Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Capital Punishment Revisited

Stephen V. Monsma


By Stephen V. Monsma

July 7, 2014 

Capital punishment is being reconsidered today. In 2013, Maryland became the sixth state in the past six years to abolish the death penalty. Last year, a majority of the thirty-nine executions were carried out in only two states—Texas and Florida. Public support for the death penalty has dropped from 78 percent in favor of it in 1996 to 55 percent in 2013. Meanwhile, those opposed to the death penalty increased from 18 percent to 37 percent.

This reconsideration has been spurred on by the findings that since 1976, some 143 persons who had been condemned to death were later exonerated, often due to DNA testing. Renewed questioning of the death penalty increased in June when Oklahoma botched the execution of Clayton Lockett. The supposedly lethal combination of drugs failed to kill Lockett, who died later of a heart attack. 

In the context of this trend, I, along with twenty-two other evangelical leaders, recently gathered in Washington, DC for a day-long discussion of a major study released by the Constitution Project entitled, Preventing Irreversible Error: Recommended Reforms in the Administration of Capital Punishment. This study documents the many abuses in how the death penalty is currently administered and recommends reforms in its administration.

The abuses include persons accused of murder being assigned attorneys with no criminal defense background and little interest in vigorously defending the accused. Prosecutors have withheld exonerating evidence discovered after a person was found guilty and sentenced to death. There is a bias in the imposition of the death penalty, as racial minorities and those of limited education and social status are more likely to be executed than those with education and social status. A prosecutor’s pursuit of the death penalty is often arbitrary, and since capital trials are very expensive, whether prosecutors seek the death penalty can even depend on the state of their budget that year.

The Constitution Project’s study contains many recommendations aimed at assuring that only the genuinely guilty and the most culpable will be executed and at ridding the process of bias and arbitrariness. The recommendations deal with such issues as competent defense counsel, the accuracy of forensic lab findings, and rights of appeal. 

I left our discussion with mixed feelings. As a Christian concerned that governments live up to their role of pursuing public justice to the fullest extent possible, I applauded the effort to correct deeply troubling flaws in the criminal justice system as it deals with capital cases. The recommendations—if fully implemented—would do much to avoid the all too frequent violations of basic justice.

Also, I believe in the God-given authority of government that, as the Center for Public Justice’s Guidelines state, includes the duty to punish the wrongdoer: “The government of a political community bears responsibility to legislate, enforce, and adjudicate public laws for the safety, welfare, and public order of everyone within its jurisdiction.” Governments have the authority to engage in retributive justice, that is, to punish offenses in order to protect public order and safety. This surely includes enforcing severe penalties on those who have willfully taken the life of another human being.

Nevertheless, our discussions that day troubled me. While the recommendations of the study would do much to assure greater justice in the imposition of the death penalty, I came away convinced they would not do away with all the abuses in the death penalty. In a broken and sinful world, all human systems are imperfect, from criminal justice systems, to legislative halls, to—as we have recently learned—the Veterans Administration and General Motors.

This basic fact raises a crucial question: Should we wed an unavoidably flawed criminal justice system with an irreversible punishment? I believe doing so is neither necessary nor wise. It is unnecessary because there is a readily available alternative to executing someone, namely, life imprisonment. To take away the liberty of a person for the rest of his or her life is an appropriate, justice-satisfying punishment even for the terrible act of taking someone’s life. It meets government’s duty to engage in retributive justice in its effort to protect public order and safety.

Nor is capital punishment wise. I have reached this conclusion, first, because of the always present possibility of innocent persons being found guilty and executed. Although the reforms recommended may reduce the number of innocent persons found guilty and the biases and arbitrariness present today, these things will not be completely eliminated. Once a person has been executed, there is no possibility for correcting errors. 

The death penalty is also unwise because it eliminates the possibility of reconciliation between the murderer and those close to the victim. The Center for Public Justice’s Guidelines also speak of restorative justice, that is, restitution and reconciliation. A person’s execution removes even the possibility of there being reconciliation between the murderer and those close to the victim who have suffered a grievous wrong. Some may see this possibility of reconciliation to be hopelessly idealistic, but with God all things are possible. It may take years, but reconciliation is possible. 

This is why our meeting in Washington left me with mixed feelings. I was appalled at the manner in which some of our states implement the death penalty and I applauded the attempt to eliminate the abuses in that process, but I also came away convinced that even with the recommended reforms, the death penalty remains unnecessary and unwise.

-  Stephen V. Monsma is a Senior Research Fellow at the Henry Institute at Calvin College and Professor of Political Science Emeritus at Pepperdine University.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”