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In Defense of Capital Punishment

By Dr. Douglas Groothuis, published in the Vernon Grounds Institute Journal, 2015


Moral judgments should be roots in moral facts. Without this grounding, moral evaluation sinks into subjective preference or social consensus, neither of which are sufficient to know right and wrong in an objective sense. Since much of morality addresses the treatment of beings like us, moral judgments have weight. The virtuous treatment of human beings, therefore, demands deep thought—not slogans, sound bites, factoids, or talking points. The morality of capital punishment is a matter of life and death.


This essay will not address whether capital punishment is fairly administered in America, either with respect to who is executed or if the methods used are cruel.[i] Of course, if capital punishment for murder is just, it should be administered properly. This essay argues for a moral principle, which, if true, should be implemented according to legal standards of evidence which presumes innocence until proven guilty beyond a reasonable doubt. This high standard is common neither in history nor in the world today. Its deepest roots trace to the Old Testament principles of legal evidence.[ii]


Moral facts are determined by the proper moral authority. The basis for all morality is the triune God of the Bible, who reveals moral truth through human nature (conscience), through the inspired and inerrant Holy Scriptures (2 Timothy 3:15-16; 2 Peter 3:16), and through Jesus Christ, God Incarnate (John 1:1-18). I cannot argue this point here, but will write on that basis.[iii] More specifically, the orthodox Protestant perspective is that the Bible alone is the final word and completely reliable on all that it addresses.[iv] This is captured by the Reformation’s formal principle: sola Scriptura and is spelled out cogently in The Chicago Statement on Biblical Inerrancy (1978).[v] What follows is a “short statement” of its position:


1.      God, who is Himself Truth and speaks truth only, has inspired Holy Scripture in order thereby to reveal Himself to lost mankind through Jesus Christ as Creator and Lord, Redeemer and Judge. Holy Scripture is God's witness to Himself.


2.     Holy Scripture, being God's own Word, written by men prepared and superintended by His Spirit, is of infallible divine authority in all matters upon which it touches: it is to be believed, as God's instruction, in all that it affirms: obeyed, as God's command, in all that it requires; embraced, as God's pledge, in all that it promises.


3.     The Holy Spirit, Scripture's divine Author, both authenticates it to us by His inward witness and opens our minds to understand its meaning.


4.    Being wholly and verbally God-given, Scripture is without error or fault in all its teaching, no less in what it states about God's acts in creation, about the events of world history, and about its own literary origins under God, than in its witness to God's saving grace in individual lives.


5.     The authority of Scripture is inescapably impaired if this total divine inerrancy is in any way limited or disregarded, or made relative to a view of truth contrary to the Bible's own; and such lapses bring serious loss to both the individual and the Church.


Every worldview locates its authority in something or someone. It it is paramount for Christians to appeal to the divine source of truth for their moral reasoning. Even more, human laws binding on individuals and organizations rely on some philosophy or vision for life. None are morally neutral. The source of law functions as the god of any society.[vi]

For Muslim monotheists, Shari ’a law is based on the Qur’an and hadith (traditions about the life of Mohammad). Muslims take it as absolute and applicable globally. This law requires the death penalty for a variety of offenses, including adultery (men are unlikely to be convicted of it), homosexual behavior, blasphemy against Allah or Mohammad, and apostasy from Islam.[vii] But this is not the God of the Bible and the law of Islam is not the law we find in the Bible. That law “is holy, and the commandment is holy, righteous and good” (Romans 7:12).


Secularists, and even some Christians, claim that religious ideas should not influence public politic, given the separation of church and state. This phrase does not appear in any of the founding documents. We must go deeper than a phrase that has become a thought-stopper.


Christians, as citizens of these United States, have just as much right and opportunity to shape law as any other citizen. This follows from the free exercise clause of the First Amendment. Richard John Neuhaus expounds this convincingly and thoroughly in his modern classic, The Naked Public Square.[viii] The First Amendment insures far more than “freedom of worship”—that is, activities done at home and in a place of religious assembly. That is protected, but so is political activism and legal influence. The First Amendment makes this crystal clear:


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


The free exercise of religion is one of the five ringing freedoms upon which America is based. It is no lesser than freedom of speech, press, peaceable assembly, or petition.


