Friday, February 12, 2021

Part I

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Americans Are Changing Their Minds on the Death Penalty: What Does the Bible Say about Capital Punishment?

As we watch American culture and the shifts on the moral landscape, one of the most interesting developments in recent years has been the changing American mind on the issue of capital punishment, or the death penalty. The latest big news is really coming from the state of Virginia, where the Virginia Legislature, both houses, have now voted to end the death penalty in that state. It’s a huge move, because Virginia, over the course of recent American history has been one of the top capital punishment states in the United States. That is by number and by percentage it has been a very pro-capital-punishment state, and the number of its executions have been historically relatively high as compared to other states. But now, both of the chambers under Democratic control have decided to end capital punishment, and Ralph Northern, who is the Democratic Governor of the state, has indicated that he will sign the bill. But it’s not to him yet for an interesting reason.

The reason it’s not to him yet is because both chambers of the Virginia legislature are having to decide the question as to whether people who are now going to be sentenced to life in prison would be eligible for parole. Once the legislature works out that question, when they send the legislation to the governor, he has pledged to signed it. So as the media are basically reporting it, capital punishment legally is effectively coming to an end in the state of Virginia. Now, there are fascinating things behind this. First of all, you have the issue of capital punishment, or the death penalty. Then you have a society’s ordering of its laws, especially laws against something like capital murder. And then you look at the changes in society that are reflected in changes in the law. Now, when it comes to capital punishment, before thinking about Virginia and the change in its statutes, let’s just think about the logic of capital punishment.

And the Bible presents a very clear logic of capital punishment. And this is why, where you find a heavy concentration of those who are Christian believers, you tend to find a system of laws that includes capital punishment, or at least historically has done so, restricted for several crimes and with other biblical qualifications. The biblical rationale, the biblical case for capital punishment, or the execution of those who commit capital crimes, starts with the imago Dei. And that’s found in Genesis 1, where we’re told that human beings are made in God’s image. Now, that means more than even most Christians think. It doesn’t just mean that we have the privilege of bearing something, representing something. Indeed, the Bible says a being something, called the image of God that sets us distinct from other creatures, it also means that every single human being is an image bearer of God, which is to say that an assault upon humanity is an assault upon the creator, because we are made in his image. An assault upon us, an assault upon any one of us is an assault upon God’s own image.

Now that case is made by God himself in Genesis 9 in what we know is the Noahic covenant. After the end of the flood, when Noah and his descendants have survived, and the Lord gives Noah and all of us the rainbow sign of his promise that there will be no more universal flood, God also gives to humanity, particularly through Noah, and remember this, every single human being is descended through Noah and his clan. That’s a simple understanding of the Genesis account of the entire human story. We’re descended from Adam and Eve, but then we’re also descended from Noah and his descendants, because they are the only human beings who survived the flood. To Noah, and thus to humanity, was given this covenant. And in this covenant God said, that when a human being intentionally takes the life of another human being, because he has slain not only a human being, but the image of God, that he forfeits his own life. He or she forfeits his or her own life by deliberately taking another human life, assaulting the image of God. That same logic pertains throughout the Old Testament.

And of course, respect for the government’s responsibility to uphold law, even right until capital punishment is made clear in a text, like Romans 13, where Paul by the Holy Spirit speaks of the government’s responsibility to wield the sword against the evildoer, and to serve God’s purposes in doing so. So there’s a biblical logic. There are also biblical protections when it comes to the death penalty. For one thing, it is limited in its scope and application. For another thing, when it comes to say capital punishment for murder, the Bible sets up an extraordinary burden of proof and evidence. There have to be two witnesses of the actual crime. That is to say that the death penalty biblically defined could not be applied by Israel in the case of what might be called circumstantial evidence, there had to be eyewitness testimony, to the murder itself. There were also cities of refuge.

You can read the Old Testament and understand that there was a very high standard set. That’s also important, because every single human being in the process is made in God’s image. But as you understand the Bible’s approach to capital punishment, it comes down to this. The only way to uphold the dignity and sanctity of human life, is to understand that those who would willingly intentionally take another human life have forfeited their own. Now throughout most of human history, regardless of the civilization, there has been some form of capital punishment or execution. There’ve been certain crimes that have been set apart. Certain processes set in place. Those processes of criminal law, those systems of law and morality are somewhat different society by society. But Christians also understand from the Bible that there is a common moral impulse and a common moral knowledge that the creators embedded in nature, to such an extent that every single civilization has to come pretty quickly to the conclusion that treating intentional murder as a crime above other crimes is mandatory.

