Capital punishment, the taking of a legally guilty human life by duly authorized civil authorities, is the natural, divinely instituted consequence of certain grave crimes against God and man. There are some crimes that are so great, the consequences so otherwise irreparable, that the only just remedy is for the state to take the life of him who committed such a crime. Those who believe the Bible to be God’s Word can hardly say that capital punishment is immoral without indicting the God in whom they profess to believe. Pagans, however, who have no recourse to special revelation (Scripture) are also able to see the justice of capital punishment in certain cases. Capital punishment has been practiced almost universally in human history until quite recently. We have been considering the case for capital punishment because it has become fashionable for some Christians to argue that to be “consistently pro-life” one must oppose it just as we oppose abortion. It is to this argument that we now turn.
The easy equation of the legal status of human life that is legally innocent before civil law with human life that has so violated civil and natural law as to deserve to be taken is not only sloppy but incoherent. Christian opponents of capital punishment rightly affirm that we are all made in the image of God and thus have a natural right to life and liberty (the relative absence of outward restraints). Human infants subject to abortion do share with murderers a common humanity. Both are made in the image of God. The infant is also manifestly human. He is a person deserving of legal protection. After all, humans conceive humans. We begin as zygotes or embryos and we mature to become an infant (foetus is Latin for infant) but we are always human embryos, and human zygotes, and human infants. The only difference between an infant it utero (in the womb) and an infant post-partum (after birth) is development and that is a matter of time. Because of high-tech imaging we can see now what could not be seen in 1973. We can see that infants at 20 weeks are that, little, tiny human persons who have a natural, God-given, right to life and liberty. We know because of the gruesome photos that emerged from the scandal over the sale of human body parts (of infants) by Planned Parenthood that some of the humans whose lives they abort are identifiable as male or female. There are photos of tiny little feet.
Infants in the womb, however, are different from criminals in one very important respect: they have not violated criminal and natural laws such that they are liable to highest punishment possible. As an Augustinian, and a student of Paul, I know that every human being is conceived and born in sin (Ps 51:5). We are born spiritually dead (Eph 2:1–4) because we are “in Adam” (Rom 5:12–21). We are connected to him naturally and legally. He was the first representative of all humans and when he sinned we sinned and the wages of sin is death (Rom 6:23). Nevertheless, it is not the business of the state to punish inborn sin. It is the natural and divinely instituted duty of the state to punish crimes against neighbor and society. As corrupt as the infant is by nature he is not a criminal and not liable to punishment by the state. He has not forfeited his life by breaking fundamental laws. He has not unjustly and intentionally taken the life of another person. He has not conspired with another person to murder. He has not kidnapped anyone. He has not raped anyone. He has not sexually molested anyone.
When well-meaning Christians oppose the death penalty in the interests of being pro-life they are ignoring this great and basic difference in the legal status of the two classes of persons. The civil right to life and liberty may be forfeited and those who have committed certain gross offenses have forfeited that right to life. The same simply cannot be said of the infant. This seems obvious and undeniable.
One objection to capital punishment is that it denies the humanity of the criminal. This is not true. Capital punishment is not a denial of the worth of human life, it is an affirmation of it. By the very act of murder, the murderer has denied the value of the victim’s humanity. Human life is valuable that capital punishment is the only just punishment for some crimes. It is absurd to try to assign a financial worth to a human life—I am aware that courts try to do so but the attempt illustrates the futility of the calculation. The value of a human life is meant to be incalculable because we were all made in the image of God (Gen 1:26). So it is with the life of the criminal. When someone commits such a great crime as murder, he has violated a fundamental law and a basic tenet of civil society. He has broken the implicit trust that exists between neighbors, that they will live together peacefully and respect the natural right of each to life, liberty, and the pursuit of whatever happiness may be found in this life. There are crimes for which prison is a fitting punishment but in inequity of prison for some crimes seems reasonably obvious. The victim is dead but the criminal is still alive and watching television. He is still receiving visitors and correspondence. His existence in prison may be miserable but he is still alive. The victim is dead. That is the definition of inequity.
It is true that the criminal justice system is imperfect but with the seemingly endless appeals and reviews of the legal process and the remarkable number of procedural safeguards greatly reduces the likelihood that the innocent man will lose his life. The American system intentionally favors the defendant so as to prevent the unjust taking of life by the state. The system is so biased toward the defendant now that there are patently guilty people who not only continue to live and even thrive in the prison system but who live freely beyond punishment.
Even if we concede that there have been unjust executions of the death penalty, that innocent men have been put to death by civil authorities (and doubtless this has happened in Western history) Christians should still affirm the death penalty for the same reasons the Apostle Paul did. Jesus was unjustly murdered by Roman civil authorities (at the instigation of Jewish religious authorities). The Apostle Paul himself was unjustly murdered by Roman civil authorities. Paul knew of Jesus’ unjust death. He proclaimed that fact as part of the Christian gospel. He knew of other instances of the unjust execution of capital sentences but he still affirmed the duty of the magistrate to execute the sentence. He still wrote that those who do good have nothing to fear from the magistrate. Obviously that is not true in every instance but it is true enough as a rule, even under the administration of a wicked and corrupt ruler like Nero, that he could teach it.
How could Paul defend the death penalty despite the existence of abuse and maladministration? He was able to do so because he believed in the existence of natural law and natural justice (as discussed earlier) and because of his eschatology. He knew that this is fallen world and that civil justice is administered by men whose minds, hearts, and wills are corrupted by sin. He knew that the Roman government and justice system was populated by pagans and time servers. He was not seeking perfection in this fallen world. He had a realistic eschatology. He understood what it means to live in this world, this age. It means that even the abuse of a good thing (capital punishment) does not render that good useless or null. Even if the state errs or acts unjustly, the duty to punish criminals remains. Certainly we ought to seek to correct the system. Certainly we ought to seek to prevent the innocent from unjust incarceration and punishment but those who commit grave crimes ought to face the consequences of those acts even in an imperfect system.
Civil justice, including capital punishment, is not the final judgment. Those unjust judges and magistrates who have abused their authority by unjustly imprisoning or even unjustly taking the life of the legally innocent shall face a judge who knows the hearts and acts of all, who never errs, and whose execution of justice is perfect and final. The criminally guilty, however, are liable to an approximation of perfect justice, its analogue, in this life. Unborn humans have incurred no such liability before criminal courts. Before the state they are perfectly innocent. They above all others in society deserve the full protection of law. The rest of us, especially we grown ups, have violated civil law and, by God’s mercy, escaped civil punishment but unborn infants are perfectly just before criminal law. They have a natural right to life and liberty. Thus, it behooves Christians especially but all of us citizens to distinguish clearly between criminals and legally innocent persons in the womb.