RETRIBUTION AND CAPITAL PUNISHMENT
“It’s in the Bible, Isn’t It?”
George F. Kain and Dale Recinella
George F. Kain and Dale Recinella
main purpose of this retributive justice is that the offender is to be punished simply due to the com- mission of a crime. The rationale behind retributive justice is that criminal acts should be met with a painful reaction, without considering the consequences of that reaction. An offender’s suffering should be of the same magnitude as that which his or her victim suffered (Murphy, 1994; Siddique, 1997; Moberly, 1996). Another feature of retributive justice emphasizes the adversarial relationship between the accused and the state, and the victims of crime are peripheral to the justice process and merely represented abstractly by the state. The criminal justice system focuses only on the offender to be punished, and the victim is regarded as a bystander in the battle between the state and the offender (Barrett, 2001).
It is important here to focus some attention on the concept of “just deserts,” a variation of the retributive theory of punishment, which was developed by Kant (2005) and amplifi ed by Von Hirsh (1987). This theory has been touted in the United States since the 1970s. In what some describe as a compromise of the other major theories/justifi cations of punishment, just deserts is a form of punishment designed to meet the general principles of justice and fairness by indicating the extent to which an offender deserves to suffer punishment. It is concerned with the techniques for identifying, classifying, and managing groups of offenses and offenders by levels of culpability of the offender and the depravity of the act. In other words, a penalty must be scaled to the gravity of the offense, and the punishment imposed on the offender should closely approximate the severity of his or her criminal act. Equally blameworthy individuals, therefore, should receive nearly similar sentences (proportion- ality). We note this here primarily to point out that, practically speaking, the theory of just deserts cannot be signifi cantly distinguished from the principal of retributive vengeance or from the notion that “two wrongs somehow make a right.” The revenge part of just deserts is therefore based on the principal of lex talionis and, in this view, holds that the death penalty is a morally just, deserved pun- ishment (Bohm, 1992).
Lex talionis (Latin for “law of retaliation”) is based on the principle of proportionate punishment, often expressed under the motto “Let the punishment fi t the crime,” which particularly applies to mirror punishments, but which may or may not be proportional. Davis (2005) notes that some may think of this law’s goal as a core element of early biblical justice. Lex talionis , however, goes back to about the twentieth century BCE , found in the Code of Hammurabi. The Code of Hammurabi, regarded as the oldest and perhaps the harshest written ancient penal laws, accepted that punishment should be equal to the weight of the crime as literally as possible (Dyneley, 2010; Packer, 1968). At the root of the nonbiblical form of this principle is the belief that one of the purposes of the law is to provide equitable retaliation for an offended party. It defi ned and restricted the extent of retaliation. Biblical scholar Lawrence Boadt (2012) notes that the 282 laws engraved on a stone pillar attributed to Hammurabi cover many legal questions, but do not include every kind of case. The code “tries to keep revenge within limits by the ‘law of retaliation’ or proportional retribution” (p. 156). But biblical retribution is important to understand as well, and will be discussed shortly. Here, comparing Israelite/ biblical law to the Code of Hammurabi (as well as to many other ancient law codes), Boadt concludes that Israelite law “is humane compared to the even more drastic penalties commonly found in the Assyrian laws of the twelfth century BC . And as a measure to end escalating blood feuds between families and the power of the wealthy to force tenfold repayment of loans from the weak, it was a step forward” (p. 157).
This understanding will become more relevant as we develop the theme of this chapter further. The Old Testament prescription of “an eye for an eye” has often been misinterpreted, notably in American justice, to signal retributive punishment as in just deserts, or to “let the punishment fi t the crime.” In other cultures, notably Islam, the code has been taken more literally; a thief may lose his left hand in punishment. Still, retribution has been subjected to various criticisms. Some would challenge the power of the state to punish criminals on behalf of the victim, arguing “if individuals have no moral right to exact retribution, how can a group of individuals in the society acquire such a moral
8 Retribution and Capital Punishment
right?” (Siddique, 1997). Retribution has also been criticized as a barbaric principle that serves as an excuse to unleash savage passion: “the community would be relegated to a primitive condition where the determination of the law to exact an eye for an eye and a tooth for tooth would cause immeasur- able and intolerable cruelty in the name of evenhanded justice” (Rao, 1999).
All of these variations on retributive punishment and how they specifi cally relate to capital punish- ment are important to understand. However, what is perhaps more important relates to our original premise for this chapter, namely to focus on what retribution is not . In order to complete this task, we must now turn to biblical law and to attempt to understand its literal and fi gurative meaning.
The fi rst fi ve books of the Bible are crucial to any discussion of the Bible and the American death penalty. The Hebrew Bible calls these books Torah. The Christian terminology for the fi rst fi ve books is Pentateuch . Consequently, the term Torah or Pentateuch is used to designate the combined books: Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. Also, the record of the actual death penalty practices necessary to satisfy the requirements of Torah or Pentateuch is contained in the voluminous writings of Talmud. The Talmudic references are a record, a compilation over time, of the practices employed under the Biblical death penalty in order to ensure compliance with the restrictions on the death penalty set forth in the Scriptures. In order to comprehend the full impact of the severe Scrip- tural limitations imposed on the death penalty, we must deal with the Biblical truth in its practice, not just in theory.
Many modern readers tend to distinguish between the authority of what has been handed down in Scripture, the written law, versus that contained in the written record of the oral tradition. This is not the case with the ancient Hebrew law. In the eyes of Christians and Jews, the source of Torah is God. Torah means law. This is considered to be the Written Law given by God to the Hebrews. Yet there is more to the story. Orthodox Judaism holds that Moses received more than just the Written Law on Mount Sinai. It holds that when Moses came down the mountain, the Ten Commandments were in his hands, and the Oral Law, equally given to him by God, was in his head. Consequently, the “Written Law and Oral Law must be read together” (Rosenberg & Rosenberg, 1998).