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Religious Conservatives and the Death Penalty
Thomas C. Berg
Samford University, Cumberland School of Law

Between the date the William and Mary symposium was held (April 2000) and the date this article
was drafted (July 2000), the administration of the death penalty, surprisingly, became a first-tier national
issue. This symposium helped boost the issue to prominence, of course, when the Rev. Pat Robertson, the
keynote speaker, endorsed the current proposals for a moratorium on executions until concerns about the
process in capital cases could be satisfied.1 The current questioning of the death penalty is distinctive
because much of it comes from political conservatives like Robertson, who support capital punishment in
principle, but who now worry that innocent people may be executed because of, among other things,
incompetent representation by appointed counsel. 2 The Republican governor of Illinois, a death penalty
supporter, declared a moratorium in his state because 13 men sentenced to death there in the last 20 years
had been determined to be innocent.3 The Republican assembly in New Hampshire repealed the death
penalty, although the Democratic governor vetoed the repeal. 4 And columnist George Will pointed out to
his fellow conservatives that capital punishment “is a government program, [so] skepticism is in order.”5
These concerns are affecting public opinion; in Gallup Polls in February and June 2000, support for the

A few examples of the national media reports include Brooke A. Masters, Pat Robertson
Urges Moratorium On U.S. Executions, WASH . POST, April 8, 2000, at A1; Andrew Petofsky,
Death Penalty in Virginia Assailed; Robertson Backs Moratorium on Executions, RICHMOND
TIMES -DISPATCH, April 8, 2000, at A1; Robertson Backs Moratorium, Says Death Penalty Used
Unfairly, CHI. TRIBUNE, April 8, 2000, at 12.

See, e.g., E.J. Dionne, Jr., Conservatives Against the Death Penalty, WASH . POST, June
27, 2000, at A23; Robert Reno, Conservatively Speaking, Good Signs on Death Penalty,
NEWSDAY, May 4, 2000, at A60.

See Dirk Johnson, Illinois, Citing Verdict Errors, Bars Executions, N.Y. TIMES , Feb. 1,
2000, at A1.

See, e.g., N.H. Governor Vetoes Bill to Repeal the Death Penalty, CHI. TRIBUNE, May 20,
2000, at 3 (2000 WL 3667391).

George Will, Innocent on Death Row, WASH . POST, April 6, 2000, at A23.



death penalty dropped to 66 percent, the lowest level in 19 years and down from 80 percent in 1994.6
About 80 percent of Americans believe an innocent person has been executed in the last five years.7
What conservatives think about capital punishment, therefore, has become a subject of
considerable interest. This paper focuses on the ideas and views of one large segment of conservatives:
theologically conservative Christians, often labeled as the “Religious Right.” According to conventional
wisdom, conservative Christians are the most fervent supporters of capital punishment in America today.
The anecdotal evidence is plentiful. Theologian Harvey Cox remembers watching a convention of the
Christian Coalition on C-SPAN, where “the most thunderous applause anybody got was for saying, ‘We
really have to get tough with the death penalty. We have to [use] capital punishment more and more.’”8
In a published collection of official religious statements on the death penalty, the most theologically
conservative bodies represented all approve the use of the death penalty,9 while the moderate to liberal
mainline Protestant denominations all opposed it. Pat Robertson, in his symposium address at the College
of William and Mary, continued to support the death penalty in principle.10 In the summer of 2000, even
as other conservatives voiced their doubts, the increasingly fundamentalist Southern Baptist Convention

Gallup News Service, Two-Thirds of Americans Support the Death Penalty for Convicted
Murders, June 23, 2000, available at (visited July
8, 2000); Frank Newport, Gallup News Service, Support for Death Penalty Drops to Lowest Level
in 19 Years, Although Still High at 66%, (visited
June 30, 2000).

Id. (declaring that 91 percent of Americans believe an innocent person has been sentenced to
death in the past 200 years); see also Death Penalty Information Center, Public Opinion About the
Death Penalty 2 (1999), available at (indicating that more than
two-thirds of citizens in 1999 Ohio survey thought it at least “somewhat” likely that an innocent person
would be executed, up from 46 percent in 1997).


IN AMERICA 367 (1996).

ed. 1989) (statements of Evangelical Presbyterian Church, Lutheran Church-Missouri Synod, National
Association of Freewill Baptists, and National Association of Evangelicals).

Videotape of Pat Robertson’s Keynote Address, Conference on “Religion’s Role in the
Administration of the Death Penalty,” College of William and Mary Law School, April 7, 2000
(transcript available at the Institute of Bill of Rights Law) (hereafter “Robertson Address”).

explicitly endorsed capital punishment for the first time as “a just and appropriate means of punishment.”11
Yet the anecdotes, and the statements of leaders and official bodies, may not give a true picture
of the opinion of rank-and-file Americans. Opinion surveys suggest that theologically conservative
Christians do not support the death penalty much more than do most other Americans, and that one set of
theological conservatives – traditionalist Roman Catholics – supports it noticeably less. In the 1998
National Election Survey (NES),12 75 percent of Americans favored the death penalty, 56 percent
strongly.13 By contrast, “Catholic traditionalists” supported the death penalty at a far lower rate: only 65
percent favored it, and 24 percent “strongly opposed” it.14 “Traditionalists” were defined as respondents
who believe that the Bible is the inspired word of God and who attend church regularly.15 That level of
support is lower than for any major group in the survey except African-Americans (58 percent support,
25 percent strongly opposed). Catholic traditionalists were far more skeptical of capital punishment than
were other Catholics, 76 percent of whom supported it and only 14 percent of whom were strongly
opposed. Other polls confirm that the more conservative a Catholic is theologically – for example, the
more she accepts the Bible as divinely inspired (and presumably also accepts the teaching authority of the
Pope and bishops) – the more she is likely to oppose capital punishment.16
Even the figures for “evangelical Protestants” differed very little from those of Americans overall;

Southern Baptist Convention Annual Meeting 2000, Resolution No. 5: On Capital
Punishment (June 13-14, 2000), available at (visited June 30,
2000); see also David Waters, God Authorized Death Penalty, Baptists Declare, MEMPHIS
COMMERCIAL APPEAL, June 15, 2000, at A2.


Virginia Sapiro and Steven J. Rosenstone, NATIONAL ELECTION STUDIES , 1998: POSTELECTION STUDY (University of Michigan, Center for Political Studies, 1999) (hereafter NES Study).
Tanks to Professor Lyman Kellstedt of Wheaton College for providing the figures from the NES







For example, in the 1996 General Statistical Survey (GSS), where 70 percent of Catholics
overall supported the death penalty, the figure was 76 percent for those with a “not very strong”
religious affiliation, and only 64 percent for those with a “strong” or “somewhat strong” religious
affiliation. Support for the death penalty was 61 percent among Catholics who described the Bible as
“the Word of God” and 81 percent among those who described it as “a book of fables.”

80 percent supported capital punishment, 60 percent strongly.17 Nor did they differ much from the figures
for “secularists,” 76 percent of whom indicated support, 64 percent strongly.18 Of course, many questions
remain concerning these figures. Categories such as “evangelical” and “traditionalist” need to be carefully
defined. Some parts of the sample have fairly high margins of error. Even if other Americans support the
bare existence of the death penalty just as much as conservative Protestants do, the latter may be more
willing to impose it regularly and with less concern for flaws in the process. Since overall support for the
death penalty has fallen significantly even since 1998, it would be interesting to know if has fallen
proportionately among religious conservatives. But the figures at least suggest that theologically
conservative Christians, who are unquestionably politically “conservative” on matters such as gay rights
and abortion, do not support the death penalty noticeably more than does the rest of America, and that
some of them support it quite a bit less.
In addition, a set of events in recent years, including Pat Robertson’s statement at this symposium,
have raised the question of whether traditionalist Christians’ support for the death penalty might drop
substantially. Pope John Paul II took a strong stand against capital punishment in his 1995 encyclical
Evangelium Vitae (The Gospel of Life), and he has registered a protest and asked for clemency in every
American execution since then. The Pope is especially respected among conservative Catholics; his
forceful teaching has probably already reduced their support for the death penalty, and it may do so even
more in the future.
On the conservative Protestant side, in 1998 both Robertson and Jerry Falwell made unsuccessful
efforts to stop the execution in Texas of Karla Faye Tucker, who was convicted of committing two brutal
murders with a pickax, but who became a born-again Christian while in prison and appeared to have
experienced a sincere transformation. The intervention of those leaders was quite surprising. About a year
later, Robertson, in a speech in New York City, further voiced his discomfort with the death penalty and
the “air of unseemly vengeance” that accompanied Tucker’s execution. Echoing the Pope, he suggested
that conservatives who oppose abortion and euthanasia “need to be pro-life across the board.”19 Many
commentators at the time suggested that Robertson’s concern extended to Karla Tucker only because of
“her whiteness, her femaleness, her photogenic Christianness,” and would not extend to prisoners on death





