The Death Penalty

PRISON FELLOWSHIP'S POSITION

Throughout the Bible, we see several references to the death penalty, or capital punishment. Scripture includes mention of capital punishment in both the Old and New Testaments.^[1] Faithful followers of Christ often disagree on whether Scripture mandates, permits, or prohibits the practice. Because of this, at Prison Fellowship we acknowledge that there are multiple perspectives on capital punishment among Christians seeking an informed, biblical position.

We recognize that Christians can come to different conclusions about the use of the death penalty depending on their interpretation of Scripture. These generally include four main positions: (1) Oppose the death penalty in all cases, believing that no crime justifies its use; (2) Do not see the death penalty as inherently unjust but argue that procedural issues within the legal system make it generally unjustifiable or permissible only in the rarest cases; (3) Support the death penalty in certain circumstances, though do not consider it mandatory for any specific crime; and finally (4) Aim to align the legal system with Old Testament law and advocate for the death penalty for a set category of serious crimes.

Although Christians may take different positions on the use of the death penalty, all believers should approach questions of life and death with a posture of solemnity and reverence. To this end, we urge Christians to carefully consider Scripture, as well as history, data, and additional context, to inform their convictions on this issue. This resource is designed to equip you to do just that.

Because some Christians conclude that the death penalty is justifiable in some cases, we include Prison Fellowship’s position on procedural requirements to promote fairness and protect human dignity for all involved.

These are our recommendations for those who conclude the death penalty is justifiable:

The Scope

The death penalty, also known as capital punishment, is the process of sentencing and executing people convicted of certain serious crimes, such as murder.^[2] Throughout American history, a robust public debate has persisted between advocates for and opponents of this practice. Proponents of capital punishment maintain its effectiveness as a deterring and/or retributive tool for upholding public safety and moral order, while its opponents cite high costs, exonerations, and racial disparities as grounds for abolition.

People in the U.S., excluding the intellectually disabled and minors, can receive the death penalty for murder, as well as for other violent crimes depending on the jurisdiction.^[7] While the use and implementation of the death penalty varies, neither should violate the Eighth Amendment’s prohibition against “cruel and unusual punishment” or the Fifth Amendment’s due process guarantee.^[8]

Capital punishment is currently authorized in 27 states, by the federal government, and by the U.S. military.^[9] In recent years, the number of people sentenced to and serving death sentences has decreased, as has the number of executions carried out. In 2020, seven states sentenced 14 prisoners to death, the smallest annual number reported since the U.S. Supreme Court’s 1972 decision in Furman v. Georgia. As of 2022, there were about 2,500 individuals serving death sentences nationwide.^[10] Between 1977 and 2020, 1,529 executions were carried out nationwide, a stark decrease compared to the 3,859 executions between 1930 and 1977.^[11]

Further, studies show that racial disproportionalities persist in applying the death penalty.^[12] One study found that from 1977–2019, 308 Black defendants were executed for murders involving at least one white victim, while 34 white defendants were executed for murders in which at least one victim was Black.

Lethal injection is the primary method of execution in states that permit capital punishment today.^[13] In recent years, lethal injection drugs have become increasingly difficult to obtain due to the manufacturers’ ceased production or refusal to sell for execution purposes.^[14] The availability of alternative methods depends on the state. Some states permit selection by the condemned prisoner, while others permit an alternative method only if lethal injection is found to be unconstitutional or unavailable.^[15] In 2019, the Supreme Court denied a claim that a lethal injection procedure was cruel and unusual punishment, holding that a person challenging a method of execution must provide a readily available alternative, even when the challenge is based on characteristics unique to the individual prisoner.^[16]

In rare circumstances, a death-sentenced prisoner may obtain relief through executive clemency under state or federal law. A clemency petition asks a governor, board of pardons and parole, or both to conduct a full review of a case.^[17] The petitioner may be granted a reprieve, delaying their execution for a period of time; a pardon, effectively overturning their conviction; or a commutation, reducing their sentence.^[18] Although the Supreme Court has held that some minimal procedural safeguards should apply in clemency proceedings, most lower courts have been reluctant to impose standards on this procedure.^[19]

History of the Death Penalty

The history of the death penalty in America dates to the colonial era. European settlers brought the practice of capital punishment with the execution of Captain James Kendall for treason in 1608.^[20] In colonial America, the scope of offenses warranting capital punishment was broad.^[21] Charges of heresy, adultery, striking one’s mother, and repeated criminal involvement could warrant the death penalty.^[22]

