Thoughts on the Death Penalty

                Recently, the Catholic blogsphere united (read: exploded into civil war) over the issue of capital punishment. Four publications and most of the Patheos blog channel all came together to call for the end of the death penalty in America.

                Probably against my better judgment, I’m going to weigh in here. Not on the actual united effort itself (which I’ll only say I think was colossally misguided), but on the death penalty.

                In the first place, as a general rule I grow very suspicious whenever I see the modern world disputing something that roughly 99% of humanity has agreed on for all of history. Most new ideas are bad ideas, and that goes double for ideas that became widespread in the last century or so.

                As that indicates, I support the death penalty, at least in principle. In practice, I’m not so sure.

                The death penalty is one of those issues, like war, which Catholics in good standing can legitimately disagree on (as Pope Emeritus Benedict XVI – then Cardinal Ratzinger – pointed out in 2004). Historically, the Church has seen no moral objection to it. It has the support of Popes, Councils, and Saints, including such giants as St. Augustine, St. Thomas Aquinas, and even St. Peter (1 Peter 2: 13-14) and St. Paul (Romans 13: 1-7). As far as I am aware, the Church never even voiced an objection to the practice in general (though of course she has pled for mercy in specific cases) until the pontificate of Pope St. John Paul II, who issued a practical rather than moral objection by questioning whether it was necessary in the modern world.

                Then there’s the fact that I simply find the arguments for the death penalty much more persuasive and intellectually rigorous than the arguments against it.

                The death penalty, far from devaluing human life, seems to me rather to be a sign of great respect for human life. In the first place, it’s hardly a devaluation of life to attach the greatest possible punishment to the unjust taking of life. The bumper-sticker adage “you can’t kill people to show that killing people is wrong” is sheer nonsense: of course executing someone for a crime is a statement of how wrong his crime was, precisely because death strikes most of us as the ultimate punishment. The consequence of a law is a sign of how seriously we take that law. That’s why the consequences for drunk driving are so much more severe than the consequences for speeding. If we truly value human life, then murder ought to carry the most severe penalty the state can provide.

                Nor do I think the death penalty shows a contempt or dehumanization of the murderer himself. On the contrary, it seems to me to be an affirmation of his humanity: his free will and his knowledge of good and evil. It says ‘you are a man. As a man, you knew what you did was wrong and you knew the consequences. You knew exactly what you took from your victim, and that your fellow men would not tolerate your actions. Yet, you chose to do so anyway. Now face the penalty befitting a man.’

                Or, as C.S. Lewis put it (in a much more succinct fashion), “to be punished, however severely, because we have deserved it, because we ‘ought to have known better’, is to be treated as a human person made in God’s image.”

                Besides which, the logic behind “can’t kill to show killing is wrong” would, if applied consistently, eliminate all possible sanctions: if the death penalty undermines the idea that murder is wrong, then I suppose capture and incarceration undermines the idea that kidnapping is wrong, and fines undermine the idea that stealing is wrong. Unless we deny society any right to sanction crimes, we have to admit that lawful authority has the right to order as penalties what would be crimes themselves if done by private citizens. Yet none but the most virulent and deluded anarchists would say that it is wrong to do so. A penalty, by definition, has to be the deprivation of certain rights or property which are ordinarily protected. And they are protected precisely by the threat of losing them. If we hold, as we must, that society has the right to deprive someone of his liberty and property by due process, then logically there is no a priori objection to society also depriving him of his life by the same due process.

                On the whole, I don’t have very strong feelings on this issue. What I do have strong feelings about, however, is when people on either side of the debate try to liken the death penalty with abortion. That makes me mad. No, killing a convicted murderer as punishment for taking another human life is not in any way the same as killing an unborn baby for the crime of being inconvenient, and claiming that it is does not demonstrate any kind of respect for human life, only a failure to understand the definition of ‘murder.’ You can oppose both, but for Heaven’s sakes, don’t try to pretend that they’re the same thing!

                Now, there are two reasons to resort to the death penalty; one is to protect society from dangerous members, the other is that justice demands it. To tackle the latter first (because it is more difficult), Justice means “the perpetual and constant will to render to each one his right” (Aquinas, Summa Theologica, P. 2, Q. 58, A. 1). To put it in a more simplified fashion, it means giving every man what he deserves.