See Teresa Malcolm, Tucker’s Death Affected Robertson’s Views, NA T ’L CATH .
REPORTER, April 23, 1999, at 4. See also Robertson Address, supra note 10 (commending the
Pope’s stands on abortion and the death penalty and echoing the call for a “respect for life” rather than
a “culture of death”).


row in general.20 But others thought that the Tucker case might mark a “turning point” in American attitudes
toward the death penalty, because of “the challenge her execution posed to Christian conservatives who
support the death penalty in principle.”21 Ronald Tabak, a leading opponent of the death penalty, predicted
that Falwell and Robertson’s stance on Karla Tucker would “make[ ] it seem legitimate for other social
conservatives to rethink the death penalty.”22 Shortly after Tucker’s execution, the leading evangelical
Protestant magazine in America, Christianity Today, published an editorial calling for the abolition of the
death penalty on the ground that it had “outlived its usefulness.”23 Then at the William and Mary
symposium, Robertson stated again his doubts about executions, although Falwell broke with him in
response and opposed the death penalty moratorium. 24
The purpose of this Essay is to discuss whether these years indeed represent a turning point in
religious conservatives’ attitude toward the death penalty. In light of the Pope’s campaign, some
evangelicals’ expressions of doubt, and the general questioning of the death penalty, it seems an opportune
time to ask what factors might lead to any significant decline in support for capital punishment among
conservative Catholics and Protestants.
Last year in Montgomery, Alabama, the civil rights organizationEqual Justice Initiative erected eight
billboards asking “What Would Jesus Do?” concerning the death penalty and quoting his rebuke, “Let him
who is without sin cast the first stone.”25 The campaign was aimed at Alabama’s conservative churches,
which had used the same slogan about Jesus earlier in the fall to mobilize their members and defeat a
referendum proposal for a state lottery. According to director Bryan Stevenson, the Initiative was
challenging religious activists who seek “to use the teachings of Jesus to guide policy” on moral issues: “We

Ellen Goodman, Karla Faye Tucker Put A Face on Death Row, BOSTON GLOBE, Feb. 8,
1998, at C7. In response to a question at the William and Mary symposium, Robertson said that he
believed the proper issue concerning commuting sentence was whether a prisoner truly had a “change
of heart,” not whether he had become a born-again Christian, thus suggesting that a sincere Muslim or
non-religious prisoner could similarly qualify. Robertson Address, supra note 10.

E.J. Dionne, Jr., Karla Tucker’s Legacy, COMMONWEAL, Feb. 27, 1998, at 9.


Malcolm, supra note 19, at 4.


Editorial, The Lesson of Karla Faye Tucker, CHRISTIANITY TODAY, April 6, 1998, at 25
(hereafter “CT Editorial”).

Frank Green, Falwell Opposes A Moratorium – He, Robertson Differ on Executions,
RICHMOND TIMES -DISPATCH, April 11, 2000, at B4.

Group Asks Churches to Consider Religious Stance on Death Penalty, ASSOCIATED
PRESS, Jan. 16, 2000.


just wanted people of faith to start thinking about” the death penalty as such an issue.26 This Essay analyzes
how conservative religious believers have approached, and are likely to approach, the death penalty, and
what arguments or developments might convince religious conservatives that it is indeed wrong in current
Part I analyzes the approaches toward the death penalty first of traditionalist Roman Catholics and
then of evangelicalProtestants. The discussion of Catholicism pays particular attention to the Pope’s recent
teachings against capital punishment and how authoritatively they are likely to be perceived by traditionalist
Catholics. The section on evangelical Protestants discusses how evangelicals are influenced by the culture
around them, but also how central themes in their theology might provide a basis for them to reject capital
punishment. I conclude that both Catholics and Protestant conservatives may be moved by theological
arguments against the death penalty, but that both are as likely to be moved by practical concerns, such
as the risk of convicting the innocent, the same sort of factors that might convince Americans with no
religious beliefs. Part II concludes by reviewing the factors that are most likely to sway religious
conservatives against the death penalty, not only its current operation and administration, but its very
I begin by examining some of the recent thinking about the death penalty among conservative
Christians: conservative Roman Catholics and evangelical Protestants. Before taking those two groups in
order, I first say some brief words about a source of authority on which both of them rely: the Bible.
A. The Biblical Passages and Conflicting Interpretations
Both Catholic and Protestant traditionalists look to the Bible as authority on matters of doctrine,
personal morals, and social ethics. Evangelical Protestants, in particular, are committed to what one scholar
calls “biblicism”: looking to the Bible for direct, specific answers to current ethical or social questions such
as death penalty. 27 However, the Bible says varying things that may bear on the death penalty. The death
penalty is authorized and even commanded in Genesis and the Mosaic law, but only with certain crucial
limits; and for Christians, perhaps Jesus’s message of mercy and reconciliation makes it inappropriate that
humans should impose such a final penalty. Thus the Bible offers different approaches toward the death



G. BLOESCH, 1 ESSENTIALS OF EVANGELICAL THEOLOGY 3-4 (1978) (“[t]he divine authority of
Scripture will always be fundamental in evangelical theology”); George M. Marsden, Introduction:
The Evangelical Denomination, in EVANGELICALISM AND MODERN AMERICA ix (George M.
Marsden ed. 1984) (stating that evangelicals emphasize the “doctrine of the final authority of

penalty. As is often the case, the text must be interpreted, either by some authoritative person or institution
or through some theological framework.
Bible-oriented supporters of the death penalty tend to start with the passage in the book of Genesis
where immediately after the Flood, God covenants with Noah and describes to him how human society
will be reconstituted, stating, among other things, that “[w]hosoever sheds the blood of Man, in Man shall
his blood be shed; for in the image of God He made Man.”28 The Mosaic law commanded the death
penalty not only for murder, but for at least a dozen other crimes including as adultery, bestiality,
homosexuality, witchcraft, and rebellion against parents. Bible-oriented proponents of the death penalty
then go on to say that “[n]othing in the teachings of Jesus or the apostles contradicts this sanctioning” of
capital punishment.29 They point, for example, to the passage in the 13th chapter of Paul’s letter to the
Romans, which endorses human government as the instrument of God’s “wrath” against offenders and
speaks of government wielding the “sword,” both of which the proponents say refer specifically to the use
of death as punishment.30
The difficulty with such arguments is that they rely heavily on “proof texting,” the use of individual
verses or short passages in isolation without putting them in the context of their history or of an overall
theological approach. This method, treating Bible verses as bits of data – of theological “facts” that merely
need to be compiled – has been especially deeply imbedded among evangelical and fundamentalist
Protestants since the early 20th century.31 The method reflects the understandable desire that scripture
should always be clear to any person without a need for extensive education or study. But it is simply not
enough to pull Bible verses out of their historical or theological context, as even most Christian scholars
committed to the authority of the Bible admit.
Thus, to treat the above passages as instituting the death penalty for all times and places overlooks
several complexities. As scholars have pointed out, the Genesis verse about the shedding of blood is, in
literary form, less a law and more a poetic lyric: less a command from God and more a description of how,



H. Wayne House, The New Testament and Moral Arguments for Capital Punishment, in
1997) (hereafter “Bedau”)..

Id. at 421-22 (concluding that the reference to the sword “is far closer to an affirmation than
to a denial” of capital punishment).

NOLL, supra note 27, at 160. Fundamentalism was dominated by a form of thought called
dispensationalism, which according to one of its leading writers, viewed theology as a “scientific”
process of “induction” from the theological “facts” found in the Bible. Id. at 128, 134 (quoting 1 LEWIS


in a primitive society without a formal legal system, the killing of a person prompted vengeance by his family
and thus an escalating spiral of retaliatory violence.32 It is widely recognized that the Mosaic law,
prescribing death only for certain offenses and under certain procedures, was meant to stop spiraling
retaliation and control the lust for vengeance,33 a concern that should similarly apply to the displays of
vengefulness that occur today outside American prisons when executions take place.34 Moreover, the
Mosaic law’s provision for the death penalty for scores of crimes such as bestiality, witchcraft, and idol
worship – crimes virtually no one suggests would merit execution today – reflects, at least in part, “Israel’s
unique position as a nation God called to be holy.”35 Maintaining such purity demanded that the stain be
ritually removed through the death of the offender. Even the execution of murderers may have rested on
the notion that the blood of a murder victim “pollutes the [special] land” of Israel.36
Moreover, the Biblical authorization of the death penalty was also coupled with significant limits
on its actual implementation. Jewish law required two eyewitnesses to convict someone of a capital crime,
a higher standard than in other cases. It also impressed on the witnesses the importance of their testimony

See, e.g., John Howard Yoder, Noah’s Covenant, The New Testament, and Christian
Social Order, in BEDAU, supra note 29, at 429, 430-33; JAMES J. MEGIVERN, THE DEATH PENALTY:



