Odd Oklahoma

Rev. Dr. William Tabbernee was the first speaker at the Spring Dialogue for the Oklahoma Chapter of Americans United for Separation of Church and State. You can see his, and all of the other speakers’, talks here.

Tabbernee discussed the death penalty and its role in separation of church and state.

I should say from the outset I have a fairly lawyerly approach to separation and Establishment Clause questions, so I wasn’t overly inclined to be convinced that we should consider the death penalty an issue relevant to this topic. I don’t see an obvious application of the Lemon Test to the death penalty.

That said, Rev. Tabbernee makes an interesting case. He points out that all of the secular utilitarian justifications for the death penalty just aren’t supported by the data. He outlines three historical justifications: deterrence, closure for families and safety to society.

I don’t consider the second a compelling reason at all. Whether families get more closure from the death of a criminal isn’t a major concern to me, but deterrence and safety are both good justifications for a law…if they are true.

Tabbernee doesn’t go into a lot of detail on deterrence and safety, but it seems obvious to me that the astronomically small number of criminals who get the death penalty compared to the overall number of crimes, makes the deterrence argument pretty weak. Amnesty International points out that if you compare states with the death penalty to those without, you so no significant difference in the data. The overwhelming consensus of criminologists is that death penalty, at least as it exists in the United States, has no real deterrence effect above the threat of incarceration.

As for the safety question, I see no difference between the safety effect provided by life in prison without the possibility of parole and the death penalty. Granted, there is always the astronomically low possibility of escape or pardon, but that can’t possibly be enough to justify the negative effects associated with the costs of the death penalty.

Tabbernee misspoke in his talk when he said that California had spent $4 billion on executing 13 people over the last fifteen years. It is actually since 1978. Nevertheless, it is the case that California spends something like $130 million a year to keep the institution alive. A ballot measure that would have ended the death penalty and put all of the current California death row inmates in prison for life failed by 4% last November.

Since nobody in their right mind is advocating for a streamlining process that would make the death penalty cheaper, it seems that the economic argument against it is quite compelling, at least in California. I haven’t looked at the costs in Oklahoma. That might make for a pretty interesting article.

Tabbernee gets into the separation of church and state element of the discussion when he looks at the only justifications really left for the death penalty, and those are basically religious. Particularly, in the United States the death penalty is justified using the Bible. Basically, the chain of logic is that the King, or in our country the state, derives its authority from God. This actually makes a lot of sense Biblically. In the Old Testament, the king is chosen by God and anointed by the prophet. In the New Testament, there are passages that explicitly admonish Christians to submit to governing authorities, because those authorities wouldn’t exist if it wasn’t God’s will (Romans 13:1-7).

Tabbernee argues that the death penalty is a carryover of this concept and is an example of the state acting as God’s judgement on earth. He points to a speech by Supreme Court Justice Antonin Scalia before the Chicago Divinity School to demonstrate as much.

Here is the most relevant passage:

This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government—however you want to limit that concept—derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” And in this world the Lord repaid—did justice—through His minister, the state.

Scalia, a devout Catholic, later in the speech articulates why he disagrees with the current church doctrine, which is almost always opposed to the death penalty.

Tabbernee rightly points out that the United States was founded upon a rejection of the divine right of kings, and the separation of church and state outlined in the constitution enshrines that reject in our law and history.

Scalia would probably object that it is only when a nation legitimately represents its people that the divine right of kings applies. He explicitly frames Paul’s passage in Romans as meaning as much. How that squares with Paul’s passage being an admonishment to submit to the rule of a pagan Roman government that routinely oppressed and murdered its own subjects, with no recognition of basic human rights, qualifies as the kind of government that fits this description, I couldn’t say. Why Rome would qualify as a legitimate state under which divine authority was justified, but Christian England which by every measure was more civilized than Rome with respect to its treatment of its subjects would not, seems slightly insane. Then again, I’ve never considered Scalia particularly intelligent or cogent.

Tabbernee’s argument is that it isn’t up to the state to enact vengeance. Leave that up to God. Where that leaves nonbelievers or those who don’t believe that there is a god that punishes, I couldn’t say. Scalia actually articulates a possible secular moral justification for opposition to the death penalty in his speech.

Abolition has taken its firmest hold in post–Christian Europe, and has least support in the church–going United States. I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” And when Cranmer asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to Him.” For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!

I don’t find this line of thought particularly compelling. Mind you, it is just as easy for someone who is a nonbeliever to take other stances on the value of human life. The Soviet Union and Mao’s China certainly did. For a less obviously wrong stance, you might look to the work of the atheist moral philosopher Peter Singer, who thinks that some human life is of less value that the lives of some animals. Mind you, Singer is an opponent of the death penalty as it exists.

Tabbernee argues that capital punishment is “unnecessary, morally unjustified…, fallible…, ineffective at its goals… and exorbitantly expensive.”

I asked him to expand on this fallible point in the Q&A, because it is the basis for much of my opposition to the death penalty. Like Singer, I don’t find the death penalty inherently immoral. I’m opposed to it for epistemological reasons. The state is acting on behalf of me. To the extent that the state is likely to make a mistake and execute an innocent person, I’m opposed to it. It is as if I’m executing an innocent person, something I’m willing to take pretty drastic measures to avoid.

There is a lot of reason to think that we’ve executed innocent people. I’m strongly in favor of, for example, legislation that would mandate that any execution must involve DNA evidence. No person should ever be executed based on circumstantial or eye witness evidence. Both are notoriously unreliable.

Even this wouldn’t solve the problem of corrupt testing labs like we had have here in Oklahoma.

Mind you, I’d still oppose capital punishment even if I was convinced that the system got the right person every time. The economic argument is pretty devastating. Oklahoma probably doesn’t pay nearly as much per death row prisoner per year as California, but I’ll bet you a Thunder ticket that it is more than the cost of life without parole.

All of this is to say that, while I agree with Tabbernee in his opposition to capital punishment, I don’t agree with his assessment that it should be framed within the context of separation of church and state. The economic and innocents executed argument is much more compelling to me than the sanctity of life opposition. It isn’t to say I wouldn’t come around to it given enough time, but it seems probable to me that Tabbernee is finding his opposition to the death penalty in his faith as much as proponents find it in theirs.

It is superficially compelling that the only justification left on the table for the death penalty is a religious one, and the courts should remove that justification from the table. I’d agree if I was convinced that most people who support the death penalty are aware enough of the cost and lack of deterrence data. It is probably the case that the public advocates for the death penalty are religious ideologues for the most part, but the average voter probably isn’t tuned in enough on the issue to consider the religious argument the primary reason for favoring legal executions.

This isn’t like creationism, where it is clear to everyone involved that religion is the issue being debated. With creationism, it is the rank and file that appeal to religious justifications, while the ideologues try to frame their arguments in the veneer of science to gain plausibility with the courts. It seems likely to me that it is the other way around with capital punishment. Cranks like Scalia recognize that the only justification left is a religious one, but your average person on the street isn’t likely to cry religious oppression if the death penalty gets ruled unconstitutional.