My Contribution to the Great Vox Nova Death Penalty Debate

Last updated on: August 23, 2007 at 11:00 pm by Morning's Minion

My Contribution to the Great Vox Nova Death Penalty Debate 2007-08-23T23:00:00-05:00 Morning's Minion

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Following from Michael Joseph, Alexham, Rick Garnett, and Michael Joseph again, I thought I would add something on the topic.

In discussing the licitness of the death penalty, I will be guided by Cardinal Dulles’s essay on the topic (often quoted by those casting doubt on John Paul’s teaching, which was not the intent of Dulles at all). In traditional Catholic teaching, punishment can serve four distinct purposes: rehabilitation, defense against the criminal, deterrence, and retribution. A key question is how these four roles are served by the death penalty.

Much of the criticism seems to revolve around the notion that Pope John Paul, in Evangelium Vitae, analyzed the licitness of the death penalty from only one of these four considerations: defense against the criminal. Teaching that “the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society”, he concludes that “today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”

This is the essence of Justice Scalia’s criticism. In particular, he is annoyed that there is no mention of retributive justice. “I take the encyclical”, he claims “to mean that retribution is not a valid purpose of capital punishment”. Dulles claims that Scalia’s interpretation is fundamentally flawed. John Paul stated clearly that the primary purpose of the punishment is “to redress the disorder caused by the offence”. And moreover, “public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom”.

In John Paul’s language, therefore, the protection of society and the defense of the public order are broader than merely defending against the criminal. They encompass the other purposes of punishment, including retributive justice. But this is a tricky concept. Rightly interpreted, retributive justice flows from the fact that sin requires the deprivation of some good, which has been interpreted by some to include temporal life. But Dulles suggests that this has been stripped of all meaning in modern secular societies where the death penalty is more likely to reflect vengeance than the divine order of justice. In other words, the death penalty becomes a mere instrument of vengeance, which is not only immoral, but can yield disproportionate evil effects. Therefore, under Dulles’s interpretation, not only defense against the criminal but also retribution call for a different approach in modern society. Hence there is none of the contradiction that Scalia imputes.

This is a neat argument, but I am not entirely convinced by Dulles’s logic. Fundamentally, it supposes that secular leaders in times past were better motivated than they are today. Yes, authorities in past times may have been more attuned to the concept of divine justice, but did the death penalty in practice conform to this? I seriously doubt it. Remember, as Dulles points out, retribution by the state is strictly limited, and can only be “a symbolic anticipation of God’s perfect justice”. I would contend that human weakness makes it exceedingly difficult for us to ever meet the standard of true retributive justice absent all notion of vengeance, whether we are talking about yesterday or today. When Dulles claims that “the death penalty expresses not the divine judgment on objective evil but rather the collective anger of the group”, is this not equally true at all times in history?

If my reading is correct (and I make no claim that it is), then John Paul is indeed engaging in an authentic development of doctrine. Yes, retributive justice is a legitimate purpose of punishment, but when it comes to the death penalty, it is pretty much off the table. In his discussion of the present day, he talks only about the “organization of the penal system”, saying nothing about how the meaning of retributive justice has changed over time.

Consider an (admittedly imperfect) analogy with torture. Past Church understanding (largely on account of its acceptance of Roman law) was that torture could be sometimes licit it it served the common good. Our developing understanding of the single sacred deposit of the word of God has shown that torture (by violating the inherent dignity of the person) can never serve the common good. Archbishop Chaput, in castigating Scalia’s dissent, raises the issue of slavery noting that “humans learn the hard way, but eventually we do learn”. I think our understanding of the role of retribution in the application of the death penalty has evolved in a similar manner.

It should be noted that Cardinal Dulles is in full agreement with John Paul’s teaching on the death penalty. Weighing the pros and cons, he argues that the death penalty can be justified when “it is necessary to achieve the purposes of punishment, and when it does not have disproportionate evil effects”. The word necessary is carefully chosen. In sum, the Church today is opposed to the death penalty not because it believes executing criminals is always and everywhere wrong, but because “on balance, it does more harm than good”.

And what about the other factors? Aside from the much discussed arguments centering around defense against the criminal and retribution, there is also scant justification emerging from the other traditional purposes of punishment. As far as rehabilitation is concerned, the death penalty clearly doesn’t do the job, although there are cases when impending death brings about repentance (remember Dead Man Walking?). As for deterrence, Dulles is extremely cautious, noting that the Church condemns acts that deprive a person of his/her God-given dignity, such as torture, that could easily be used for purposes of deterrence.

And we should also not forget the specific the numerous arguments that can be specifically employed against the death penalty. First and foremost, the innocent can die. Some countries use “biased or kangaroo courts”. Others (including parts of the United States) often deny the poor adequate representation and counsel. And even the best system can simply make mistakes. Second, capital punishment can cheapen the value of life in general, and lead to greater ills in society. And third, as noted, the death penalty in practice is most often used a tool of revenge, not authentic justice.

On balance then, there is little support for the death penalty from traditional Catholic reasoning, especially in the modern era as the benefits wane and the costs wax. Of course, those who support the death penalty are often happy to write off the Church’s teaching using the much-abused term “prudential judgment”. The term means something quite specific, defined by Cardinal Dulles as “the application of Catholic doctrine to changing concrete circumstances”. Note that the teaching that the death penalty is only licit if when it would not be possible otherwise to defend society is not in the domain of prudential judgment. It refers to a principle governing circumstances rather than a judgement about particular circumstantial facts and hence requires religious assent. This holds true whether or not you believe doctrine has truly developed in the area of retributive justice.

It would be a correct interpretation to claim that the teaching that the death penalty is practically never necessary in the present day is a prudential judgment, as it consists of the application of principle to specific facts and circumstances. But this is still not a license to dismiss the teaching. For if you accept the validity of the underlying principle, then the practical conclusion follows quite naturally. But this is the problem. I believe that most Catholics who oppose the death penalty are not questioning the specific prudential judgment, but denying the overarching principle in itself, and Scalia is in this camp.

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