THE DEATH PENALTY: A STAIN ON OUR CONSCIENCE by Jan Michael Ostrowski

Execution of George Stinney, 1944, age 14 (Cinematic reenactment)

Reflecting on the first weeks of 2021, it seemed that the United States had become almost unrecognizable to me. On January 6th, five people died in what could best be described as a coup attempt to overturn an election and prevent the peaceful transference of power. This happened during the worst health crisis in over a century, with the US Covid death toll reaching almost 4,000 per day, and surpassing a total of 400,000 dead since the beginning of last year.

Amidst all this carnage, what had gone practically unnoticed was the rush by the Department of Justice since last July to execute more federal prisoners in one year than they had since 1896. In the latter half of 2020, ten federal prisoners had been put to death; this contrasts with the seven executions carried out by the states, a 37-year low. For the first time in US history, the federal government had executed more prisoners than in all of the 50 states combined. Three more condemned were executed in January before the new administration took office. This also broke with a 130-year precedent of pausing executions during a presidential transition.

The debate over the death penalty in the United States can be identified as two distinct, if related, issues. The first, and most obvious, is the immorality of putting another being to death. Though the proscription against murder is almost universally held, there seems to be a surprising amount of wiggle room when it comes to state-sanctioned killing. Justifications for the penalty run the gamut from vengeance through solace to friends and family, to prevention of recidivism.  

On the other hand, we’ve seen some strong opposition to the death penalty from sources of moral authority.  People such as Sister Helen Prejean are uncompromising voices for the abolition of capital punishment. In response to the latest federal executions, the Catholic nun and activist stated, “President Trump’s overall approach to the way he tries to hold power is to use violence. He upholds white supremacy groups, people who use violence. He encouraged the group to storm the Capitol. And executions are just part of his whole way of doing things.” Pope Francis has been a vocal opponent of capital punishment as well.

While the voices of the Early Church left opinions on capital punishment that are often inconsistent and wavering, we do have some writings from pre-Edict of Milan Fathers that would suggest that taking of life under any circumstances would be contrary to the Gospel. Justin Martyr in AD 150 stated that Christians are expected to “refrain from making war upon our enemies” and would rather die than take a life in self-defense (First Apology, 1.39).

Justin’s contemporary, Athenagoras, makes one of the strongest stands against the death penalty around AD 177 when he states, referencing gladiator games, that for Christians seeing “a man put to death is much the same as killing him.” He continues, “We cannot endure even to see a man put to death, though justly. … How, then, when we do not even look on, lest we should contract guilt and pollution, can we put a man to death?” (A Plea for the Christians, 35).

About seventy-five years later, Saint Cyprian wrote in Epistle 56 (To Cornelius in Exile, Concerning His Confession) that Christians “cannot be conquered, but that they can die; and that by this very fact they are invincible, that they do not fear death; that they do not, in turn, assail their assailants, since it is not lawful for the innocent even to kill the guilty…” His intent here is clear, that though Christians have been victims of the death penalty, using it themselves would violate their most basic principles.

Similarly, Lactantius (c. 250 – c. 325), who became an advisor to Constantine, was uncompromising in his opposition to the death penalty. In his The Divine Institutes, Book 6, Chapter 20 he writes:

When God forbids us to kill, he not only prohibits the violence that is condemned by public laws, but he also forbids the violence that is deemed lawful by men. Thus it is not lawful for a just man to engage in warfare, since his warfare is justice itself. Nor is it [lawful] to accuse anyone of a capital offense. It makes no difference whether you put a man to death by word, or by the sword. It is the act of putting to death itself  which is prohibited. Therefore, regarding this precept of God there should be no exception at all. Rather it is always unlawful to put to death a man, whom God willed to be a sacred creature.

Lactantius is clear that, without exception, Christians are forbidden to put people to death.

Later, after the Edict of Thessalonica in the fourth century AD, St. John Chrysostom seems to acknowledge that capital punishment is within the government’s authority, though he pleads that such punishment not be used as an act of conscience. Chrysostom recounts (Homilies 17 on the Statues, 3) that monks admonished the Emperor for using such authority by saying, “We will not give you leave, nor permit you to embrue the sword, or take off a head.” The monks continue, “…but if you put to death the image of God, how will you be again able to revoke the deed!”

In this, His All-Holiness Ecumenical Patriarch Bartholomew of Constantinople speaks as heir to a long tradition reaching back to the patristic era. Last October, he declared that the death penalty was incompatible with Christian teaching when he said, “The attitude of a society toward the death penalty is an indicator of its cultural orientation and consideration of human dignity. The worthy system of European constitutional culture, of which one of the fundamental pillars is the idea of love as an expression of its Christian beliefs, requires us to consider that every man must be given the possibility of repentance and improvement, even if he has been condemned for the worst crime.” He continued, “It is therefore a logical and moral consequence that one who condemns war also should reject the death penalty.” 

Patriarch Kirill of Moscow takes a more ambivalent position; he recounts that the death penalty was recognized in the Old Testament, and suggests that it would be acceptable under certain conditions. Yet he has also stated that he is against the penalty being exercised in today’s Russia, as it can be abused under the current legal system.

One could reasonably argue that no legal system anywhere is infallible or free of bias or potential abuse, and that should preclude giving the government the right to execute its citizens, particularly here in the United States.

