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January 30, 2008

Death Penalty: Mohler

Here's a link to R. Albert Mohler on Walter Berns (Georgetown) recent article in the Weekly Standard on the Death Penalty.

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I support the death penalty, but I also recognize (as a former trial attorney) that our system is far from perfect in deciding innocence and guilt. I believe that Christian who support the death penalty should be just as insistent that extremely high levels of proof of guilt exist before the death penalty is imposed. Hundreds of inmates have been released from prison over the past decade whose conviction were thrown out based on new evidence, particularly DNA evidence. We must not forget that the same Bible that calls for the death penalty also calls to higher levels of proof of guilt than are required in our system. Insisting on higher levels of proof will not only make the execution of the innocent far less likely, it will also remove perhaps the most persuasive argument of those who oppose the death penalty.

I would ask that Dr. Mohler and other clergy who support the death penalty demand changes in our rules of evidence in cases in which the death penalty may be imposed to make it less likely innocent men and women will be sentenced to death. Let us demonstrate that we are just as concerned about executing the innocent as we are about seeking justice from those who are guilty.

Posted by: GL | Jan 30, 2008 5:53:26 PM

GL is right, but Mohler's point is not so much support for the death penalty per se, but rather that support for the death penalty correlates to religious belief, which is why there is wide-spread support for the penalty in the U.S., but increasingly little in Europe. Ironically, I think it is a disrespect for human life that is the unspoken assumption in the anti-death penalty position. I have little doubt that the latter position in fact correlates rather well with pro-choice sentiment.

Posted by: Bill R | Jan 30, 2008 6:02:13 PM

Bern's words are very powerful and worth reading carefully. We should thank the Kushiner-Mohler Berns link. The legitimate anger of a moral community when confronted with injustice is a major emphasis of Mr Podles' book Sacrilege. He brings to light the peculiar absence of a controlled judging anger amoung the Catholic clergy who were not abusers(but who strangely are not effectively and righteously angry).
A significant characteristic of political leadership and civic rhetoric is to evoke righteous anger from the assembled body politic. Sometimes it is the man who makes you laugh not the one who makes you swoon who is most capable of the emotional task of disciplining civic anger.

evoke such righteous anger .

Posted by: dpence | Jan 30, 2008 9:17:16 PM

Gentle readers, I strongly suggest that you read the following that I wrote for David Horowitz's Front Page Magazine in 2006 about the Vatican's opposition to the death sentence given to Saddam Hussein. The article also explores the Church's current abolitionist attitude toward capital punishment:

http://www.frontpagemag.com/Articles/Read.aspx?GUID=6903EF18-431F-4C86-BA60-8F2E0C969BDE

Posted by: Joseph D'Hippolito | Jan 31, 2008 12:38:23 AM

The legitimate anger of a moral community when confronted with injustice is a major emphasis of Mr Podles' book Sacrilege. He brings to light the peculiar absence of a controlled judging anger amoung the Catholic clergy who were not abusers(but who strangely are not effectively and righteously angry).

Mr. Pence is absolutely correct. As a Catholic, let me address this. The Catholic Church -- like liberal, mainline Protestant churches -- has effectively bought into the idea that making moral judgements is the same thing as "being judgemental," that anger is evil in itself, and that compassion reflected in a vending-maching form of forgiveness trumps concern for the innocent (Mark Shea's views are a perfect example of the latter).

Also, consider the idea that, for all too many Catholics, loyalty to the institution of the Church is paramount. Therefore, preserving the facade of institutional integrity (under the guise of "avoiding scandal") trumps any serious institutional self-examination, let alone any confronting of evil in its midst. The clerical sex-abuse crisis is a sad example of how such an attitude lasts until this day. I would hope that Mr. Podles can address this.

Not for nothing did St. John Chrysostom say, "The floor of Hell is paved with bishops."

Posted by: Joseph D'Hippolito | Jan 31, 2008 12:45:40 AM

Whatever the religious reasons for different attitudes towards capital punishment, there is one major reason for the difference in attitude between the US and Europe:

Europe has had, on its soil, two major regimes which consistently imposed the death penalty in an unjust and politically (rather than morally) motivated manner. While we are quick to associate the nazi regime, for example, with Germany, most of the countries which were (entirely or partially) occupied by Germany or which were German allies have had to look the fact into the eye that they (as a people) are capable of abusing this penalty. This has led to a suspicion of the death penalty and a reluctance to allow its imposition. The same applies to the countries formerly under Communist rule. We, as Europeans, are just no longer convinced of man's ability to judge righteously.

This parallels a European reluctance to consider military action an appropriate tool for achieving (however laudable) political ends. Europe has had two major and several smaller wars on its soil in the last hundred years and is no longer convinced that war is a solution to anything.

And the look across the pond, with the gung-ho attitudes displayed by vocal American advocates of both capital punishment and the military option does nothing to change European attitudes on these topics (because most of the vocal advocates will NOT readily admit the flaws in the US systems), neither do the (non-existant) statistics showing that the imposition of capital punishment reduces the amount of violent crime, nor the (non-existant) successes in solving problems by military action.

I am also not convinced by those who argue that Europe is so much more secularized than the US. The fact that one has more of a chance to be mugged or otherwise encounter violence, for example, in every major US city than in comparable European cities, or that abortion on demand is much more wide-spread in the US than in most of Europe is proof positive that American religion is largely a matter of "having the form but denying the power thereof" and Scripture is pretty scathing of that condition.

Posted by: Wolf N. Paul | Jan 31, 2008 12:55:20 AM

I should have qualified "abortion" as "unlimited abortion" in my previous comment. I was referring to the fact that many European countries impose SOME limits on abortion whereas in the US the courts have managed to prevent ALL limits.

Posted by: Wolf N. Paul | Jan 31, 2008 12:59:54 AM

>The fact that one has more of a chance to be mugged or otherwise encounter violence, for example, in every major US city than in comparable European cities,

I would say that is a rather dated observation...

Posted by: David Gray | Jan 31, 2008 3:49:36 AM

>>>The fact that one has more of a chance to be mugged or otherwise encounter violence, for example, in every major US city than in comparable European cities,

I would say that is a rather dated observation...<<<

in fact, it is absolutely false. The rate of violent crime is much higher in Paris and London than it is in New York or Los Angeles. Even such reputably peaceful cities as Stockholm are experiencing a major wave of crimes against persons and properties. There are areas in many major European cities where it is not only unsafe to go at night, it is unsafe to go in the daytime, and so unsafe that police don't go there. In the UK, break-ins with occupants at home have risen to alarming levels, and were a major issue during the last years of Tony Blair's government.

There are two major reasons for this rise in violent crime. First, the inability or unwillingness of European governments to enforce the law upon their burgeoning Muslim communities, where gangs of disaffected Muslim men run rampant and have lost their fear of the police. Second, stringent gun control laws which have turned the law-abiding majority into sitting targets for predators. British criminals break into British homes because they know that the occupants are unarmed and unable to defend themselves.

The only area in which Europe lags the U.S. is murder, and that is due largely to a variety of cultural factors. Cultural factors, however, account for one category of murder in which Europe leads the United States: honor killings of women by their relatives within Muslim (and sometimes Hindu) families.

Posted by: Stuart Koehl | Jan 31, 2008 4:47:27 AM

Today's magisterium opposes capital punishment for very different reasons than secularists oppose the practice. The culture of life, which the late pope promoted, is a culture infused with Gospel values with respect to social relations. The criminal is treated as the sinner - to be rehabilitated if possible, to be punished for his own correction, to be isolated to the extent necessary to protect the rest of us. To take the criminal's life without strict necessity
is to deny him the mercy which our Lord wants us to extend to all men. It is to exclude permanently from human society a soul whom Christ died to save. It may be just but it is not justified.

The secularist does not trust the state to administer the death penalty. He views taking the life of a criminal to satisfy the appetite for revenge as itself a crime. Crime is not some violation of transcendent standards which must be upheld through punishment but rather problematic behavior to be minimized through social engineering. Abortion is just not problematic in itself but is often a solution to difficult social problems. The appeal to transcendent standards to justify capital punishment for capital crimes and to protect the unborn child is rejected in both cases.

I think it is possible for Christians to make the case against capital punishment in a way that undermines the passion for justice that fuels the anti-abortion movement.

