It is one of those recurring issues, at least in the American context, that refuses to leave us alone. The increasingly pointless face of crime, coupled with a growing sense of exasperation over pandemic violent crime at both state and federal levels, guarantees that the debate over capital punishment not only will not disappear but will also intensify. Yesterday it concerned what to do with people like Karla Faye Tucker, Timothy McVeigh, and the letter-bomber. Today it measures our cultural response not only to more high-profile tragedies, such as the Boston Marathon bombings and the D.C. mansion murders, but also to the daily murder and mayhem on our streets. And tomorrow it will confront us again in multitudinous ways. The reason for this is quite simple: It is a part of the human condition that people do evil things to fellow human beings. Of course, it is hoped that preemptive strategies facilitated by brain research, genetic testing, or psycho-socio-pharmacology might alter in some way the tendency toward deviant behavior. These attempts, alas, will likely only render us less human, and, of course, foster greater social excuse-making. The question, above all, which confronts “civil society,” is the moral question. Will we tolerate those who murder in cold blood, and why or why not? Can “civil society” as we presently know it remain “civil” and “just” if its members are unwilling to make moral judgments, offer a consistent and just rationale for those judgments, and affirm the sanctity of human life?
Contemporary Western culture is saturated with arguments against the death penalty, which take both secular and religious form. Modern and ultra-modern thinking has grown increasingly intolerant of meting out criminal punishment that smacks of being “cruel” or “barbaric,” which was not the case in 1791, when both the Eighth and Fourteenth Amendments were enacted. (This is accurate even when penal excesses of the late-medieval and early-modern period gave rise to abolitionist sentiments through thinkers such as Montesquieu, Bentham, Rush, and others.) Contemporary abhorrence of penal barbarity, strangely, stands in notable contrast to increasingly barbaric criminal acts themselves. It is non-controversial to say that we live in a cultural moment—or, using the terminology of Philip Rieff, a therapeutic cultural moment—in which retributive justice as a whole is called into question (in favor of prevention and rehabilitation), of which capital punishment is but one highly visible form. This, in a social climate in which human life has steadily been cheapened in extraordinary fashion. From an ethical standpoint, it is a curious pattern needing explanation that people who are abolitionist regarding capital punishment and the taking of human adult life almost always reject giving the benefit of the doubt to human life growing in the womb. It is also curious that most—if not all—proponents of assisted suicide would be opposed “in principle” to capital punishment, even when both procedures require the administration of lethal drugs. Why the discrepancy? Why the opposition to capital punishment for someone convicted of premeditated murder?
The case for the abolitionist position, whether religious or secular in its motivation, takes numerous forms. These include but are not limited to: (1) the fallibility of the criminal justice system, (2) the possibility of executing an innocent person, (3) the purportedly capricious manner in which individuals are selected for execution, (4) purported racism, (5) a purported lack of statistical verification of deterrence, (6) the insufficiency of revenge as a motive, (7) a purported Eighth Amendment immunity, (8) an appeal to “civility” that is supposed to characterize modern culture, and among religionists, (9) Jesus’ supposed abrogation of the lex talionis in the “Sermon on the Mount,” and (10) the annulment of the Old Testament Mosaic code. Since these arguments are equally accessible to secularists and religious alike and tend to overlap, my own position will not make the secular-religious distinction that typically governs public discourse. Moreover, the context of my argument for the justification and application of capital punishment will be limited to premeditated murder.
It would appear from the earliest legal codes recorded in human history that capital punishment was a moral-legal norm. In addition to its prescription in the ancient Babylonian Hammurabi Code (mid-eighteenth century B.C.) and the Mosaic Code (thirteenth century B.C), it was authorized according to Assyrian (sixteenth century B.C.), Hittite (fifteenth century B.C.), as well as ancient Greek and Roman law. In the Western cultural tradition, for almost two millennia, Christian theology—until more recently—has defended the right of the state to impose capital punishment for certain heinous crimes. Among the Church fathers one finds varying perspectives on the death penalty alongside a general recognition of the state’s responsibility in implementing capital justice. Until recently, affirming the death penalty in the case of premeditated murder has been the position of the Church in its mainstream–Catholic, Orthodox, and Protestant—through the ages (inclusive even of pacifist types such as Tertullian and Lactantius and sixteenth-century Anabaptists, from which tradition I come). This position, despite pronouncements by the Catholic Bishops to the contrary, is reaffirmed by the Catechism of the Catholic Church (no.’s 2263-69).