Civil law will not make anyone good. Moral character cannot be legislated. But laws that are just make people less likely to do what is bad for society. As Martin Luther King said, laws will not make a racist like me, but they could stop them from lynching me. That is the negative or restraining power of the law.


American civil law ought to be rooted in and consistent with the Constitution, which itself is based on a philosophy of natural law or natural rights. That is, there is a law above the law to which the law should conform as much as possible in a fallen world. This powerful idea is found in the Declaration of Independence.


We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.[ix]


Governments are instituted to secure rights given by the Creator. Governments do not create rights by their dicta. The American vision for law is based on the Judeo-Christian worldview—however imperfectly applied.


Having broached the discussion of Christian in politics, we now come to the question of who will live and who will die under the sword of the civil government? Murderers are detained against their will and may be executed if convicted in a court of law. But no one detains the judge or jury for their part in the sentencing. This shows the authority structure of the civil government in contradistinction to free associations, such as clubs, churches, and private schools.


The state, unlike other authorities, has a monopoly on legitimized violence. You may be drafted into military service, summoned as a juror, be taxed, be arrested, be jailed, and be put to death if convicted of a capital crime. Education up to a certain age is compulsory, not elective.[x] One cannot politely refuse these imperatives. Despite what President William Clinton said, taxes are not contributions; they are extractions, heavy with the weight of the law. One sentenced to death may appeal the case, but he cannot decline the offer.


Christianity is not anarchistic. Paul sanctions the authority of the state in the thirteenth chapter of Romans. However, the government exercised here is not unlimited; nor is it the only form of government operative in a healthy society. Families, churches, and schools govern according to standards as well, and have their rightful place besides civil government. But the state’s government is different:


Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and you will be commended. For the one in authority is God’s servant for your good. But if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoer. Therefore, it is necessary to submit to the authorities, not only because of possible punishment but also as a matter of conscience.


This is also why you pay taxes, for the authorities are God’s servants, who give their full time to governing. Give to everyone what you owe them: If you owe taxes, pay taxes; if revenue, then revenue; if respect, then respect; if honor, then honor (Romans 13:1-7).


The Apostle Peter counsels much of the same thing:


Submit yourselves for the Lord’s sake to every human authority: whether to the emperor, as the supreme authority, or to governors, who are sent by him to punish those who do wrong and to commend those who do right. For it is God’s will that by doing good you should silence the ignorant talk of foolish people. Live as free people, but do not use your freedom as a cover-up for evil; live as God’s slaves. Show proper respect to everyone, love the family of believers, fear God, honor the emperor (1 Peter 1:13-17).


While this civil authority is God-given, it is not divine. Federal, state, and local governments may go radically wrong. The Bible speaks to this repeatedly. Psalm 94 condemns ungodly government and calls out for God’s justice:


Can a corrupt throne be allied with you—         

a throne that brings on misery by its decrees?         

The wicked band together against the righteous         

and condemn the innocent to death.         

But the Lord has become my fortress,         

and my God the rock in whom I take refuge.         

He will repay them for their sins         

and destroy them for their wickedness;         

the Lord our God will destroy them (Psalm 94:20-23).


We find that the authority of the civil government is not unlimited and is not beyond challenge.[xi]


In light of this, should the civil government execute the death penalty? Prima facie it seems not since humans have a unique standing among the living:


Then God said, “Let us make mankind in our image, in our likeness, so that they may rule over the fish in the sea and the birds in the sky, over the livestock and all the wild animals,[a] and over all the creatures that move along the ground.”


So God created mankind in his own image,in the image of God he created them;

male and female he created them (Genesis 1:26-27; see also Psalm 8; Colossians 3:10).


The original glory of the imago dei consists in creativity, intelligence, relationality, and moral agency to be exercised to develop culture. Or, as The Westminster Shorter Catechism affirms:


Q. 10. How did God create man?

A. God created man male and female, after his own image,[26] in knowledge,[27] righteousness, and holiness,[28] with dominion over the creatures.


