The Briefing, Albert Mohler

Tuesday, October 19, 2021

It’s Tuesday, October 19, 2021.

I’m Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.


Part I

The Biden Administration Asks Supreme Court to Reinstate Boston Marathon Bomber, But Still Says it Will Stop Federal Executions? Sometimes, Irony Reveals the Truth

The issue of the death penalty is one of the weightiest and most controversial issues facing our society. And it should be weighty, after all, we’re talking about the ultimate sanction, the ultimate punishment. The entire issue of capital punishment has to be addressed in a way that is very humble, sober, but nevertheless, very, very clear understanding what justice will require. But right now, there’s a very interesting drama playing out on the issue of capital punishment and the death penalty, and it’s playing out right now in its most interesting phase at the United States Supreme Court.

Just days ago, the justices heard the case brought by the federal government on appeal, asking the Supreme Court to reinstate the death penalty on Dzhokhar Tsarnaev. You’ll recall he was the younger brother of the two terrorist brothers involved in the Boston Marathon bombing. The other brother was killed in a shootout with police. Dzhokhar Tsarnaev, who was then 19, was taken into custody. He was eventually convicted on dozens of very serious felonies, including many cases of murder. He was given the death penalty in a federal trial, but there’s a huge issue here. The crime took place in Boston, of course, connected with the Boston Marathon. The terrorist attack took place in 2013 in the running of the Boston Marathon, but Dzhokhar Tsarnaev was not tried for the most important cases of murder in the local courts there, in the state courts in Massachusetts, but rather, he was tried in the federal courts. He was prosecuted by the federal government. Now, why?

Well, one of the big reasons was moral. The fact is that Massachusetts, a very liberal state, did not and does not have a death penalty even for mass murder, but the United States government does. And the United States government tried the case because there was an enormous outpouring of outrage that made very clear that only the death penalty would fit this crime. Therefore, the federal government pressed for the death penalty and got the death penalty. Dzhokhar Tsarnaev’s death penalty was reversed by federal courts because of claims by his defense that he had not been able to bring in evidence that his older brother had basically controlled him. But, as just about every observer of the court’s hearing in recent days pointed out, it doesn’t appear that that argument is going to have much traction before the Supreme Court. Adam Liptak reported on the story for the New York Times but the headline tells the story; “Supreme Court seems ready to restore death sentence for Boston Marathon bomber.”

Let’s just remind ourselves what took place here. The case is known as United States Versus Tsarnaev, and the Justice Department of the Biden administration continued an action undertaken by the Trump administration to ask the Supreme Court to reinstate the death penalty in the case of Dzhokhar Tsarnaev. What makes it really interesting? Well, let’s go back to the federal trial. When Dzhokhar Tsarnaev was convicted of all of these crimes, including mass murder and terrorism, and was given the death penalty, who was the president of the United States at the time? It was Barack Obama. Who was the attorney general at the time? Eric Holder.

Now, when Eric Holder was up for confirmation as attorney general before the Senate, the Senate pressed him on the issue of the death penalty. Eric Holder said that he is personally opposed to the death penalty, but he would apply it where the law, as it exists, would also require it or indicate it. But, that’s a political calculation. And the Obama administration made a very political calculation, I believe the right calculation, in deciding to go for the death penalty, even though the attorney general, who is constitutionally the chief federal law enforcement officer of the land, said that he personally did not believe in the death penalty.

Well, what about President Obama himself? Back in 2015, President Obama said, “There are certain crimes that are so beyond the pale that I understand society’s need to express its outrage. I’ve not been opposed to the death penalty in theory, but in practice, it’s deeply troubling.” Well, we need to look at that statement a bit further. That was President Barack Obama in 2015. We need to note that what he cites here is a certain sense of justice, but it is expressed in political terms in society’s need to express its outrage. What President Obama did not cite is the fact that he basically doesn’t believe in the death penalty in principle. He says he hasn’t opposed it in principle. But even though he seems to oppose it in practice, the reality is that if his strongest argument for it is society’s need to express its outrage, we’re left with a very morally ambiguous argument.

