post-Christian Europe, and has least support in the churchgoing United States.” ["First Things," May 2002] He was only half-right because he was talking only about that part of the world that once comprised “Christendom.” In Saudi Arabia, for example, there is a good deal of kingly and public (insofar as public opinion can be gauged in such a society) support for the death penalty and–the last time I checked–this oil kingdom was emphatically not a Christian nation. There is also support in Islamic theocracies for what is now considered cruel and unusual punishment in most western societies–even in the death penalty-loving United States. Parts of both the Bible and the Qur’an are enthusiastic about such punishments as cutting off the hands of thieves and stoning adulteresses, but even Scalia has not gone so far as to claim that these penalties should be reinstated because someone claiming to speak for God once advocated them.
There is a freethinking tradition of skepticism about capital punishment dating back to a time when all kings considered it their divine right to chop off their subjects’ heads at will. Thomas Paine was not only an opponent of the death penalty but put his own life on the line when, while living in France during the Jacobin era, he condemned the executions of Louis XVI and Marie Antoinette. Paine was imprisoned for his outspoken position against the executions, which he opposed not because he had any love for kings but simply because he did not believe that any government had the right to commit state-sanctioned murder. True freethinkers tend to oppose not only the divine right of kings but the divine right of all governments.
In the United States today, secularists are less likely–but only somewhat less likely–to support capital punishment than are the religiously observant. Support is highest, at 71 percent, among evangelical Protestants and lowest, at 59 percent, among those unaffiliated with any religion. White non-Hispanic Catholics, at 67 percent, fall in between the two groups. The important fact here is the clear majority support for the death penalty regardless of religious belief. I know a fair number of atheists who are just as enthusiastic about executing Islamic terrorists as their right-wing Chistian compatriots. Such cases offer a particularly compelling demonstration of the noonrational, emotional needs that underlie support for the death penalty, because in the case of terrorists, there is little possibility of capital punishment serving as a deterrent. Religiously motivated terrorists consider themselves martyrs, and each execution would create another hero (See: early Christianity in the Roman Empire).
I view the death penalty in much the same light as I regard human sacrifice, slavery, and the official practice of torture. Both capital punishment and torture are no less barbaric because many people support them. (There does seem to be a worldwide consensus now against human slavery and human sacrifice, but one ought to recall that the consensus against slavery, even in the West, is less than 200 years old.)
I would never claim, however, that my opposition to the death penalty is grounded in the kind of objective evidence that can be cited, for example, to support the proposition that same-sex attraction is not a choice but is deeply ingrained in our genetic makeup. I am against capital punishment because I think that its practice coarsens and brutalizes the fabric of every society that practices it. Oh, I could make the obvious, evidence-based argument that the United States, the one practicioner of the death penalty in the developed western world, is a much more violent society, with a much higher crime rate, than, say, Canada or any western European country you could name. I could point out, as Stevens did, that there is no just, rational way to admiinister the death penalty–that an African-American, for example, is much more likely than a white man to be executed for the same crime. (Not surprisingly, African-Americans are the only group in which a majority rejects the death penalty.) And I could mention the incontrovertible truth, now available through DNA evidence, that some people are executed for crimes they did not commit.
But any of these arguments would mask the real source of my anti-death penalty stance, which is my conviction that when a government claims the right to exercise the power of life and death–even over the most apalling of murderers–it is acting in the barbaric tradition that takes us right back to the primal ooze from which we emerged.
Is there not emotional satisfaction in seeing that a worthless, unrepentant killer and enemy of society is dead? You bet there is. On The Daily Show this week, Jon Stewart and Rachel Maddow engaged in embarrassed, snickering liberal mea culpas about their satisfaction that Timothy McVeigh, the perpetrator of the Oklahoma City bombing, was executed in 2001. Maddow admitted that she’d like to kill Osama bin Ladin “with a spoon” (whatever that means). [The Daily Show, April 13] On a television special next week featuring previously unreleased tapes of McVeigh talking from his jailhouse, he apparently reveals himself to be an even more cold-blooded killer (and, let us not forget, anti-government fanatic) than we knew. He’s dead, and this year another fanatic flew his plane into an Internal Revenue Service office. The only person deterred by McVeigh’s execution was McVeigh himself. Of course, no one is weeping for McVeigh. So what? The question is not what impact the death penalty has on the executed criminal but the effect it has on the rest of society. Did we need to execute McVeigh to express our collective disapproval of terrorism? The secret or not-so-secret pleasure most of us take in the execution of someone like McVeigh is the tipoff that moral unease ought to be aroused when the state takes someone’s life on our behalf. That such an act may gratify my emotional needs is insufficient moral justification. That was why Maddow and Stewart were embarrassed to be laughing.
