ESSAY
Capital Punishment and Rules of Evidence
POSTED
November 6, 2014

The Catholic News Service has reported that Pope Francis has called for the abolition of not only the death penalty, but also of life in prison. In a meeting with representatives of the International Association of Penal Law, the pontiff called for all “Christians and people of good will” to work for the abolition of the death penalty. He went further, however, also calling for the abolition of life imprisonment, which he called “a hidden death penalty”.

I am not Catholic, and while I agree that there are aspects of the death penalty that are troubling (and which I will address below), I certainly cannot agree with both its abolition and the abolition of life imprisonment. Many orthodox Christians will look to Scripture and see ample support for the death penalty, even as a command to be administered for certain crimes. I certainly was reared to have this view and still do. As a young lawyer, however, I was confronted with a case which caused me to explore the issue more closely and modify my views in ways which I believe are more in accord with Scripture.

On September 4, 1989, Ryan Stallings, the infant son of David and Patricia Stallings, died. The next day, Patricia Stallings was arrested and subsequently charged with murdering her son. Tests showed that Ryan had high levels of ethylene glycol, the main ingredient in antifreeze, in his system. Antifreeze was found in the Stallings home and Patricia Stallings was accused of administering the antifreeze to her son in his baby bottle, first at home and then during a visit with him while in foster care.

Stallings was already pregnant with her second son when she was arrested. When he was born in February 1990, he was immediately placed in foster care and I was subsequently appointed to serve as his guardian ad litem, in essence, his attorney. Unfortunately, the second son began exhibiting the same symptoms as his brother. He had had no contact whatsoever with his mother since his birth. Tests revealed that the Stallings’ second son had a rare genetic disorder, Methylamalonic Acidemia (MMA), which produces symptoms consistent with those of Ryan, the brother who had died.

While this much was known prior to her trial, due to lack of properly developed and presented evidence, Patricia Stallings was convicted and sentenced to prison. Thereafter, further tests showed that Ryan did indeed have MMA and that this was the cause of his death. The prosecutor, to his credit, asked for a new trial on the grounds that Patricia Stallings’ first attorney had put on an inadequate defense. A couple of months thereafter, the prosecutor dismissed the case and Patricia Stalling was exonerated and released from prison. For more information on the Stallings’ case, see The National Registry of Exonerations at www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3660.

My initial reaction to this was to reject the death penalty out of hand on the grounds that our system of justice lacked sufficient safeguards against wrongful convictions, which would lead to the execution of innocent persons. As the great William Blackstone wrote in his famed Commentaries on the Laws of England, “It is better that ten guilty persons escape than that one innocent suffer.” Yet, it is clear to anyone who has read much of Scripture at all that God mandated the death penalty in a variety of circumstances. How is a Christian to reconcile this mandate against the risk of the unspeakable wrong of executing people who are innocent of the crime of which they have been convicted?

God’s word is not silent on this matter. Throughout the Mosaic Law, God not only mandates the death penalty, He mandates the rules of evidence and procedure that ancient Israel was to follow. Four such rules seem especially relevant to this dilemma:

1. Two or more witnesses are required for a conviction.  See, e.g., Numbers 35:30 and Deuteronomy 17:6 and 19:15.

  1. The penalty for perjury must be the penalty to which the accused in the case was exposed if convicted.  See, e.g., Deuteronomy 19:16-19.
  2. The trial witnesses must participate in the actually execution of the person convicted in the trial in which they testified.  Indeed, they must initiate the execution process.  See, e.g. Deuteronomy 13:9 and 17:7.
  3. The whole community must participate in the actual execution.  See, e.g., Numbers 15:35, Leviticus 24, and Deuteronomy 13:9.Do the American states follow these Scripturally mandated rules? No.States routinely sentences to death people who were convicted with no eyewitness testimony, in cases based almost entirely on forensic and other circumstantial evidence. Scott Peterson, who was convicted of murdering his wife Laci Peterson in 2002, was sentenced to death in 2005 without any eyewitnesses to the murder. Max Soffar, a mentally disabled man in Texas, was convicted and sentenced to death in 1980 based almost entirely on his confession, which he and his attorneys insist was forced. No forensic evidence supports his conviction.  Thirty-four years later and dying of cancer, he remains on death row. Whether these men are guilty of not, there were not two or more witnesses to their alleged crimes. Yet, against the Scriptural mandate, they were both sentenced to death. Lest one believe that a confession can substitute for two witnesses, Jesus Himself observed this mandate, answering the Pharisees who accused Him of false testimony by citing the two witness requirement: “In your Law it is written that the testimony of two people is true. I am the one who bears witness about myself, and the Father who sent me bears witness about me” (John 8:17-18).As of 2014, only two states, California and Idaho, have provisions imposing the death penalty for perjury. In both cases, the sentence is authorized only in cases in which an innocent person is actually put to death based on the perjured testimony. While Deuteronomy calls for such a penalty when such a result is intended, with no provision that the intent must be successful, at most, only those two states can possibly be said to follow this Scriptural mandate.

I am aware of no state which requires the trial witnesses to participate in the actual execution of the person convicted based on their testimony.  Thirty-seven states require law enforcement officers to be present and 16 require civilians, but the latter are strangers to the case. And, of course, Scripture doesn’t require that the trial witnesses merely be present, it requires that they initiate the actual execution of the sentence.

The provisions calling for law enforcement to be present in thirty-seven states and civilians in sixteen states may be said by some to satisfy the fourth mandate, that the whole community participate in the actual execution. This fails for at least two reasons: only a few representatives are not the whole community and even these representatives are not participants in the execution, but merely witnesses to it. Into the 20th century, the death penalty was executed publicly. Families would attend and parents would admonish their children of the consequences of sin. I have a summons which one of my father’s uncles received to serve as a guard during a public hanging in Missouri in 1906. Today, the death penalty is executed out of sight of the public. In no sense can it be said that this mandate is met.

What difference does it make? The reasons for these mandated rules and procedures are not explicitly stated, but the implicit reason becomes clear when read in context. These rules and procedures were designed to prevent the killing of innocent persons for crimes that they did not commit. Multiple witnesses reduce the risk of error or perjury or forced confessions resulting in the wrongful conviction of an accused. Death for perjury placed a real risk on any witness who was tempted to maliciously give false testimony. Having to initiate the execution would bring home to trial witnesses the gravity of their testimony, as they would themselves be personally involved in killing the accused if he were convicted. And the whole community would likewise be responsible for killing the accused. The stakes involved would be clear to all. Certainly there may have been other reasons for these mandates, but it seems clear that avoidance of wrongful conviction was one of them.

So, while I respectfully disagree with Pope Francis’ call for abolishing the death penalty, I do call for its not being imposed absent following rules and procedures based on the Mosaic Law. I simply do not believe that our current system has sufficient safeguards in place to sufficiently reduce the risk of wrongful execution of the innocent.


Gregory K. Laughlin is Associate Professor of Law and Director of the Law Library at the Lucille Stewart Beeson Law Library, Cumberland School of Law, Samford University, Birmingham, Alabama.

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