Posted by: Charles R. Williams | Jan 31, 2008 6:43:28 AM

The best analysis of the moral and religious basis of capital punishment was made by David Gelernter in Commentary Magazine back in April of 1998. It is available in archive there as a pdf, but I reproduce it here as it appeared in Utne Reader:

What do Murderers Deserve?

David Gelernter Commentary (commentarymagazine.com)

A Texas woman Karla Faye Tucker, murdered two people with a pickax, was said to have repented in prison, and was put to death. A Montana man, Theodore Kaczynski, murdered three people with mail bombs, did not repent, and struck a bargain with the Justice Department: He pleaded guilty and will not be executed. (He also attempted to murder others and succeeded in wounding some, myself included.) Why did we execute the penitent and spare the impenitent? However we answer this question, we surely have a duty to ask it.

And we ask it--I do, anyway--with a sinking feeling, because in modern America, moral upside-downness is a specialty of the house. To eliminate race prejudice we discriminate by race. We promote the cultural assimilation of immigrant children by denying them schooling in English. We throw honest citizens in jail for child abuse, relying on testimony so phony any child could see through it. We make a point of admiring manly women and womanly men. None of which has anything to do with capital punishment directly, but it all obliges us to approach any question about morality in modern America in the larger context of this country's desperate confusion about elementary distinctions.

Why execute murderers? To deter? To avenge? Supporters of the death penalty often give the first answer, opponents the second. But neither can be the whole truth. If our main goal were deterring crime, we would insist on public executions--which are not on the political agenda, and not an item that many Americans are interested in promoting. If our main goal were vengeance, we would allow the grieving parties to decide the murderer's fate; if the victim had no family or friends to feel vengeful on his behalf, we would call the whole thing off.

In fact, we execute murderers in order to make a communal proclamation: that murder is intolerable. A deliberate murderer embodies evil so terrible that it defiles the community. Thus the late social philosopher Robert Nisbet wrote:'Until a catharsis has been effected through trial, through the finding of guilt and then punishment, the community is anxious, fearful, apprehensive, and, above all, contaminated.'

When a murder takes place, the community is obliged to clear its throat and step up to the microphone. Every murder demands a communal response. Among possible responses, the death penalty is uniquely powerful because it is permanent. An execution forces the community to assume forever the burden of moral certainty; it is a form of absolute speech that allows no waffling or equivocation.

Of course, we could make the same point less emphatically, by locking up murderers for life. The question then becomes: Is the death penalty overdoing it?

The answer might be yes if we were a community in which murder was a shocking anomaly. But we are not. 'One can guesstimate,' writes the criminologist and political scientist John J. DiIulio Jr., 'that we are nearing or may already have passed the day when 500,000 murderers, convicted and undetected, are living in American society.'

DiIulio's statistics show an approach to murder so casual as to be depraved. Our natural bent in the face of murder is not to avenge the crime but to shrug it off, except in those rare cases when our own near and dear are involved.

This is an old story. Cain murders Abel, and is brought in for questioning: 'Where is Abel, your brother?' The suspect's response: 'What am I, my brother's keeper?' It is one of the first human statements in the Bible; voiced here by a deeply interested party, it nonetheless expresses a powerful and universal inclination. Why mess in other people's problems?

Murder in primitive societies called for a private settling of scores. The community as a whole stayed out of it. For murder to count, as it does in the Bible, as a crime not merely against one man but against the whole community and against God is a moral triumph still basic to our integrity, and it should never be taken for granted. By executing murderers, the community reaffirms this moral understanding and restates the truth that absolute evil exists and must be punished.

On the whole, we are doing a disgracefully bad job of administering the death penalty. We are divided and confused: The community at large strongly favors capital punishment; the cultural elite is strongly against it. Consequently, our attempts to speak with assurance as a community sound like a man fighting off a chokehold as he talks. But a community as cavalier about murder as we are has no right to back down. The fact that we are botching things does not entitle us to give up.

Opponents of capital punishment describe it as a surrender to emotions--to grief, rage, fear, blood lust. For most supporters of the death penalty, this is false. Even when we resolve in principle to go ahead, we have to steel ourselves. Many of us would find it hard to kill a dog, much less a man. Endorsing capital punishment means not that we yield to our emotions but that we overcome them. If we favor executing murderers, it is not because we want to but because, however much we do not want to, we consider ourselves obliged to.

Many Americans no longer feel that obligation; we have urged one another to switch off our moral faculties:'Don't be judgmental!' Many of us are no longer sure evil even exists. The cultural elite oppose executions not (I think) because they abhor killing more than others do, but because the death penalty represents moral certainty, and doubt is the black-lung disease of the intelligentsia--an occupational hazard now inflicted on the whole culture.

Returning then to the penitent woman and the impenitent man: The Karla Faye Tucker case is the harder of the two. We are told that she repented. If that is true, we would still have had no business forgiving her, or forgiving any murderer. As theologian Dennis Prager has written apropos this case, only the victim is entitled to forgive, and the victim is silent. But showing mercy to penitents is part of our religious tradition, and I cannot imagine renouncing it categorically.

I would consider myself morally obligated to think long and hard before executing a penitent. But a true penitent would have to have renounced (as Karla Faye Tucker did) all legal attempts to overturn the original conviction. If every legal avenue has been tried and has failed, the penitence window is closed.

As for Kaczynski, the prosecutors say they got the best outcome they could, under the circumstances, and I believe them. But I also regard this failure to execute a cold-blooded, impenitent terrorist and murderer as a tragic abdication of moral responsibility. The community was called on to speak unambiguously. It flubbed its lines, shrugged its shoulders, and walked away.

In executing murderers, we declare that deliberate murder is absolutely evil and absolutely intolerable. This is a painfully difficult proclamation for a self-doubting community to make. But we dare not stop trying. Communities in which capital punishment is no longer the necessary response to deliberate murder may exist. America today is not one of them.

David Gelernter is the author, most recently, ofMachine Beauty(Basic Books, 1998). FromCommentary(April 1998). Subscriptions: $45/yr. (12 issues) from the American Jewish Committee, 165 E. 56th St., New York, NY 10022.

Posted by: Stuart Koehl | Jan 31, 2008 7:37:12 AM

At First Things, J B also addressed the issue of capital punishment, taking serious issue with various pontifical statements:

Capital Punishment: The Case for Justice

J. Budziszewski

Copyright (c) 2004 First Things 145 (August/September 2004): 39-45.

Justice is giving each what is due to him. So fundamental is the duty of public authority to requite good and evil in deeds that natural law philosophers consider it the paramount function of the state, and the New Testament declares that the role is delegated to magistrates by God Himself. “Be subject for the Lord’s sake to every human institution,” says St. Peter, “whether it be to the emperor as supreme, or to governors as sent by him to punish those who do wrong and to praise those who do right” (1 Peter 2: 13-14). St. Paul agrees:

For rulers are not a terror to good conduct, but to bad. Would you have no fear of him who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain; he is the servant of God to execute His wrath on the wrongdoer. Therefore one must be subject, not only to avoid God’s wrath but also for the sake of conscience (Romans 13:3-5).

So weighty is the duty of justice that it raises the question whether mercy is permissible at all. By definition, mercy is punishing the criminal less than he deserves, and it does not seem clear at first why not going far enough is any better than going too far. We say that both cowardice and rashness miss the mark of courage, and that both stinginess and prodigality miss the mark of generosity; why do we not say that both mercy and harshness miss the mark of justice? Making matters yet more difficult, the argument to abolish capital punishment is an argument to categorically extend clemency to all those whose crimes are of the sort that would be requitable by death.

I ask: Is there warrant for such categorical extension of clemency? Let us focus mainly on the crime of murder, the deliberate taking of innocent human life. The reason for this focus is that the question of mercy arises only on the assumption that some crime does deserve death. It would seem that at least death deserves death, that nothing less is sufficient to answer the gravity of the deed. As Scripture says: “Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image” (Genesis 9: 5-6). Someone may object that the murderer, too, is made in God’s image, and so he is. But this does not lighten the horror of his deed. On the contrary, it heightens it, because it makes him a morally accountable being. Moreover, if even simple murder warrants death, how much more does multiple and compounded murder warrant it. Some criminals seem to deserve death many times over. If we are considering not taking their lives at all, the motive cannot be justice. It must be mercy.