Following the Constitutional Convention and the ratification of the Bill of Rights, states and the first Congress enacted capital statutes dictating specific crimes eligible for a death sentence.^[23] By 1776, most states prescribed the death penalty for offenses including murder, arson, treason, robbery, and rape.^[24] However, the application of capital punishment varied greatly based on race. Statutory limitations on capital offenses were expressly reserved for whites in the South, while the scope of offenses warranting the death penalty was expanded for enslaved people and free African Americans.^[25] For example, Virginia law specified 66 crimes for which enslaved people could be punished by death, but only four offenses for which white citizens could face the same punishment.^[26] As a result, most executions in the U.S. during the eighth century occurred in the South, and most people executed were Black.^[27] Meanwhile, the rate of execution for white Americans declined.^[28]

In the wake of the Civil War and Reconstruction Era amendments, explicitly race-based capital codes were replaced by facially neutral laws (which do not appear to discriminate against a specific group on their face but still have discriminatory intent or impact).^[29] Although the death penalty was widely used in the first half of the 20th century, public favor declined, and states embraced more humane and alternative methods of execution by the 1950s. By 1955, the electric chair had become the dominant method of execution in 26 states, and 11 states had introduced death by asphyxiation.^[30] By the late 1970s, the firing squad had become the primary execution method.^[31] Oklahoma was the first state to adopt lethal injection, although the first execution by this method was carried out in Texas in 1982.^[32]

Amid the War on Crime era, public support for capital punishment reached an all-time high with 78% of Americans favoring the death penalty for people convicted of murder.^[33] This coincided with the passage of the 1994 Violent Crime Control and Law Enforcement Act, expanding the federal death penalty. A record high of 98 executions took place in 1999.^[34]

Historically, Christians have been divided on the issue of the death penalty. As previously mentioned, some believe Scripture permits or even mandates capital punishment, while others believe Scripture prohibits the practice. In 2015, the Pew Research Center found that while more Christian groups officially opposed the death penalty than supported it, individual members of those groups didn’t necessarily hold the same view.^[35] Pew also conducted a survey in 2021 that found that 66% of Protestants and 58% of Catholics in the U.S. favored capital punishment.^[36] This disparity between official doctrine and personal beliefs highlights the complex nature of the death penalty debate within the Christian community.

Although the last 20 years have brought a decline in public favor toward, and administration and execution of, the death penalty, racial disparities in applying it persisted due to prosecutorial discretion and all-white sentencing juries.^[37]

Noteworthy Reforms

In 1972, the U.S. Supreme Court ruled on capital punishment for the first time in Furman v. Georgia. The court held the death penalty unconstitutional as “cruel and unusual punishment” when the punishment was not proportional to the crime or if discriminatory sentencing guidelines were utilized.^[38] This decision effectively created a moratorium on the death penalty, leading 35 states to pass refined death penalty laws and Congress to pass statutory guidelines for death sentences.^[39] Four years later, capital punishment was reinstated through Gregg v. Georgia, when the Supreme Court upheld that Georgia’s updated death penalty statute was not “cruel and unusual punishment”. According to Gregg, the statute provided jurors sufficient discretion in determining whether to apply the death penalty, separate phases for determining guilt and sentencing at trial, and automatic review of the verdict by an appellate court.^[40]

Since then, the court has decided two cases that create a test for determining whether execution protocol violates the Eighth Amendment. The first was a 2008 case, Baze v. Rees, where the court held that a state’s refusal to alter its execution protocol would violate the Eighth Amendment only if a prisoner identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.”^[41] This ruling was upheld in 2015 by Glossip v. Gross and is now known as the Baze-Glossip Test.^[42]

As of 2000, religious rights of incarcerated people have been upheld through the Religious Land Use and Institutionalized Persons Act. In March of 2022, the Supreme Court ruled on a case as it pertains to religious rights of individuals on death row. The Ramirez v. Collier case arose from a situation in Texas where the individual sought to have his pastor pray aloud and lay hands on him during his execution. In an 8–1 decision, the court ruled that “Ramirez is likely to succeed on his RLUIPA [Religious Land Use and Institutionalized Persons Act] claims because Texas’s restrictions on religious touch and audible prayer in the execution chamber burden religious exercise and are not the least restrictive means of furthering the State’s compelling interests.”

