Professor David Gushee, Graves Professor of Moral Philosophy at Union University in Jackson, Tennessee, called for a nation­al halt to exe­cu­tions because the death penal­ty as a pub­lic pol­i­cy ​“fails the most basic stan­dards of jus­tice.” Prof. Gushee, writ­ing for the Associated Baptist Press, stat­ed that the recent mora­to­ri­um in Tennessee sur­round­ing lethal injec­tion prob­lems should be extend­ed to review the entire appli­ca­tion of the death penal­ty, and that oth­er states should take sim­i­lar action.

Prof. Gushee wrote:

In a move that received very lit­tle atten­tion, Gov. Phil Bredesen recent­ly sus­pend­ed all exe­cu­tions in Tennessee until May, pend­ing a full review of what he called our ​“slop­py” exe­cu­tion pro­ce­dures. The gov­er­nor is to be com­mend­ed for this brave and wise decision.

But I sug­gest that he take this oppor­tu­ni­ty to review not just the exe­cu­tion pro­ce­dures, but the entire appli­ca­tion of the death penal­ty in this state. That will take far longer than a few months. We need a death penal­ty mora­to­ri­um — not just in Tennessee but in all states.

When the Supreme Court ruled in 1976 that states could resume exe­cu­tions, they man­dat­ed that any state doing so must apply this ulti­mate penal­ty in a fair and con­sis­tent, rather than arbi­trary and capri­cious, man­ner. No one can hon­est­ly look at the cur­rent appli­ca­tion of the death penal­ty in Tennessee and believe that we have met that test.

Tennessee’s death-penal­ty sen­tenc­ing is rife with error. Half of all death sen­tences in our state are over­turned on appeal due to seri­ous con­sti­tu­tion­al error, accord­ing to a study by the Tennessean. That num­ber does not include those sit­ting on death row who are, in all like­li­hood, inno­cent of the crimes for which they were con­vict­ed. One exam­ple is Paul House, await­ing exe­cu­tion for over 20 years despite uncon­test­ed DNA evi­dence that he did not rape the woman he was accused of mur­der­ing (rape being the state’s the­o­ry of the crime). In June 2006, the U.S. Supreme Court found that ​“view­ing the record as a whole, no rea­son­able juror would have lacked a reasonable doubt.”

Then there’s the way that race affects the use of the death penal­ty. It is real­ly no coin­ci­dence that pub­lic-opin­ion polling finds far less sup­port for cap­i­tal pun­ish­ment among blacks than among whites. National stud­ies repeat­ed­ly find both race-of-per­pe­tra­tor and race-of-vic­tim bias in death-penal­ty sen­tenc­ing. In Tennessee and most states, racial/​ethnic minori­ties are vast­ly over-rep­re­sent­ed on death row, and a full quar­ter of African-Americans on Tennessee’s death row were sen­tenced by all-white juries.

Besides race, social class is anoth­er dis­tort­ing fac­tor in the use of the death penal­ty. If you don’t have mon­ey for an attor­ney, your goose is cooked. In Tennessee, near­ly every one of the 102 peo­ple on death row could not afford an attor­ney at tri­al. With all due respect to our pub­lic defend­ers, if my life were on the line I would want the best pri­vate attor­ney that mon­ey could buy. But that is not an option for almost any­one who faces this sit­u­a­tion in our state — with predictable results.

We have to be care­ful and sys­tem­at­ic in our think­ing here. It is not log­i­cal to respond to this evi­dence by affirm­ing one’s vis­cer­al sup­port for the prin­ci­ple of life-for-life. Fine, for argument’s sake, let’s grant that for a moment. Would not such a pas­sion for jus­tice also require the fair appli­ca­tion of this penal­ty? Would we not also want to assure such basics as the actu­al guilt of the peo­ple we are exe­cut­ing, the class-blind and col­or-blind appli­ca­tion of this penal­ty and the oppor­tu­ni­ty for ade­quate legal rep­re­sen­ta­tion? Would we also want to be sure that the peo­ple we are exe­cut­ing are moral­ly respon­si­ble for their actions, rather than clin­i­cal­ly insane, as are a num­ber of our death row inmates?

Nationally, the appli­ca­tion of the death penal­ty is about as ratio­nal and order­ly as who wins the lot­tery. Thousands of peo­ple mur­der and are mur­dered each year. A small num­ber of (main­ly south­ern) states exe­cute the great major­i­ty of those con­vict­ed of mur­der. Evidentiary require­ments vary. Which par­tic­u­lar types of mur­der are eli­gi­ble for cap­i­tal sen­tenc­ing vary. Appeals process­es vary. Quality of legal rep­re­sen­ta­tion varies. In the end, a small per­cent­age of con­vict­ed mur­der­ers get the death penal­ty, and an even small­er group is actu­al­ly exe­cut­ed. And more and more, across the coun­try, DNA evi­dence is show­ing up to exon­er­ate a sig­nif­i­cant minor­i­ty of those exe­cut­ed. How many inno­cent exe­cut­ed per­sons is too many?

It would take anoth­er col­umn to review the bib­li­cal argu­ments, which in the South are a pro­found fac­tor in sup­port for the death penal­ty. Even if we were to take the Old Testament alone as our guide, it requires the eye­wit­ness tes­ti­mo­ny of two or three wit­ness­es (Deut. 17:6), a stricter stan­dard than our own. It also requires that the jus­tice sys­tem ​“not show par­tial­i­ty” (Deut. 16:19) and there­fore that every accused per­son be treat­ed sim­i­lar­ly. And this is not even to con­sid­er the pro­found issues raised by the New Testament’s focus on mercy.

As of now, at least, the death penal­ty is a pub­lic pol­i­cy that fails the most basic stan­dards of jus­tice. It is time for a mora­to­ri­um and a comprehensive review.

(Associated Baptist Press, February 8, 2007). See New Voices.

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