The questions we must address are therefore three: Is it ever permissible for public authority to give the wrongdoer less than he deserves? If it is permissible, then when is it permissible? Is it permissible to grant such mercy categorically?
Society is justly ordered when each person receives what is due to him. Crime disturbs this just order, for the criminal takes from people their lives, peace, liberties, and worldly goods in order to give himself undeserved benefits. Deserved punishment protects society morally by restoring this just order, making the wrongdoer pay a price equivalent to the harm he has done. This is retribution, not to be confused with revenge, which is guided by a different motive. In retribution the spur is the virtue of indignation, which answers injury with injury for public good. In revenge the spur is the passion of resentment, which answers malice with malice for private satisfaction. We are not concerned here with revenge.

Retribution is the primary purpose of just punishment as such. The reasons for saying so are threefold. First, just punishment is not something which might or might not requite evil; requital is simply what it is. Second, without just punishment evil cannot be requited. Third, just punishment requires no warrant beyond requiting evil, for the restoration of justice is good in itself. True, just punishment may bring about other good effects. In particular, it might rehabilitate the criminal, physically protect society from him, or deter crime in general. Although these might be additional motives for just punishment, they are secondary. In the first place, punishment might not achieve them. In the second place, they can sometimes be partly achieved apart from punishment. Third and most important, they cannot justify punishment by themselves. In other words, we may not do more to the criminal than he deserves—not even if more would be needed to rehabilitate him, make him harmless, or discourage others from imitation. For example, if a man punches another man in the nose, we may not keep him in a mental institution forever just because he has not yet become kind in spirit, kill him because we cannot be sure that he will never punch again, or torture him because nothing less would deter other would-be punchers. For these reasons, rehabilitation, protection, and deterrence have a lesser status in punishment than retribution: they are secondary.

The argument against capital punishment runs as follows. True, the purpose of retribution is served by the murderer’s death, but under certain circumstances retribution might interfere with other purposes of punishment: it might prematurely put an end to his rehabilitation; it might undermine deterrence (say, by so angering his compatriots that they, too, commit evils); and it might not be necessary for the physical safety of others. Therefore, it would be better not to kill him, but to protect society by other means—perhaps by locking him up forever. The difficulty with this argument is that it seems to regard the secondary purposes of punishment as sufficient to overturn its primary purpose. Rehabilitation, protection, and deterrence cannot justify doing more than what retribution demands; how can they justify doing less?
Fortunately, this is not the end of the story; mercy and justice can, in fact, be reconciled. Let me first consider a false ending to the story that makes their reconciliation seem simpler than it is. This false ending comes from the utilitarian philosophy that permeates our society and legal culture.

To the question, “Is it ever permissible to show mercy?” the utilitarian answers “yes,” but it is a misleading “yes” because he does not understand what is being asked. A utilitarian says that the only reason to have laws at all is to stop things that make people feel pain and start things that make them feel pleasure. Requiting wrong just because it is wrong will make no sense to him because he does not believe in intrinsic wrong; if someone chides him, “Never do evil that good may result,” he is confused, because what results is the only measure of evil that he has. He cannot distinguish retribution from revenge, viewing all punishment merely as an emotional venting which makes people feel better. Not that he objects to it on that account, for in his view, feeling good is all that matters. Over time, though, rehabilitation, protection, and deterrence can make people feel better, too, so the only question is what combination of punishment and remission of punishment makes people feel the best. Therefore, the utilitarian might very well do less to the criminal than he deserves—but, for the same reason, the utilitarian might do more to the criminal than he deserves, for the utilitarian does not grasp the concept of desert.

To the question, “Is it ever permissible to show mercy?” I also answer “yes,” but for a different reason. The faith I hold recognizes the dilemma that utilitarians ignore. Justice is inexorable; evil must be punished. This would seem to make mercy impossible; yet there is mercy. As the Psalmist says, “Great is thy mercy, O Lord; give me life according to thy justice” (Psalms 119:156). Somehow the irreconcilables meet and kiss.

How can this be? There are two parts to the riddle, one on God’s side, the other on man’s. On the divine side, the reconciliation of justice with mercy lies in the Cross. God does not balance mercy and justice; He accomplishes both to the full. The reason He can remit punishment to human beings who repent and turn to Him is that Christ, the Lamb of God, has taken the punishment in their place. His death and resurrection become their death and resurrection, because he identifies with them through sacrifice and they identify with him through faith; the judge himself steps forward to pay their debt. Divine mercy, then, means two things. One is the divine atonement which makes God’s forgiveness possible. The other is the divine patience with which He waits for us to ask for His forgiveness.

Yet whom God loves, He disciplines. For our good, not even divine forgiveness means that the consequences of sin in this life are fully remitted. Among these consequences is punishment by human magistrates, who act as God’s agents whether they know it or not. The sentences of human magistrates cannot be, and are not meant to be, a final requital of unrepented evil; that awaits the great day when Christ returns to judge the quick and the dead. But they foreshadow that final justice, so that something of the retributive purpose is preserved. In the meantime they promote restraint, repentance, and amendment of life. Human magistrates turn out to be not plenary but partial delegates, and not only of God’s wrath but also of His patience.

All this puts the primary and secondary purposes of punishment more nearly on a level than they would be otherwise—not for God, but for man. Although human magistrates are forbidden to let crimes go unrequited, they do not carry the impossible burden of requiting them to the last degree. For temporal purposes, the retributive purpose of punishment can be moderated by its other three purposes after all. The only purpose which cannot be moderated is the purpose of symbolizing that perfect retribution which magistrates themselves do not achieve, for human punishment is a sign of wrath to come.

If criminals in general can sometimes be punished less than they deserve, then perhaps capital criminals can sometimes be punished less than they deserve. The desideratum is when the purposes of punishment can be satisfied better by bloodless means than by bloody ones, so let us consider the four purposes one by one.

Rehabilitation refers to the reconciliation of the criminal with man and God. It may seem at first that capital punishment can never aid in rehabilitation, because when the string of life is cut the process of rehabilitation is cut off, too. But this is overstated. One part of rehabilitation is cut off, for certainly a dead man is not readmitted to society. But what do the opponents of capital punishment propose as an alternative? For serious crimes and dangerous criminals, they propose life imprisonment, but a man in jail for life does not return to society either. The real question is not what the prospect of death does to a man’s prospect of readmission to society, but what it does to his prospect of change of heart. Here the picture is quite different. “Depend upon it, Sir,” said Samuel Johnson, “when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” Indeed, there may be many criminals for whom nothing else concentrates the mind enough. By contrast, an offender who is confined in jail for life with no society but that of other criminals is probably more likely to be hardened than reformed. We are forced to conclude that in some cases, the death penalty may contribute to rehabilitation rather than hinder it.

Protection refers to the defense of society from the criminal. The restoration of just order is by its very nature a moral protection of society, but there is much to be said even if we consider only physical protection. Some people suggest that although capital punishment might once have been necessary for protection, modern improvements in the penal system make it possible to shield the innocent without killing the guilty. Such indeed is the argument of Pope John Paul II in Evangelium Vitae, although he states the conclusion in less categorical terms. It is the more categorical form of the conclusion to which I object. What the Pope suggests is that today we may be able to sentence a criminal to life imprisonment with the reasonable certainty that he will not be able to escape. I agree that this is a deeply significant change which may ultimately reduce the weight of the safety question in cases where clemency has been proposed. However, I do not agree that it has reduced its weight already. Today the risk is not so much that dangerous and justly judged criminals will escape from prison; the risk is that we will let them out. It has been a long time since a “life sentence” meant that the prisoner would stay in prison for the rest of his natural life.

There are several reasons for the erosion of life sentencing, and they tend to compound each other. High crime rates have so swelled the number of inmates that officials find it difficult to feed and house all of them; the pressure to set some free is hard to resist. At the same time, American society finds it increasingly difficult to take right and wrong seriously. Not only does our lax moral attitude contribute further to the high rate of crime, but it generates further pressure to let criminals out of prison. When we do let them out, they are usually more dangerous than when they entered, because of the tips they have learned, the contacts they have made, and the attitudes they have developed among other criminals. The argument is sometimes made that abolishing capital punishment would foster the virtue of compassion. Conceivably this is so, but in the present moral climate it is more likely to foster that counterfeit compassion which thinks no wrong is very wrong. Should this happen, then society would be even more at risk than it is now.