Which leads to the second issue, i.e., the arbitrary manner in which the death penalty is applied in the US, which only serves to make a mockery of the American judicial system. The juxtaposition of the spate of presidential pardons offered by the Trump administration over the last few months with the unprecedented rush to execute prisoners exposes for all to see a system where race, economic status, and privilege play an equal if not greater role than the severity of the crime in determining how sentences are applied. Justice here is not blind. The more notable recipients of the pardons were wealthy white men with connections to the White House. Some had started serving their sentences, while others had not. Those who hadn’t willfully refused to admit guilt later retracted their guilty pleas. None offered contrition.  All will now be free to live their lives despite having been found guilty of serious crimes for which they have shown no remorse, the perks of privilege.

Contrast this with the overwhelmingly poor, disadvantaged and often non-white prisoners on the previous administration’s execution schedule. The last week of the Trump administration saw the execution of the final three death row prisoners. Lisa Montgomery was convicted of a truly unthinkable crime, but was hopelessly damaged by a lifetime of sexual torture and abuse by her caretakers, a life the system had failed to protect. At the time of her execution, she was so brain damaged and delusional, the implementation of her sentence would have violated the 8th Amendment. Though a federal judge had granted Ms. Montgomery a stay, the Supreme Court denied the effort and she was put to death.

Corey Johnson grew up in poverty in a home marked by violence and instability. As a child he switched schools so frequently that his scholastic records didn’t always follow him, further hampering the ability to help him overcome his learning impairments. At age 13, he couldn’t recite all the months of the year and struggled to write his own name. By his early 20’s, his reading and writing skills were at the 2nd grade level. As an adult several intellectual disability experts have concluded that he was mentally impaired, yet the courts denied him the chance for a full evidentiary hearing to definitively ascertain an intellectual disability that would have disqualified him from the death penalty.

The latest casualty of this spiraling bloodlust, Dustin John Higgs, is a classic example of how arbitrarily the penalty is applied. Higgs was put to death for the murder of three women even though it was an associate, Willis Haynes, who shot them to death. Haynes, on the other hand, received a 45-year sentence. Higgs maintained his innocence until the end. His execution was originally scheduled for Reverend Martin Luther King Jr.‘s 92nd birthday. King’s son, Martin Luther King III, in an op-ed for the Washington Post, invoked one of his father’s speeches on the death penalty from 1957 when referencing Higgs’ upcoming execution: “I do not think that God approves the death penalty for any crime … capital punishment is against the better judgment of modern criminology and, above all, against the highest expression of love in the nature of God.” 

If the horror of state-sanctioned murder isn’t enough, the penalty has been plagued with unconscionable mismanagement and shady dealings. With the shortage of available drugs, some states have kept their suppliers a closely guarded secret, perfectly legal with “shield” laws, but lack of oversight makes it impossible to assess a manufacturer’s quality record. States have been relying on compounding pharmacies whose standards may be lax, calling into question the drugs’ efficacy. There have been instances where the condemned felt a severe burning coursing through their bodies when the drugs were injected, though the process was supposed to be painless.  Troy Clark, Christopher Young, Danny Bible, and Anthony Shore all indicated they felt burning sensations during their last moments. William Rayford writhed in pain and shook the gurney once the drugs had been administered. A paralytic is often used in the “three-drug cocktail,” giving a tranquil appearance to what could be a tortuous event. The chaos surrounding last-minute appeals can lead to what is tantamount to mock executions. Clarence Hill had already been strapped to the gurney with intravenous lines running into his arms when his appeal came through. Troy Davis was strapped to the gurney as well when the second of his appeals was announced. On the day the state of Georgia was finally able to put him to death, Davis received his fourth appeal early in the day, only to be led back to the death chamber four hours later. He had been strapped to the gurney twice that day. Shockingly, the state of Missouri executed Herbert Smulls before all his appeals had been exhausted.    

The death penalty has no place in a modern, civilized society, and only demeans us all. George Bernard Shaw said it best, stating that “murder and capital punishment are not opposites that cancel one another, but similars that breed their kind.” The ultimate punishment has never been shown to be a deterrent, and no enlightened society should risk putting an innocent to death, a possibility when such decisions are left to the hands of fallible men.

Cicero, though not necessarily opposed to the death penalty, particularly when used against his enemies such as Catiline and his followers, described crucifixion as “a most cruel and disgusting punishment”. He went on to say, “What shall I say of crucifying him? So guilty an action cannot by any possibility be adequately expressed by any name bad enough for it.”

For those who remain complacent about the death penalty, it’s worth noting that Jesus’ trial and execution were perfectly legal and appropriate by the standards of the time. That should give us all pause.

Jan Michael Ostrowski holds a BFA from the School of Visual Arts in New York City and  was a Master’s candidate in Art History at Hunter College, also in New York City, specializing in Late Antique/Early Medieval art and architecture. He spent his entire career in the private sector working in graphic design and marketing. Currently he teaches English to help those in immigrant communities transition and integrate more easily into their new surroundings in the US. His interests include the early Church, social justice, and humanitarian issues. He enjoys relaxing by reading French literature in the original. He is religiously unaffiliated. He has written previously for Orthodoxy in Dialogue. 

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