Volume 1 Number 2 of “Wonder”
by Protodeacon Joseph Matusiak
By Fr. Ted Bobosh
By Fr. James Guirguis
By Jessie Kirchner
By Andrew Boyd
More information on this issues contributors can be found here.
Volume 1 Number 2 of “Wonder”
by Protodeacon Joseph Matusiak
By Fr. Ted Bobosh
By Fr. James Guirguis
By Jessie Kirchner
By Andrew Boyd
More information on this issues contributors can be found here.
by Protodeacon Joseph Matusiak
In this our second issue of Wonder we look at Capital Punishment. We decided on this issue after attending the March for Life this past January.
For nearly a decade now the Orthodox Church, primarily through the Orthodox Church in America, has had a consistent presence at the annual March for Life. We thank God for that. During the Vesper Vesper service on the evening before the march Metropolitan Jonah offered the following words, “When we judge those who have chosen to abort, we abort them from our lives. And the second sin is greater than the first. “ I was deeply struck by that message. This is a true example of living and embracing the love offered to us through the Cross. And it is this message that best illustrates our uniquely Orthodox witness to abortion.
As a teen growing up in the Church in the 80’s I do not recall hearing much taught about the so-called “Sanctity of Life” issues. Indeed when a very good friend of mine had an abortion in college I was ill-prepared to deal with my emotions. I was left wanting for words of comfort and solace. But could find none. Her words to me at that time were the most instructive, “you will never know the pain I feel in my heart. I have done an awful thing. But I don’t need you to judge me, I just need to be loved.”
Thank God that over the past number of years our Orthodox witness to the world on the matter of abortion has become more present. There is no doubt that we still need more materials on these issues for our young people. For this month we thought to write about abortion. But at the same time we were curious about what the Church says about other, less publicized Sanctity of Life issues. So we have set out to look at what the Church says about Capital Punishment. I think you will find that unlike abortion Capital Punishment is not as black and white.
by Fr. Ted Bobosh
The relationship of Christians to the death penalty has a long history, and it is not as simple as finding a passage in Scripture that allows or forbids capital punishment. It is much more the overall message of Christ – especially since He came to destroy death which is the final enemy of both humanity and God – which allows Christians to proclaim the sanctity of human life. Christ died on the cross to save sinners, not to condemn or punish them. Christ destroys death, He doesn’t transform it into a useful tool for overpowering the nations of the world. St. Paul portrayed the Christian struggle as the defeat of spiritual powers and principalities and specifically rejected any idea that our warfare was with flesh and blood. In other words, Christianity is not to conquer the world with police and military like an Islamic jihad, but has to engage in a spiritual warfare for the hearts and minds of all people. “For we are not contending against flesh and blood, but against the principalities, against the powers, against the world rulers of this present darkness, against the spiritual hosts of wickedness in the heavenly places” (Ephesians 6:12). The Gospels themselves, through the story of Christ being tempted by Satan at the end of his forty-day sojourn in the desert, portray all worldly kingdoms and government power as basically being under Satan’s dominion (Luke 4:5).
I would offer the following thoughts about why the Church upholds the sanctity of human life and why it has the attitude it does toward abortion, capital punishment and war. Obviously this is not an all inclusive commentary on the topic. There are endless books written on these topics and the issues are hotly debated and nuanced by the abundance of commentators who address the issue. I will only attempt to provide some insight into and defense for the Church’s pro-life stance as it looks at these issues.
First, the Scriptures that specifically sanction the death penalty are all part of the 613 laws of the Jewish Torah. The keeping of these Laws was understood by the Jews to be the specific and only way to be righteous in the eyes of God. For Christians on the other hand, righteousness is no longer attained through the keeping of the Torah, nor does Christianity see the keeping of the Torah as possible or even desirable (see Acts 15:28-29 to see which of those 613 laws the Council of the Apostles found were binding on converts to Christianity). The basic stance of the New Testament is that in fact the Law never enabled the Jews to become righteous, rather it only ended up pointing out their sinfulness. The basic Christian message is that grace, truth, salvation and righteousness come through Jesus Christ, not through the keeping of the Law. So if we think keeping any part of the Law will make us righteous in God’s eyes, then we are thinking like Old Testament Jews and we must therefore keep every detail of the 613 laws, not just the laws we particularly agree with. Since such an effort would be seen as “Judaizing”, it is not thought to be compatible with Christian spirituality.