As Pat Robertson described the scene outside the prison where Karla Tucker was executed:
“[I]t was like a Roman circus. There was bloodthirstiness out there. They were cheering and cursing
and chanting for her to be executed.” Robertson Address, supra note 10.
See, e.g., Daniel W. van Ness, Capital Punishment: A Call to Dialogue 5 (1994). A small
wing of conservative Protestants called “reconstructionists” believes that the Mosaic rules remain valid
in all but purely ritual matters, and so continues to affirm the death penalty for “homosexuality, adultery,
blasphemy, propagation of false doctrine, and incorrigible behavior by disobedient children.” WILLIAM
extreme camp has occasionally had influence on the Religious Right in America, but never on the
subject of the death penalty. Most theological proponents of the death penalty believe that many details
of the Mosaic law were abrogated but the covenant with Noah was retained, thus setting aside the use
of execution in the vast range of crimes that the Mosaic law covered, but preserving its legitimacy in
principle for murder.

van Ness, supra note 35, at 5 (quoting NUMBERS 35:33)).



by requiring them to carry out the execution if the accused was convicted.37 The tradition showed a real
reluctance to execute – a reluctance based on stories like God’s protection of the murderer Cain – to the
point that in one passage of the Talmud, several great rabbis agree that “a Sanhedrin which executes once
in seven years is known as destructive,” and some added that they would never vote to execute.38
The anti-death-penalty side has its proof texts too, and they suffer from similar weaknesses. Death
penalty opponents often rely, for example, on the story in which Jewish leaders brought Jesus a woman
who had been caught in adultery, for which the Mosaic law prescribed death by stoning. Jesus responded
by saying, “Let him who is without sin among you cast the first stone,” and the accusers left embarrassed.39
The story, it is sometimes asserted, shows that Jesus opposed capital punishment, and that “our reaction
to sin must be forgiveness, even as we ask for the forgiveness of our own sins.”40 But such simple
interpretation creates obvious problems. It is difficult to read Jesus as “demanding complete sinlessness
of every witness, jury member, and judge” in all criminal cases, “for then the criminal justice system would
not be possible at all,”41 and both the Bible and Christian tradition affirm the general legitimacy of
government using force to restrain wrongdoers.42 Perhaps the story is intended to disapprove of capital
penalties in particular, but on its face it does not say so, or why. To explain why execution in particular is
wrong, one needs to develop a broader theological approach to issues such as punishment and the value
of human life.
As in many other situations, the biblical texts in this instance can point in different directions, and
one needs to interpret them in the light of some overall theological approach. Of course, the texts limit what
kinds of approaches are possible, and they are a central component in determining the overall theological
approach. Nevertheless, too often Christians, especially evangelical Protestants, have acted as if they do
not have to make such judgments at all, as if the Bible speaks with unbroken clarity.
B. Traditionalist Roman Catholic Approaches
For Roman Catholics, an important, perhaps crucial role in interpreting the biblical message is
played by the Pope and the bishops: the “magisterium” of the Church. This teaching authority is especially

HANKS , supra note 33, at 31-32; van Ness, supra note 35, at 10-11.


MEGIVERN, supra note 32, at 11 (Talmud and other citations omitted).



See JOHN 8:1-11.
HANKS , supra note 33, at 40-41.


House, supra note 29, at 418.


See id.



respected by theologically conservative or traditionalist Catholics. While “liberal” Catholics tend to give
weight to personal experience as well as secular sources, one of the defining features of traditionalists is
their deference to the magisterial teaching, which represents the ongoing authority of Christ.43 Pope John
Paul II, in particular, has the respect of traditionalist Catholics because of his reaffirmation of traditional
positions on controversial issues such as abortion, birth control, and women’s ordination.
For more than a millennium, the Church officially endorsed the death penalty. 44 Some early
Christian writers condemned it under the Fifth Commandment (“thou shalt not kill”); but after Christianity
became intertwined with the Roman Empire, capital punishment became a “deeply entrenched” policy for
Church and the state,45 especially during the assaults on various heresies from the 1000s through the
1200s. 46 Thomas Aquinas said that just as a physician “beneficially amputates a diseased organ if it
threatens the corruption of the body,” so the ruler “executes pestiferous men justly and sinlessly [to protect]
the peace of the state.”47 The 1566 Roman Catechism endorsed the death penalty as a “lawful slaying,”
adding that its “just use,”
far from involving the crime of murder, is an act of paramount obedience to this
Commandment whichprohibits murder. The end of the Commandment is the preservation
and security of human life. Now the punishments inflicted by the civil authority, which is
the legitimate avenger of crime, naturally tend to this end, since they give security to life by
repressing outrage and violence.48
This passage remained the central official teaching on the death penalty well into the 20th century. It


For an example of this attitude in one conservative diocese, see CHARLES R. MORRIS,
CHURCH 382-88 (1997) (describing the diocese of Lincoln, Nebraska).

The following brief summary relies on James J. Megivern’s comprehensive and excellent
historical survey of the theology and philosophy of capital punishment, supra note 32.
Id. at 53.


See id. at 54-70 (tracing Church’s increasing approval of violence and revenge in this period,
including execution of heretics by the Inquisition, romanticization of fighting, and launching of the

Id. at 115-16 (quoting 3 THOMAS AQUINAS, SUMMA CONTRA GENTILES c. 146, at 219-22
(Vernon J. Bourke trans. 1975)).

McHugh and C. Callan trans. 1934).


endorsed vengeance as well as deterrence as rationales for the death penalty, and authorities cited it as a
blessing not only for the use of capital punishment, but for its widespread use.49 At the same time, however,
there were always countering themes from Christian thinkers like Augustine, who defended the right of the
state to kill in the abstract but always argued for clemency in each case.50
Until recently, the longstanding teaching that the death penalty was legitimate led traditionalist
Catholics to support it enthusiastically. Opposition to the death penalty, which was first voiced by
Enlightenment intellectuals like Beccaria and Voltaire, came to be associated with other modernist attacks
on religion’s historic doctrines and “traditional values.” A 1956 dissertation defending the death penalty
on traditionalist grounds said that the calls to abolish it were based on “the modern errors of ‘individualism,
rationalism, and sentimentalism.’”51 Moreover, as Thomism became the authoritative philosophical
framework for Catholic thinkers in the late 1800s, Aquinas’ views on particular matters, such as his
strongly-expressed support for the death penalty, became authoritative as well. 52
All this has changed quite dramatically in the last 30 years. The Pope and the American bishops
have taken a vigorous position against the death penalty. The bishops issued a series of statements
beginning in 1980, when they asserted that “in the conditions of contemporary American society, the
legitimate purposes of punishment do not justify the imposition of the death penalty,”53 and began to
intercede to ask that particular executions be cancelled. In 1983, Cardinal Bernardin of Chicago included
opposition to the death penalty along with opposition to abortion and euthanasia among his so-called
“seamless web” of pro-life positions, the “consistent ethic of life.” The effect of the bishops’ activities,
though, was somewhat limited. Many conservatives thought that the bishops’ conference was too receptive
to liberal political ideology, and that the “consistent ethic of life” would dilute the strength of the Church’s
campaign against abortion. As Bernardin put it: “Some of the people . . . accused me of down-playing
abortion, just making it one issue among many.”54 However, when Pope John Paul II weighed in strongly

Id. at 171-73.


Id. at 42 (“[i}n the last analysis, the Augustinian position was that [this] right, no matter how
valid or well founded, ideally should never actually be exercised.”); GARRY WILLS , SAINT AUGUSTINE
109-11 (1999) (discussing Augustine’s pleas for clemency for Donatists and concluding that “he
opposed any use of capital punishment”).

MEGIVERN, supra note 32, at 287 (quoting FRANCISCUS SKODA , DOCTRINA MORALIS

Id. at 256, 258.


Id. at 367 (quoting 1980 statement).


Id. at 377-78 (quoting phone conversation with Cardinal Bernardin, Dec. 29, 1994).



against capital punishment in the 1990s, the matter was different. The Pope had more credibility with
conservatives because of his position, his record of challenging Communism (especially in his native
Poland), and his reaffirmation of traditional teachings on family and sexual ethics.55
The Pope’s critique of capital punishment crystallized in the 1995 encyclical Evangelium Vitae
(The Gospel of Life),56 which demands close attention. The heart of the encyclical defends “the value and
inviolability of human life”57 against the many threats to it in the modern world, and it applies the
commandment “Thou Shalt Not Kill” forcefully to condemn murder, abortion, and euthanasia – the
deliberate killing of innocent human beings – in the strongest terms.58 But before reaching this conclusion,
the Pope states that the “negative” rule against killing also implies “a positive attitude of absolute respect
for life,”59 “even [the lives] of criminals and unjust aggressors.”60 Because human life “from its beginning
. . . involves ‘the creative action of God’ and . . . remains forever in a special relationship with the Creator,”
“[o]nly God is the master of life.”61 In support of these propositions, the Pope cites God’s decision to
shield the first murderer, Cain, from the retribution of others.62
In the “paradox” of life in an imperfect world, the encyclical goes on, there are many “tragic” cases
in which the “legitimate defence” of life, one’s own or another’s, can necessitate harming the attacker. But
in these cases the Pope justifies the killing only as the byproduct of necessity: “Unfortunately it happens that
the need to render the aggressor incapable of causing harm sometimes involves taking his life.”63 This
argument from necessity, the Pope says, “is the context in which to place the problem of the death


See the comprehensive and admiring review of the Pope’s life and work by a politically
PAUL II (1999).