On the state level, over the last two decades several states have repealed capital statutes, while others have adjusted the eligible offenses and aggravating factors considered in the sentencing process for a death sentence.^[43] In some states permitting the death penalty, executions have not been carried out for many years.^[44] For example, Kansas has not executed a person in more than 40 years.^[45] Most recently, New Hampshire (2019), Colorado (2020), and Virginia (2021) legislatively abolished the death penalty and replaced it with a sentence of life without parole.^[46] In 2021, Attorney General Merrick Garland issued a moratorium on federal executions.^[47]

Modern reforms to capital statutes focus on concerns over cost, viable methods of execution, intellectual disability, and lengthy trial and appellate procedures.^[48] Fifteen states have an established secondary method of execution authorized by statute. Laws in Alabama, Arkansas, Mississippi, New Hampshire, Oklahoma, Tennessee, Utah, and Wyoming provide a secondary option if lethal injection is found to be unconstitutional and/or unavailable. Arizona, Kentucky, Tennessee, and Utah all have a choice of secondary methods for individuals who were sentenced before the introduction of lethal injection, while Alabama, California, Florida, Missouri, and Washington have other methods that are available if the prisoner requests an alternative. Secondary methods of execution include electrocution, lethal gas, hanging, nitrogen hypoxia, and firing squad.

Key Supreme Court Capital Punishment Decisions

Furman v. Georgia (U.S. 1972): The court held that the death penalty, as then administered, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.^[49] The capital statutes at issue were found unconstitutional because they provided juries and judges practically “untrammeled discretion” to impose a sentence of death or life, and the evidence supported that death sentences had been discriminatorily applied.^[50] This decision immediately led to a moratorium on capital punishment nationwide, commuting the death sentences of 600 people across 32 states to life imprisonment.^[51]

Woodson v. North Carolina (U.S. 1976): Statutes that impose mandatory death sentences for committing certain crimes violate the Eighth and Fourteenth Amendments. Individualized sentencing review is a constitutionally indispensable part of the capital punishment process.^[52]

Gregg v. Georgia (U.S. 1976): The court upheld the constitutionality of new capital statutes for murder that established discretionary sentencing guidelines, bifurcated proceedings, and automatic review by an appellate court.^[53]

Ford v. Wainwright (U.S. 1986): The Eighth Amendment prohibits a state from carrying out a death sentence upon a “mentally insane” prisoner.^[54]

McCleskey v. Kemp (U.S. 1987): The court upheld Georgia’s death penalty statutory scheme, despite evidence that it operated in a racially discriminatory manner.^[55] The defendant’s case centered on a study by Professor David C. Baldus that found Georgia’s death sentencing scheme imposed arbitrary, inconsistent sentences influenced by the victim’s race and the place where the defendant was prosecuted.^[56] The study indicated only a discrepancy correlated with race, and that such disparities in sentencing are inevitable in the criminal justice system.^[57] To prevail, the defendant must demonstrate that the law had an intentional discriminatory purpose against him, not merely a discriminatory impact.^[58]

Thompson v. Oklahoma (U.S. 1988): Executions of people under 16 years of age at the time of their offense are prohibited by the Eighth and Fourteenth Amendments.^[59]

Atkins v. Virginia (U.S. 2002): The Eighth Amendment prohibits the state from executing persons of intellectual disability. Death is not a suitable punishment for an intellectually disabled convicted person.^[60]

Roper v. Simmons (U.S. 2005): The Eighth Amendment forbids the imposition of the death penalty on juveniles under the age of 18.^[61]

Baze v. Rees (U.S. 2008): The court approved a three-drug combination of (1) sodium thiopental, a sedative that in­duces unconsciousness, (2) pancuronium bromide, a muscle relaxer that induces paralysis, stopping respiration, and (3) potassium chlo­ride, which causes cardiac arrest.^[62] To constitute an Eighth Amendment violation, the defendant must demonstrate that the current method of execution creates an intolerable risk of harm and identify a known and available alternative method that entails a lesser risk of pain.^[63]

Glossip v. Gross (U.S. 2015): Upholding Baze, the court ruled that to prove a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment, a defendant must demonstrate that a method of execution has a substantial risk of harm as compared to a known and available alternative method of execution.^[64]

Shinn v. Ramirez (U.S. 2022): The court held that a federal habeas court may not conduct an evidentiary hearing, and that federal courts must be bound by the evidence presented in state court, even if the defendant did not have effective postconviction counsel.^[65]