Second, Jesus as well as most of the disciples and all the early martyrs were victimized by laws allowing capital punishment. So capital punishment was not viewed as tremendously positive in the early Church but was often viewed as allowing the unjust punishment of righteous people.
Third, for the first 325 years of Christianity, Christians were a persecuted minority, who had no share in government power. As such Christians tended to view anything imperial as belonging to a kingdom which was not Christ’s. Christ’s Kingdom was not of this world, it had no laws of capital punishment, nor any army which was sanctioned to kill anyone including its enemies. Early Christians saw military service as incompatible with Christian values – with the life and teaching of the Crucified Christ.
Once emperors began to accept Christianity, a serious tension was created between the apostolic values of Christianity which forbade killing (since they couldn’t be in the army, nor public executioners, nor gladiators, nor murders, the Christians basically embraced a policy of not killing other humans). What happened for numerous emperors and public officials (Constantine himself being the prime example) was knowing they might have to kill as a result of their office, they postponed their baptisms until they retired from office or until they were on their deathbeds so that through baptism they could be forgiven for any killing they had done in their life time and would never have to kill once they became a Christian.
Romans 13: 1-14 provides insight into the struggle between Christianity and government. St. Paul writes :
”Let every person be subject to the governing authorities; for there is no authority except from God, and those authorities that exist have been instituted by God. … For rulers are not a terror to good conduct, but to bad. Do you wish to have no fear of the authority? Then do what is good, and you will receive its approval; for it is God’s servant for your good. But if you do what is wrong, you should be afraid, for the authority* does not bear the sword in vain! It is the servant of God to execute wrath on the wrongdoer” (13:1-4).
Here we see St. Paul clearly defending government authority to punish wrongdoers. His statement is certainly exceptional because Jews in general did not defend Roman authority in their lives. But as many have noted Paul has oversimplified his case – he does not take into account government persecution of Christians (some think he wrote the letter before any persecution of Christians occurred), the possibility of an evil government punishing good citizens, nor a Christian government dealing with people. He only assumes that government is necessary for civilization to exist and that Christians have to deal with the reality of government authority
To see a Christian view of government as identified and equated with Satan and all that is evil one need only look for example at the Book of Revelation written when the persecutions were in full swing. The martyrs basically renounced their citizenship in this world and declared themselves denizens only of the Kingdom of Heaven.
It is only with government officials and emperors who grew up as Christians, and when Christianity became the majority religion so that the military was made up of mostly Christians, that the Church faces the reality of its members killing other humans as members of a Christian empire and thus as Christians. At the beginning of the 4th Century, it was forbidden for Christians to be in the military. By the end of the 4th Century the Roman government required everyone in the army to be Christian! Quite a change in the reality of Christianity in the Roman Empire.
But Christians struggled with this new role in society, and not all were comfortable with it. The monastic movement to a large extent was a protest movement against the imperial/state Church. Monasticism grew not in response to secularism, but rather as a protest against imperial Christianity. Many felt the values of the Kingdom of God were incompatible with the values of the Roman Empire. Nevertheless the embrace of the Church by the Empire was complete, and Christians now found themselves in positions where they had to participate in killing other humans. The monks fled to the deserts to practice the values and rules of the Gospel without imperial interference.
Chrysostom remarked, “Our warfare is to make the dead to live, not to make the living dead.” St. Basil the Great lamented the situation by declaring that Christians must serve in the army if called by the state to do so, but that upon completion of their service were to serve a three year penitential excommunication discipline for having participated in such activity – whether or not they actually killed anybody.
The Byzantines believed that somehow as Christians they were to create an empire “on earth as it is in heaven.” Thus their earthly empire was to conform to their notions of heaven – including love, forgiveness and mercy. That ideal proved to be very hard to realize especially since they found themselves so often surrounded by invading Persian, Arab, the Rus, Bulgar, Turk, and Latin armies, just to name a few of the most noted that threatened Constantinople. The Byzantines found it very hard to uphold purely Christian practices in dealing with their enemies.