The rationale for the Church’s historic affirmation of the death penalty is lodged in Scripture’s teaching on the sanctity and dignity of human life and in the natural law, as mirrored inter alia in Genesis 9:6: “Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God has God made man.” This prohibition is significant in that it predates theocratic Israel, for whom ceremonial and judicial law were to be a culture-specific guide in their brief location in history, and thus is to be understood as universal in its application. In its essence, it is a correlate to the Sixth Commandment (“Thou shalt not murder.”). Note here in context the stated rationale: not in spite of human dignity but because of it, because of the imago Dei, murdering a fellow human being is the equivalent of effacing God himself, and thus worthy of losing one’s physical life. What’s more, the “philosophical” rationale for this is not mere revenge in varied draconian forms; it is rather to guard and protect innocent life from unjust invasions. In the public debate over the death penalty, we are dealing with values of the highest order, namely, respect for the sacredness of human life and its protection, preservation of what Augustine called the tranquillitas ordinis in society wherein people might flourish, and the attainment of justice through law. For this reason, in contemporary parlance, we in the West speak of a “travesty of justice” or a “miscarriage of justice” when the notions of innocence and guilt vanish, when just deserts are abandoned, and where society’s punitive response does not “fit the crime.”
Though not the case several decades ago, to affirm the death penalty today for premeditated murder is to take a clearly minority position, among both the religiously and the non-religiously inclined. Even when the average citizen perhaps intuits that capital punishment serves justice for the ultimate crime, among the cultural elite and in wider academic culture it is considered an anathema, a sign of barbarity, a mark of unsophisticated culture. Among the many aforementioned abolitionist arguments, the supposed dread of executing the innocent seems to exert an inordinate influence on the minds of our contemporaries. The roots of this concern require careful examination. For starters, a “life-sentence” will not guarantee protection for prison guards, corrections officers, transport police, or other inmates themselves. As I write, I remember recently reading in our local paper, as reported by the Associated Press, “New Orleans Officer Killed while Transporting Suspect”; and this: “Across U.S., More Than 220 Prison Escapees Are Listed as on the Loose.”
Moreover, the actual length of imprisonment is often contingent on how the criminal learns to exhibit “acceptable” behavior. The hardened criminal may very well murder once again, as statistics tend to bear out. (According to the Brookings Institution, violent offenders nationwide serve barely 40 percent of their sentences, and roughly half of all probationers either abscond or return to prison for new crimes.) When sentences are shortened by parole—and this occurs with alarming frequency—society is once again placed at risk. If the argument based on the potential for an innocent death is to proceed in all honesty, it will take seriously the greater tragedy, about which we never hear—namely, that innocent deaths resulting from released or paroled criminals are far more frequent and tragic than the rare instance of an innocent convict being executed. Is this justice? Why not construct the criminal justice system in such a way that potential and convicted murderers, not society, are put at risk?
A related point. At all levels, error will attend our attempts to enact justice, since working for justice is a human (and hence imperfect) endeavor; fallible people strive for just results. We do not give up on justice simply because our efforts are imperfect or because of the margin for error, but neither do we—or should we—set aside basic canons of justice because of the possibility of error. Bottom line: The taking of a life must be viewed as the most sobering of considerations. In the end, the death penalty should not be applied where evidence is not overwhelming.