The absence of any sense of righteous satisfaction was surely a factor, albeit not a legal one, when the Supreme Court outlawed the execution of the mentally retarded in 2002 (Scalia, Clarence Thomas, and Chief Justice William Renquist dissenting) and when it prohibited, by a 5-4 margin in 2005, the execution of juvenile offenders (Renquist, Scalia, Thomas and Sandra Day O’Connor dissenting). Even in the United States, most people feel there is something deeply wrong about executing someone with the IQ of an eight-year-old. And before anyone jumps all over me for using the word “retarded” instead of “mentally disabled,” the Supreme Court decision was not meant to apply to all mental illnesses or disabilities. It applies, specifically, to people who lack the mental capacity of an adult to form criminal intent.
At least one person in the comments section said that he favored capital punishment not as an act of revenge but as an act of punishment. I would not argue against the idea that death is the ultimate punishment. Someone serving life without parole still gets three meals a day, still (in most instances) has some contact with the outside world and still (like McVeigh) can serve as a hero to his benighted followers. That’s something for a sociopath to live for. I’ll bet McVeigh would have been thrilled to know about the IRS suicide bomber. The problem is that for the worst serial killers and mass murderers– whether Adolf Eichmann, McVeigh or Charles Manson there can be no proportional punishment. The famoue “eye for eye” passage in Exodus, so often cited out of context by religious supporters of capital punishment, was in fact a limitation on punishment and vengeance. [Exodus: 21: 22-25.] Read it in full, and you will see the intent–that one may not exact more than an eye for an eye, or a tooth for a tooth. At the time the Book of Exodus was written, regardless of who wrote it, the concept of proportional punishment represented social progress. But it is no more a basis for deciding whether capital punishment ought to be practiced today than the tale of Thor’s hammer is for revamping the electrical grid. In 1983, in a chapter on capital punishment in my Wild Justice: The Evolution of Revenge, I wrote, “After the first murder, proportionality becomes impossible to achieve.” If one execution can never provide justice, or adequate punishment, for the murder of millions, then the question is what that one execution says about the rest of us.
Religious arguments against capital punishment have no more force for me than religious arguments in favor of capital punishment. Justice Scalia, a theologically right-wing Catholic, disgrees with Pope John Paull II’s 1995 encyclical, Evangelium Vitae, which condemned capital punishment, abortion and euthanasia. After consulting with an expert in canon law, Scalia explained, he learned that he pope’s statement about the death penalty was not doctrinally binding (unlike the injunction against abortion) but had more of the status of an advisory opinion.What a relief that must have been for Scalia, given that he wants the state to be able to execute people with the minds of children. Apparently John Paul never saw a bumper sticker like the one I saw while driving through a rural area of southwestern Michigan in the mid-1980s: “The death penalty was good enough for Jesus.”
The Christian argument against the death penalty, based on the centrality of forgiveness and mercy to Christian dotrine, is as irrelevant in its own way as Scalia’s nattering about the divine right of kings and the divine right of governments to punish. If I am a crime victim, the state cannot “forgive” anyone on my behalf. And it cannot punish on my behalf, either: it can only punish on behalf of the body politic. Victims do not have the right to dictate the type of punishment the state should enforce.
I think that all of the intellectual arguments for and against the death penalty, whether couched in religious or secular terms, do nothing more than provide cover for the real dispute over whether Americans are proud or ashamed to know that in many jurisdictions within their country, the state possesses and exercises the power to kill. A majority of Americans are proud. I am ashamed.