Capital Punishment: The Problem

If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, then the son of that builder shall be put to death.

Don’t you just love the Law of Hammurabi? I’ll bet tobacco industry executives, Chinese toy makers, and California spinach growers are glad 4,500-year-old legal precedents are not cited here in the states even by our most strict constructionist judges. For Scalia and Thomas the law begins with Blackstone and English Common Law, not Hammurabi.

Former Alabama Chief Justice Roy Moore thought it fair to go back 3,200 years to the Ten Commandments for guidance in deciding 21st Century cases in secular America. He’s one of those white, “God said, man said” Southerners who believes people who lived thousands of years ago in the Middle East had a direct link into the mind of God, that God wrote the bible and the bible has all of the answers. If our laws were based in Mosaic Law, death row in this country would overflow by mid-morning. Joining the murders would be rapists and child molesters; sorcerers, witches, pagans, atheists, and homosexuals.

It doesn’t surprise me to discover that through most of recorded human history the value of a human life was seriously deflated. No government before the Constitution of the United States and the Bill of Rights made it its business to protect the rights of individuals… especially the rights of accused murderers.

Clearly, Hammurabi and Moses got it all wrong. So, where does one go to find moral guidance on the issue of capital punishment? Did Jesus get it right? No. If our criminal justice system operated consistent with the gospels, the meek would not inherit the Earth: The Earth would be handed over to thugs and assassins. Benevolence and forgiveness do nothing to protect the public from the Sons of Sam out there. [Significantly, the death penalty doesn’t deter them either.]

Of course, Christians in this country utterly ignore the Sermon on the Mount and Jesus’ order to love your enemies and turn the other cheek. Christian conservatives vote as a block in favor of capital punishment. Their Born Again president, George Bush, put 131 inmates to death in just five years as governor of Texas. That’s a record! [According to the New York Times, Saturday, June 17, 2000, one third of those executions were questionable.] Conservative hero, Ronald Reagan, a supporter of the death penalty, put only one inmate to death in eight years as governor of California. Reagan, it appears, talked the talk of the Republican base—like he did on so many of the issues dear to Christian conservatives—but did very little walking.

Capital punishment has never been an easy issue for me. I hate criminals. I love justice. But a death sentence leaves no room for error. In fact, my original lead sentences for this post were as follows:

“I can think of only one thing worse than letting a guilty murderer, terrorist, or child molester go free. That is, to execute an innocent person.”

I thought my view was smart and original. I still think the view is smart; I discovered it’s not original. This view dates back to the 12th Century, to a Jewish rabbi, physician, and philosopher named Moses Maimonides, who wrote:

“It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.”

I know that the United States has executed innocent people in our past. Knowing this fact is the most difficult hurdle to overcome if one is to maintain a belief in the justice of capital punishment. If our criminal justice system is so tragically fallible, can such absolute and irrecoverable consequences ever be doled out justly?