St. Vladimir of the Rus when he accepted Christianity as his personal faith and religion, endeavored to abolish the death penalty in his kingdom as he felt it was incompatible with the Faith. He did not want to be responsible before God for deaths that were committed in his name or by his decree. Two of his sons, Boris and Gleb, are famous saints in Russian Church history for choosing to die rather than defend themselves against their brother who wanted to take over the reigns of power upon Vladimir’s death. Both Boris and Gleb said that since they were now Christians they would not take up the sword against their power-hungry and murderous brother. They accepted death as the price they had to pay for maintaining their Christian faith.
Even once the empires embraced Christianity there was a real struggle with the Christian message and Christian ideal about life and how it relates to such things as capital punishment. The Canons of the Church command bishops as part of their normal duties to go to the courts and plea for mercy for prisoners and for the condemned. Church buildings throughout the empire became sanctuaries, where persecuted and condemned people could take refuge to seek protection by the Church against the state.
In this same tradition, all Orthodox Churches today do officially condemn the death penalty as an excessive power abuse by human governments. This does not take away from the reality that we live in a fallen world, in which not only do people do evil, but evil is a force to be reckoned with by the Church and by governments as well. Governments have a responsibility to protect their citizens from murderous people within the society. Armies and wars are part of this fallen world, and though an undesirable inevitability, and even an evil necessity, a necessity none-the-less. Jesus said there is no greater love than for a man to lay done his life for his friends. Generally Christians have seen this as accepting that at times war is justified, but the statement really only blesses dying to protect our friends, not killing to protect them.
Since the basic message of Christianity is forgiveness, mercy, love, peace, and the defeat of death itself, Christians have had a fairly consistent belief in the sanctity of human life and have struggled with the use of capital punishment and armies to deal with the evil present in the world from the beginning of the Church. Christ did not teach his disciples to kill anyone, nor did he advocate warfare or killing as a means to spread His faith. The early Christians, unlike the Muslims, conquered the Roman Empire without having any army or police on their side and without killing anyone.
A Personal Comment and Confession
A number of years ago when at an All American Council the OCA took up the issue of taking a position on the death penalty, it was perhaps the only Orthodox body in the world which had not spoken against capital punishment. A vote was taken of the delegates and the vote solidly favored opposing the death penalty in order to uphold the Orthodox totally pro-life position. I was in the minority which voted against that resolution. My opposition stemmed from the fact that I could imagine people (organized crime, ideologues – like today’s al-Qaeda, for example) who would only see our mercy as weakness and who would move to destroy us when they could and who would show no mercy to us and would be quite willing to kill us since we hadn’t killed them. However, since that time I have come to accept the consistent pro-life thinking, and do believe the execution of prisoners is incompatible with the Gospel. This has probably occurred in me as I watch al-Qaeda in action and knowing they would kill me in a second both because I am a Christian and because I am an American. I do not want to become like them, nor to embrace their values or methods. I want to be more Christ-like. I am a disciple of the Crucified Christ, not the crucifying one. God is the giver of life, evil the destroyer of life. Human life is sacred and sanctified, even though it can become distorted by evil. One Byzantine Emperor boasted that his Christ loving army could destroy evil. I do not believe evil or the evil one can be ultimately defeated by war or by the death penalty. I guess I have come to accept that the battle with evil will continue on earth until Christ comes in His Kingdom and the final enemy death is defeated. Meanwhile I will sing, “Christ is risen from the dead trampling down death by death.”
I wrote this long mediation not to be the final word on the subject. I am sure some of you will be able to bring to bear on the topic other passages from Scriptures or examples from Church history which should be remembered or considered. My only intention was to try to explain why I think the Orthodox Church throughout the world today has accepted as part of its pro-life position an opposition to the death penalty. Considering the Orthodox Christian experience in Muslim dominated societies and under the militantly atheistic communists, it is not hard to imagine why Orthodoxy worldwide has tended to view capital punishment as a tool of oppression, and the friend of the devil himself.
By Fr. James Guirguis
I was asked to write about the hot button issue of capital punishment because I am a priest in the Orthodox Church and because I have had the privilege of working as a corrections officer on death row. As I write this by the grace of God, I am quite sure that my opinion will be attacked and maligned by many folks who will say that it is neither Orthodox nor Christian. With that being said I will say that I do not speak for anyone else including the Church as a whole in giving this opinion.
