Doing Justice, Loving Mercy

by Catherine Brockenborough

The great eighteenth-century English jurist Sir William Blackstone said, “It is better that ten guilty persons escape, than that one innocent suffer.” Blackstone based this opinion on his understanding of the exchange between God and Abraham regarding the destruction of Sodom and Gomorrah found in Genesis 18:20-33.

On May 11, 2007, some 250 years after Blackstone wrote his Commentaries, Curtis McCarty was released from an Oklahoma prison, becoming the 124th exonerated death row inmate in the United States since the modern era of capital punishment began in 1976. Of the 204 wrongfully convicted who have been exonerated after conviction as a result of DNA evidence, fifteen had been sentenced to death.

The remaining exonerations have primarily been the result of newly discovered evidence, including evidence of prosecutorial misconduct and state malfeasance. These numbers suggest that many more wrongfully convicted persons remain incarcerated and on death row. The numbers also give flesh to an underlying fear in our death penalty system – the execution of an innocent person. Indeed, substantial evidence exists that at least nine innocent people have been executed in the United States, since 1976; in 2005, Georgia issued a posthumous pardon for a woman executed in 1945.

The number of exonerated is but one of many reasons why so many Americans have come to oppose today’s system of capital punishment. Other reasons run the ideological gamut and include frustration with the length of the appeals process, the disproportionate number of black, poor and mentally ill inmates on death row, critique of “Big Government’s” ability or need to be involved in certain aspects of life, skepticism that any death penalty scheme can be fair, onerous financial costs, and disquiet with a double standard in which the democratic history and rhetoric of the United States confront the country’s membership in a club that includes the three nations of the so-called “axis of evil”: Iran, Iraq and North Korea.

In the end, these reasons are secular in nature – that is, opposition to the death penalty based on any of these reasons does not require any particular theology. I am interested in whether support of capital punishment is compatible with the Christian faith. Does belief in Christianity – specifically in Orthodox Christianity – provide a reason to oppose the death penalty that is above all theological in nature? Suppose we had a system that guaranteed no execution of innocents, that was fiscally sustainable, and that was truly free of all forms of bias – in other words, a system where all the secular concerns with capital punishment have been resolved. Is support of such a system consistent with our Faith?

This is no theoretical question. It goes to the very heart of Christianity, involves the Orthodox understanding of the natures of God and man and implicates our very salvation. As Orthodox Christians living in a world in which the death penalty is imposed and carried out, I submit that wrestling with this issue is a necessary part of our theosis. Ultimately, I believe we will discover that the most fundamental core principles of the Faith impel Orthodox Christians to reject capital punishment in any form.

Man: Icon of God: “Then God said: ‘Let us make man in our image, after our likeness.” (Genesis 1:26a.) The knowledge that man was made in the image of God lies at the very heart of Christian belief side by side with the knowledge that the Fall warped and tarnished that image while the Incarnation and Resurrection provided for its restoration. I wonder whether the very pervasiveness and elemental nature of this teaching may diminish our appreciation of its awesomeness. You have been made in the image of God. You are an icon of God Incarnate, of our Lord Jesus Christ. Recognizing this reality, St. Seraphim of Sarov greeted all whom he met with the exclamation “My joy!” Had he encountered you, he would have greeted you thus, as well.

Do you believe this of yourself? Do you believe this of others? Regardless of our belief, the truth is that everyone has been created in God’s image. While all of creation is iconic, we know from scripture that man was set apart. The presence of a soul, of the nous, makes man unique amongst God’s creations. Does it not follow that if a person is an icon of our Creator, the destruction of that person is iconoclastic? If we support such destruction by failing to oppose capital punishment, are we then not guilty of iconoclasm ourselves?

This formulation, while valid, softens the case just a bit, in that it calls to mind icons in the sense of hand-crafted pictorial

representations. But icons on wood are not living beings, even though they help us to contemplate the divine, and act as windows on heaven. Moreover, every part of creation can be seen as an “icon” in that sense, but we are able to treat plants, at least, and sometimes animals, differently than we do humans. We do not, for example, sacrifice a person at Pascha, but we may sacrifice a lamb for the feast.

