A Refutation of the ELCA Social Statement on The Death Penalty
By Kenneth Lohr
The statement of the Evangelical Lutheran Church in America on The Death Penalty is a confusing document. It says that its teaching authority is not coercive and that the moral deliberation on the death penalty is not finished; yet it commits the ELCA to work for the abolition of the death penalty. It claims to affirm the Lutheran Confessions1 and then proceeds to negate them. In my analysis of the statement, I begin with the Confessions.
The Augsburg Confession states:
It is taught among us that all government in the world and all established rule and laws were instituted and ordained by God for the sake of good order, and that Christians may without sin occupy civil offices or serve as princes and judges, render decisions and pass sentence according to imperial and other existing laws, punish evildoers with the sword. . . . (XVI.1-2).2
The Apology further explains:
[T]he Gospel does not introduce laws concerning the civil state,but is the remission of sins and the beginning of a new life in the hearts of believers. . . . [P]rivate redress is prohibited not by advice, but by a command. Public redress, which is made through the office of the magistrate, is not advised against but is commanded, and is a work of God according to Paul3 (XVI.58, 59).4
The Large Catechism also states:
[N]either God nor the government are included in this [fifth] commandment.5 Nor are they deprived in this commandment of their right to take human life. For God has delegated his authority to punish evildoers to the civil government. . . . Therefore what is forbidden here applies not to governments but to private individuals. . . . [T]he hangman does not sin against God’s commandment because God himself instituted that office (I.180-181, 274).6
The Formula of Concord places under a list of “intolerable articles in the body politic” the following “errors of the Anabaptists”:
That as occasion arises no Christian, without violating his conscience, may use an office of the government against wicked people, and that subjects may not call upon the government to use the power that it possesses and that it has received from God for their protection and defense. . . . That in the New Testament the government cannot with a clear conscience inflict capital punishment upon criminals (Epitome XII.14,16).7
The last two condemnations are reiterated elsewhere (Solid Declaration XII.19,21).8 Furthermore, in Romans 13, Paul states that the civil authority is the ordinance of God, and that in bearing the sword the civil ruler is “the servant of God to execute his wrath on the wrongdoer” (v. 4).9
Retribution Negated
The social statement declares that members of the ELCA continue their deliberation, “upholding together the authority of Scripture, Creeds, and Confessions” (p. 2).10 Then under “An Affirmation,” it again refers to “Scripture and the Lutheran Confessions,” but what follows is anything but an affirmation. Rather, it attempts to show that capital punishment is objectionable, and offers the fact that it is retributive as a reason why Christians should object to it: “Capital punishment focuses on retribution, sometimes reflecting a spirit of vengeance. . . . The death penalty exacts and symbolizes the ultimate personal retribution” (p. 3). Here the social statement negates the biblical and confessional position that retribution by the state is ordained by God.
The argument preceding the previous quotation must be examined. It claims that,
Renewed by the Gospel, Christians, as salt of the earth (Matt. 5:13) and light of the world (5:14), are called to respond to violent crime in the restorative way taught by Jesus (5:38-39) and shown by his actions (John 8:3-11) [p. 2].
I note from Matthew 5:38-39 that, although striking someone on the cheek may technically qualify as a violent crime, it is certainly not the clearest of examples. The illustrations that follow (5:40-42) are not violent crimes, nor is adultery (John 8:3-11). The phrase quoted in Matthew 5:38—“An eye for an eye and a tooth for a tooth” 11 —denotes a principle of the Law of Moses. In Matthew it is not an illustration of actual maiming. “Do not resist one who is evil” would indeed be an unwise counsel if the evil included life-threatening crimes. My contention is that Jesus presumed the validity and propriety of civil punishments to bind the evildoer’s hands, and that this is precisely the reason why he condemned personal retribution. (For instance, Luke 23:39-43 implies that civil punishment is morally sound: Jesus voices no protest to the criminal’s statement, “We are punished justly, for we are getting what our deeds deserve.”)
