A Necessary Evil?

Richard Norman considers a new book defending the death penalty

 

On 2 August this year, the Roman Catholic church revised Canon 2267 of its Catechism, which reflects on the application of capital punishment. The change (which does not yet appear on the Vatican website) developed the church’s prudential opposition to the death penalty: whereas previously the Catechism had counselled that ‘public authority should limit itself to [bloodless] means’ of punishment where these are ‘sufficient to defend human lives against an aggressor and to protect public order and the safety of persons,’ the revision states that the church now ‘teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.”’

A year prior to this announcement, and in response to the increasing association of the Catholic Church in the United States with political efforts to eliminate the death penalty, Joseph M. Bessette (Alice Tweed Tuohy Professor of Government and Ethics at Claremont McKenna College, and former Deputy Director and Acting Director of the Bureau of Justice Statistics in the US Department of Justice) and Edward Feser (Associate Professor of Philosophy at Pasadena City College, California) authored a well-argued defence of the legitimacy of capital punishment within the catholic tradition.

Bessette and Feser devote a lengthy first chapter to the understanding of justice in natural law (moral) theology. As the Catechism continues to teach, albeit to the discomfort of many contemporary churchmen, the ‘primary effect of punishment is to redress the disorder caused by the offence.’ The authors therefore premise their defence of the legitimacy of the death penalty on its commensurateness with certain (‘capital’) crimes. A second chapter of similar length reviews the articulation of this perspective throughout Catholic history, noting that prudential opposition to capital punishment constitutes a relatively modern emphasis. Two final chapters survey the contemporary context on death row in the United States, and the US Catholic bishops’ recent responses to this.

By Man Shall His Blood Be Shed is a relentlessly tightly-argued programme. Following C.S. Lewis’ essay on ‘The Humanitarian Theory of Punishment,’ Bessette and Feser redeem the notion of vengeance (here rephrased as vindication) as a thoroughly Christian instinct, so long as (in the words of Pope Innocent III), ‘the punishment is carried out not in hatred but with good judgment, not inconsiderately but after mature deliberation.’ Vengeance, when separated from the emotions of revenge, is the desire to see justice done, and is as such an important component in our moral make-up. Most importantly, the authors present a compelling theological case for accepting the legitimacy of capital punishment in principle, even if in practice its use is strictly curtailed. They challenge the theological bases upon which much opposition to capital punishment rests and debunk many sociological assertions on the abolitionist side of the debate.

That said, their argument is not without its problems. Writing in the context of a country in which 31 states retain capital punishment as a criminal penalty, the case against the abolition of the death penalty isn’t always, strictly speaking, its defence per se. For example, the authors highlight the increase in what were formerly capital crimes following the abolition of the death penalty in several states, but cannot thereby demonstrate that this state of affairs is to be expected in jurisdictions which lack capital sentences, as opposed to those in which the death penalty has been abolished and criminal behaviour has yet to recalibrate in light of this. In the main, Bessette and Feser avoid reliance on rhetoric. However, they do somewhat undermine their explanation of the deterrent effect of the death penalty in a chapter in which the capital crimes of seventeen offenders are described ‘in some detail’—the deterrent effect was evidently lost on these men. Another question relates to the determination of which authority is empowered to pass capital sentences: what is to prevent a father from applying the death penalty to his child, or the abbot of a monastery condemning a murderous religious? Each of these has as many responsibilities towards their charges as does the state, but we would surely feel some reluctance at affording them the same juridical powers.

The greatest difficulty, however, is with the authors’ fundamental idea of proportionality. At first glance, one might well be tempted to agree that ‘[the] principle of proportionality fully justifies the death penalty for murderers’; murder, after all, is a singularly wicked crime. But at least three problems go unaddressed: (i) if there is a direct proportionality between the crime of murder and a capital sentence, is justice lacking in sentences for murder which do not invoke the death penalty and, if not, could justice be also otherwise served where a capital sentence has been passed; (ii) how do proponents of capital punishment account for the many changes over time in the list of crimes which attract a capital penalty, if the issue at stake is one of proportionality, and (iii) how might one signal the moral difference between one capital crime and another if the sentence is the same, e.g. between the drug-dealer who fatally shoots a rival, the sadist who sexually assaults and murders a child, and the war criminal who orders the execution of hundreds of innocent civilians? Philosophically, commensurateness means the equivalence of two unlike things. Therefore, however neat the exchange of one life for another might be, this is not to say that other penalties couldn’t suffice. Moreover, capital offences such as murder do more than end the victim’s life: how does the death sentence respond justly, for example, to the effect on the victim’s family? The American justice system does, in fairness, acknowledge this discrepancy, consequently imposing sentences of death plus life imprisonment plus x number of years in some cases. One could assert that the criminal executed by the state has de facto served life behind bars also, but only where sentences are deemed to have been served concurrently rather than consecutively.

Another significant challenge to Bessette and Feser, which indeed impacts upon catholic tradition more extensively, is the question as to whether the New Testament ever anticipated Christians in positions of significant civic influence in what might be termed a ‘Christian state.’ When the New Testament recognizes the authority of the state to mete out justice, did its authors envisage Christians on the judgment seat? This is important because it colours the nature of the interaction between Christians as private citizens and as civic agents. Whereas the Christian as private citizen can legitimately emphasize and model supernatural mercy in his response to criminal justice, the Christian as civic agent needs to pay greater attention to natural justice. To return to an above-mentioned point, the father of a family or abbot of a monastery is very unlikely to use capital punishment within the community over which he has charge, because these communities are explicitly deemed to be Christian, and places of Christian formation. But the extent to which a state can be so termed is debatable, and thus justice has a higher priority than mercy in the way in which the state conducts itself. The state has, in much Christian thinking, the conservative responsibility to preserve order: the family—whether domestic or religious—has the proactive responsibility to foster virtue and encourage holiness and the becoming of saints.

It will likely surprise many churchmen to find in Bessette and Feser so emphatic and clear a defence of capital punishment with clear reference to catholic tradition. They argue very coherently as to why this power is properly reserved to the state according to the tradition of the Church (indeed, a capital sentence for the attempted assassination of the Pope remained on Vatican statute books until 1969; prior to this, the Papal States executed thousands of condemned criminals), and they expose many inconsistencies and errors in the arguments brought against the death penalty. Nevertheless, By Man Shall His Blood Be Shed is not entirely convincing in its theses, and many—like myself—will remain prudentially opposed to capital punishment, as was Pope St John Paul II in so explicit and repeated a way. Nonetheless, this book remains an important corrective within an often one-sided debate among churchmen for many of whom, let us remember, the death penalty is a live issue in the nations in which they live.

 

By Man Shall His Blood Be Shed:

A Catholic Defense of Capital Punishment

by E. Feser & J.M. Bessette

(Ignatius Press, San Francisco 2017)

420pp, pbk £19.15, ISBN 978-1-62164-126-1

 

Father Richard Norman is the Vicar of St George’s, Bickley.

2018-11-25T19:03:29+00:00 October 2018 Articles|