Encounters with Christ: Theology relies on experience while philosophy relies on logic. Bishop Kallistos Ware tells us: “Just as the three Divine Persons live in and for each other, so man – being made in the Trinitarian image – becomes a real person by seeing the world through others’ eyes, by making others’ joys and sorrows his own.”

Russian theologian and philosopher Nicolas Berdyaev warns us that the “politico-social aspect of religion distorts the spirit, subordinates the infinite to the finite, makes the relative absolute, and leads away from the sources of revelation, from living spiritual experience…. Personality must be God-human, whereas society must be human.”

Experience reveals theological truths. It is through our encounters with others that we work out our salvation. In the context of capital punishment, we can only perceive the theological implications through experience. Debating the social pros and cons – even if invoking religious authority – can distract us from the essence of what is at stake in deciding what stand to take as Christians.

Tamara Chikunova is an Uzbek Orthodox Christian and founder of “Mothers against the Death Penalty and Torture,” an association working for the abolition of the death penalty in Uzbekistan. Through her work with the condemned – the “children of God” as she calls them – she has seen first hand how “the death penalty creates evil and violates the most important and inalienable human right: the right to life.” She asserts: “I am a believer. I am an Orthodox Christian and I help those who are on death row because life is God’s most important gift to us.”

In my work representing death row inmates in Tennessee, I have seen how the system of capital punishment is ultimately soul-destroying for all involved. The system encourages a categorical view of humanity and the person that is alien to Orthodoxy. It encourages and brings forth the worst in fallen man: anger, a thirst for vengeance, self-righteousness. It thwarts forgiveness and reconciliation.

Earlier this year, when several events brought the issue of capital punishment to the fore in the media, The Tennessean newspaper published a letter to the editor from a local rabbi opposed to capital punishment. He wrote that his concern over the darkness the death penalty encouraged in him was the main reason for his opposition.

I have seen this darkness in my work, but I have encountered so much more light. I have witnessed the miracle of family healing, I have observed astounding courage as witnesses shared their stories of pain and I have discovered surprising generosity among people of all types and in all roles. Most importantly, I have met my death-sentenced clients – a representative collection of all the worst and best we humans have to offer. Akil amazes me with his commitment to listening to the Holy Spirit. Derek impresses me with his sensitivity. David can drive me crazy with his neediness. James S. and I discuss Shakespeare’s plays and the Masons. Roy’s stubbornness rivals my own. Tyrone’s insights are as wise as they are unexpected. I don’t understand Lee at all. James D. is an unassuming straight-talker. Kennath and Tim are talented artists. For Byron, every day is better than the day before. Glen is a wheeler-dealer while mentally retarded Gus takes pride in “treating me like a lady.” And Christa – well, Christa is simply one of my dearest friends.

Some of my clients are innocent. Some are guilty of taking another’s life in a particularly brutal way. All are precious children of God. Each of them has taught me lessons in what it means to love. That each of their lives is sacred is uncontestable. I shudder when I contemplate the evil involved in the act of killing any of them just as I shudder at the evil of the murders that brought my clients to death row. For Christians, there is no relativity when determining the sanctity of a life.

The Greatest Gift: In 1989, the Ninth All-American Council of the Orthodox Church in America passed a resolution on the death penalty, noting the call for Orthodox Christians to “recognize and address the deeper moral, ethical, and religious questions of the supreme value of human life in a manner consistent with our opposition to abortion and mercy killing, and in all such questions involving life and death the Church must always champion life.”