Human beings are nothing to play with, since they are “finite replicas” of God himself, as Cornelius Van Til put it:


Human nature was a fitting vehicle for the Incarnation of Christ,


Who, being in very nature God,    

did not consider equality with God something to be used to his own advantage; 

rather, he made himself nothing    

by taking the very nature of a servant,    

being made in human likeness. 

And being found in appearance as a man,    

he humbled himself    

by becoming obedient to death—        

even death on a cross! (Philippians 2:6-8).


Given the high standing of man in God’s world, some argue that capital punishment is morally wrong, since it kills an image-bearer of God himself. An appeal is often made to the fifth commandment: “You shall not murder” (Exodus 20: 13). However, the command forbids murder, not all killing. In the Hebrew theocracy, and according to the Mosaic Law, the killing of human beings was allowed in a morally-sanctioned war, in self-defense, and as the punishment for sixteen crimes.[xii] However, Walter Kaiser notes that:


The key text in this discussion is Num 35:31: “Do not accept a ransom [or substitute] for the life of a murderer, who deserves to die. He must surely be put to death.” There were some sixteen crimes that called for the death penalty in the OT: premeditated murder, kidnapping, adultery, homosexuality, incest, bestiality, incorrigible delinquency in a child, striking or cursing parents, offering a human sacrifice, false prophecy, blasphemy, profaning the Sabbath, sacrificing to false gods, magic and divination, unchastity, rape of a betrothed virgin. Only in the case of premeditated murder did the text say that the officials in Israel were forbidden to take a “ransom” or a “substitute.” This has been widely interpreted to imply that in all the other fifteen cases the judges could commute the crimes deserving of capital punishment by designating a “ransom” or “substitute.” In that case the death penalty served to mark the seriousness of the crime. Note that only God could say which crimes might have their sanctions ransomed.[xiii]


The Hebrew theocracy was a unique chapter in the Kingdom of God; its legal sanctions and sacrificial aspects ought not to be applied in the New Covenant. However, God’s moral law endures and should be the model for the state. The Westminster Confession of Faith puts this well:


Besides this law, commonly called moral, God was pleased to give to the people of Israel, as a church under age, ceremonial laws, containing several typical ordinances, partly of worship, prefiguring Christ, His graces, actions, sufferings, and benefits;[4] and partly, holding forth divers instructions of moral duties.[5] All which ceremonial laws are now abrogated, under the New Testament.[6]


IV. To them also, as a body politic, He gave sundry judicial laws, which expired together with the State of that people; not obliging under any now, further than the general equity thereof may require.[7]


V. The moral law does forever bind all, as well justified persons as others, to the obedience thereof;[8] and that, not only in regard of the matter contained in it, but also in respect of the authority of God the Creator, who gave it.[9] Neither does Christ, in the Gospel, any way dissolve, but much strengthen this obligation.[10]


Despite changes in God’s dealings with humanity, God’s moral backbone does not break. Before the Mosaic Law and covenant, God made a covenant with Noah which, unlike the law of Moses, reaches to and binds all people in perpetuity. Hear God’s words after the flood.


Then God blessed Noah and his sons, saying to them, “Be fruitful and increase in number and fill the earth. The fear and dread of you will fall on all the beasts of the earth, and on all the birds in the sky, on every creature that moves along the ground, and on all the fish in the sea; they are given into your hands. Everything that lives and moves about will be food for you. Just as I gave you the green plants, I now give you everything.


“But you must not eat meat that has its lifeblood still in it. And for your lifeblood I will surely demand an accounting. I will demand an accounting from every animal. And from each human being, too, I will demand an accounting for the life of another human being.

“Whoever sheds human blood,    

by humans shall their blood be shed;for in the image of God    

has God made mankind (Genesis 9:1-6)."