Suppose the unlikely: that somehow we did keep all capital criminals in prison for the duration of their natural lives. Even then the protective purpose of punishment would not be fully satisfied. True, a man behind bars no longer endangers society in general. But he endangers other inmates, and he certainly endangers prison staff. Surely they, too, deserve consideration. We are forced to conclude that even today, with our modern penal systems, safety is still an issue. Safety must not trump desert: the risk of future harm to society cannot justify doing more to the criminal than he deserves. But in some cases it should keep us from doing less.

Deterrence refers to the discouragement of crime in general. This is where some opponents of capital punishment claim their strongest ground, for the statistical evidence for the deterrent effect of capital punishment is inconsistent and inconclusive. Avery Cardinal Dulles has suggested a further dilemma. (See “Catholicism & Capital Punishment,” FT April 2001). Although grotesque and torturous methods of execution seem most likely to deter, they are incompatible with human dignity. Conversely, those methods of execution which are compatible with human dignity seem unlikely to deter. So for the means of capital punishment which could actually be used, we probably could not count on a deterrent effect.
For those who view deterrence as the primary purpose of punishment, the uncertainty of capital punishment as a deterrent provides the fatal argument against it. For those who view its primary purpose as retribution, however, this uncertainty makes little difference; the mere fact that a deserved punishment does not deter makes it no less richly deserved. But is it possible that high rates of capital punishment would actually undermine deterrence, inciting wicked and resentful men to greater evils? We know that banning a favorite vice can have this effect; the prohibition of alcohol, for example, can give drunkenness a certain glamour. But the crimes we class as capital must be prohibited in any case. If there were evidence that punishing them by execution rather than by bloodless means incited them, that would certainly be an argument for using the bloodless means. To my knowledge, however, no such evidence has turned up. It seems, then, that the data on deterrence neither strengthen nor weaken the case for capital punishment.

Retribution. We saw earlier that, although human punishment does not bear the full burden of requiting good and evil, it must hold up requital as an ideal; it must point beyond itself, to that perfect justice of which it is merely a token. Cardinal Dulles agrees, but he sees a problem:

For the symbolism to be authentic, the society must believe in the existence of a transcendent order of justice, which the state has an obligation to protect. This has been true in the past, but in our day the state is generally viewed simply as an instrument of the will of the governed. In this modern perspective, the death penalty expresses not the divine judgment on objective evil but rather the collective anger of the group. The retributive goal of punishment is misconstrued as a self-assertive act of vengeance.

The cynicism which Cardinal Dulles describes is a real and grave difficulty. In general, our ruling class no longer believes in those divine decrees of which human decrees are but a hint or shadow, and neither does a large and growing part of the population. More and more our intellectuals agree with the famous statement of Oliver Wendell Holmes that “truth is the majority vote of that nation that could lick all others.”

But what is the import of these facts? They do not make it less important for our courts to appeal to justice; they make it more important. There is a difference between saying that the ideology people hold no longer gives adequate expression to the law which St. Paul says is “written on their hearts” (Romans 2:14-15), and saying, instead, that it is not in fact written on their hearts. Even now, people retain a dim idea of desert; the idea “A deserves B for doing C” has not simply become meaningless to them. The Roman judges of the first century were no less cynical than the American judges of the twenty-first. Tiberius Caesar would have been quite comfortable with Holmes’ maxim; Pontius Pilate washed his hands of justice, using the question “What is truth?” not to begin the interview with his prisoner but to end it. The apostles knew all these things, yet St. Paul calls the magistrate the servant of God to execute divine wrath on the wrongdoer.
I do not know whether our society can be brought back to believe in a transcendent order of justice, but of this I am certain: if we who recognize this standard do not act as though we believe in it, then no one will be brought by us to believe in it.

The question to ask about the retributive purpose of capital punishment is this: Is it possible for punishment to signify the gravity of crimes which deserve death if their perpetrators are never visited with execution? This seems unlikely. Consider the deviant who tortures small children to death for his pleasure or the ideologue who meditates the demise of innocent thousands for the sake of greater terror. Genesis says murderers deserve death because life is precious; man is made in the image of God. How convincing is our reverence for life if its mockers are suffered to live?

Let us consider what objections might be made against our argument to this point. The judicious Cardinal Dulles, to whom my discussion is already indebted, finds less to commend capital punishment than I do. Yet even he does not think that a review of the purposes of punishment is sufficient in itself to justify abolishing the ultimate penalty. The crux of his published argument is found not there, but in four other common objections to the penalty of death. (1) Sometimes innocent people are sentenced to death. (2) Capital punishment whets the lust for revenge rather than satisfying the zeal for true justice. (3) It cheapens the value of life. (4) And it contradicts Christ’s teaching to forgive. The Cardinal calls the first objection “relatively strong,” to the second and third he concedes “some probable force,” and the fourth he considers “relatively weak.” Yet he concludes that “taken together, the four may suffice to tip the scale against the death penalty.” Let us revisit these four objections.

Erroneous convictions. Courts sometimes do mistakenly condemn the innocent. Although erroneous conviction is possible in any case, its gravity increases with the severity and irreversibility of the penalty. It would seem that the proper remedy is to require a higher procedural standard in capital cases than in ordinary cases, and to root out the sources of corruption in the system of justice. Indeed, the Cardinal acknowledges the point, approving the suggestion that capital punishment would be justified if the trial were held in an honest court and the accused were found guilty “beyond all shadow of doubt.” His point is that this criterion cannot be satisfied, for despite all precautions, errors do sometimes occur.

The difficulty with the argument lies in the notion of guilt “beyond all shadow of doubt.” When we say this, do we mean beyond shadow of any sort of doubt, or do we mean beyond shadow of reasonable doubt? In law, the latter standard rules, and surely this is as it ought to be. Anything might be doubted, but it does not follow that doubt is always justified by the facts in evidence. The murderer might have told the grocer, doctor, and cabdriver what he was going to do; he might have been videotaped doing it by a newsman, a passerby, and an automatic security camera; he might have boasted about it afterward to a coworker, bartender, and next-door neighbor; and he might have confessed, in the presence of his lawyer, to the arresting officer, the investigating officers, and the court. Yet perhaps someone on the jury has been reading the Meditations of René Descartes and is troubled by the possibility that the sensible world is only an illusion caused by an evil demon or by the nature of minds. If it is, the juror reasons, then none of the witnesses can be trusted. For that matter, neither can the accused; he may have only dreamed the whole murder. True, Descartes concludes that the world is not an illusion after all. But the juryman votes for acquittal anyway, reflecting that philosophers sometimes err.

Now the way that the juryman reasons about philosophers is very much like how Cardinal Dulles reasons about juries. The Cardinal holds that because even honest courts can err, we must not trust any verdict, irrespective of the weight of evidence which supports it. But a doubt which cannot be affected by any possible evidence is not a reasonable ground for letting a convict off the hook.

The lust for revenge. Of course it is true that the death penalty might whet the appetite for revenge. It is hard to see, though, why this should be more true of the death penalty than of “locking them up for life.” Indeed it is hard to see why it should be more true of punishment than of the other aspects of criminal justice. Seeing policemen on the streets, hearing the testimony of witnesses in court, hearing the judge’s solemn charge to the jury—all of these things might whet the appetite for revenge, and no doubt they often do. Should we then abolish policemen, testimony, and solemn charges? Moreover, not only can the love of justice be twisted toward the wrong, but every good impulse can be twisted toward the wrong: love of country, love of family, compassion for those who suffer. The first may be distorted into jingoism, the second into nepotism, the third into sentimentality. Even the love of God can be perverted, and when it is, it is a terrible thing indeed. Yet the fact that something right can be perverted does not stop it from being right.