Two Kingdoms Improperly Distinguished
The section of the social statement under discussion begins by making a distinction between the Law and the Gospel. The concept of “Gospel” is developed, but the concept of “Law” is apparently transformed into “restorative justice,” which has little to do with the Law. What is really meant by this term is restorative righteousness, or charity, which pertains to the Gospel. The word “justice” when applied to civil law means “the assignment of merited rewards or punishments.”12 The social statement has failed to distinguish between the kingdom of heaven and the kingdom of earth. The Apology addresses this very mistake:
How poor the judgment of many writers in these matters has been is evident from their erroneous view that the Gospel is something external, a new and monastic form of government. Thus they failed to see that the Gospel brings eternal righteousness to hearts, while it approves the civil government (XVI.8).13
Such poor judgment in the social statement becomes apparent in the following:
It is because of this church’s ministry with and to people affected by violent crime that we oppose the death penalty. Executions focus on the convicted murderer, providing very little for the victim’s family or anyone else whose life has been touched by the crime (p. 3).
This is mere caviling. It’s not reasonable to condemn something because it fails to accomplish some end that is irrelevant to its purpose. It’s not the purpose of the death penalty (or any punishment) to address the hurt of victims of violent crime or of their families. This silly objection rises out the previous application of an inapposite sense of “justice.”
Root Causes vis-à-vis Contributing Conditions
Another example of a crafty, manipulative use of ambiguous words is this remark: “Lutheran Christians have called for an assault on the root causes of violent crime, an assault for which executions are no substitute” (p. 3). Checking the supporting quotations in the footnote, one finds that the statement is not an accurate paraphrase. The LCA document14 speaks of “social conditions which breed hostility toward society and disrespect for the law.” The ALC document15 speaks of “conditions which contribute to crime.” The term “root cause” has a far different connotation than merely a contributing condition.
The social statement’s deviations from the Lutheran Confessions up to this point are located in matters pertaining primarily to civil punishment. The previous quotation, however, is an implicit deviation from central Christian doctrines, and as such warrants the designation “heresy.” The root cause of violent crime is the same as that of all sin: it is in human nature. There are two important aspects of this nature, one of which is freedom:
It is also taught among us that man possesses some measure of freedom of the will which enables him to live an outwardly honorable life and to make choices among the things that reason comprehends. . . . On the other hand, by his own choice man can also undertake evil, as when he wills to kneel before an idol, commit murder, etc.” (Augsburg Confession XVIII.1,7).16
The other aspect of human nature is our disposition toward evil, which theology calls original sin:
It is also taught among us that since the fall of Adam all men . . . are conceived and born in sin. That is, all men are full of evil lust and inclinations from their mothers’ wombs. . . . (Augsburg Confession II.1).17
Human beings have the inclination toward evil, but they also have the freedom and capability of restraint in the outward matters of life. Moreover, the need for such restraint is easily grasped by human reason. Hence, in the Christian view, the single factor that may be considered the preeminent cause of violent crime is the individual’s own conscious decision—barring, of course, instances of insanity or diminished mental capacity.
The social statement, in calling social conditions the root causes of crime, suggests that violent criminal behavior is essentially the result of external conditions. Thus it implicitly denies both human freedom and the natural human disposition toward evil, which exists independently of any negative external stimulus. If its use of the term “root cause” does not seem to be sufficient grounds for this charge, then one should note that the statement goes on to say that executions “are no substitute” for an assault on the causes of crime. The implication is that the threat of punishment is completely ineffective in influencing human behavior. This also implies that people are somehow compelled to acts of violence by external forces. But it is not reasonable to hold that human beings have an inherent disposition toward evil and the freedom to act accordingly, yet maintain that these aspects of human nature play no significant role in acts of violence. Conversely, there is no logical reason to suggest that violent crime is fundamentally the result of external causes, but that less egregious evils are not the results of such cases. Hence, if one believes that violence at the individual level is caused by external conditions, the only reasonable next step is to deny human freedom and original sin. If human beings are without original sin, then they have little need of Christ for righteousness’ sake. If they do not have some measure of freedom, then both sin and righteousness are meaningless.