This passage tells us much about life and death. First, God shows Noah and his sons the way of life after the flood. They should be fruitful stewards, having dominion over the animals and plants (Genesis 1:26-28). God will show them how to live after the water apocalypse. Second, God’s forbidding of eating the lifeblood of animals directly ties into the shedding of human blood. While humans may spill the blood of animals without penalty, they cannot shed the blood of their fellow man without God holding them accountable for it. Third, since human beings are uniquely valuable in God’s world, those who “shed human blood” must be put to death. This is the only punishment that fits the crime. One forfeits one’s prima facie right to life through murder. The biblical reasoning position affirms retributive justice. As Rascher writes:


Retributivist theory holds not only that criminal guilt is required for punishment, but that the appropriate type and amount of punishment is also determined by the crime itself. Traditionally this is the heart of the ancient injunction “an eye for an eye.”[xiv]


In this Genesis passage, restoring the murderer is not in view; neither can money or service or non-lethal punishment accomplish what is required. The only just penalty is retribution based on the heinous nature of the sin and crime. Fourth, this covenant is not restricted to the Jews or to Israel. All generations and all peoples are under this principle because it is based on the changeless nature of God and the changeless nature of human beings, whatever their culture or place in history.


Immanuel Kant (1724-1804) defends much the same idea, but without the biblical grounding. Kant was not a theologian or biblical scholar. For that matter, he was not an Orthodox Christian, although he was raised in a German Lutheran family. Kant’s support for capital punishment for murder flows from his high regard of human beings as rational beings. Humans can discern the moral law, which is necessary and universal. One of the formulations of his categorical imperative from The Groundwork for a Metaphysics of Morals demonstrates this.


Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.


Kant took this to be an absolute moral principle. As a deontologist, Kant claimed that we have a duty not to kill the innocent. This rule cannot be suspended. Since humans have incomparable worth, life is not a matter of price, but of value. No recompense is adequate for the wrongful taking of a human life. Retribution only fits the enormity of the crime. Kant argued that no amount of punishment in a life (say life in prison) could be offered in exchange for the taking of a life. Therefore, the murderer must be executed. Kant’s reasoning work in tandem with the perspective of the Bible, although he does not grant it any intrinsic authority.


Whether supported by Scripture or by philosophers such as Kant, the retributive view of punishment (either capital or otherwise), distinguished from the humanitarian view of punishment. The latter does not, strictly speaking, implement punishment at all, but rather incarcerated rehabilitation. When a criminal is deemed cured of criminality, he or she may be released. This judgment would be made by experts. The goal is not desert, but cure—or at least amelioration.


Critics deem the idea of retribution as identical to revenge. The humanitarian view is deemed the opposite of, and alternative to, revenge or vengeance. If punishment is merely revenge, then cruelty, not justice, is the result. Since cruelty is wrong, then so is revenge and so then is the retributivist view. But this idea is misguided, since retribution and revenge are two distinct concepts. Revenge means getting even through personal animus—untethered to legal proceedings—which may be disproportionate to the severity of the offence avenged. Retribution, on the other hand, trades on the idea of fairness and of impartial punishment. No vendetta is inflicted. Only God can fairly and perfectly bring about vengeance.


Do not take revenge, my dear friends, but leave room for God's wrath, for it is written: "It is mine to avenge; I will repay," says the Lord (Romans 12:9).


Shortly after this passage, Paul declares that the civil government, however, may punish criminals:


For the one in authority is God's servant for your good. But if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God's servants, agents of wrath to bring punishment on the wrongdoer (Romans 13:4).


As. C. S. Lewis noted, the humanitarian view is more dangerous than the retributionist approach, since it psychologizes crime and places political agents of the state in the place of psychologists. Criminals are considered sick, not evil.[xv] Of course, some crimes are committed because of mental illness, but most of them are not. (Mark Twain wrote that “we have an insanity plea that would have saved Cain.”[xvi]) Just as suspects should be considered innocent until proven guilty, they should be considered sane until proven insane.


Objections


Having made the in-principle case for capital punishment for murder, let us consider some common objections, some based on the Bible and some based on social situations.


1.     Jesus would not Execute Anyone


Objectors claim that Jesus brought a message of forgiveness and mercy. He said to love our enemies and to turn the other check when we are wronged. One pastor made this point by saying that, “I cannot imagine Jesus executing anyone.” Therefore, capital punishment is sub-Christian and deeply wrong.