And for Christians, this is going to require a closer look, but it’s also going to require us to look more closely at what’s going on right now, because the president of the United States right now is President Joe Biden. Well, where is Joe Biden on the issue of the death penalty? The first answer is not where he was for many years in the Senate. But when he ran for the democratic presidential nomination and when he ran for election in 2020, he ran against the death penalty. One of the early actions of his administration was to declare a moratorium on the federal death penalty. Now, that would include Dzhokhar Tsarnaev. So, what sense does it make for the Justice Department to go before the Supreme Court and ask for the reinstatement of a death penalty in which it does not believe and which the president of the United States has said he will not apply? Now, that irony was noted by justices of the court.

In the oral arguments before the Supreme Court last week, Justice Amy Coney Barrett pondered the issue out loud, “I’m wondering what the government’s end game is here.” She went on, “The government has declared a moratorium on executions, but you’re here defending his death sentences. And if you win, presumably, that means that Dzhokhar Tsarnaev is relegated to living under the threat of a death sentence that the government doesn’t plan to carry out.” Responding to the statement by the justice, a deputy solicitor general representing the Biden administration said, “The administration continues to believe the jury imposed a sound verdict, and that the Court of Appeals was wrong to upset that verdict.” So, what’s the actual argument? Is the Biden administration saying that the verdict that included the death penalty verdict was sound? That’s the words of the deputy solicitor general representing the Biden administration, but the Biden administration has put an unconditional blanket moratorium upon the federal death penalty, at least upon executions, and it says that it will not carry out executions.

Now, what we see here is something that requires a really close look. What we see here is the fact that the American people will not put up with a declaration by the Biden administration, that it is simply going to discard or no longer defend the death penalty against Dzhokhar Tsarnaev. But, there’s a lot going on here. Go back to the fact that after the 2013 bombings, there was enormous outrage and the demand that justice required the death penalty. The case in its most important section was thus moved to the federal courts in order that there would be an applicable death penalty. The jury convicted Dzhokhar Tsarnaev of dozens of violent crimes, including mass murder and terrorism, and the jury applied the death penalty.

Thus, we find the fact that going back to the beginning, it was a demand for justice that produced the death penalty. At the time, the Obama administration said that the death penalty was necessary because of the demands of justice. And now, you have the Biden saying that the death penalty is required in this case because the jury reached the right verdict, but that the death penalty will not ultimately apply because he has said that there will be an end to federal executions under his watch. But, here’s where you need to watch something else. The anti-death penalty activists were encouraged that the Biden administration put in a moratorium on federal executions, but they’re beginning to figure out that that moratorium might not be all that it appears.

A moratorium is a temporary stay, which is to say that another president or even President Biden in the future might decide to reinstate the executions undertaken by the federal government. But, what you’re looking at here is the fact that there’s a divided mind in the Biden administration. It’s against the death penalty, but it cannot tell the American people, in the case of the Boston Marathon bomber, that it is not going to defend the death penalty. It wants to defend the death penalty, but it has said that it will not carry out the death penalty. Justice Amy Coney Barrett is not the only one to see the irony, the split of mind here.

In this respect, to the case of Dzhokhar Tsarnaev doesn’t stand alone, because a very similar dynamic is playing out in another case of mass murder. And this is the mass murder undertaken by Dylann Roof, killing many members of an African American congregation in the city of Charleston. There was widespread demand for his execution. There was the sense and an overwhelming percentage of the American people that the death penalty would be the only penalty that would represent justice in such a case. And you had both state and federal prosecutors in agreement on that case. But, it’s come up just even in recent days, even after the Supreme Court hearing, just a matter of last week. In this case, the scene shifts to Florida, where the headline in the New York Times is this: “Suspect in Florida School Shooting to plead guilty to murder.”