The cheapening of life. Cardinal Dulles paraphrases the standard argument this way: “By giving the impression that human beings sometimes have the right to kill, [capital punishment] fosters a casual attitude toward evils such as abortion, suicide, and euthanasia.” The Cardinal does not consider this argument strong. In particular, he observes that many earnest opponents of these other deeds are earnest supporters of capital punishment, for they realize that the rights of the guilty and innocent are not the same. He is quite right, and we can pair his observation with another. Many fervent supporters of these other deeds are also fervent opponents of capital punishment. The phenomenon is as common as it is strange. Perhaps it is a form of compensation, as conscience demands its pay: having approved the private execution of the weak and blameless, one now seeks absolution by denouncing the official execution of the strong and ruthless. Whether or not this explains it, two things at least are plain. First, it is psychologically possible to hold either of the following combinations of positions: that it is wrong to kill the innocent but may be right to kill the guilty, and that it is wrong to kill the guilty but may be right to kill the innocent. Second, the normal moral reason for upholding capital punishment is reverence for life itself. Indeed, this is the reason why Scripture and Christian tradition uphold it, a fact which suggests that if anything, it is the abolition of capital punishment which threatens to cheapen life.

Christ’s teaching on forgiveness. It is true that Jesus taught us to love those who hate us, forgive those who wrong us, and abstain from hypocritical comparisons between ourselves and those who offend us. These things we should do, however difficult they may be. But let us remember that the same Lord and God who commands His people to pardon their debtors also gave them Torah, which commands magistrates to call them to account. Cardinal Dulles speaks rightly when he says that “personal pardon does not absolve offenders from their obligations in justice.” Indeed, he considers this fourth objection “relatively weak” and “complex at best.” My only objection to these words is that they are too polite, for the supposition that personal forgiveness implies a requirement for universal amnesty is not merely weak but mistaken. Taken seriously, it would destroy all public authority, for if punishment as such is incompatible with forgiveness, then why stop with capital punishment? Must we not abolish prisons, fines, and even reprimands as well?
I have heard it asked by fellow Christians, “How dare we play God? How dare we wrest into our own hands the divine prerogative of life and death?” It is a good question. My answer is that we dare not. We dare not wrest into our own hands any of the divine prerogatives of justice, whether the deprivation of life, of liberty, or of property. It is a dreadful matter to kill a man, but it is also dreadful to lock him in a hole, away from wife, children, parents, friends, and all that he held dear in life. It is a fearsome matter to imprison a man, but it is also fearsome to use fines and impoundments to confiscate his worldly goods, which he may have accumulated by honest labor and is counting on for the succor of his family and the support of his declining years. No, we dare not wrest into our hands any powers over our fellow men. But if God puts such powers into the hands of those who hold public authority—what then? Does this not alter the picture? How dare we jerk our hands away, hide them behind our backs, refuse the charge. For the teaching of Scripture and Christian tradition are just as clear about public justice as they are about personal forgiveness, and the teaching of Christ is that “Scripture cannot be broken” (John 10:35). The magistrate is “sent,” whether he knows it or not; he is “the servant of God to execute His wrath on the wrongdoer.” Yes, we have seen that he is a servant of God’s patience, too, but the one charge does not cancel the other. However tempered with mercy, public authority remains an augur or a portent of the wrath which will one day fall upon the unrepentant.

The story has another side as well. To remit deserved punishment too easily is a miscarriage not only of justice but also of mercy. When a heart is very hard, it may sometimes be the case that deserved punishment is the only knock strong enough to break the husk and spill out the seeds of repentance. God Himself is said to use this method: those whom He loves, He chastens, even perhaps with the prospect of death. If we are to imitate His love, then we must sometimes imitate His chastening, too.

Our brief review of the objections to capital punishment has led us to the following conclusion. First, in considering whether to grant clemency, the proper question is not whether juries ever err, but whether we have reasonable ground to think that this particular jury has erred in fact. Second, any deserved punishment, indeed any element of justice, might whet the impulse for revenge. But when a good impulse is perverted, we should fight not the impulse but its perversion; and so with the impulse for justice. Third, Scripture and Christian tradition uphold capital punishment not in contempt for life but in reverence for it. It is because man is made in God’s image that Torah decrees that whoever sheds the blood of man, by man shall his blood be shed. Fourth, Christ did teach personal forgiveness, but he never challenged the need for public justice. Official pardon rightly has conditions which personal forgiveness does not. Not only is punishment compatible with love, it is sometimes demanded by it as the only medicine strong enough to do the offender good.
Classically, Christian teaching has held that the state has the authority to inflict capital punishment. It has also classically held that in certain cases a deserved punishment of death may be remitted but that the grounds for possible clemency are particular, not universal. Categorical remission of the penalty for all whose crimes deserve death contradicts revealed teaching on the duty of the magistrate and has no warrant in Christian tradition. It would weaken three of the four purposes of punishment, would confuse the good counsels of compassion, and would bring about more harm than good. What, then, of Evangelium Vitae? I accept the conclusion of John Paul II that “today” cases in which the death penalty is still necessary are “very rare, if not practically nonexistent.” However, we must resist the tendency to exaggerate his conclusion by reading these six words as the single word “nonexistent.”

Some say that because there is a risk of error in both directions, we should prefer to err on the side of mercy. I agree. We should indeed prefer to err on the side of mercy, in individual cases. But to err categorically is not simply to make a mistake. It is to abdicate our duty.

J. Budziszewski is Professor of Government and Philosophy at the University of Texas at Austin. This article is adapted from a chapter of A Call for Reckoning: Religion and the Death Penalty, edited by John Carlson, Eric Elshtain, and Erik Owens, to be published this fall by Eerdmans.

Posted by: Stuart Koehl | Jan 31, 2008 7:45:22 AM

Mr. Williams, the Catholic Magisterium's current position contradicts nearly 2,000 years of previous teaching based on both Scripture and Tradition. The following is a excerpt from my Front Page Magazine piece:

John Paul’s opinion not only reflected the growing consensus among European intellectuals against the death penalty. It also reflected his 40 years of living under Nazi and Communist tyrannies that arbitrarily misused capital punishment. Nevertheless, the late pope’s view directly contradicts centuries of Catholic teaching.

That teaching starts with the Old Testament, which all Christians consider divinely inspired. Genesis 9:5-6 describes God as ordering Noah and his descendents to execute murderers:

“Murder is forbidden….Any person who murders must be killed. Yes, you must execute anyone who murders another person, for to kill a person is to kill a living being made in God’s image (New Living Translation).”

That command, according to Genesis, came after a flood that destroyed a morally chaotic world – and is repeated in the every book of the Torah, the first five books that form the Bible’s foundation.

The command implies three theological principles. First, if God is the author of life, then God retains the prerogative to define the circumstances under which life can be taken. Second, God demands that humanity create just societies to protect the innocent. Third, murder is such a heinous violation of the divine image in humanity that execution is the only appropriate punishment.

Exodus 20-23 elaborates on these principles in what scholars call the lex talonis, which advocates punishment proportional to the offense – the original meaning of “eye for an eye, tooth for a tooth.” Instead of encouraging vengeance, as Martino maintains, the lex talonis discourages ad hoc vigilantism – the ultimate form of vindictiveness – in favor of due process.

In the New Testament, St. Paul reinforces the idea in his letter to the Romans. In Chapter 12, he discourages his readers from avenging themselves by quoting Deuteronomy 32:35 (“Vengeance is mine, says the Lord. I will repay!”). In the next chapter, St. Paul encourages them to rely on due process through legitimate authorities “because they do not bear the sword in vain (verse 4).”

Centuries of Catholic thought further reinforces those principles. In The City of God, St. Augustine states:

"The same divine law which forbids the killing of a human being allows certain exceptions. Since the agent of authority is but a sword in the hand, and is not responsible for the killing, it is in no way contrary to the commandment ‘Thou shalt not kill,’ for the representative of the State’s authority to put criminals to death, according to the Law or the rule of rational justice.”

St. Thomas Aquinas, in his masterpiece Summa Theologica, argues against the idea that incarceration alone is enough to protect the community:

“If a man is a danger to the community, threatening it with disintegration by some wrongdoing of his, then his execution for the healing and preservation of the common good is to be commended. Only the public authority, not private persons, may licitly execute malefactors by public judgment. Men shall be sentenced to death for crimes of irreparable harm or which are particularly perverted.”

In Summa Contra Gentiles, Aquinas even argues that impending execution can stimulate repentance:

“The fact that the evil, as long as they live, can be corrected from their errors does not prohibit the fact that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement. They also have at that critical point of death the opportunity to be converted to God through repentance. And if they are so stubborn that even at the point of death their heart does not draw back from evil, it is possible to make a highly probable judgment that they would never come away from evil to the right use of their powers.”