First, we should not limit our views of just punishment to our fallen imaginations. A safer ground is found in logical argumentation based on what the Bible in fact teaches directly. I cannot imagine the Apostle Paul dancing ballet, but that says nothing about the morality of ballet.


Second, there is a vast difference between religious forgiveness and pardon through the finished work of Jesus Christ and civil forgiveness and pardon based on the laws of human beings. Two criminals hung on crosses beside the crucified Lord of Glory. One admitted his guilt and cried out to Jesus for salvation. Jesus said, “I tell you today you will be with me in paradise” (Luke 24). That guilty man was forgiven of all his sin in the presence of the Savior. He was not taken off the cross by Jesus, but received the penalty he said he himself said he deserved.


Third, Christians may forgive murderers for their crimes, following the example of Jesus who said to his murderers, “Father forgive them, they don’t know what they are doing” (Luke 23:24). Like his Lord, Stephen, the first Christian martyr said to those stoning him:

While they were stoning him, Stephen prayed, “Lord Jesus, receive my spirit.” Then he fell on his knees and cried out, “Lord, do not hold this sin against them.” When he had said this, he fell asleep (Acts 7:59-60).


Fourth, Jesus will not contradict anything in the Scriptures that he, as God, the Son, had inspired and endorsed (Matthew 5:17-20; John 10:33). We have already noted that both the Old and New Testaments endorse capital punishment. Therefore, Jesus would not oppose it.


2.   Capital Punishment Does Not Bring Back the Dead

To invoke an argument not taken from the Bible, some object to capital punishment by claiming that the death penalty does not restore the life of those who were murdered. Therefore, it is not just. This is a classic fallacy of the red herring. No one ever claimed that capital punishment could restore the dead to life. That is irrelevant. Only Jesus can do that. Justice is the issue. Further, if one supports life in prison as an alternative to the death penalty, the same principle holds: Putting the murder in prison for life does not bring the murdered back to life.


Some cry that the death penalty is non-Christian because it takes away from the murder the opportunity to repent of his sin and receive eternal life through faith in Christ. In fact, some convicted murderers have become model prisoners, serving fellow inmates, teaching Bible studies, and even leading others to saving faith. For this, the Christian rejoices.


Three responses suffice to refute this. First, as Dr. Samuel Johnson quipped, knowing that you have a week to live can concentrate the mind wonderfully, thus giving incentive for one to make peace with God before it is too late. Second, if one respects the sovereignty of God at all, he will realize that God gives all people amble time to repent, whatever their situation. Third, while some murderers change their ways and do good the rest of their lives spent incarcerated, many do not. They may even kill fellow prisoners or escape from prison to do more crime. Thus, the merely consequentialist argument fails.


3.   Unfair Outcomes


Some make the case that capital punishment is wrong because a disproportional percentage of one ethnic group suffers from it more than other ethnic groups. This may be so in some cases, but it does not harm the argument for capital punishment. If capital punishment for murder is a morally justified principle, then bad effects from its use do not undermine it. The argument given here is not that the death penalty will be applied perfectly, but that homicide deserves death by the state. Some medical operations kill the patients instead of curing them. But for that reason, we do not ban those operations, since wisely chosen and performed operations usually have a curative effect. The same holds true for capital punishment. In a fallen world, some innocent people will be put to death. However, this is far less an offense than never putting any murderer to death. As stated earlier, the standard of evidence needed to convict for a capital offense is very high.


However, if a criminal justice system is deeply unfair and disadvantages one ethnic group over another, capital punishment could be suspended until needed changes are made. A poorly run system does not necessarily imply that the ideal of the system is morally wrong.


