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March 04, 2005

Cruel and Unusual Decisions on the Death Penalty

Just when you thought it was safe to oppose to the death penalty, along comes a scoundrel like the BTK (bind, toture, and kill) murderer in Kansas, for whom any kind of execution seems too humane.

I wrote briefly about developing a consistent ethic of life as a mark of the Christian statesman, and I do believe its ability to save lives must be the biblical standard in state use of capital punishment.

But what is the Constitutional standard? The court wrestled with this as it relates to children under 18, wading into the perilous waters of the Eighth Amendment prohibition of cruel and unusual punishments.

The simplifiers of sound-bite media have derided the court this week for citing national and international consensus. It’s easy to see this as a continuation of the High Court’s decades-long trend of legislating from the bench. But how do we determine the definition of subjective terms such as “cruel” and “unusual?” Do we use the definitions of the 18th Century, when the Constitution was crafted? Or some other milestone along the way? Or shall we revert biblical times (Old Testament or New?).

What is cruel and unusual punishment? The court has now decided that the execution of the mentally retarded and those under 18 is cruel and/or unusual.

This column by Stanford professor Robert Weisberg is a reasonable examination of the issue. Here’s an excerpt:

The Eighth Amendment prohibits "cruel and unusual punishments," but for much of its history the United States has allowed the death penalty. In 1958, the court ruled that "evolving standards of decency" should define what constitutes "cruel and unusual," and since then it has been forced to confront the legality of capital punishment in various types of cases. Could the death penalty be imposed for nonfatal crimes? When the defendant did not kill intentionally or at least in a manner exhibiting "extreme indifference to human life"?

In answering these kinds of questions (in both of these cases, the response was no), the court committed itself to a challenging set of tasks. First, it would examine the patterns of state laws or court decisions to determine by a rough empiricism whether the death penalty in a particular category has become cruel by virtue of being literally unusual. Of course, this approach raises the perfectly reasonable question of how the scope of the Bill of Rights, which was designed to limit the powers of legislative majorities, could depend in part on the decisions of those very majorities.

Next, the court would consult various other sources for evidence of some sort of moral consensus. In doing so, the court would refer to philosophical or moral principles or political attitudes outside the realm of law altogether - and even to international expressions of moral value. This strategy provokes the (again perfectly reasonable) complaint that unelected jurists are now acting like pollsters, assessing the public's moral values. Or, worse, they are becoming arbiters of moral value themselves.

There do have to be cultural benchmarks that are consulted in determining the tangible implications of subjective terms. As such, as alarming as it has been made to sound in recent days, the Republic will survive the Court’s decision to take a reading of modern society.

Posted by Jim at March 4, 2005 08:55 AM

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Jim, why should 9 robed ones decide the "evolving standard of decency"? Is not the "evolving standard of decency" a moral indicator? Should that not be determined by our elected representatives?

Also, the Court, with Roper, has set the stage for using international "cultural benchmarks" to measure an "evolving standard of decency."

Because the Court is the least democratic branch of the federal government, they should apply the most conservative standards for determining what is and what is not constitutional. Being the country's national/international moral compass does not meet this criteria.

Posted by: Rick Brady at March 4, 2005 09:33 AM

Do not waver.
One of the most seductive lies from the pit of Hell is that legality and morality must be congruent. It is not so.
Examples of legal behavior which is not moral include drinking into oblivion, gambling away a family fortune and and driving while sleep deprived. Examples of moral behavior which is illegal include sheltering illegal immigrants who do not meet the letter of the law for asylum but whose lives would be endangered otherwise, driving someone for emergency medical care without a license, or revealing privileged information to certain individuals who may not have the legal right to know.
The law may mandate capital punishment, but that does not mean that as Christians we must give it our blessing. As Christians I firmly believe we must continue to argue for the end of capital punishment, especially when it seems most justified. Otherwise, our arguments will always allow for exceptions. It will always be tempting to excuse capital punishment because the actions of the perpetrator are depraved.
The reason that capital punishment is morally wrong is because of what it does to the executioner, not the perpetrator. The executioner is not simply the individual who causes the event, it extends to every citizen in whose name the event was performed.

An execution creates a population of perpetrators which includes you and me. It is morally repugnant, not because of what it does to the criminal, but because of what it does to us. Early Christians (including Jesus, incidentally) were the victims of capital punishment, not the executioners. [It is noteworthy that according to Luke one of the others who died on Golgotha allowed as how he and the other bandit deserved to die, although Matthew and Mark state that both of the others being crucified taunted Him.]

There will always be a poster child for capital punishment.
Our responsibility as Christians is to resist our most atavistic impulses and struggle with how, under disagreeable and humanly irrational conditions, we can possibly follow the Lord's command to love. When we say to hate the sin and love the sinner, this is where the rubber meets the road. The is no loving way to take a person's life, even if he seems to have it coming.

Posted by: John Ballard at March 4, 2005 09:12 PM