In this case, it’s Nikolas Cruz, who was age 19, the same age by the way as Dzhokhar Tsarnaev, when he undertook a mass murder. He committed that at the Marjory Stoneman Douglas High School in Parkland, Florida on February 14, 2018. He killed 14 students and three faculty members in what history will record as one of the deadliest shootings in American history. He also wounded 17 other people. Now, why did Nikolas Cruz plead guilty or announce that he would plead guilty? Why did the judge press him on his understanding of the fact that in pleading guilty he was basically acknowledging the crimes and he was setting himself up for prosecutors to go for the death penalty? Now, why would he do that? Well, he did that in order to avoid the death penalty. And you asked, “How does that work, if even the judge made clear that in a future plea of guilty he wants to issue before the court, he would open himself up to prosecutors seeking the death penalty?”

Well, lawyers and observers have noted that in this case, Nikolas Cruz and his defense team couldn’t possibly want to allow the repeated testimony of what actually took place in that Marjory Stoneman Douglas High School on that day of February 14, 2018. The continuous testimony would lead to increased moral outrage, and that would lead to the likelihood that a jury would unanimously apply the death penalty. In seeking to change his plea to pleading guilty, Nikolas Cruz is hoping to at least convince potentially just one juror not to apply the death penalty. But, as the news coverage of the case of Nikolas Cruz also makes clear, there is widespread outrage that leads to demands for the death penalty and some very public demands made not only by the loved ones of those left behind but others in these communities. Now, this leads to something we need to note. As Christians, we understand that a part of our responsibility is to create and to encourage and to perpetuate a system of just laws.

Would a system of just laws continue to apply the death penalty? Would it apply the ultimate sanction? Is our society by the demand of justice willing and ready to end the lives of those who will take other lives by premeditated murder, terrorism, not to mention mass murder in this case? Now, polling over time has indicated that Americans are decreasingly supportive of the death penalty, but nonetheless, they’re overwhelmingly supportive of the death penalty in certain cases. Now, here’s what we need to note. If you believe that the death penalty should apply in certain cases, then you’re not categorically against the death penalty. If you believe, and surveys indicate this as overwhelmingly true, if you believe that the death penalty is just and righteous and rightly and unavoidably applied in many cases or in just some cases or in just, say, one or two cases, in any event, you are not categorically against the death penalty.

If you believe the death penalty is a just sentence in any case under any circumstances, then you believe the death penalty is just. The question is when is it justly applied? Now, here’s where we understand. In the history of Western civilization, there has been a narrowing of the crimes that would be open to the death penalty, and that’s a good thing. For instance, you had the death penalty for some forms of petty theft, going back to the medieval world. You had the death penalty for any number of crimes. But, a part of the progress in justice, in terms of even our own civilizational history, is the fact that the crimes covered by the death penalty have been increasingly narrowed. In general right now, the death penalty is applied in the United States for premeditated murder and often premeditated murder with aggravating circumstances. There is no doubt that in the case of Dzhokhar Tsarnaev, or Nikolas Cruz, or Dylann Roof, there were plenty of aggravating circumstances.

Now, why would thinking intelligent people be opposed to the death penalty? Well, there would be two basic reasons. Either you’re opposed to it in principle, or you are opposed to it in application. It’s important to make that distinction. There are some people who will say, “I’m not opposed to it in principle, but in practice, it isn’t fair. It isn’t right. It’s too extreme. We might make a mistake.” Now, those who oppose it in principle simply say, “There are no crimes imaginable to which the death penalty is the proper penalty.” And here you see what is basically the liberalization of the Western conscience over time. Now, again, this has not been entirely bad. I’m quite certain that the vast majority of Christians in the United States would say that it’s categorically wrong to execute, say, a child for shoplifting, but that would’ve happened in jurisdictions going back to the medieval period. Such executions were probably actually very rare, but nonetheless, they were on the books, and that’s a problem.