The papacy mirrored this philosophy as recently as 1952, when Pope Pius XII said:

“When it is a question of the execution of a man condemned to death it is then reserved to the public power to deprive the condemned of the benefit of life, in expiation of his fault, when already, by his fault, he has dispossessed himself of the right to live.”

Not even Sister Helen Prejean, one of the most popular opponents of capital punishment, contends that the abolitionist position has biblical roots, as she admitted in her book, Dead Man Walking:
“It is abundantly clear that the Bible depicts murder as a capital crime for which death is considered the appropriate punishment, and one is hard pressed to find a biblical ‘proof text’ in either the Hebrew Testament or the New Testament which unequivocally refutes this. Even Jesus’ admonition ‘Let him without sin cast the first stone,’ when He was asked the appropriate punishment for an adulteress (John 8:7) – the Mosaic Law prescribed death – should be read in its proper context.

This passage is an ‘entrapment’ story, which sought to show Jesus’ wisdom in besting His adversaries. It is not an ethical pronouncement about capital punishment.”

So how does Prejean justify her abolitionist stance? As she told Progressive magazine in 1996, “I couldn’t worship a god who is less compassionate than I am.”

That sentiment pervades America’s Catholic bishops, along with a willful ignorance of previous teaching and an intellectually fashionable sense of moral equivalence. Bishop Samuel Aquila of Fargo, N.D. demonstrated all three when he publicly opposed the execution of Alfonso Rodriguez, who was convicted of murdering Dru Sjodin, a 22-year-old university student.

“Responding to this senseless act of violence with another act of violence through imposition of the death penalty … reinforces the false perspective of vengeance as justice,” Aquila told Catholic News Agency on Sept. 25. “In doing so, it diminishes respect for all human life, both the lives of the guilty and the innocent.”

In 2001, Cardinal Mahony of Los Angeles and Cardinal William Keeler of Baltimore issued a joint statement in which they said that McVeigh’s execution “will not bring back to life those who died.” Their facile pomposity is self-evident.

But the most idiotic opinion came from Denver Archbishop Charles Chaput, a favorite of conservative Catholics. In response to Supreme Court Justice Antonin Scalia’s thoughtful disagreement with the church’s revisionist stance, published in First Things in 2002, Chaput stated:

“When Catholic Supreme Court Justice Antonin Scalia publicly disputes church teaching on the death penalty, the message he sends is not all that different from Frances Kissling disputing what the church teaches about abortion,... the impulse to pick and choose what we're going to accept is exactly the same kind of 'cafeteria Catholicism' in both cases.”

Frances Kissling is a former nun who leads Catholics for a Free Choice, which advocates legalized abortion.

Ratzinger exposed Chaput’s irresponsible ignorance less than two years before becoming pope. In July 2004, the head of the Congregation for the Doctrine of the Faith issued the following as part of a letter to Cardinal Theodore McCarrick of Washington, D.C. concerning the American bishops’ stance toward Catholic political candidates:

“Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion….There may be a legitimate diversity of opinion even among Catholics about … applying the death penalty, but not however with regard to abortion and euthanasia.”

A far worse consequence of the Catholic Establishment’s revisionism, however, is its growing indifference – if not outright contempt – toward those who must cope with the murder of their loved ones. When she heard the news about John Paul’s intervention on McVeigh’s behalf, Kathleen Treanor – who lost her daughter and two in-laws in the bombing – told Associated Press:

“Let me ask the pope, ‘Where’s my clemency? When do I get any clemency? When does my family get some clemency?’ When the pope can answer that, we can talk.”

In 1997, John Paul and Mother Teresa were among those advocating clemency for Joseph O’Dell, a Virginia man convicted of raping and murdering Helen Schartner in 1985. O’Dell’s fiancée manipulated public opinion in Italy to such a point that Gail Lee, Schartner’s sister, told Associated Press:

“We’re all very fragile at this point. It’s just like the Italians hate us. They in essence have said to my family, ‘You are worthless. Helen’s life doesn’t matter.’ ”

McCarrick displayed his own self-righteous indifference when he talked to the Washington Post about McVeigh’s execution, which only victims’ relatives could see via closed-circuit television:
“It is like going back to the Roman Colosseum. I think that we're watching, in my mind, an act of vengeance, and vengeance is never justified.”

The good cardinal thus equated the grieving, vulnerable relatives of murder victims with the hardened, barbaric masses of ancient Rome who found the bloody agony of gladiators and religious martyrs entertaining.

Posted by: Joseph D'Hippolito | Jan 31, 2008 2:07:17 PM

Posted by: Joseph D'Hippolito | Jan 31, 2008 2:07:33 PM

A number of people responded to J Budziszewski, addressing what they perceived as weaknesses in his thesis. Here are those letters and his response:

Letters
Just Punishment?

In “Capital Punishment: The Case for Justice” (August/September), J. Budziszewski makes a strong argument for capital punishment based on justice in accord with Scripture. However, I think that in focusing on justice and clemency rather than on signs or sacramentality he focuses on the wrong issue. What we need to ask is: What does capital punishment say sacramentally? That is, what is the deeper, supernatural reality that God wants us to understand when He prescribes the outward sign of capital punishment for certain crimes? What is God teaching us?
Although Professor Budziszewski refers to murder as categorically deserving capital punishment, he fails to mention fornication, adultery, sacrilege, etc. Would he advocate that we put to death categorically all fornicators as the Mosaic law prescribed? What about politicians who make sacrilegious communions? Such a position would be consistent with his use of Scripture.

God shows mercy to David after he commits adultery and murder. He is more deserving of death than an ordinary murderer since he used the power received by his anointing as king to accomplish his crimes. But God knew his heart and the powerful lesson he would teach us. This was more important than “justice.”

Prof. Budziszewski focuses on the justice of retribution. Let’s face reality here: for certain crimes, no punishment will ever do justice in this life. How can you restore lost innocence to a child who has been defiled? How do you restore lost life to someone murdered?

Capital punishment can teach that one deserves eternal death for certain acts, but only in the context of a society’s religious belief. In an irreligious society, capital punishment teaches something else: that the state has absolute power over life.
By contrast, doing away with capital punishment teaches that life is sacred. It teaches that only God can say when life ought to begin and when it ought to end. And it teaches that true justice is only achieved in eternity.

(The Rev.) John R. Waiss
Tilden Study Center
Los Angeles, California

The strength of J. Budziszewski’s argument for the primacy of retribution in punishment is that it provides for proportionality between the gravity of offenses committed and the severity of punishments imposed. When persons or their relatives are seriously and intentionally harmed, they have a prima facie claim that substantial punishment should be imposed. However, Budziszewski has not established his claims that capital punishment is consistent with the New Testament and that retributive justice requires that society retain it.

Professor Budziszewski maintains that “at least death deserves death, [and] that nothing less is sufficient to answer the gravity of the deed.” He reasons that through the application of deserved punishment the wrongdoer pays a price equivalent to the harm he has done and society is protected morally by the restoration of just order. But it is far from evident that to punish the crime of homicide with death is the most just punishment or is just at all. Advancing a principle of proportional retribution does not in itself reveal the justice of any specific punishment. The punishment for homicide could, for example, be exile, life in prison, life with hard labor, periodic torture without death, torture followed by death, or death by humane means. Prof. Budziszewski asserts that “[S]ome criminals seem to deserve death many times over.” Later in his piece he refers to “the deviant who tortures small children to death for his pleasure” and “the ideologue who meditates the demise of innocent thousands for the sake of the greater terror.” We may ask: Why should such persons not be subject to torture?

An answer may be found in Prof. Budziszewski’s rejection of those “grotesque and torturous methods of execution” that, he says, “seem most likely to deter.” He rejects them because “they are incompatible with human dignity.” But this is a criterion other than retributive justice. Moreover, Prof. Budziszewski further mitigates the requirement that “death deserves death” by appealing to God’s forgiveness and patience and to Christ’s having taken the punishment of those “who repent and turn to him.” Thus he reasons that not only criminals in general but “perhaps capital criminals” can “be punished less than they deserve.” Then, in the final adjustment of his position, Prof. Budziszewski ends his article by agreeing with Pope John Paul II that in our time “cases in which the death penalty is still necessary are ‘very rare, if not practically nonexistent.’”