It should be said that social conditions do contribute to violence. Violent crime is not exclusively the failure of the individual, although it ultimately is. There are social factors that supply motives for crime. But, a motive, under the law, is not an excuse but a consideration that indicates the degree of a person’s guilt. Nevertheless, Christians in a democracy may and should strive toward correcting social conditions that foster crime.
Determinism and Innate Goodness
The social statement calls for a moral deliberation on this subject, “informed by reason and knowledge, including the social sciences” (p. 5). Here a note of caution is needed: the idea of the freedom of the human will is not necessarily a guiding principle of the social sciences. The philosophy of determinism maintains that all human behavior is the result of genetic and environmental causes, and that freedom of the will is an illusion. Determinism is popular in all quarters since it absolves human beings from all wrongdoing, real or imagined, but it is especially common among scholars of the human sciences. Thus, what is to the Christian mind a contributing factor is often to the sociologist a cause (that is, a determinant).
Likewise, the idea that humans are naturally inclined toward evil is not universally accepted. Even where some measure of freedom is acknowledged, many observers believe that people are innately good. Thus criminal behavior is seen as abnormal, and so must have an external or abnormal physiological cause. These facts must be borne in mind by the Christian. It is important to ascertain the researcher’s bias and read his or her work critically. Christians must remember that while we can improve society, we cannot improve human nature. Even an ideal society would always have need of punishment.
Impartiality or Unfairness
So far, I have considered the social statement’s departure from the Lutheran Confessions. Now I shall critique it on the basis of reason. There is a faulty argument in the following: “. . . the death penalty has not been and cannot be made fair. The race of the victim plays a role in who is sentenced to death and who is sentenced to life imprisonment. . . .” (p. 4).
If one assumes, for the sake of argument, that death is an appropriate punishment for murder, then a person who commits murder and is sentenced to death has received a just punishment. The fact that another murderer receives a somewhat more lenient sentence is not an injustice to the person receiving the death sentence. The study cited in the social statement may demonstrate that courts have not been impartial in their sentencing, but this lack of impartiality (unfairness) in people is irrelevant to the legitimacy of the death penalty. One might explain this point by using an analogy. Employers are required by law, and rightly so, to be impartial with respect to race, sex, etc., in their hiring practices. Now if it were proved that employers were practicing flagrant discrimination in their hiring, one could not infer from this fact that employment is unfair and should be abolished. The maxim—“Misuse does not destroy the substance, but confirms its existence”—may be applied here (cf. Large Catechism IV.59).18 There is another observation that should be made in comparing employment and punishment: applicants for employment are competing against one another for a limited number of openings. If favoritism is involved in hiring, then the winners of the competition may not truly deserve to win; consequently, the losers may not deserve to lose. But there is no similarity here with civil punishment. Those accused of crimes are not competing against each other for a limited quantity of punishment or mercy. Thus the fact that one criminal receives undue leniency has no bearing whatsoever on the justice of another criminal’s sentence. The social statement’s argument that discrepancies in sentencing are an injustice cannot be confined to its present application. If the death penalty is unjust because some of its candidates are sentenced only to life imprisonment without parole, then life without parole is unjust because some of its candidates receive an even lesser sentence, and so on.
Retribution and Necessity
Many of the social statement’s other objections to the death penalty are also irrelevant. The most important is that capital punishment is retribution. All punishments repay evil for evil. In fact, most punishments are acts that might otherwise be considered immoral. Killing, if it is not a punishment by the state, is murder. Fines are akin to extortion, seizure of property, theft; and imprisonment, kidnaping. Moreover, life imprisonment is a permanent revocation of freedom.
If one denounces retribution, what logical reason is there to claim that imposing such a penalty as life imprisonment is not immoral? The answer commonly proposed today is that evil is justified when it is necessary; and imprisonment is necessary, whereas death generally is not. This view is implicit in the social statement’s comment, “God entrusts the state with power to take human life when failure to do so constitutes a clear danger to society” (p. 2), that is, only when it is necessary for the safety of society, which is seldom or never. Although this moralization seems reasonable at first glance, it is nearly useless in justifying civil punishment. The fact that a person has committed a crime does not indicate with certainty that he or she will do it again. A crime committed in the past poses no threat to society in the present. Therefore, if the punishment of any particular person must be necessary for the safety of society, that person must clearly be a habitual criminal. The idea that evil is justified when it is necessary is thus impracticable as a general moral guideline.