We as Orthodox Christians are passionate people. We believe we have the truth and we want everyone to know it. We are also humans. As humans we are still disposed to many of the prejudices and predispositions that we held even before our encounter with Christ and His Church. As is often the case in such matters we will frequently find a way to argue from an emotional standpoint without much recourse to the actual information at hand, and we will do so while boldly claiming that this is the “mind of the Church”. As an example I will turn to a short message by Archbishop Seraphim of Ottawa and Canada. I first came across this letter a few days ago through a fellow clergyman who was trying to help me formulate this piece. I will quote it in full…
“I am saddened whenever I hear Orthodox Christians defend capital punishment, even though I know that there are, were, and always will be various and opposing opinions in our Church, and that these opinions may be justifiable within their own systems of logic.
I cannot square capital punishment with any of my Christian experience. The Old Testament may be quoted, but I do not see it in the New. I cannot square it with the introduction to the Ten Commandments. I cannot square it with the Gospel. I cannot square it with the words of the “Our Father.” I cannot square it with “The Beatitudes.” I cannot square it with my knowledge of our canonical tradition. I cannot square it with my knowledge of the teaching of the Fathers. I can not square it with my reading of any one of our saints. And most certainly I cannot square it with the teaching of Saint Silouan, that the real test of a Christian is being able to forgive one’s enemies.
Since we Christians stand for repentance, and are called to live this daily, it is perhaps our responsibility to help the persons incarcerated for serious crimes to move in that direction also.
Perhaps we Orthodox Christians should at last take seriously our call to visit those in prison, to become qualified for a prison ministry, even, and to bring some hope, consolation, and witness of something better to these persons who otherwise could well die without knowing anything else except misery.
We always say “Talk is cheap.” Perhaps it’s time we proved we are Christians by doing something instead of philosophizing.”
A Letter Published in “The Orthodox Church” , January 1999
First I will say that I am not mentioning this instance to attack one of our blessed hierarchs, God forbid. I mention this only because it is what I consider to be a common approach to the matter at hand.
In beginning to tackle this question I would first ask “is it right to dismiss the Old Testament in light of the New Testament, to merely mention the Old in passing as we dive into the New?” If we answer yes then we are dangerously close to saying that God is not the same in both. Indeed Marcion also maintained such a stance and was considered heretical. So we claim dogmatically that the Old and New Testaments are the work of one and the same God. Going even further we as Orthodox claim that the Holy Apostles had only the Old Testament as their scriptural frame of reference. We affirm this to be so in the creed since it states “(Christ) suffered and was buried, and the third day he rose again according to the Scriptures.” So the Old Testament was not considered some antiquated throwback but a living and breathing set of documents that hid within it even the greatest mystery of all. When we as Christians merely make mention of the Old Testament and casually bypass it are we treating the Scriptures in the same way as the Apostles? And since we affirm that God is the same God in both testaments should we not explore and see how God treated the subject of capital punishment rather than dismissing it as some brutal and prehistoric form of barbarianism?
Beginning with the book of Genesis chapter 9 verse 5 and 6…
“Surely for your lifeblood I will demand a reckoning; from the hand of every beast I will require it, and from the hand of man. From the hand of every man’s brother I will require the life of man. 6 “ Whoever sheds man’s blood, By man his blood shall be shed; For in the image of God He made man.”
It is significant that this is all mentioned directly after the flood ceased and directly before the covenant that God made with Noah and his sons. It’s placement indicates that it is not merely something that was said in passing, rather a statement of significance by God. This retribution is seen as a direct result of the fact that it is the image of God that has been trampled willfully by another human being. We might even begin to reason that the man who commits such an act has forfeited the right to keep his life which is after all a gift from the Most High. Of course using merely one verse does not make for a good defense so we will examine a few others.