But, to be categorically in principle against the death penalty again means you have to be against the death penalty and every single situation. And there are societies that are there. Just can consider recent cases of mass murder in some Scandinavian countries where there is no death penalty. There isn’t even an actual sentence of life without the possibility of parole. Now, that makes no moral sense to the vast majority of Americans. It might actually make no moral sense to the vast majority of people around the world. I would say that’s a demonstration of common grace. If you’re against the death penalty in practice but not in principle, you might say, “Well, here’s the problem. As you look at the actual executions undertaken, say, in the United States, it is clear that it is racially disproportionate. It is socioeconomically disproportionate. Now, is that a fair accusation or not?” Well, in many cases, it is a fair accusation.

Then, it comes down to this. We would like to believe in the United States, that justice cannot be bought. But, the reality is that if you have enough money and you can afford lawyers that can simply nearly indefinitely play out appeals on any number of either justified, or more likely unjustified grounds, the reality is that you can strike some kind of deal. You can wear the prosecution down. You can basically nearly run the government out of money. If you have the financial resources, it’s very, very difficult for the government to get a death penalty case against you, much less to execute you. But, a very clear response to this opposition to the death penalty in practice is that we need to get the practice right. We need to make the practice more just. We need to make certain that there is no distinction in the application of justice when it comes down to race, or ethnicity, or religion, or, yes, wealth.

When it comes to opposition to the death penalty, we need to require people to be honest about exactly how they are opposed. And once again, the interesting thing is that the vast majority of them are actually, in principle, not opposed to the death penalty in all situations.

Part II

What Is Behind The Death Penalty? At the Most Foundational Level Is The Imago Dei, Justice, and the Value of Human Life

But then that leads us as Christians to come back to a more basic issue. Looking at all these cases and hundreds and hundreds of other cases live right now in the U.S. courts and thousands and thousands of cases behind us, we have to understand that the death penalty is an indication of the fact that justice is a very deep passion within human beings. It is such a passion within us that requires some explanation.

Christians understand that the explanation is not just some kind of external standard of justice that is imposed upon us or inherited from the civilization in the culture. It is instead traceable only to the fact that a just and righteous God made us in his image and implanted within us a moral sense, a conscience, that demands that the punishment must fit the crime. And thus, when you look at certain crimes, only the death penalty will do. But, Christians also need to remember that God did not leave us just to figure this out on our own.

The death penalty for premeditated murder shows up as early as Genesis 9, and it comes in the very structure of the Noahic covenant, the covenant that God made with Noah. And even as God saved Noah and his family in the ark, when they were upon dry land and God gave Noah and through Noah the rest of us the promise of the rainbow sign, that he would never again destroy the earth by flood. God also imposed the death penalty for premeditated murder. If a man takes another’s life by his own hand, by man’s hand, his own life shall be taken. And, not only that, but God went on to say it is because he has made human beings in his image. Thus, premeditated murder is a premeditated act of violence not only against a human being but against God, for that human being is made in God’s image.

The Biden administration was caught in recent days holding two different minds, making two contradictory arguments on the death penalty. In one sense, the Biden administration’s position is indicative of a larger confusion in the United States, rarely caught so publicly as was the Justice Department in recent days. American need to think about this issue very, very clearly. American Christians are reminded that we have a particular responsibility in thinking about the issue of the death penalty, the reality of the horrible nature of murder, the reality of mass murder, and even murder by terrorism in our day. And the fact that we are made in God’s image, and this plants within us an insatiable passion for justice.