It’s necessary if you’re going to have any meaningful system of law and morality. But here’s where we also have to recognize, that when you were looking at something like the death penalty, it is the ultimate penalty. There is no way to make right a wrongful execution. In the United States, the death penalty was a part of the experience of the colonies, and also of America. And this continued throughout the 20th century. But toward the end of the 20th century, the United States in many places and in many circles noticed a falling off of support, a reduction of support for the death penalty. Now, there all kinds of reasons for this, but the most basic reasons a shift in morality. But then a shifted morality also led to a shift in the understanding of the law and a shift in the understanding of the criminal. Now, this gets to the fact that, as we discussed on The Briefing yesterday, there was a trend towards therapeutic definitions of wrongdoing.

And this is why you have so many people saying that they’re going to claim an insanity defense, or mental impairment, or some other kind of circumstantial or therapeutic argument. They may make an argument about deprived childhood. You go down the list, you can imagine the kinds of arguments that are now made in court. Arguments that wouldn’t have had any traction in previous centuries. Now, that’s a legitimate moral question, should those arguments have traction now, even if they didn’t have traction in the past? Well, the fact is that I think most Americans, including most American Christians, would understand that at least some of those arguments have a certain cogency or rationality, at least as applied to certain cases. But when it comes to a basic lack of confidence in the death penalty, it reflects some major shifts in the society. There’s a basic cultural impulse that has changed.

And it’s also reflected in the fact that most Americans don’t think very carefully about this. The effort has been made in the courts to try to find the death penalty unconstitutional, defined, they would argue, by the Constitution’s prohibition upon cruel and unusual punishment. But the problem there by intellectual honesty is the fact that the framers of the Constitution who wrote that language clearly did not believe capital punishment to be a violation of their constitutional language about cruel and unusual punishment. But of course, we also recognize that any punishment, even putting a child in time out, can be applied in a cruel and unusual way. But what’s really at stake here is the fact that the opponents of capital punishment want to bring about its end comprehensively. Now that raises another issue. When you look at American public opinion, you have a lot of Americans who say, yes, I have grave concerns about the death penalty.

You ask about the death penalty in the abstract, and many Americans will say, I’m opposed to the death penalty. I could be settled with something like life in prison without chance of parole, or in the case of what you now see debated in Virginia, life in prison, but there might be an opportunity for parole. But the fact is, when it comes to actual crimes, especially the most heinous of murders, you see Americans say, well, the death penalty ought to still be applied in at least some cases. So when it comes to most Americans, according to most research, their opposition to the death penalty is not absolute. It’s not comprehensive, but it is in some kind of general sense, a concern about the application and the nature of the death penalty. Another thing we have to note is that this rise of therapeutic explanations is also a part of a larger shift in the way that wrongdoers are understood. Criminals are understood.

There has been an increased attention, an increased traction to arguments that these people who do such horrible things are actually the victims of some kind of circumstance, the victims of some kind of therapeutic problem, the victims of some kind of psychosis, or some kind of therapeutic, or socio-economic explanation. But the reality is, that when it comes at least to the most heinous of crimes, almost all Americans understand, no, that just evil. Now, Christians understand that there’s a problem with just deciding based upon some kind of intuition or emotion what’s legitimately evil and what’s legitimately therapeutic. That’s why you have to have specificity in the law. But this is to say that, even as you have most Americans who are now saying that they have concerns about the death penalty, that says something about Americans right there, it might say one thing, it might say some other thing, but the fact is, most of them when pressed in unspecifics believe that the death penalty still ought to be applied in some sense, maybe the most egregious cases.

The same thing has been true by the way in Europe, where most of European nations outlawed capital punishment over the course of the last half of the 20th century. But even in those places, even in those countries in Europe, you did have the fact that even though many government officials and courts ordered an end to capital punishment, the people indicated by surveys and polls that they still supported capital punishment, at least in some sense. It’d be interesting to know what those numbers would look like now. But in the state of Virginia, this represents a huge revolution, not only in the law, but in the morality of the people of the state. Virginia had been adamantly pro-capital-punishment, now it is basically adamantly anti-capital-punishment. Now, did that mean that the people in Virginia changed their minds?

Well, to some degree maybe some people changed their minds. But the reality is, the great moral change in Virginia, which is also a very clear political change from red, that is to say a very Republican state to now what is clearly blue, a very Democratic state, it’s not so much by people in the state changing their minds as it is the population itself changing. That is to say, it’s people moving into Virginia. And in just a moment we’re going to look at some really fascinating data concerning that trend.