The next significant passage regarding capital punishment is in Exodus 21. In context the passage begins in Chapter 20 when Moses descends from Mount Sinai and gives the 10 commandments to the people. Then in 20:21-22 “So the people stood afar off but Moses drew near the thick darkness where God was. Then the Lord said to Moses, “Thus you shall say to the children of Israel: ‘You have seen that I have talked with you from heaven.” This conversation extends into Chapter 21 with a series of judgments that are to be set before the children of Israel. Verses 12 through 26 regard the act of violence and the penalty of death. Here is an excerpt…
“ 12 He who strikes a man so that he dies shall surely be put to death. 13 However, if he did not lie in wait, but God delivered him into his hand, then I will appoint for you a place where he may flee. 14But if a man acts with premeditation against his neighbor, to kill him by treachery, you shall take him from My altar, that he may die. 15 And he who strikes his father or his mother shall surely be put to death. 16 He who kidnaps a man and sells him, or if he is found in his hand, shall surely be put to death. 17 And he who curses his father or his mother shall surely be put to death.”
How do we reconcile this law given directly from the mouth of God to His servant Moses on behalf of His people the Israelites? How do we ignore such a passage when it is a clear sign of the Lord’s thoughts on justice and social obligation? How do we understand these words that were given to the people out of whom the blessed Virgin Mary herself would appear? If it was good enough for God to give to the ancestors of Our Lord Jesus Christ himself why do we consider it to be both brutal and unchristian?
Some have claimed that such laws were enacted as a means of social or civil order. Let us remember that God wanted to be the king and ruler of the peoples lives and this was His law for them. In this form of theocracy where God dictated the rules, this is what He himself gave to the people for their well-being and security. In it we see a recognition of the falleness of humanity as well as the need for justice that is dealt out by the community as a whole. Had it been otherwise God would’ve simply said “Don’t worry if your wife, or child or slave is killed, because I the Lord will avenge.” The clear fact is that God did not consider such an act of retribution against a killer as murder. Instead it seems to be a punishment for a crime that can be resolved in no other way. When, for instance, a thief steals a chicken from another man, the thief can simply replace the chicken and make things right. How we might ask can the murderer make things right? There is nothing he can say or do that will result in a reversal of the action. The gravity of such an action requires the most terrible of consequences. It is no doubt fear of such a consequence that should come into the mind of one who contemplates such an act.
Moving into the New Testament, the case for capital punishment become slightly more difficult to sustain. The reason is not that there is evidence to contradict the Old Testament. The reason is that there is almost nothing said regarding the subject at all. However let us examine just a few of the often quoted verses that are used to object to capital punishment.
In the gospel according to Matthew during the Sermon on the Mount our Lord states,
“You have heard that is was said ‘An eye for an eye and a tooth for a tooth.’ “But I tell you not to resist an evil person. But whoever slaps you on your right cheek, turn the other to him also….But I say to you love your enemies.” Mat 5:38ff
From this many have assumed that Our Lord did not advocate the use of capital punishment but we must remember that earlier in the chapter He told us from His own blessed and life giving lips that “ I did not come to destroy the Law or the Prophets but to fulfill.” Mat 5:18 How can we harmonize this with what might seem to be a contradiction between Christ and the Law? I can only suppose that this regards the violence that does not lead to death. The other point is that this is the spiritually higher road to take as an individual, while saying nothing about being punished by the larger society. It calls us as individuals to accept being mistreated. It does not however abrogate the earlier commands of God to deal out justice and retribution as a function of a larger community that is bound and expected to adhere to law, to be lawful citizens. It is to this civil law that we will turn as we look at 1 Peter 2:13 which reads…
“Submit yourselves to every ordinance of man for the Lord’s sake: whether it be to the king, as supreme; Or unto governors, as unto them that are sent by him for the punishment of evildoers, and for the praise of them that do well”
In addition let us look at a similar verse from the epistle to the Romans 13:4…
“For he is God’s minister to you for good. But if you do evil, be afraid; for he does not bear the sword in vain; for he is God’s minister, an avenger to execute wrath on him who practices evil.”
Both Apostles Peter and Paul clearly call us to obey the government’s ability to tax, to enforce laws and to punish evil up to and including the punishment of death as is implied by the the phrase “bear the sword”. Finally in regards to the New Testament I would turn your attention to Acts 25:11
“For if I be an offender, or have committed any thing worthy of death, I refuse not to die: but if there be none of these things whereof these accuse me, no man may deliver me unto them. I appeal unto Caesar.”