Id. at para. 1.


Id. at para. 3.


Id. at para. 54.


Id. at para. 57.


Id. para 53, at 94; para. 55, at 97.


See di. at para. 13-19.


Id. para. 55, at 98.



penalty.”64 Thus, he continues in the key passage, the government
ought not go to the extreme of executing the offender except in cases of absolute necessity:
in other words, when it would not be possible otherwise to defend society. Today,
however, as a result of steady improvements in the organization of the penal system, such
cases are very rare, if not practically non-existent.65
Evangelium Vitae appears to condemn capital punishment as unnecessary in any advanced
Western society where a secure term of life imprisonment is possible. Its position was so strong that the
new Catechism of the Catholic Church, issued only three years before the encyclical, was revised in its
Latin version in 1997 to incorporate the new teaching. The 1992 Catechism, which as yet is unrevised
in English, states that the death penalty is appropriate for cases of “extreme gravity,”66 perhaps implying
that the heinousness of a crime could itself justify execution; but the encyclical narrows the legitimate use
of executions to protecting others from future harm. The 1992 Catechism teaches that execution should
not be used “[i]f bloodless means are sufficient to defend human lives against an aggressor,”67 but the
encyclical goes further and states that in advanced societies, means short of death are sufficient in virtually
every situation. After some observers expressed distress that the Catechism was being changed so soon,
Cardinal Joseph Ratzinger, the Church official in charge of propounding doctrine, stated that while
Evangelium Vitae “has not altered the doctrinal principles . . . in the Catechism,” it has “deepened the
application of such principles in the context of present-day historical circumstances. Thus, where other
means for the self-defense of society are possible and adequate, the death penalty may be permitted to
disappear. Such a development . . . is something good and ought to be hoped for.”68
A significant feature of the Pope’s argument is that he does not try to claim that the state never has
authority to execute a murderer. Rather, he argues that even if there is such authority in theory, the
presumption should be strongly against exercising it, and that in current circumstances in the West that
presumption is virtually never met. This has the advantage of turning the issue away from purely abstract
questions and toward the concrete question of the necessity for the death penalty in our current context.
The argument in this form also stands a greater chance of convincing average Americans and Christians.

Id. para. 56, at 99.


Id. at 100.



Id. § 2267.


Quoted in Richard J. Neuhaus, The Public Square: A Clarification on Capital
Punishment, FIRST THINGS , October 1995, at 74.


The Pope has since intensified the campaign against American executions by sending a letter of
protest to the relevant governor as the execution date approaches. In a typical appeal, made unsuccessfully
to George W. Bush of Texas before a January 2000 execution, the Pope emphasized “the sacredness and
dignity of each human life,” referred to the murderer’s “troubled childhood,” and asked the governor to
show “compassion and magnanimity.”69 To date, only one such letter has succeeded in obtaining clemency,
an appeal that the Pope made to Missouri’s governor during a visit to St. Louis in January 1999.70 In
December 1999, the Pope announced that a priority of the “jubilee” year 2000 would be “to reach an
international consensus on the abolition of the death penalty.” The Colosseum in Rome would be
illuminated every time an execution anywhere in the world was commuted or a nation abolished capital
No doubt the strong position of the Pope and to some extent that of the bishops helps explain why
the polls show that in general, “traditionalist” Catholics support the death penalty less than do other
Catholics and Americans. However, Evangelium Vitae has received criticism from some theologically
conservative Catholics, even those generally respectful of papal authorityand of John Paul II’s record. The
criticisms fall along two lines.
First, some argue that the Pope erroneously treats incapacitation and deterrence – that is,
preventing the aggressor or others from doing harm – as the only overriding goals of punishment. The
critics argue that the death penalty also serves the legitimate goals of retribution and of “restor[ing] the
moral imbalance brought about by a crime.”72 They raise familiar objections to deterrence-based theories
of criminal punishment. In a widely-noted op-ed article in the Wall Street Journal, Thomist philosopher
Ralph McInerny, a professor at Notre Dame University, complained that the Pope’s arguments wrongly
“turn the attention . . . away from the crime actually committed.”73 As other critics noted, focusing on
deterrence alone could justify executing people for minor crimes, without regard to whether their actions

John Paul Urges Bush to Stay Execution in 1990 Juvenile Case, HOUSTON CHRONICLE,
Jan. 21, 2000, at 21, available at 2000 WL 4276258.

See Paul Duggan, Rising Number of Executions Welcomed, Decried, WASH . POST, Dec.
13, 1999, at A3.

Pope Calls for Worldwide Abolition of Death Penalty, ST . LOUIS POST-DISPATCH, Dec.
13, 1999, at A5, available at 1999 WL 3060123.

Ralph M. McInerny, A Missouri Compromise, WALL STREET J., Feb. 26, 1999, at W15.


Id. (criticizing the Pope for intervening to oppose executions in Missouri and other states).



deserved such punishment.74 This particular concern seems misplaced. The Pope demands not only that
killing the criminal prevent further crime but also that it be absolutely necessary to do so, which severely
limits, rather than expands, the appropriate cases for capital punishment.
Nevertheless, there is something unsatisfying in the way Evangelium Vitae ends up reducing its
analysis of capital punishment to considerations of incapacitation and deterrence. The key paragraph points
in a different direction when it states that “[t]he primary purpose” of punishment “is ‘to redress the disorder
caused by the offence.’”75 But the Pope fails to pursue this idea, instead turning quickly to the prevention
of harm. Thus, he does not confront the criticism that the only adequate way to address and correct the
disorder caused by murder is to take the murderer’s life; only execution can symbolize the seriousness with
which society views the intentional taking of innocent life. As natural law ethicist Russell Hittinger has
argued, this “medicinal” purpose of punishment, the healing of society, also figures prominently in historic
Catholic teaching.76
However, there is a strong conservative rejoinder that the death penalty, as actually practiced in
modern times, fails miserably to serve the medicinal purpose of restoring society’s health and order, and
instead degrades society further. The argument rests on the Pope’s general warning in Evangelium Vitae
about a “culture of death” in which the taking of life, through means such as abortion and euthanasia, is
common and is defended as legitimate. In such a society, as one conservative who agrees with the Pope
put it, “the imposition of the death penalty ends up demonstrating . . . that yet more life is valueless, yet
more life can be thrown away.”77 “[I]n that kind of society, to continue to exact the death penalty is not
medicinal but poisonous.”78 There are many reasons to think that the death penalty as practiced cheapens
the value of life rather than upholding its sanctity. For example, the presentation of victim impact statements
to the jury naturally implies that some victims’ lives are worth more than others, and it calls on the jury to

See Ethics and Public Policy Center, Center Conversation: Current Catholic Thought on
the Death Penalty, available at
(remarks of Russell Hittinger) (hereafter “EPPC Conversation”) (noting that the goal of deterring crime
could justify “rounding people up to reinforce the social perception that ‘you’re not going to get away
with it’”); id. (remarks of Keith Pavlischek).

EV, supra note 56, at para. 56, at 99.



EPPC Conversation (remarks of Russell Hittinger).
Id. (remarks of Joseph Bottum).


Id. (remarks of Russell Hittinger).



measure even the murderer’s life in that flawed way.79 Likewise, when the application of the death penalty
systematically values white victims more than black victims, and white murderers more than black
murderers – and when the public realizes that this is so – the message undermines the inherent value of life
rather than affirming it. And when innocent people are sentenced to death, often because of inadequate,
underfunded legal representation, the message could hardly be clearer that some human life is cheap.
The second critical response to Evangelium Vitae is that its teaching, even if defensible on the
merits, is not especially authoritative for Catholics, but reflects more the Pope’s personal philosophy. It
deserves respect and careful consideration, but not obedience. Not even traditionalists claim that every
word a Pope utters is authoritative. Indeed, in other contexts political conservatives have criticized religious
leaders, including the Catholic bishops, for pronouncing too quickly on contested political questions without
clear theological warrant.80
Critics give several reasons why the Pope’s condemnations of the death penalty might have only
persuasive rather than binding force. First, he himself presents them more as arguments than as
authoritative declarations. Evangelium Vitae’s extremely strong pronouncements against abortion and
euthanasia are accompanied by verbal formulas that signal claims to finality “approaching that of infallible
definitions,” in the words of one leading theologian.81 “[B]y the authority which Christ conferred upon
Peter and his Successors, in communion with the Bishops,” the Pope declares abortion and euthanasia to
be “grave” wrongs, on the basis of “natural law, . . the written word of God, . . . the Church’s Tradition,
and . . . the ordinary and universal Magisterium.”82 The statements condemning the death penalty, though
strongly felt and closely reasoned, are less emphatic and formal. Second and relatedly, the condemnation
of capital punishment, as we have seen, does not reflect a long tradition of teaching. As many scholars of

Id. (remarks of Joseph Bottum) (victim impact statements wrongly imply that the death
penalty is compensating the survivors for “a tort, a harm done to those individuals” determined by the
value of the life lost, rather than teaching “that life is sacred”). Victim impact statements can be
important in allowing victims to express their emotions, but the statements should not be presented to
the decisionmaker before sentencing.