Part II

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The Shifting American Morality and the Rise of Therapeutic Explanations for Wrongdoing: What’s the Difference Between Retributive and Rehabilitative Justice?

But you have the headline in the New York Times and an article by Trip Gabriel, move to end capital punishment signals political change in Virginia. Or a headline in the Wall Street Journal, Virginia poised to ban the death penalty. You also have at the national level calls to end the Federal Government’s practice of capital punishment. Toward the end of the Trump Administration there were several executions.

Now President Biden, when he was campaigning for office, indicated that he did not support the death penalty any longer. He once had, now he says he does not. And he said that he would bring an end to federal executions. Now, given that reality, it’s likely that capital punishment effectively, if not legally, is coming to an end when it comes to federal crimes. But once again, the American people, if asked about this, tend to answer in two different directions. Do they support capital punishment? Well, not necessarily. Do they support it in certain cases? Well, yes, such cases as the execution of Timothy McVeigh, who was the bomber, whose death led to one of the worst massacres and terrorist attacks in American history. In this case, in Oklahoma City, Oklahoma, the bombing of the Murrah Federal Building there. That terrorist attack, that bombing took place on April the 19th of 1995, and it led to the death of 168 people and the injuring of 684.

Perhaps particularly touching the hearts of Americans, of the 168 people killed in the bombing, 19 of them were children in a daycare center on the second floor of the federal facility. So 168 people killed, 19 of them children, 684 others wounded. Now, when it comes to a case like that, at least at the time, there was very clear support for the death penalty to be applied in his case. Again, it’s interesting to note that you seem to have a dual kind of response. It’s going to be interesting to find out if the majority of the people in Virginia, even if they support the legislature and the governor ending capital punishment, actually believe that it should be ended in all cases. I would argue from a Christian worldview perspective that there is a revulsion towards murder, and especially, again, intentional murder, and beyond that, mass murder on a scale such as the terrorist attack in Oklahoma City. It’d be interesting to note if Virginians believe that the death penalty should be taken off the table comprehensively that would include that kind of crime as well.

Other problems with the death penalty in the United States have to do with imbalances and inequities. And again, conservatives and liberals fully recognize this when it comes to the economic status of a defendant and when it comes to the racial identity of a defendant. The reality is that there has been a racial imbalance. And again, this is just in controvertible, it’s one of those cases in which very clearly there is a racial imbalance, which has to do not only with the race of the defendant, but also the race of the victim and how that’s identified. And that’s been true throughout American history, at least to some extent. The other issue just has to do with money. The fact is, that in the United States in recent decades, if you have enough money to buy a very sophisticated legal defense, and by very sophisticated, that means bringing in all kinds of attorneys, and lines of evidence, and all kinds of arguments and all kinds of appeals, the fact is that very few persons of wealth are ever sentenced to the death penalty in the United States, regardless of the severity and heinous nature of the crime.

So again, Christians would understand that justice is supposed to be impartial in this sense. And so, if there are such imbalances, those imbalances would have to be fixed. Furthermore, there’s just a basic question of what kind of evidentiary standard should now be required for the use of capital punishment. Again, in the Bible, given the standards and the evidentiary ability of the age, the Bible set an extremely high standard, and we would understand that a good society, a moral society would do the same. But that doesn’t mean no standard and no capital punishment. Furthermore, as you look to the United States, one of the problems has been that the appellate process that has been given to criminal defendants in particular, the delay of the system of capital punishment in the states over the course of the last several decades, has separated in time the crime and the nature of the crime from the punishment of the crime.

Now that’s a problem, by the way. It’s a problem in terms of the law’s function, according to a biblical worldview, as a teacher. The law teaches, if the population can make a connection between the crime and the punishment. If over the course of years there is so much time that the society doesn’t remember the crime and the punishment is simply a matter of an administrative procedure, well, that turns out to be a problem. Now that of course leads to a very interesting debate. Should the law, should a moral law, a morally structured system of criminal law, should it ever be retributive, which is to say, should it ever be about retribution against the evildoer rather than some effort at rehabilitation? Well, let’s take the matter bluntly, when it comes to capital punishment, you’re not talking about an effort at rehabilitation. You’re looking at retribution, which is to say, this crime is so horrible, is so horrifying, it’s an assault that gets the entire community, that you can no longer be a part of us. You can no longer be a part of the human community.

Again, that’s a very clear biblical logic. But in our day, the morality has been so confused. And by the way, there is a connection. It’s not a causation that we can track when it comes to research, but there is a correlation. There’s a pattern between the secularization of a society and the liberalization of its laws. Now, as Christians, we can see the causality. But even secular observers simply have to say, well, yeah, they do track together over time. And we, as Christians, would say, well, that really does make sense. Well we will continue to track the story in Virginia, particularly, it’ll be very interesting, morally revealing to see how the legislature and the governor in the state of Virginia come up with the idea of life sentences. Will those life sentences be without the opportunity for parole?