The Apostle tells us that if he was an offender who had actually committed anything that was worthy of the punishment of death he would not refuse to die (be executed). In this statement we see that St. Paul agrees that there are actually crimes deserving of the death since he uses the phrase “worthy of death” in speaking about offenses. We do not see these Apostles arguing against the system but humbly accepting it as the work of God and if this were not enough we see that even Our Lord himself does not speak against it, even when He himself is hung next to a repentant thief.
Still there are many Orthodox who ask “what about forgiveness?” or “what about loving one’s enemies?” To this I would also ask, “what about it?” Forgiveness is a personal and spiritual decision but it does not in any way change the fact that the criminal has committed a crime. Our forgiveness also does not change the standing of the person in the eyes of God or the state. I know of many stories of relatives who forgive and have compassion on the individual responsible for taking the life of their loved ones. I however do not see this changing the fact that there is and indeed must be a punishment worthy of the crime. We might even argue that if we do not punish this person appropriately then we have not honored the memory of the slain or his Creator.
Our forgiveness is a sign of the faith we have in God but it does not mean that our laws should reflect a “carte blanche” mentality. To follow such a train of thought would lead to nothing short of anarchy. Even the canons of the Church do not follow such logic but teach us that while the Church is a forgiving entity it is also one that requires punishments for certain acts. Such methods include excommunication and anathema. It is true that these punishments are meant to bring the person to repentance, they are also meant to deter others from becoming bold in their arrogance against the body of Christ. The Church has its own laws for the purposes of instruction, punishment, healing, penance and order of the spiritual type. Above all that law is love since it assumes that all its members are redeemed and are the children of God. Society also has a law set out for the well-being of all.
Looking again at the above passage from His Eminence, Archbishop Seraphim I would note that our ability to bring criminals to repentance has almost nothing to do with the punishment that is given assuming the punishment is just and fair. In fact proper punishment is exactly the vehicle to propel each of us into repentance even if that punishment is death. As the great desert fathers have all taught, it is the remembrance of death that can help us through our struggles. How great must that help be for the repentant murderer who knows that his days are numbered?
Regarding the Church fathers I was pointed in the right direction when I read portions of a transcript by Steve “the builder” Robinson of Ancient Faith Radio who noted that St. Theodore the Studite was opposed to the execution of those deemed heretics by the Church but fully supported the right of the state to use capital punishment. Even during our own modern times one of the great Christian thinkers C.S. Lewis wrote “Mercy, detached from Justice, grows unmerciful.” He went further in saying that “To be punished, however severely, because we have deserved it, because we ‘ought to have known better,’ is to be treated as a human person made in God’s image.” For a fuller treatment I would refer you to his essay The Humanitarian Theory of Punishment.
With all this in mind I do not hesitate to say that I believe in capital punishment based in part on the authority of the Scriptures and the New Testament. Yet while this is the case, I ultimately reject capital punishment in the modern United States of America because our justice system offers little in the way of justice. The system is not color blind or free of corruption or grievous errors. I witnessed such examples of corruption during my time as a corrections officer, including the wrongful incarceration of a man for six years on death row while the District Attorney suppressed evidence that this same man had been in the county jail the very night of the murder! It should go without saying that such injustices and “mistakes” are unacceptable to us as Christians.
Ultimately we are left with the opportunity to pray for and ask the mercies of Christ Our Lord upon the members of our legal system, our inmate population and the many families that have been forever changed by such crimes.
By Jessie Kirchner
Three hundred and fifty-five people currently await execution on Texas’s death row. By the time this article is published, there may be one less. Hank Skinner is due to die on March 24 unless Texas grants him the reprieve he is requesting for DNA tests that he claims will prove his innocence.
Skinner is one of over thirty-two hundred death row inmates in the United States, where the distribution of capital punishment forms a complex patchwork of authorizations, moratoria, and bans. Essentially, thirty-three states and the federal government authorize it, though several have not executed anyone in decades. The death penalty is reserved for those convicted of murder and some federal crimes including treason and espionage. Kansas, New Hampshire, and the U.S. military have de facto moratoria, meaning that although they permit execution, they have not carried it out since the so-called modern era of capital punishment began. Thirteen other states and Washington D.C. have abolished it altogether. New York and Massachusetts have technically banned it as well, since they do not have death rows and have not attempted to amend their death penalty statutes after they were ruled unconstitutional by state supreme courts.