TWENTY-FIRST CENTURY 99 (1995) (criticizing mainline Christian churches for being “extremely busy
in making pronouncements on the major and minor [political] issues of our time”while “showing a loss
of confidence in the specifically religious mission of the church”); THOMAS C. REEVES , THE EMPTY
CHURCH: THE SUICIDE OF LIBERAL CHRISTIANITY 28 (1996) (“Many [conservatives] argue that the
mainline churches are hemorrhaging because they concentrate on politics.”).
Avery Dulles, S.J., The Gospel of Life: A Symposium, FIRST THINGS , Oct. 1995, at 32.


EV, supra note 56, para. 62, at 112; para. 65, at 119. The opening phrase on the authority
given to Peter appears only in the abortion statement.


Catholicism have emphasized, the concept of papal infallibility rests not simply on the authority of one man,
but on the idea that in such instances he is endowed with the protection against error that Jesus gave to the
Church.83 This suggests that teaching should be propounded or widely accepted for some time before it
attains authoritative status. Cardinal Ratzinger’s comments on the encyclical indicate that the doctrine
concerning capital punishment is “undergoing development,”84 not that it has reached a settled state where
opposition to the practice is binding on all Catholics.
In addition, some conservative commentators have pointed out that Evangelium Vitae does not
condemn all instances of capital punishment. The necessity of the death penalty depends, according to the
encyclical, on whether imprisonment will suffice “to defend society,” that is on conditions “in the
organization of the penal system” – which might be seen as a policy determination on which the Pope has
no special insight or authority. Thus, shortly after the encyclical, leading conservative Richard John
Neuhaus downplayed the assertions of Evangelium Vitae as reflecting “only a prudential judgment that,
in some contemporary circumstances, the death penalty is no longer necessary and therefore should not
be used.”85
However, there are strong answers to each of these arguments. Evangelium Vitae makes quite
vigorous criticisms of the death penalty even if it does not claim infallibility. When the Pope says that
capital punishment is unnecessary, his judgment stems from moral principle rather than simply prudence.
The reason that he judges the penalty under the demanding test of “absolute necessity” is a moral reason:
the death penalty contravenes the fundamental maxim of “absolute respect” for human life. And
traditionalist Catholics tend to affirm that even the “ordinary, noninfallible teaching” of the Pope on
theological and moral matters should receive assent from the faithful.86 Since the encyclical John Paul II
has shown how deeply he holds his principles, by intensifying his campaign to stop American executions,
which is as dramatic an intervention into political matters as he has made on any issue. He clearly sees the
increasing resort to the death penalty in America as an important reflection of the “culture of death.”
Conservatives who deeply admire his resistance to that culture on other matters, such as abortion and
euthanasia, should be very troubled if they think that he has gotten this issue so wrong.
Nevertheless, for the reasons given earlier, the magisterial statements on capital punishment will be


(1986) (noting that Catholic theologians stress that “the primary subject of infallibility is the total
Church, and Vatican I ascribed to the Pope no other infallibility than that which Christ wished to endow
his Church”).
Dulles, supra note 81.


Neuhaus, Clarification, supra note 68.


BOKENKOTTER, supra note 83, at 95.



taken as non-binding by many Catholics, even by many traditionalists committed in principle to papal
authority. The Pope seems aware that the debate is in a relatively early stage and therefore presents his
claims as arguments rather than as declarations of the Church’s mind. The effect of his claims will rest
significantly, as Fr. Dulles puts it, “in their persuasiveness to the audience he is addressing – not merely
Catholics, but all persons of good will.”87 In other words, for the magisterial teaching to turn many
Americans against the death penalty, it will have to be reinforced by and intertwined with non-theological
arguments as well. Americans, including Catholics, will have to come to believe that innocent people are
likely to be executed, or that racial bias and other arbitrary factors too greatly affect whether a defendant
is put to death.
C. Evangelical Protestant Approaches
Turning to discuss how Protestant conservatives approach the death penalty, we first run into a
problem of definition. There is a wide range of features that might define a Protestant as being theologically
conservative or “traditionalist.” For example, one common term for conservative Protestants,
“evangelicals,” encompasses a dizzying range of groups from pacifist Mennonites to Religious-Right
fundamentalists to African-American pentecostals.88 However, there are at least three themes common
to most of these groups, themes that make them part of an “extended family” of traditionalist Protestants.89
The first common feature has already been noted in part I-A above: “biblicism,” an emphasis on the Bible,
divinely inspired, as a direct, specific guide for belief and practice.90 I have already briefly discussed the
biblical passages and the difficulties in drawing final guidance from them without putting them in some
historical or theological context. Thus, it is worth moving on to other features common among evangelical
A second common theme is evangelicals’ emphasis on “personal redemption”: that the individual
person can receive salvation from sin through God’s forgiveness and grace, followed by personal
transformation and a direct relationship with God. This focus, embodied most dramatically in the many
waves of Christian “revivals” throughout American history, is especially concerned with “the personal

Dulles, supra note 81.



See, e.g., THE VARIETY OF AMERICAN EVANGELICALISM (Donald W. Dayton and Robert
K. Johnston eds. 1991) (suggesting that the term “evangelical” has so many meanings as to be useless
without further definition).
See Robert K. Johnston, American Evangelicalism: An Extended Family, in DAYTON
supra note 88, at 252-69.



See supra notes 27-42 and accompanying text.,



appropriation of [God’s] grace – with the conversion and the 'new life' that follows the 'new birth.'"91 A
leading evangelical theologian calls this “the Gospel of reconciliation and redemption” running from God
to human beings.92
In addition to these key themes of biblical authority and personal spiritual redemption, leading
evangelical scholar Mark Noll has identified two other key features of how evangelicals think about social
and political issues in particular. Noll emphasizes the “moral activism” of evangelicals, their willingness at
certain times to raise a political issue to the level of a moral crusade, tirelessly pursued.93 In the last 150
years in America, movements to abolish slavery, do away with the gold standard, prohibit liquor, and limit
the teaching of Darwinism in schools were all mounted primarily by evangelical Protestants.94 And while
evangelicals withdrew from social and political activism during some periods (for example, during the
decades after the famous Scopes evolution trial of 1925), they have been intensely active in the last twenty
years in the form of the Religious Right. This capacity for moral activism and fervor is one reason why is
worth asking whether evangelicals could be moved against the death penalty. If such fervor turned to the
abolition or reform of capital punishment, it could have significant power. Indeed, perhaps only individuals
with such religious energy could have the stamina to overcome the public attitudes and inertia that combine
to undergird the death penalty. 95
Finally, Professor Noll remarks on evangelicals’ tendency to rely on “populism [and] intuition” in
approaching politics.96 This factor raises important questions about authority and cohesion among
evangelicals, and I will now address its relation to the death penalty debate. After that, I will discuss how
the remaining factor identified above – the evangelical emphasis on “personal redemption” – might also



BLOESCH, supra note 27, at 4. See also Marsden, supra note 27, at ix-x (asserting that
evangelicals focus on “eternal salvation only through personal trust in Christ,” “the importance of
evangelism” (that is, seeking to bring others to that salvation), and “the importance of a spiritually
transformed life").

NOLL, supra note 27, at 160.



See, e.g., David M. Smolin, Cracks in the Mirrored Prism: An Evangelical Critique of
Secularist Academic and Judicial Myths Regarding the Relationship of Religion and American
Politics, 29 Loyola L.A. L. Rev. 1487 (1996) (discussing the importance of moral idealism and fervor
that religion can bring to politics).