               The penalties imposed by the law are not arbitrary nor are they primarily concerned with deterrence. Rather, they are supposed to be the proper and just sanctions demanded by the nature of the crimes themselves. This crime demands that punishment. First degree murder is generally considered the very worst crime an individual citizen is capable of. Though some of us may feel a stronger visceral hatred of other crimes, such as rape or child abuse, rationally speaking those crimes at least may be healed; a rape victim may get past her trauma and live a long and happy life. A murder victim has been deprived of everything he is or had or might have been. Murder, in addition to being one of the gravest offenses, is the most permanent. The abused child may heal in time; the murder victim cannot. That chance, like everything else, has been taken from them.

             Again, this isn’t vengeance; vengeance is personal, individual, and driven by hatred. This is a question of what justice demands. Justice demands some form of retribution; of punishment for wrong doing. The greater the wrong doing, the greater the punishment must be. We all agree on that (otherwise we’d consider something like a hefty fine to be an adequate response to murder). The greatest possible punishment is death. It seems reasonable to me that the greatest crimes would merit the greatest punishment.

            Fr. Dwight Longenecker – of whom I entertain great respect – was one of the participants in the above call to end capital punishment. He critiqued C.S. Lewis’s tenuous support of capital punishment by claiming that, among other things, a lifetime in prison was just as retributive as an execution. I don’t think I can agree on that. Life in prison may indeed be (as Fr. Longenecker describes it) a “long, slow death,” but it isn’t death. Even in prison the murderer has far greater opportunities and scope for living than his victim does. That’s even assuming he serves his full term. Life in prison is still life; being murdered is not. Prison is a hellish environment, to be sure, but many people live and thrive in hellish environments and even in prison, life is still more than death. Besides which, if life in prison were truly just as severe a punishment as the death penalty, then you could just as well argue that if one is just, then so is the other. You can’t really say “this is just as bad as that, ergo that should be prohibited and this should be used exclusively” (I’ve even heard of opponents of capital punishment claim that life in prison is worse than the death penalty, though how that squares with the notion that it is also more humane, I don’t know).

            Is a greatly reduced scope for living really an adequate sanction for taking a person’s whole life? What about more than one life? What about particularly vicious and dehumanizing murders? What about a child’s life? Many children? At some point, I really start to think that life in prison is an inadequate response to a man’s crimes.

            An interesting anecdote perhaps illustrates this point: the actor Scott Glenn was a strong opponent of the death penalty for most of his life. Then, while preparing for his role in The Silence of the Lambs, he listened to part of a tape recording that a real-life serial killer made of himself with one of his victims. The tape shocked him so badly that he said he could no longer in good conscience oppose the death penalty; not if there were people like that in the world.

          Which brings us to the other reason for the death penalty: to protect society from its dangerous members. This is the one the Catechism lists as the chief justification for the practice, which it then goes on to say is a “rare or nonexistent” necessity in the modern world.

         Since that is a sociological rather than a theological claim, I don’t tremble to disagree.

        In the first place, by “the modern world” the Catechism seems to mean “the United States, Canada, Australia, and parts of Europe.” Most countries, it must be admitted, don’t have the infrastructure to ensure that murderers remain incarcerated for life. I haven’t had time to investigate, but I would be interested to learn the practical effects of this in places like, say, Venezuela or South Africa or the Congo (I would also be interested in learning exactly how well certain nations actually abide by their stated abhorrence of the death penalty. Venezuela? Really?).

         Then there is the issue of recidivist murders: murderers who serve time, are released, and kill again. This is not as uncommon as you’d hope. Two different studies estimate that between 14,000 and 28,000 people have died at the hands of released murderers since the 1970s. No one has ever died at the hands of an executed murderer. That in itself may not be a reason for the death penalty, but it does put a bit of a dent in the notion that life without parole is sufficient to protect society from dangerous members. At best we’re forced to conclude that it’s not as effective as the death penalty.

         But even apart from that, there is at least one section of society that is not protected by incarceration that must also be considered: as long as we’re reminding ourselves of the humanity and dignity of the convicted murderer, we really should also take a moment to consider the people who are locked up in there with him. That is, the guards and the other inmates.