One of the interesting things is, that when Americans are asked, would you allow for the end of capital punishment if people were sentenced to life without chance of parole? Well, an increased number of people will say, yes, they would go with the end of capital punishment with a life sentence with no opportunity for parole. Adding the opportunity for parole is an entirely different dimension. That’s why even the legislature in Virginia that was adamant with its democratic majority to bring about an end to capital punishment, it hasn’t quite settled the question as to whether those who are given the sentence of life should have the opportunity for parole. Again, we’ll be watching that.

Part III

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There’s a Migration of Progressives Happening in America Today: A Look at the Correlation Between Moral Change and Demographic Change

But when it comes to Virginia, we talked about the fact that there are big changes in Virginia. We’ve tracked that before, especially say in the 2016 and 2020 presidential elections. And when you’re looking at the legislature, you are looking at Democratic majorities in both of the chambers of the legislature, you’re looking at a Democratic governor.

And all of that is a basic change, particularly when it comes to the legislature. Virginia had been very red, now it’s very blue. And it’s a blue that has replaced the red, but mostly when it comes to the area of northern Virginia adjacent to Washington D.C. Now there are all kinds of issues for us to consider when it comes to this, and we’ll be looking at this further. But there’s one particular argument here that I think is really interesting, and you certainly have to tie it to the capital punishment issue, as well as say the presidential election issue. When you’re looking at Virginia, as population has been burgeoning, as people have been moving from more liberal states into Virginia, but not just into Virginia in general, but the eastern part of Virginia, the northern part of Virginia close to Washington, D.C. Washington, D.C., like Silicon Valley, has an inordinate number of people who are living there, very high standard of living, very high cost of living, that is to say.

And as you’re looking at Washington D.C., you’re also looking at an economy that is buttressed by massive federal spending, certainly, to say the very least, an outsized percentage of people who are working for government or government funded parts of the economy. Almost by definition they tend to be very pro-government, pro-government-expansion, against any limitation or reduction in federal spending, but they’re also very morally and socially progressive by their own designation. And so you have a lot of people moving from more liberal parts of the United States, they’re moving into what had been a fairly rural and population distributed state. And now the population of Virginia is becoming very imbalanced, right adjacent to Washington D.C. And now it’s a blue state. It’s a blue state to such an extent that presidential campaigns in the future are simply going to put it pretty solidly in the blue column, even before we know who the candidates are.

But there is one particular statement that has to do with this, that includes more than the dimension of Virginia, but it’s really, really interesting as we think about the future of the country, and we will come back to this in weeks and months ahead tracking what this means for the United States. Norman Ornstein, who’s a very well-known social scientist in the United States, he’s at the American Enterprise Institute, sometime ago he tweeted these words, “I want to repeat a statistic I use in every talk. By 2040 or so, 70% of Americans will live in 15 States. Meaning 30% will choose 70 senators. And the 30% will be older, wider, more rural, more male than the 70%. Unsettling to say the least.” Well, he shows his own political bias perhaps there, maybe he thinks he’s just making some kind of objective observation. But the fact is, we’re looking at vast, vast moral change in America.

We often repeat on The Briefing that the closer you get to a coast, the closer you get to a city, the closer you get to a campus, the more liberal the society becomes, not just a little bit, but a very great deal. And when you look at these states where the populations are now gathering, with the exception, perhaps of a state like Florida, the 70% of Americans living in those 15 states, well, they’re going to mean vast changes in every one of those states. Virginia is just one example. We’re going to be looking in days ahead at what this means for individual states, what it means for the United States as a whole. But one thing it does mean is this, when it comes to changing demographics in the United States, it changes the morality. The moral changes tend to follow the demographic changes, demography being the composition of the society. But at the same time, the moral changes fueled the demographic changes, because people in the United States tend to want to live amongst people who agree with them on big issues.

Red state people want to live with red state people, blue state people want to live with blue state people, sometimes when it comes down to individual neighborhoods in a community. The fact is, we are looking at vast moral change in the United States, and not just moral change, but missiological change. We’re looking at a change at the American mission field when it comes to church planting, evangelism, when it comes to how Christians understand the challenge of living, witnessing, serving Christ faithfully in the United States of America. Big changes here far beyond red and blue. The map tells the story, but only part of the story. We need to think about the rest of the story as well.