Part III

His Battles Are Over: The Complicated Life and Legacy Of General Colin Powell As Military Leader And Secretary Of State

Finally, Americans yesterday were no doubt mostly surprised to hear of the death of General Colin Powell, former secretary of state of the United States, former chairman of the Joint Chiefs of Staff of the United States military. He died of complications from COVID, and the family revealed that he had an underlying complication of multiple myeloma, a form of cancer. Colin Powell’s story is quintessentially American. He was born in New York to immigrants, immigrants from Jamaica. At City College of New York, he entered the ROTC program and found his way into the army. And in the army, as he testified, he had found his home. He would stay there for over 30 years. He would rise through the ranks, becoming a general officer, eventually a four-star general. Becoming not only a major general officer of the military but chairman of the Joint Chiefs of Staff.

Heavily involved in the nation’s National Security Apparatus, advising presidents, he would eventually become secretary of state of the United States. When he was appointed chairman of the Joint Chiefs of Staff by then President George H. W. Bush, he became the youngest and the first black chairman of the joint chiefs. Later, President George H. W. Bush’s son, President George W. Bush, would appoint him United States Secretary of State. Colin Powell, as general and as secretary of state, was not known for grand theories, as Bradley Graham of the Washington Post reflected, “Other than his well-known reservations about military intervention, General Powell, as he often acknowledged, was not given the grand principles. He saw himself primarily as a problem solver and expert manager.”

Colin Powell saw himself in every role as a mixture of a pragmatist and an institutionalist. He was an institutionalist because he believed in leadership as the preservation and perpetuation of institutions, such as the United States military, the U.S. Army, the Department of State, the larger structure and institutions of the United States, and beyond the United States of the International Order. As a pragmatist, he didn’t operate on the basis of grand theory. He was instead someone who operated on the basis of trying to solve problems. Now, this led to many Americans agreeing with him at times and disagreeing with him at others. He was not someone who was closely identified with the principles of either political party, though he’d been basically advanced by Republican presidents.

Colin Powell would be involved in one great controversy that would define his place in history. He represented the Bush administration in hearings and making public arguments, including before the United Nations, accusing the regime of Saddam Hussein in Iraq of both possessing and seeking to use and to possess further weapons of mass destruction. He would later describe that testimony is based upon a giant intelligence failure that he acknowledged was a blot on his career, but he also split the house even amongst those who had been his colleagues. And there was a division amongst Republicans about Colin Powell. Colin Powell, we should note, as an institutionalist and as a pragmatist, was not in favor of what most social conservatives were seeking, including, say, the defensive marriage. Colin Powell gave at least some level of positive support to the LGBTQ+ activist community.

And furthermore, Colin Powell is also remembered for the fact that even though he had been closely identified with Republicans, in 2008, he endorsed President Barack Obama in that presidential election, and remember, that meant that he endorsed then Senator Barack Obama against someone who had been a very close ally, United States Senator John McCain, the Republican nominee. Most lives are complicated. The life of Colin Powell, particularly complicated, and for that matter, quintessentially American. Also lived out on a stage in which he became a name known not only throughout the United States but throughout the world. Here’s where Christians need to remember something. We are indebted to everyone who puts his or her life on the line for our nation and our freedom. Colin Powell did that. He did that at personal risk. He did that with courage in Vietnam, and he gave courage to the American military when it most counted. His failure on the support of social issues very important to us is to be lamented. His service to the country, his dedication and his courage are to be commended.

How do Christians think about this? Well, we think about it in biblical terms. When it comes down to complicated humanity, individuals are complicated. Given the biblical understanding of human nature and human behavior, the human heart, we understand that it’s important for us to think those issues through. Finally, like Former President Dwight David Eisenhower, Colin Powell believed that perhaps the greatest title he had ever been given was general. In retirement as president, the Former President Dwight Eisenhower liked to be called General, and his successor in office, President John F. Kennedy, restored him to his five-star rank as general. He thought that was the great title.

Likewise, General Colin Powell preferred to be known as general, even as he had been secretary of state. That tells us something about his commitment to the United States military. And the nation must take note when the bugles play “Taps” for the late General Colin Powell.

Thanks for listening to The Briefing.

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I’m speaking to you from Raleigh, North Carolina, and I’ll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

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