The social statement ignores Scripture, the Lutheran Confessions, and reason in favor of the current popular philosophy. The statement—“God entrusts the state with power to take human life when failure to do so constitutes a clear danger to society”—amends the commandment of God. Thus it teaches as doctrine the precepts of human beings, but it is the nature of the amendment that is truly dangerous. It substitutes necessity for retribution as the justification for evil. The condemnation of retribution condemns nearly every civil penalty, and it implies that the imposition of punishment negates social moral standards. Consider the following statements: “Executions harm society by mirroring and reinforcing existing injustice” (p. 3); and, “The practice of the death penalty undermines any possible moral message we might want to ‘send’” (p. 4).
The suggestion here is that the death penalty is the state’s implicit endorsement of murder. Though this suggestion is half-baked, it is nevertheless widely received in today’s intellectual climate. Moreover, this argument is inapplicable. It follows that imprisonment is the state’s implicit endorsement of kidnaping; seizure of property, of theft; and fines, of extortion. The former LCA called for “a massive assault on those social conditions which breed hostility toward society and disrespect for the law.” Such an assault must begin by publicly condemning the ELCA statement on the death penalty.
To summarize, the social statement is crafty, illogical, implicitly heretical, and undermining to civil government. It should be rescinded, and the procedure for developing social statements revised. The fact that these documents are not coercive in their teaching authority should not be a license for them to contradict the Lutheran Confessions.
Notes
1 The “Lutheran Confessions,” i.e., the Book of Concord, published 1580. Cf. the Model Constitution for Congregations of the Evangelical Lutheran Church in America, sections C2.05 and C2.06.
2 Theodore G. Tappert et al., trans., The Book of Concord: The Confessions of the Evangelical Lutheran Church (Philadelphia: Fortress Press, 1959), p. 37.
3 Friedrich Bente et al., trans., Triglot Concordia: The Symbolic Books of the Evangelical Lutheran Church, German-Latin-English (St. Louis: Concordia Publishing House, 1921). http://bookofconcord.org
4 Sections 6 and 7 in Tappert.
5 The fifth (or sixth) commandment, “Thou shalt not kill.”
6 F. Samuel Janzow, trans., Luther’s Large Catechism: A Contemporary Translation with Study Questions (St. Louis: Concordia Publishing House, 1978), pp. 41, 56.
7 Tappert, p. 499.
8 Ibid., p. 634.
9 Cf. I Peter 2:13-14.
10 A Social Statement on the Death Penalty (Evangelical Lutheran Church in America, 1991). http://www.elca.org/What-We-Believe/Social-Issues/Social-Statements.aspx (accessed 23 Sept. 2012). Page numbers cited refer to the first printing of the social statement (or PDF format).
11 Ex. 21:23-25; Lev. 24:20; Deut. 19:21.
12 Webster’s Ninth New Collegiate Dictionary (Springfield, Mass.: Merriam-Webster, Inc., 1987).
13 Tappert, p. 223.
14 Capital Punishment (Lutheran Church in America, 1966).
15 Capital Punishment (American Lutheran Church, 1972).
16 Tappert, pp. 39, 40.
17 Ibid., p. 29.
18 Ibid., p. 444.
Further Recommended Reading
Andreski, Stanislav. Social Sciences as Sorcery. New York: St. Martin’s Press, 1973.
Lewis, C.S. “The Humanitarian Theory of Punishment.” God in the Dock, ed. Walter Hooper. Grand Rapids, Mich.
Eerdmans Publishing, 1970: 287-300. Posted at:
https://ojs.lib.byu.edu/spc/index.php/IssuesInReligionAndPsychotherapy/article/viewFile/273/272
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© 1999, 2012 by Kenneth Lohr. This article was first published in Lutheran Forum 32, No. 4 (Wint. 1998), pp. 29-31. Reprinted at prodpinnc by permission of the author.