NOLL, supra note 27, at 160.



affect their views on the death penalty.
1. Evangelicalism As a “Democratic” Movement: Populism and “Common Sense” Intuition
Unlike Roman Catholics, evangelicals do not have a single institutional body speaking theologically
for their community, let alone an individual like the Pope who so speaks. Instead, American evangelicalism
is a complex “mosaic” of many different groups97 with different leaders who enjoy influence not because
of an institutional position, but because of their ability to appeal to the rank-and-file of believers. In the
words of historian Nathan Hatch, evangelicalism has historically been a “democratic” movement:
decentralized, populist, distrustful of tradition and of formal theological reasoning.98 As Hatch has shown,
these tendencies run as far back as the massive revivals of the early 1800s among common folk, the
“Second Great Awakening,” and the tendencies remain apparent today. Evangelicals have refused to give
much weight to the statements of institutional religious leaders; instead, they have insisted that the average
individual can understand and apply the Bible and Christian principles by his or her own common sense.
Here, then, are Professor Noll’s themes of populism and intuition. As Noll puts it, the political
positions that evangelicals have taken over the years have often rested on “intuitive conceptions of justice.”
“[E]vangelicals in general have trusted their sanctified common sense more than formal theology, systematic
study of history, or deliverances from academically trained ethicists.”99 Pat Robertson gave an example
of this “common sense” tendency at the symposium, when he simply asserted that execution saves society
the burden of “pay[ing] [the bills of a convicted prisoner] for the rest of their lives”100 – even though in this
case the common sense is wrong, since studies show that with appeals included, it costs considerably more
to execute a person than to incarcerate him for life.101
These tendencies toward populism and “common sense” intuition have two implications relevant
to the current reexamination of the death penalty. First, even if some evangelical leaders such as Pat
Robertson were to become deeply and actively opposed to the death penalty, they will be limited in their
ability to bring others along with them. Even such a prominent figure as Robertson represents only a small
part of evangelicalism. And although many conservative evangelicals admire Pope John Paul II for his

Johnston, supra note 89, at 261-62.



NOLL, supra note 27, at 160.


Robertson Address, supra note 10.


See, e.g., Richard C. Dieter, Millions Imsspent: What Politicians Don’t Say About the
High Costs of the Death Penalty, in BEDAU, supra note 29, at 401-02 (reporting data from various


traditionalist stands on some moral issues, they are not likely to treat his condemnation of capital punishment
as binding on them.
To be sure, prominent evangelical preachers can exert considerable authority over their flocks. As
Professor Hatch notes, the populist orientation of evangelicalism has always meant that charismatic
preachers could attract followers and dominate their thinking, much as charismatic political figures can rise
to power through populist appeals to voters. Hatch shows how this “authoritarian mantle” was exercised
by some 19th-century preachers, but he also sees it in the careers of Pat Robertson and Jerry Falwell. 102
To the extent this is true, an evangelical leader with Robertson’s prominence and popularity might
significantly affect many evangelicals’ views on an issue such as the death penalty.
However, any one evangelical leader, even Pat Robertson, is likely to face limits in truly changing
his followers’ views on social and political issues. Again, no one leader speaks for the majority of
evangelicals in the way that the Pope speaks for Catholics. Indeed, various evangelical leaders often
compete with each other for prominence by taking different positions on particular matters. We may have
seen precisely that dynamic at work when Jerry Falwell broke from Pat Robertson and opposed the call
for a death penalty moratorium.103 For the populist and democratic leader to maintain his prominence and
authority, especially against such competition, he must not outrun the views of the people too far. Populist
leaders, as Hatch points out, gain their position precisely “by appealing to the hopes, fears, and interests
of plain folks.”104 And from the 1800s to the present, Hatch points out, evangelical preachers have shown
a “deep sensitivity to audience” that has often “resulted in values of the audience shaping the message’s
contours.”105 Thus, it is not surprising that Pat Robertson, although he endorsed the death penalty
moratorium, says that for now he is not ready to “crusade for it.”106
This brings us to the second implication of evangelical populism for the death penalty debate. The
reliance on “common sense” intuition has advantages, especially in keeping Christian faith vital among
average people rather than just among the committed few. But it also means that evangelicals’ religious
attitudes can be strikingly shaped by the culture surrounding them rather than by the distinctives of the
Christian message. What seems to be simply common sense is typically the product of cultural
assumptions so natural that one does not even see that they exist, like the air we breathe. A prime example
in modern politics is how so many southern white Protestants failed to overcome the racial prejudices of

HATCH , supra note 98, at 16, 208.


See supra note 24 and accompanying text.


HATCH , supra note 98, at 208.


Id. at 16.


Petkofsky, supra note 1, at A1.



their region during the civil rights era, notwithstanding the New Testament teaching that “in Christ there is
neither Jew nor Greek.”107 Indeed, it has been argued that evangelical religion became dominant in the
South from the 1800s forward only by adopting preexisting features of Southern culture, such as an
emphasis on honor, masculinity, and the legitimacy of violence.108 Likewise, because evangelical churches
are “democratic” institutions highly accountable to their members, they can be more captive to the
community’s general social attitudes than is a more hierarchical church. Again, the civil rights era provides
an example: Roman Catholic bishops in several southern cities ordered the desegregation of their parochial
schools in the early 1950s, a number of years before the general, largely Protestant society in the South
accepted the process in public schools.109
With respect to the death penalty, then, we should expect white evangelicals’ attitudes to fall in line
with the general attitudes of their regions. Southern evangelicals will be more pro-death-penalty. They will
tend to harmonize their religious attitudes with the greater acceptance of state violence in this region.110
They will achieve that harmonization by emphasizing the biblical passages that endorse or assume capital
punishment, rather than the themes that undercut it or severely limit it.
The populist and intuitive orientation of white evangelicals thus suggests that efforts to turn them
against the death penalty cannot rely predominantly on theological arguments from religious leaders.
Criticisms will also have to rely heavily on arguments that appeal simply to individuals’ intuitive “common
sense.” In other words, conservative Protestants, like other Americans, will probably be as much or more
influenced by factors such as the threat of executing innocent people, the inadequacy of representation of
capital defendants, and the racial and other arbitrary disparities in sentencing. Not surprisingly, features
Pat Robertson focused on those features in his symposium address at William and Mary. Likewise,
Christianity Today began its 1998 editorial against the death penalty with the empirical problems in the
system – those same factors – using them as a “conversation starter.”111 One leader of the evangelical



26-27 (1997).

COMMUNITY IN THE UNITED STATES 305-06 (1981) (noting, however, that these directives met with
See Hugo Adam Bedau, Background and Developments, in BEDAU, supra note 29, at
1,23 (describing “the lower tier running from Virginia and the Carolinas west through Texas to
Arizona,” where “the death penalty is as firmly entrenched as grits for breakfast”).

CT Editorial, supra note 23, at 25.



prison ministry Prison Fellowship, in an article criticizing the death penalty, wrote that “[t]his issue cannot
be decide on the basis of Scripture or theology alone. We have to put capital punishment in its legal and
socioeconomic context. . . . Moving beyond abstractions, we must consider how the death penalty is
applied,” especially how the quality of representation, in turn affected by the defendant’s wealth, greatly
affects whether a death sentence will be imposed.112
At the same time, there are also Biblical and theological grounds, as well as “common sense”
grounds, for condemning the flaws in the current system. As has already been mentioned, the historic
Jewish practice in capital cases required a “certainty of guilt” and showed great “reluctance” to execute,
for example by requiring two eyewitnesses in order to convict and requiring that the witnesses themselves
carry out the execution.113 The biblical practice also showed concern for equal justice, stipulating that
neither rich nor poor should have an advantage in legal proceedings.114 As evangelical scholar Daniel van
Ness has argued, the current practice fails to provide such safeguards. Innocent people have been
sentenced to death based on the testimony of a single, questionable eyewitnesses. The volume of capital
sentences is becoming more and more troublesome, raising the question whether juries are showing the
proper reluctance to prescribe death. The low quality of some appointed counsel makes it plain that
economic status affects the result in capital cases; and the statistics show that the race of the victim and the
accused matters as well.115 Thus, while simple common sense can show the flaws in the current
administration of the capital system, the common-sense criticisms might be significantly bolstered among
evangelical Protestants by specific appeals to standards found in the Bible.
2. Theological Challenges to the Death Penalty: Grace and Personal Redemption
So far, the argument concerning evangelicals has been largely negative: they cannot be turned
against the death penalty by theological arguments alone, but must be convinced on a practical level as well,
and the practical arguments primarily challenge the administration of the death penalty rather than
challenging its basic morality. Nevertheless, theology is still relevant. One central theological theme in
evangelical religion can join with practical arguments to challenge the very existence of capital punishment,
or at least severely limit it. This theme is what I have called “personal redemption”: the evangelical
emphasis on divine mercy and grace, and the idea that God can forgive and redeem even the worst

Steve J. Varnam, A Barely Tolerable Punishment, CHRISTIANITY TODAY, Sept. 11, 1995,


at 19.
See supra notes 37-38 and accompanying text.


van Ness, supra note 35, at 12 (citing EXODUS 23: 3, 6).