This is an enormous leap, for the bulk of Prof. Budziszewski’s arguments aim to refute opponents of capital punishment. Why seek to defeat anti–death penalty arguments if one ends by concluding that the death penalty should be practically abolished? If human dignity and mercy are significant enough to rule out “torturous methods” and greatly reduce the occasions for capital punishment, why not conclude that they should rule out these intentional killings by government entirely?

Prof. Budziszewski rightly says that it “is a fearsome matter to imprison a man.” But if there was an error, the imprisoned person can be released and restored to family and friends, whereas the person executed cannot be brought back to life. Along with feeding the hungry, taking in the stranger, and clothing the naked, ministering to the prisoner is specified as an action taken by “the just” (Matthew 5:34-40). While prison may be in tension with the gospel norm of forgiveness, executions decisively violate it.

The idea that God puts “the divine prerogative of life and death” into the hands of “those who hold public authority” has done great harm. Capital punishment has been a blot on human history, including the history of ostensibly Christian societies. Reasons for Christians to oppose it include pervasive injustices in its application and, most importantly, the fact that it violates norms of love and forgiveness.

Michael C. Stratford
Emeritus Professor
of Political Science
Central Michigan University
Mount Pleasant, Michigan

J. Budziszewski’s argument rests on the asserted but unargued proposition that the crime of murder “deserves” death and only death. Nothing less, apparently, will do, since Professor Budziszewski formulates his central question as follows: “is it ever permissible for public authority to give the wrongdoer less than he deserves?” This frames the conversation from the start in terms of an either/or—either murderers are given death, or they are given less than they deserve, i.e., they are extended “clemency.” To abolish the death penalty would be to “categorically extend clemency” to all those who otherwise deserve death.

Framing the issue this way guarantees the author the moral high ground, since to defend the abolition of the death penalty would be to defend a measure of punishment that misses the mark of justice. Prof. Budziszewski writes as though his position is traditional, but it is actually very rare. He defends a strict application of the lex talionis (law of retribution)—that is, he holds to equality both in proportion and in kind of harm inflicted. This is the position of Kant.
It is not, however, the position of Thomas Aquinas, whose defense of the death penalty dominated Catholic penal ideas for seven hundred years. Aquinas argued that punishment should proportionally correspond to the fault. Civil authority should punish grave crimes with severe punishments and the gravest crimes with society’s most severe punishments. As to which concrete punishments should be annexed to which crimes, the judgment is a prudential one left for public authority to determine. If punishment is to be made capital, a further consideration needs to be taken into account. Aquinas argues for the death penalty by way of analogy (an analogy which in my estimation fails): a dangerous criminal can be likened to a diseased limb of the body; just as it can be good and life-giving to cut off a diseased limb for the sake of the health of the whole body, so too it can be good and salubrious to kill a dangerous criminal for the sake of the welfare of the community.

As stated, I think Aquinas’ analogy is flawed, but at least it makes ample room for the conventional interpretation of the papal teaching that in the modern world the welfare of the community no longer requires the death of criminals; severe but nonlethal punishments therefore should be inflicted upon murderers with confidence that justice is thereby being served. If Prof. Budziszewski wishes to argue for a strict interpretation of the lex talionis, then he should argue for it and not presume it. Citing Genesis 9:5-6 as a proof text is not a sufficient argument. The problem of applying Old Testament penal principles to the order established by Jesus Christ in the New Covenant is complicated and at least deserves an argument. After all, death is considered “deserved” for more than twenty offenses in the Pentateuch, including for working on the Sabbath (Exodus 31:12-14; 35:2), disobeying a priest (Deuteronomy 17:12), rebelling against one’s parents (Deuteronmy 21:18–21), and letting one’s ox gore more than once (Exodus 21:29).

E. Christian Brugger
Institute for the
Psychological Sciences
Arlington, Virginia

I focus solely upon those parts of J. Budziszewski’s article that rely upon the Pentateuch as scriptural authority for the use of capital punishment by society against murderers. The article did not cite the plethora of other offenses for which Scripture had prescribed capital punishment. They include violence against or cursing of parents (Exodus 21:15; 21:17; Leviticus 20:9; Deuteronomy 21:18-21); desecration of the Sabbath (Exodus 23:12; 34:21; Leviticus 19:3; 26:2; Numbers 15:32-36; Deuteronomy 5:12-15); sorcery (Exodus 22:17; Leviticus 20:27); blasphemy (Leviticus 24:16); adultery (Leviticus 20:10; Deuteronomy 22:22-23); incest (Leviticus 20:11-14); sodomy (Leviticus 18:22; 20:13); rape (Deuteronomy 22:25); apostasy (Deuteronomy 13:2-16); and bearing false witness (Deuteronomy 19:16-21).
It is uncertain whether Professor Budziszewski favors the prescribed use of capital punishment for these other offenses, and if yes, what philosophical justification he may offer for such use of capital punishment. A review of Jewish jurisprudential history would reveal that capital punishment was rarely, if ever, practiced by the Jewish Sanhedrin (i.e., the supreme judicial authority), notwithstanding the many scriptural mandates for its use. Although provisions for capital punishment were never formally excised from Scripture, such provisions were, in practice, rendered nugatory by means of procedural and evidentiary impediments and by strictly circumscribed judicial interpretations.

In understanding the U.S. Constitution, one must first review all relevant cases of the U.S. Supreme Court (and, when necessary, of lower courts as well) that have applied and construed the appropriate provisions of the Constitution. A bare review of the literal text will not lead to a correct understanding of the Constitution. So, too, an accurate understanding of capital punishment as prescribed in the Pentateuch requires a thorough review of the entire body of rabbinic jurisprudence as developed over the millennia.

Whatever the merits of the analysis offered in the article, such merit is not properly based on the sole citation of Genesis 9:5-6.

Benjamin D. Sherman
Saddle Brook, New Jersey

The death penalty is a topic about which I have some knowledge. I was an assistant public defender in Alameda County, California from 1969 to 1989, and I served as the public defender for that county from 1989 to 1999. I have defended death penalty cases at the trial level and supervised the defense of many others.

J. Budziszewski’s article is a cogent refutation of one key element in the conventional wisdom about the death penalty—the belief that Christian doctrine can never condone capital punishment for murder. Professor Budziszewski reminds us that established Christian tradition recognizes justice in the classic Torah-based model and favors individuated mercy, not blanket clemency. In effect, he argues that indiscriminate clemency for murderers perverts both justice and mercy.

With many ethical realists, I accept both the objective reality of morality and the need to make it realistically operative. I believe that moral knowledge is embedded in the warp and woof of reality by the One who created all that is, but I still recognize the need for incentives and disincentives, as well as public authority, to actualize moral knowledge. Moral behavior in the day-to-day world is distributed along a crude bell curve of probity, with the sociopaths and naturally enlightened occupying the respective edges, and the rest of us populating the middle. Even the most self-evident moral principles are generally not self-executing. Most people are governed most of the time by a combination of moral inclination, moral training (currently in decline in our culture), and the classic fear of negative consequences (punishment, which is now weakened by moral relativism). Without such consequences civilized life is doomed. For this reason, ethical realists know that the death penalty is a crucially necessary component of any system of justice.
I’m well aware of the psychological and budgetary costs of administering the death penalty. But surely the costs of murder are even higher. We should never be willing to sacrifice the lives of innocent murder victims on the altar of an ideology or theology that assigns an unreasonably high value to the lives of convicted killers.

Jay B. Gaskill
Alameda, California

J. Budziszewski’s article was very interesting, but also very flawed. The first problem flows from the author’s decision to cite the Torah. Professor Budziszewski states that the Torah requires blood for blood. This is absolutely true. But so what? The Torah also requires the execution of any male who violates any stipulation of the Decalogue. In the case of idolatry the sanction was “to the third and fourth generation.” This means the idolater’s family, at least the males, were to be executed through four generations. Today even Orthodox Jews do not follow all the stipulations of the Torah. Why should we follow any of them? To say that this is what Christian theologians have traditionally done does not justify the practice. St. Paul said that if you take on any part of the Torah you are bound by all of it. The second flaw in Prof. Budziszewski’s argument is that he clearly thinks that one’s life is one’s own possession. I would argue that we are mere stewards of our lives. When a murderer kills someone, he is taking what belongs to God, not what belongs to the victim. When the state takes a life in punishment, it is taking what belongs to God and not to the criminal.