Capital punishment dates back to the Colonial Era and was widely authorized until it underwent a national suspension in 1972, when the U.S. Supreme Court found it unconstitutional in Furman v. Georgia. The case consolidated several death penalty impositions involving trials where a jury determined guilt and sentenced the defendant in one phase. Typical of many capital punishment cases, the Supreme Court split 5:4. The majority was unable to agree on anything but the unconstitutionality of the trial procedure as a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.
Yet Furman halted executions until 1976, when the Court ruled a two-phase trial constitutional in Gregg v. Georgia. In this procedure, a jury first determines guilt and later deliberates on the sentence based on the crime and a balance of aggravating and mitigating factors. States speedily conformed their statutes to comply with these requirements. Gregg served as the watershed decision that ushered in the modern era of capital punishment, whose first execution occurred on January 17, 1977.
Since then, the Supreme Court has issued numerous opinions on the death penalty that aim to clarify its substantive and procedural scope. I touch on only a few relevant ones here, most of which expand or overturn early post-Gregg cases.
In this contentious area of constitutional law, the Court shows some unease and an unusual willingness to depart from the traditional principle of stare decisis — i.e., consistency in upholding established precedent. For example, regarding the crimes for which a death sentence can be imposed, the Court ruled in Kennedy v. Louisiana (2008) that states could only use it in convictions involving murder. This expanded an earlier holding that it was a disproportionate sentence for rape when the victim’s life was not taken.
The Court also circumscribed the kinds of defendants who may be executed, making exceptions for the insane in Ford v. Wainwright (1986, the mentally handicapped in Atkins v. Virginia (2002), and juveniles in Roper v. Simmons (2005). Roper is particularly noteworthy for its uncharacteristic reliance on foreign law to demonstrate how rare the U.S. was in its practice of imposing the sentence on offenders less than eighteen at the time of commission.
Another important case addressed concerns about the high rates of death sentences imposed on members of racial minorities as contrasted with white defendants. In McCleskey v. Kemp (1987), the Court found that such arguably incidental disparities weren’t unconstitutional per se, but that proven intentional racial discrimination would violate equal protection of the law.
Finally, House v. Bell (2006), dealt with new forensic DNA tests that sometimes uncover previously inaccessible evidence. The decision authorized judges to consider post-conviction DNA evidence in appeals of death sentences. Other procedural cases have discussed the kinds of circumstances a jury should consider at trial and the importance of providing defendants with adequate counsel.
Interestingly, the U.S. is the only industrialized democracy where the death penalty is authorized and still carried out, as the others currently have de facto moratoria. Given the vast majority of states that still permit the practice and the tendency of the Supreme Court to set cautious boundaries around it rather than banning it altogether, it’s likely that it will main entrenched in the American criminal justice system for a long time to come. Proponents usually cite the possibility of deterrence – i.e., the protection of society from particularly dangerous offenders and the strong incentive not to follow their example. Retribution for especially brutal or heinous crimes is another major justification along with the sense of finality execution can offer to the families of crime victims.
The Orthodox Church, and Christianity in general, accommodates a full range of stances on the issue of capital punishment. Whether for it, against it, or somewhere in between, we can all unite in praying for death row inmates, their families, and those of their victims. One specific concern is the fairness and integrity of the process. As long as a fallible criminal justice system continues to sentence people like Hank Skinner to death, it is essential that the state at least do its best to avoid executing the innocent.
Editor’s Note: It was announced that Hank Skinner was granted an indefinite stay of execution by the Supreme Court just hours before his scheduled execution so that he can attempt to prove his innocence through DNA testing.
By Andrew Boyd
I was home in early October and sifting through the pile of mail in my room when I first saw it. There was no mistaking the envelop, white with blue letters in the upper left hand corner that spelled out “Jury Administration.” My heart sank. I opened it and accepted the inevitable inconvenience of Jury Duty. It’s not that I am opposed to doing my civic duty; in fact in other circumstances I’d be excited to do it. The problem was that I attend school in New York, and I had to go back to Connecticut for the day to fulfill my obligation.