4.   If you oppose abortion, you must oppose capital punishment


This objection has no logical force. First, it applies only to those who are against abortion. One may support abortion on demand (which is wrong) and make a case for capital punishment that it, in its own right, sound. Second, even if opposition to abortion and support for capital punishment is insistent, the case made above for capital punishment still holds, since none of the argumentation is directly transferable to the case against abortion. Third, and most significantly, death by abortion and death by capital punishment only have one thing in common—the killing of a human being. Killing an unborn child who is legally innocent is morally wrong. Killing a convicted murderer punishes a guilty person, who is not innocent. Thus, the argument commits the fallacy of false analogy.The cases are too dissimilar for this argument to have any rational legitimacy.


Capital Punishment is Just


If my arguments are sound, God himself endorses capital punishment for murder. In a fallen world, the death penalty for murder is necessary to bring justice and to restrain evil. God holds human morally accountable for their conscious actions. If one image-bearer of God unjustly kills another image-bearer of God, then the murder forfeits the right to life. All people have the negative right not to be murdered; but those who murderer lose their right not to life.  They ought to be executed through the legal auspices of the state. In this, the kings of this world ought to bow to the Lord of the universe:


Therefore, you kings, be wise;    

be warned, you rulers of the earth.  

Serve the Lord with fear    

and celebrate his rule with trembling.  

Kiss his son, or he will be angry    

and your way will lead to your destruction,

for his wrath can flare up in a moment.    

Blessed are all who take refuge in him (Psalm 2:10-12).


But whatever our views on this controversy may be, all Christians can unite in prayer for our civil government:


I urge, then, first of all, that petitions, prayers, intercession and thanksgiving be made for all people—for kings and all those in authority, that we may live peaceful and quiet lives in all godliness and holiness. This is good, and pleases God our Savior (1 Timothy 2:1-3).


[i] See Jeffrey E. Stern, “The Execution of Clayton Lockett,” The Atlantic, June, 2015.

[ii] See Deuteronomy 19:15; Matthew 18:16 and “Justice and Righteousness,” Christopher J. H. Wright, Old Testament Ethics and the People of God (Downers Grove, IL: InterVarsity Press, 2011).

[iii] On God as the basis of morality, see Douglas Groothuis, “The Moral Argument,” Christian Apologetics: A Comprehensive Case for Biblical Faith (Downers Grove, IL: InterVarsity Press, 2011).

[iv] The Protestant Bible contains the thirty-nine books of the Hebrew canon and the twenty-five books of the New Testament. The Roman Catholic Bible includes apocryphal books not in the aforementioned testaments.

[v] Signers include Francis Schaeffer, R. C. Sproul, Carl F. H. Henry, and other evangelical authorities. It is available at: http://www.bible-researcher.com/chicago1.html.

[vi] Rousas John Rushdoony, Institutes of Biblical Law (Craig Press, 1973), 4.

[vii] See these verses from the Qur’an which support punishment for apostates: Qur’an 6:93; 33:57; 33:61. On sharia law, see Nonie Darwish, Cruel and Usual Punishment (Nashville, TN: Thomas Nelson, 2009).

[viii] Richard John Neuhaus, The Naked Public Square (Grand Rapids, MI: Eerdmans, 1984).

[ix] See Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty (Washington, DC: Cato Institute, 2014).

[x] On the origins of compulsory education and a critique thereof, see Rousas John Rushdoony, The Messianic Character of American Education (Ross House Books, 2014).

[xi] See Francis Schaeffer, A Christian Manifesto (Wheaton, IL Crossway Publishers, 1981), 89-130.

[xii] Walter Kaiser, Toward an Old Testament Ethics (Grand Rapids: Zondervan, 1983), 91-92. Rushdoony categorizes them a bit differently: R. J. Rushdoony, Institutes of Biblical Law, 76-77.

[xiii] Walter Kaiser, “Gods Promise Plan and his Gracious Law,” Journal of the Evangelical Theological Society 35:3 (1992) 293.

[xiv]  Frederick Rauscher, “Kant’s Social and Political Philosophy,” Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/kant-social-political.

[xv] C. S. Lewis, “The Humanitarian Theory of Punishment,” God in the Dock (Grand Rapids, MI: Eerdmans, 1970).

[xvi] Mark Twain, Caroline Thomas Harnsberger, Mark Twain at Your Fingertips: A Book of Quotations (New York, Dover, 2009), 36.

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