Paul A. Hottinger
Downers Grove, Illinois

I can find only two points with which to quibble in J. Budziszewski’s argument in favor of capital punishment. First, Professor Budziszewski fails adequately to address the tension that exists in the Christian religion between mercy and justice. Reading him, one would think that mercy and justice operate as equally triumphant entities, never conversing or interacting at all. But this idea is contradicted by the Scriptures. The obvious example can be found in the story of the adulterous woman, where mercy effects a dramatic reversal of justice. In this event, public authority applies the law found in the Torah and does so, we have to believe, justly. Jesus, for his part, does not say that the woman does not deserve death. Rather, he says he “will not condemn [her]” (John 8:11). Prof. Budziszewski’s assertion, “justice is inexorable; evil must be punished,” seems at least weakened by this account, considering that, in this instance, justice yields to mercy, and evil is not punished. The second point worth making concerns an omission. Prof. Budziszewski does not address the reality that not every law revealed by God is enforced by the state. Heresy, for example, is a crime, yet it is not one that governments these days tend to recognize (for obvious reasons). But a state’s failure to acknowledge a crime does not lessen its gravity.

Kevin Rulo
St. Louis, Missouri

J. Budziszewski replies:

Jay Gaskill’s insights as a former public defender are helpful. Needless to say, I agree with him that indiscriminate clemency perverts mercy as well as justice. I also agree that the debate about capital punishment should not be driven by the question of whether it is more or less expensive than the alternatives. The issues before us are moral, not budgetary.

I can’t help noticing a strong Marcionite streak in several of the letters—a strange aversion to the idea that the God who spoke to the Patriarchs, disclosed Himself in Jesus Christ, and taught through the Apostles is the same God. They would have me say that we have nothing to learn from the Old Testament, and that the teachings of St. Paul didn’t even apply to his own society, much less to ours. Among the many problems with this view is that it leaves us with a very strange Jesus—a Jesus who didn’t mean it when he said that Scripture cannot be broken and that he had come not to destroy the law but to fulfill it.

John Waiss asks the right question: What deeper reality is God trying to teach by prescribing capital punishment as the punishment for certain crimes? In the case of murder—the only crime I addressed—surely there can be no doubt, because He answers the question Himself. That is why I quoted Genesis 9:6: “Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.” The deeper reality is that man is made in God’s image. It is not despite our being images of God but because we are images of God that murder deserves death. This would seem to be clear.

But here another problem arises. Some of my critics seem to have read only a few paragraphs of my article before tossing it aside in outrage. Budziszewski quotes Genesis 9:6—how outrageous! He must disbelieve in mercy and want all murderers put to death! If only Pastor Waiss had read further, he would have discovered that I discussed the relationship of justice and mercy at length. I even agree with him about some things. In light of scriptural teaching concerning mercy, for example, it would have been harsh and unreasonable had I taken Genesis 9:6 as implying that deserved punishment may never be remitted. But of course that is not how I took it. My point was that the punishment is deserved.

This fact has consequences for how we should think about capital punishment. Among other things, it tells us that pardon is not owed to the murderer as a matter of justice, for from that point of view he ought to be put to death. Rather, pardon is an exercise of that mercy which tempers justice, and the grounds for pardon must be weighed case by case. Put another way, the problem lies with categorical pardon, not pardon as such. I gladly affirm John Paul II’s teaching that capital punishment is to be employed only rarely. What I oppose is the entirely different notion that capital punishment is wrong in principle. By awarding as a right what is properly given as a gift, this attitude debases not only justice but mercy itself.

Although Pastor Waiss—along with Benjamin Sherman, Paul Hottinger, and Kevin Rulo—reproaches me with the many capital offenses in the Law of Moses, the Genesis 9:6 precept long predates the revelation through Moses at Sinai. It is not just another piece of Hebrew civil legislation that no longer applies to us; indeed, it is not a piece of Hebrew civil legislation at all. Consider these three points. First, God announces the 9:6 precept to Noah and his “sons” or descendants, which means—as rabbinical tradition has always acknowledged—not a particular nation or religious community, but the entire human race. Second, the reason given for the precept is the unchanging fact that man is made in God’s image. If it is true that man is the imago Dei in every age, then what this entails is also true in every age. Third, the 9:6 precept is reaffirmed in the New Testament by St. Paul, who says that the magistrate “does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer.”

Pastor Waiss claims that St. Paul’s teaching applies only to societies whose government and people believe as we do, who acknowledge the true God. Does it? In that case we must wonder why Paul applied it to his own society. The people and government of the Roman world were at least as pagan as the people of ours. They are commonly reputed to have been more so.

Professor Stratford and Dr. Brugger observe that, strictly speaking, proportionality does not mean that murder deserves a punishment of death; what it means is that murder deserves a punishment proportional to the crime. Yes, of course. But concretely speaking, is any punishment besides death proportional to the crime of deliberately and wantonly taking innocent human life? Of the various alternatives that Professor Stratford considers, some, like lifelong imprisonment, fall beneath the proportion, while others, like lifelong periodic torture, exceed it. All of them—except perhaps exile, which seems rather hard on the people to whose lands the murderer is exiled—lack that symbolic equivalence by which capital punishment is able to express the significance of what the murderer has done.
If desert were the only consideration in punishment, this would be the end of the matter. There would be no occasion for prudential deliberation. Because that is not my view, I discussed the ways in which the secondary purposes of punishment should enter into prudential deliberation about pardon in individual cases. But prudence cannot justify categorical pardon, because prudence must consider each case in all of its particularity.

A difficulty with Prof. Stratford’s letter is that he sees inconsistencies in both Scripture and papal teaching where I do not—and so, of course, he sees inconsistencies in my response to them. St. Paul says the magistrate does not bear the sword in vain, and Jesus says we should visit the souls in prison. Why may I not insist on both of these doctrines? The Holy Father says that capital punishment is legitimate in principle, and also that under present circumstances it should be rare. Why may I not emphasize both sides of his teaching? I understand that Professor Stratford likes some of these ideas and dislikes others, but how does that make them inconsistent?

He accuses me of another kind of inconsistency, too. I object to torture—one of the alternatives to capital punishment that he suggests—on grounds that torture violates human dignity. By doing so, he complains, I introduce another idea into the argument alongside desert. So I do, but allowing only one idea into an argument is his rule, not mine, and it seems to me a silly one. Desert concerns the meaning of justice; human dignity constrains the manner in which justice is to be done. Both considerations draw their force from the fact that we are made in the image of God. They are not at war. They are both true.

Paul Hottinger’s claim that I consider human beings the owners rather than the stewards of their lives is absurd. He gives no reason for this offhand judgment, it has no basis in what I wrote, and it is the opposite of what I believe. I find it difficult to believe that he was reading the article that I wrote.

Mr. Rulo remarks that not everything in the divine law given to the Hebrew people was meant to be enforced by our own temporal law. This point is quite true, and I have discussed it in numerous writings about natural law—but nothing in my article contradicts it.

Like several of my other critics, Mr. Rulo also thinks I deny that justice and mercy can converse with one another. I close by saying once again how astonished I am that any careful reader could have overlooked the fact that I insist upon their converse and discuss it at length. Here is what I actually wrote: “Justice is inexorable; evil must be punished. This would seem to make mercy impossible; yet there is mercy. As the Psalmist says, ‘Great is thy mercy, O Lord; give me life according to thy justice.’ Somehow the irreconcilables meet and kiss.”

Meeting and kissing—that sure looks like converse to me. Unfortunately, my critics want mercy to kiss the way that Judas did. I beg to disagree. Mercy should temper justice, not betray it.

Posted by: Stuart Koehl | Jan 31, 2008 2:14:53 PM

As a Catholic I appreciate the Front Page interview that Joseph D’Hippolito referred us too(easily found with FP search engine). I also thank Mr Koehl for pasting the two excellent other articles . David Gelernter's pen is a unique sword of ordered imagination sharpened by the biblical whetstone.

Posted by: dpence | Feb 4, 2008 7:00:40 PM

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