Clearly, all human life is sacred and precious, and this sacredness and preciousness are unchanging. There never comes a point in time when a person’s life loses its sanctity. When we condemn a person to die, we are telling him “You are not worthy of living. Your life has no meaning.” It seems that most of us find it easier to appreciate the depravity of killing an “innocent” in utero than to see the same depravity in the killing of a “guilty” adult, but the potential for theosis exists in the condemned and the unborn alike. The death penalty is irreconcilable with Orthodoxy’s absolute reverence for life. How are we to answer the call to appreciate the supreme value of human life, consistently and in all situations?

The answer is love, the most basic and central of all Christian tenets, yet the most difficult to embrace and live. In Matthew 5:44, Our Lord declares: “But I say to you, love your enemies, bless those who curse you, do good to those who hate you, and pray for those who spitefully use you and persecute you…” These are not suggestions. “This is My commandment, that you love one another as I have loved you.” (John 15:12.) Jesus’ love for us is the standard of measure for how we are to love others. We are to “pursue love.” (1 Cor. 14:1). Without love, our actions signify nothing (1 Cor. 13:1-3). Indeed, if we do not love our brothers we are “not of God” (1 John 3: 10b) and we “abide in death.” (1 John 3:14b.) This love must encompass all people, friend and foe alike. (Matt. 5:46-48, Luke 6:32-36.)

Mother Gavrilia was a Greek nun who fell asleep in the Lord on March 28, 1992. The Ascetic of Love, written by one of Mother Gavrilia’s spiritual daughters, contains her life story and a collection of her teachings. The pervasive, singularly constant theme is love. As we consider those under a death sentence and the issue of capital punishment, let us reflect on the following from Mother Gavrilia:

The strange thing is that while Man often looks for Divine Inspiration in old and ruined Temples, he fails to find it in human ruins…What a pity!… I understood that there is much more to wonder at, to rescue and to love in the ruins of Man than in the most magnificent ruins of stone. . . .Courage, faith, patience, endurance and, above all, hope and joy can take root and blossom in the human heart, if it is given Opportunity, if it is given Love. The Ascetic of Love, pp. 56-57.

Catherine Brockenborough lives in Nashville, Tennessee. She is a native of Washington, D.C., an animal lover and a bibliophile. She is also an attorney and mitigation specialist. Catherine discovered the Orthodox Church while in law school of all places and was chrismated at Pascha in 1996, one month before her graduation and move to Nashville. She is a member of St. Elizabeth the New Martyr Mission in Murfreesboro, Tennessee.

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Notes:

Blackstone’s Commentaries on the Laws of England, Vol. IV, c. 27, page 352.

In 1972, the United States Supreme Court decided three cases – referred to collectively as Furman v. Georgia, 408 U.S. 238 – in which a plurality of the Court held the death penalty statutes in effect at the time to be unconstitutional. In response, state legislatures revised their capital punishment statutes to address the concerns discussed in Furman. Following a four-year suspension of the death penalty, the Court issued another group of opinions in 1976 – Gregg v. Georgia, 428 U.S. 153, Proffitt v. Florida 428 U.S. 242, Jurek v. Texas, 428 U.S. 242, and Woodson v. North Carolina, 428 U.S. 280 – setting out constitutionally acceptable parameters for an American death penalty and ruling which types of post-Furman statutes passed constitutional muster. So began the modern era of the death penalty in the United States.

See www.innocenceproject.org for more information.

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See www.deathpenaltyinfo.org/article.php?&did=2238

For a complete list of retentionist, abolitionist and abolitionist-in-practice countries, go to www.deathpenaltyinfo.org/article.php?scid=30&did=140.

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As quoted in The Ascetic of Love, by Nun Gavrilia (Athens: Eptalofos 2000), p. 127.

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Nicolas Berdyaev, “Personality,” from Slavery and Freedom (Scribner’s 1944), tr. in W. Herberg, Four Existentialist Theologians (New York: Doubleday 1958), p. 129.

www.asianews.it/index.php?l=en&art=2093

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www.deathpenaltyreligious.org/education/statements/orthodox.html

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from the Summer 2007 issue of In Communion / IC 46

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