Early on a cold January morning, I arrived at the monolithic courthouse in New Haven, Connecticut. I was surprised to see several local news crews outside the building. Entering the cold, institutional building, I breathed a deep sigh and prepared myself for a long day of boredom. Sitting down in an uncomfortable chair, our group of potential jurors was indoctrinated into the world of Justice via a short video and a speech from a bureaucrat. Then we were told to wait.
While we all sat around waiting to be called, we of course commenced in socially appropriate small-talk. I asked the group around the coffee pot about the news vans outside. They all looked at me with confusion and amazement.
“Where have you been?” one man asked.
“Oh, I go to school out of state.”
“They’re selecting jurors for the Petit Case today.”
Then it all hit me. Of course, how could I forget the Petit Case? On the morning of July 23, 2007 police arrived at a house in Cheshire, a rather normal Connecticut town, to find two men fleeing from a house engulfed in flames. Inside the house, officers found Dr. William Petit, who had been beaten, and the bodies of his wife, and his two daughters, age seventeen and eleven. I will spare you the more gruesome details of the case, which a quick Google search can reveal to you. The two men, who were convicted felons, were immediately captured by police.
Jury selection for this case had proven extremely problematic. Apart from finding someone who actually has the time for a drawn out criminal trial, finding an unbiased juror was proving to be almost impossible. The case had been over the local and national news for years. In addition, the police had caught the suspects at the scene of the crime. At the time that I was called for jury duty the court had gone through eighty potential jurors and had found only one acceptable. Several of the potential jurors in the room with me were from Cheshire, and knew the family.
In Connecticut, we still have capital punishment. In capital cases, Connecticut juries vote on whether to apply the death penalty after they find the defendant guilty. Our governor cannot commute the sentence or grant a pardon. Although there are currently ten inmates on death row, there has only been one execution in the state since 1960. Prosecutors are seeking the death penalty in this case.
I started polling people around me, asking them if they would sentence one of these men to death. Everyone I asked said, with stern certainty that they would vote to execute. I was stunned. Some other potential jurors offered even more colorful responses, such as “I’d kill them both with my bare hands for what they did to that family.” Maybe I’m just a naïve kid from the Connecticut suburbs, but the “eye for an eye” attitude prevalent in the room surprised and disturbed me. I asked why the men hadn’t simply taken a plea bargain, since they were caught at the scene of the crime.
“Because they have a better chance of living if they get convicted and sent to death row,” one of my potential-juror friends responded.
“I don’t understand.”
“If they plead guilty and go to prison, one of the inmates will kill them within months for what they did to those girls, but if they get sent to death row by a jury, they can languish there unharmed and wait for their appeals process to play out, or for the state to do away with capital punishment.” It had never occurred to me that for some crimes, being sent to prison is a death sentence.
Ultimately, we were all dismissed early from the jury room as the court was not going to be selecting any jurors that day. I am sure I would have been dismissed anyway because I never would have been able to vote on whether a person should live or die. There was so much gray area in this situation; it was overwhelming to me, especially the idea that sentencing these two men to death could actually save their lives. How do we respond to irrational violence? I would argue that the only rational response to anything is love, but how that’s acted out in these situations seems open to much debate. In the end, what I came away with was that the decision to end a life, to take away the opportunity for someone’s salvation, should not be left up to a small panel of your peers.
Protodeacon Joseph Matusiak is the editor of WONDER and the Director of the Department of Youth, Young Adult, and Campus Ministries of the Orthodox Church in America.
Father James Guirguis is the rector of Saint George Antiochian Orthodox Church in Utica, New York. He is a graduate of St Vladimir’s Seminary and a former Death Row Prison Guard.
Father Ted Bobosh is rector of St. Paul the Apostle Church in Dayton, Ohio. He is also a member of the Metropolitan Council of the Orthodox Church in America.
Ms. Jessie Kirchner is enrolled in a dual-degree program in law and social work at the University of Michigan, having previously completed her undergraduate studies at the College of William and Mary. She hopes to pursue a career in conflict resolution after graduation. She attends St. Catherine of Alexandria Antiochian Orthodox Mission in Ann Arbor, Michigan.
Mr. Andrew Boyd is a student at St. Vladimir’s Seminary in Yonkers, New York and a graduate of the University of Connecticut. He is also managing editor of WONDER.
We thank them all for their contribution.