sinner.116 This emphasis stems from the classical Protestant doctrine that one is saved not by one’s
goodness or merit (“works”), but by accepting (in “faith”) God’s gift of forgiveness, made possible because
Jesus died to take the punishment for human sins. The theme of redemption by grace runs throughout the
history of American evangelicalism, especially in the tradition of “revival” services continuing from 19thcentury camp meetings to the sophisticated modern campaigns and TV shows of Billy Graham, Jerry
Falwell, and the Promise Keepers.
One has to be careful, of course, in suggesting that concepts of grace and forgiveness apply to the
sphere of law and politics without qualification. In mainstream Christian doctrine, grace is unmerited: God
forgives us in his mercy, even though we deserve condemnation, no matter what our sins. Of course, the
very existence of law and punishment must rest on some notion that the offender receives a sanction he
deserves, and that he must in fact receive that sanction in order to vindicate the law and deter others from
Nevertheless, concepts of grace and forgiveness can apply, not to abrogate punishment altogether,
but to prescribe imprisonment instead of execution. Two points stand out.
First, by ending the offender’s life, capital punishment logically reduces his life to the act he has
committed, and it denies the possibility of redemption. Capital punishment not only reduces the time in
which remorse and rehabilitation are possible. In addition, the lack of possible rehabilitation serves as a
key aggravating factor under many capital statutes. This logical feature of capital punishment conflicts with
the Christian assertion that redemption is always possible. Thus, evangelicals who question the death
penalty point out that however brutal the crime, “we must never forget the power of grace and mercy,” and
that “[t]aking the life of the offender only removes the possibility of remorse, repentance, and penance.”117
Jesus’ reaction to the adulterous woman may not be a “proof text” in itself against capital punishment, but
it does generally support the argument that “[r]ather than demanding vengeful punishment, we are to show
forgiveness, compassion, and the opportunity for repentance.”118 Saint Augustine pursued the same line
of argument in one of his sermons:
“Man” and “sinner” are two different things. God made man; man made himself sinner.
So, destroy what man made but save what God made. Thus, do not go so far as to kill
the criminal, for in wishing to punish the sin, you are destroying the man. Do not take away
his life; leave him the possibility of repentance. Do not kill[,] so that he can correct

See supra notes 144-45 and accompanying text.


Varnam, supra note 112, at 19.





For this reason, Augustine argued repeatedly that the Donatists and other heretics he so vigorously opposed
should not be executed, even when several of them were convicted of murdering one of Augustine’s own
priests in the diocese where he was bishop. In the words of Garry Wills, “Augustine fe[lt] that the criminal
needs time to cool down, to consider, to repent, to pray. [He] knew from his own case that God may have
future uses for a sinner who renounces his sin.”120
For this reason, the execution of Karla Faye Tucker posed a challenge to many evangelical
Protestants such as Pat Robertson. As Sister Helen Prejean put it, Tucker, with her conversion and prison
activities, “embodie[d]” the principle of redemption, that even a murderer could be “transformed.”121 But
evangelicals cannot not coherently limit their desire for clemency to someone like Tucker, for the power
of the evangelical message lies in the claim that the redemptive power of Jesus can extend to any human
being, no matter how depraved. In Sister Prejean’s words, Tucker’s case forced evangelicals to consider
the “possibility that perhaps every human being is more than the worst act of their lives, and that they can
be open to redemption.”122 Robertson’s address at this symposium dramatized the difficulty. He continued
to support the death penalty in principle, but reaffirmed his opposition to applying it to someone such as
Tucker who truly had transformed.123 Then came the obvious question from the audience: given the
unlimited power of God, how do you know that any given death-row convict, no matter how unrepentant
now, would not be similarly transformed in the future? Robertson candidly admitted that he had no answer
to that question. 124
Second, the Christian doctrine of grace asserts that forgiveness has a healing power that no other
approach to evil has. It therefore challenges the claim, undergirding capital punishment, that ending the

MEGIVERN, supra note 32, at 38 (quoting sermon cited in GUSTAVE COMBES , LA


Malcolm, supra note 19, at 4.




Robertson Address, supra note 10 (“I, frankly, stand before you as one who is in favor of
the death penalty. I’m not opposed to the death penalty as such. . . . [But] we must temper justice with

Id. (conceding the point and adding only that “[i]n order to accommodate [it] you’d
essentially have to do away with the death penalty entirely because you never know at what period of
time somebody would have an experience”).


murderer’s life is the only way to bring peace to the survivors and to society. On this score, the testimony
of Debbie Morris is striking. Morris was kidnapped and raped, and her boyfriend shot and seriously
wounded, during a crime spree by Robert Lee Willie, whose execution for a murder committed during that
spree became the subject of the book and movie Dead Man Walking.125 In her own book, Forgiving
the Dead Man Walking, Morris describes the long process of recovery from the emotional trauma she
suffered, and how the news that Willie had been executed left her “numb”: “I’d finally realized that no
punishment – not even the ultimate punishment, the ultimate justice – could ever heal all the wounds.”126
Real healing only began later when Morris, who by then had become an evangelical Christian, began to
forgive first Willie, then God (for allowing the terrible events to happen), and finally herself (for the things
she had done wrong in the intervening years). “[My] refusal to forgive [Willie],” Morris writes, “always
meant that I held on to all my Robert Willie-related stuff – my pain, my shame, my self-pity.”127 In the book
itself, issued by a major evangelical publisher, Morris remains ambivalent about whether executing Willie
was morally right, but she is adamant that it did not bring her peace. “Justice didn’t do a thing to heal me.
Forgiveness did.”128
Morris’ argument concerning forgiveness was echoed by Christianity Today in its editorial against
the death penalty, calling for churches to provide help to survivors and victim’s families rather than to
support executions of killers: “Christian compassion can comfort the afflicted. More executions cannot.”129
The editorial bemoaned the fact that executions seem to appeal to our “carnal appetite for revenge, and
it argued that
Jesus’ counsel of nonresistance has as its goal not only crushing the spirit of vendetta, but
also reconciliation (a goal embodied in victim-offender reconciliation programs that have
proved effective where tried). . . . [W]hile murderers clearly deserve to die, Christians
know that we all deserve death, and the ethic of Jesus drives us to spend most of our
limited energies in the relationally complex and costly task of reconciliation.130
Morris’s is only one story about the effect of capital punishment on survivors; other people strongly




Id. at 249-50.


Id. at 251.


CT Editorial, supra note 23, at 26.





disagree.131 However, there are good reasons to believe that execution is a very flawed way to seek such
peace. Review of a death penalty case is inevitably longer and more complicated than review of a prison
sentence, thus dredging up the crime repeatedly. The defense at the sentencing hearing and various appeals
will try to humanize the defendant and evoke sympathy for him, and both of these subjects – the horror of
the crime and the sympathy for the condemned murderer – become the focus of attention again at the time
of the execution itself.132
These arguments do not necessarily show that the state lacks authority ever to execute someone.
Rather, the arguments, like those of the Pope, caution that if such authority exists, it should only be
exercised extremely sparingly and in cases of absolute necessity. Again, Augustine’s reluctance to execute
in order to preserve the possibility of repentance provides a model: “One may endlessly defend the right
of the state to execute wrongdoers when absolutely necessary, but in the last analysis, the Augustinian
position was that that right, no matter how valid or well founded, ideally should never actually be
The previous discussion has analyzed the approaches, theological and cultural, of conservative
Catholics and Protestants toward the death penalty. How does this analysis apply to real-world events?
What developments might work to sway more religious conservatives against the death penalty?
A. Reforming the Application of the Death Penalty
One conclusion from the above analysis is clear and not surprising: it should be easier to convince
religious conservatives that the death penalty currently is unfairly and improperly administered than that it
is immoral or improper per se. Religious conservatives, I have argued, are likely to be swayed by the same
prudential or “common sense” arguments that would sway Americans in general, and most of these concern
the administration of the system: the danger of executing innocent people, the poor quality of defense
counsel, the racial disparities in sentencing, and so forth. Even if one believes that executing murderers can,
in theory, communicate the state’s respect for life, one may be convinced that the system as currently
practiced fails to show such respect. Thus, opponents of the death penalty should, to a significant extent,
continue their recent strategy of focusing attention on how capital punishment is actually practiced, not on
what its validity might be in the abstract.
See, e.g., Eugene Kennedy, Inner Peace Restored for Victims’ Families When Murderer
is Executed, NA T ’L CATH . RPTR., July 2, 1999, at 21.

HANKS , supra note 33, at 91-92.


MEGIVERN, supra note 32, at 42.