One further observation. The abolitionist concern about the possibility of error in the criminal justice system—particularly as it applies to capital sentencing—fails to address head-on the moral question. It does an “end-run” around the morality of crime and punishment and the question of just deserts. A serious reading of the Hebrew scriptures reveals the manner in which capital punishment for manslaughter is qualified in the Old Testament. Capital sanctions were by no means indiscriminate; numerous safeguards were integral to the system. Corroborative evidence via multiple witnesses was requisite for the execution of an accused manslayer. Specific instances of homicide, it should be noted, did not qualify for the death penalty. Cities of refuge (Exo. 21:13; Num. 35:9-15; Deut. 19:1-21), intended to serve as an asylum for the involuntary manslayer, were not for the purpose of granting immunity to the convicted murderer. This portrait of moral-legal discrimination is a vivid picture of how law in our own cultural tradition has been fashioned, when applied consistently.
Above I argued that the death penalty cannot be reasonably applied where evidence is not overwhelming. Where evidence is indeed overwhelming, the abolitionist nonetheless will typically remain opposed to capital punishment in principle. This tends to be the case whether one person has been the victim, or whether two persons, 250 people, or masses have been murdered. Ideologically, people usually are not moved by the numbers; they remain abolitionist based on ideological pre-commitments. But the converse also needs to be stated, namely, the fact that “life imprisonment”—which often is reduced based on “good behavior”—is itself extremely arbitrary. What’s more, let us acknowledge that many murderers get off after 10, 20, or 30 years. Is this justice?
But the abolitionist will argue that capital punishment is an overreaction. By what moral measure? A chief problem with the death penalty, ultimately, is less its “barbarity” or arbitrariness than the inconsistency with which it is applied. Hence the wisdom of Qohelet, nearly three millennia ago, bears reiterating: “When the sentence for a crime is not quickly carried out, the hearts of the people are filled with schemes to do wrong.” Why do we execute murderers? We do so—or at least should do so—in order to make a communal proclamation. We proclaim that, despite the moral obtuseness of our age, premeditated murder embodies evil so terrible, so intolerable, that it utterly defiles the community, and that the community cannot tolerate such defilement. Properly construed, justice is concerned to unite two moral loci: protection of innocent human life and punishment befitting the crime of murder.
Ethics, and surely criminal justice ethics, is not some free-floating entity that simply “happens.” Rather, all ethics proceeds from theological and moral-philosophical presuppositions, whether these are explicit or hidden. Religious or secularist, one’s ethical position on all matters is informed by ultimate convictions, and these convictions express themselves in policy considerations. At issue is not whether philosophical assumptions inform our penal stance, but rather what sort of assumptions inform us. The Catholic Catechism properly construes this correlation, identifying three legitimate functions of punishment: (1) it is “expiatory” in that it pays a social debt; (2) it is “therapeutic” by contributing toward the offender’s correction; and (3) it is “preservative” insofar as it safeguards individual well-being and the common social good. Stated differently, punishment (including capital punishment) is “pedagogical” at three levels: it instructs the offender, all of society, as well as future or potential offenders, informing them all that evil behavior will not be tolerated.
The “pedagogical” nature of punishment, of course, suggests that it has a deterrent effect (as every parent intuits), even when not every human being will be deterred from wrongdoing. The question of deterrence, it needs emphasizing, is not one of proof but of possibility. And the criminal justice system operates on this very underlying assumption, namely, that the severer the punishment, the less likely it is that criminal acts will be committed—an intuition that most parents would acknowledge to be true. I was struck by the truth of this moral intuition while working in the nation’s capital some years back. At the time, the Washington Post was reporting that witness intimidation was making it harder for law-enforcement authorities to get incriminating testimony from eyewitnesses. Alas, drug lords and thugs certainly knew that deterrence works.
Does capital punishment in the case of convicted murder constitute an “uncivilized” response by society to the ultimate crime, as most abolitionists maintain? The answer depends fundamentally on how a society perceives (a) the moral difference between crime and punishment and (b) moral self-responsibility. A society unwilling to impose the death penalty upon those who murder in cold blood is a society that has deserted its responsibility to uphold the unique value of human life. In the end, civilized culture will not tolerate murder; an uncivilized one, however, will.