Of course, the strategy of focusing on flaws in the penalty’s application, and sidestepping the
question of its basic moral legitimacy, carries a risk. If the flaws in application are corrected, the death
penalty will actually gain greater legitimacy and be more difficult to overturn in total. Some commentators
warn that this is all that the current attack on the death penalty will accomplish.134 To be sure, the focus
on applications is still quite defensible. The perfect should not be made the enemy of the good, and many
of the flaws in applications are unlikely to be corrected to the point where we can rest comfortably with
executing people. Society’s tendency to value people’s lives according to their race seems deeply
ingrained, and my state of Alabama, among others, is unlikely suddenly to devote massive amounts of
money to funding adequate representation for indigent defendants. Nevertheless, the strategy of focusing
on applications rather than per se legitimacy clearly has its limits.
B. Opposing the Death Penalty Per Se
Accordingly, it is worth asking what developments, if any, might help turn religious conservatives
against the death penalty in principle, rather than just raise concerns about particular flawed convictions and
sentences. Again, many of the factors that would influence religious conservatives are those would influence
other Americans as well. Thus, the flaws in the system and the difficulty of correcting them fully (for
example, the costs and difficulties of truly ensuring that no innocent person is executed) are certainly
relevant. So too are the overall levels of crime and homicides, which since the 1950s have been among
the best predictors of public support for the death penalty – falling as crime rates stayed low from 1953
to 1966, rising rapidly as crime rose from 1966 to 1982, and leveling off at high rates in the 1980s and
early 1990s as crime rates did the same.135 Violent crime rates have fallen substantially in the mid- to late1990s.136 Allowing for lags in public perception of that fact, support for the death penalty might drop
further as well.
With Pope John Paul II aging and in poor health, the question arises whether the next Pope will
continue the campaign against the death penalty and, perhaps more importantly, possess the stature and
charisma to do so as effectively as John Paul has. But opposition to capital punishment is now so deeply
ingrained among Roman Catholic leaders, in America and elsewhere, that it likely will continue strongly in
the future as well. To close, then, I want to focus on evangelical Protestants and on two possible
developments that may be particularly important, even if indirectly, in swaying them against the death
Benjamin Soskis, Alive and Kicking, THE NEW REPUBLIC, April 17, 2000, 2000 WL
4661954 (noting that some death-penalty proponents support reforms “as a sort of purge that will rid
the death-penalty debate of a few embarrassing statistics”).

See Phoebe C. Ellsworth and Samuel R. Gross, Hardening of the Attitudes: Americans’
Views on the Death Penalty, in BEDAU, supra note 29, at 90, 107-08.

See, e.g., Roberto Suro, Major Crime Down in ‘98 for 7th Consecutive Year, DENVER
POST, May 17, 1999, at A9 (1999 WL 7883808).


penalty over the long term.
One such development would be for white conservative Christians to interact and sympathize more
with African-Americans. Blacks, of course, support the death penalty less than any other major social
group (about 58 percent in the 1998 election survey), largely because they are keenly aware of the way
in which capital sentencing values the lives of black victims and offenders less than those of their white
counterparts.137 More white conservative Christians would be likely to appreciate this flaw at the heart of
the system if they interacted more with their black brothers and sisters. The future may see more such
interactions. Black Christians share many standard evangelical beliefs with white evangelicals, especially
about personal salvation and the divine inspiration of the Bible. Recently, white evangelicals have made
overtures toward blacks. The strongly conservative Southern Baptist Convention has apologized for its
past and current racism and has begun strenuous efforts to add black churches to the denomination.138 The
Promise Keepers, the conservative evangelical men’s movement, features racial reconciliation as a
prominent message at rallies and includes many minorities as speakers and on its staff.139 One leading
evangelical political activist comments that “‘[f]or the first time in this century, white evangelicals are serious
about the issue of racism.”140
Understandably, many black leaders are skeptical of these overtures. In their view, such contacts
have gone on for years, are largely symbolic, and have not increased white suburban evangelicals’ concern
about the situation of racial minorities or the needs of the inner cities.141 Black leaders remark that whites
want to form individual friendships with blacks, but that they balk at confronting social and political issues

NES Study, supra note 12.


See Anne Saker, Southern Baptists Apologize to Blacks, RALEIGH NEWS & OBSERVER,
June 21, 1995, at A1; Julia Lieblich, Southern Baptists Recruit in Inner Cities, ASSOCIATED PRESS,
June 15, 1999; Joe Maxwell, Black Southern Baptists: The SBC’s Valiant Effort to Overcome Its
Racist Past, CHRISTIANITY TODAY, May 15, 1995, at 26 (noting that 1500 new or existing black
churches joined Southern Baptist Convention from 1985 to 1995).

See Promise Keepers and Race, 113 THE CHRISTIAN CENTURY 254 (March 6, 1996).


Jim Jones, Still Playing Catch-Up, CHRISTIANITY TODAY, May 19, 1997, at 56.



126 (1993) (“[B]lack evangelicals have never been taken seriously by the larger [evangelical] group.”);
id. at 116 (“The evangelical church in the suburbs has virtually no comprehension of the hopelessness
that abounds in [the inner city] just a couple of dozen miles away.”).

such as inequality in the economy and racism in the criminal justice system.142 Although there may be far
to go and significant limits on likely accomplishments, nevertheless, increasingly regular interaction between
blacks and whites, with an eye toward reconciliation, is likely to make more whites understand the poison
of racism, including the ways that it affects the capital sentencing process.
A second development for which to hope is for more conservative Christians to become involved
in ministries to prisoners such as vocational programs, counseling sessions, victim-reconciliation meetings,
and so forth. According to a study of volunteers for the evangelical organization Prison Fellowship, about
half of the volunteers who visited prisoners or undertook other activities “said their attitudes had changed
toward a more rehabilitative view of criminal justice since becoming volunteers.”143 And increased belief
in the possibility of rehabilitation should lead, other things being equal, to increased doubts about the death
penalty. As was noted above, Christian theology emphasizes the possibility of redeeming even the worst
sinner, but in practice people find it far easier to believe in such redemption when they can relate to the
offender as a person rather than an abstraction. That was why Karla Tucker’s challenged white
evangelicals directly; her winsomeness “br[oke] through” the typical cultural walls and enabled
conservatives to relate to her.144 But Tucker was only one death-row inmate, and a uniquely appealing one
to Christian conservatives. Volunteer prison ministers provide a more systematic, ongoing way for
evangelicals to connect with prisoners as persons. One evangelical author reports how his opposition to
the death penalty “solidified” after he began visiting and befriending a life prisoner whose death sentence
had been commuted in the 1970s:
My new friend had experienced redemption that would not have been possible had he
been executed. I now knew personally that, for all the problems with imprisonment as a
form of punishment, it at least allowed for redemptive possibilities in the lives of criminals
– possibilities that were cut off by the death penalty. This experience has shaped my
approach to the death penalty in concrete ways. The testimonies of many others involved

See, e.g., PANNELL, supra note __, at 57, 134 (“[t]he evangelical world is prepared to deal
with black men one at a time,” but it “get[s] uptight when nonwhites press the claim for a theology that
liberates in the socio-political arena”). A recent book addressing the subject similarly concludes
thatwhite evangelicals, though often well-intentioned toward blacks, are hampered in crossing racial
divides because they perceive race as a amtter of personal relationships rather than systematic


Description and Key Findings, The South Carolina Initiative Against Crime Project: 1996 –
Volunteer Survey (June 12, 1997), available at
Malcolm, supra note 19 (quoting Sr. Helen Prejean).



in prison visitation [are] similar.145
Concern for prisoners does not necessarily translate into opposition to the death penalty. Prison
Fellowship’s founder, former Watergate convict Charles Colson, supports the death penalty “in extreme
cases” despite his friendship with many death-row prisoners.146 Nevertheless, on the whole, the more that
conservative Christians become directly involved with prisoners’ lives, the more likely they will be to
question the act of ending those lives and any further chance for rehabilitation. Death penalty opponents
should welcome the involvement of conservative Christians in prison ministries; they should question legal
rules, whether prison regulations or strict interpretations of church-state separation, that hamper such
organizations from relating to prisoners on a voluntary basis.
A series of recent developments, from the statements of the Pope and Pat Robertson questioning
capital punishment to the publicity over flaws in the capital system, have raised the possibility that support
for the death penalty might be significantly undermined among religiously conservative Americans. If
opponents of the death penalty are to take advantage of the opportunity, they will have to engage
theological conservatives in part on practical, “common sense” grounds: the danger of executing innocent
people, the lack of competent counsel in too many cases, and so forth. But as discussion of the moral
implications of the death penalty goes forward, it is also important to understand how theological
conservatives tend to reason about social issues in general, with the death penalty as a specific example.
This Essay is simply a preliminary examination of how traditionalist Roman Catholics and evangelical
Protestants have approached the issue. Much more discussion needs to follow about the moral and
theological implications over the death penalty: discussions both among conservative religious believers and
between them and other Americans.

Michael L. Westmoreland-White, How Renewal in Church Practices Can Transform the
Death Penalty Debate, in CAPITAL PUNISHMENT: A READER 219, 221 (Glen H. Stassen ed. 1998).

Charles W. Colson, Capital Punishment: A Personal Statement 1 (unpublished
manuscript, on file with author).