         True, someone imprisoned for life who actually serves his full term and dies in the prison hospital can’t do any more harm to the people outside (unless he has friends, associates, or gang members still at large, which is another issue that needs to be considered). But he can do as much harm as he likes to the people inside, especially if he knows that he can’t face any more severe penalty. Surely I don’t have to explain that prison murders are not at all uncommon? Just to pull one particularly well known example, Robert Stroud – the so-called ‘Birdman of Alcatraz’ – earned his own life sentence by stabbing several fellow inmates and a guard to death while serving a term for manslaughter (he subsequently joked about them in letters home. You know that movie starring Burt Lancaster? It was not at all like the real man).

          (By the way, Mr. Stroud is also a good example of my point that even life without parole – even life in solitary confinement – still gives a greater scope for living than the murderer’s victims enjoy: Mr. Stroud became a respected ornithologist with a published book and a thriving enterprise who had a famous film made about his life; the men he killed got a passing mention on his Wikipedia article).

         The question then becomes ‘doesn’t keeping a known dangerous inmate alive and in prison for life show a lack of concern for the lives of the other inmates?’

          For me, this is really the iceberg that the anti-death penalty position founders on. As I see it, that position stands and falls on the ability to render a murderer harmless without killing him. But that becomes all-but impossible as soon as we bring the guards and the other inmates into the equation. The only practical alternative to the death penalty, by this calculus, is permanent solitary confinement (as Mr. Stroud had: long story), which is neither especially practical nor is it generally considered very humane. Once we consider this, it seems to me the only reason to oppose the death penalty in all cases would be if it were intrinsically immoral, which the Church has consistently taught that it isn’t.

        I’m trying to avoid suggesting actual policies, since I don’t have the knowledge to do so profitably, but I always thought a reasonable compromise would be that the death penalty was reserved for convicts who showed a pattern of behavior that indicated they would remain a danger in prison to the other inmates. Not sure exactly how that would be determined, but I’m sure you could come up with a list of psychological symptoms that would give you a pretty good idea of who would and who wouldn’t be likely to stab his cellmate with a pencil. A guy who kills his annoying wife for the insurance money probably isn’t going to be much of a threat; a sociopathic gangbanger or a sadistic serial killer is a different story.

        So much for principle: so what about my practical hesitations?

        First of all, I’m squeamish and the thought of what it must be like to count down the days and hours before the end of your life makes me cringe. On one hand, it could drive a man to contrition and piety, but on the other it could send him into crushing despair.

        In the second place, I wonder about the effect that cold bloodedly pulling the switch and ending another human life must have on the guards who are assigned to do it. If, as I mentioned last week, serving as a YouTube censor has disastrous effects on a person’s psyche, what kinds of effects must that have?

         Then there’s the simple fact that I’m not entirely sure I trust our legal system – or, more to the point, our judges, lawyers, and juries – to hold the power of life and death. I’ve heard far too many stories about the kind of people who go through law school to feel comfortable entrusting that sort of decision to them.

           Finally, there’s the question: does the death penalty destroy a person’s chance at future repentance? Well, yes, obviously. But the flipside is the question of whether a person is more likely to come to repentance during a lifetime in prison than while facing the gallows. The one gives him a greater scope for reflection and encounter with God, the other presses the point home with far greater intensity. After all, if a man sees his own death approaching, knows its schedule to the minute and is as certain as any human being can be that it is coming, it’s hard to think of a situation in which he is more likely to think seriously about the state of his soul. Then again, even if a man has more time, consider that he’ll spend that time in an especially toxic environment, surrounded by some of the worst specimens of humanity, and with apparently nothing to lose. Indeed, St. Augustine said that execution “protects those who are undergoing execution from the harm they may suffer…through increased sinning which might continue if their life went on” (On the Lord’s Sermon on the Mount 1:20;64) and St. Thomas agreed, arguing that the danger posed by evil men is “greater and more certain than the good that might be expect from their improvement,” adding that “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 probably judgment that they would never come away from evil to the right use of their powers.” (Summa contra Gentiles, III, 146).

              Another interesting point, which I’ll only mention briefly, is the idea that execution provides expiation for a criminal’s sins: that it serves as penance and can bring about forgiveness for the murderer. I haven’t had a chance to delve into this idea, but it’s an interesting train of reasoning that I’ll have to pursue further.

                The point is, it’s not a cut and dry issue of “life in prison allows for repentance: execution doesn’t.” As far as the state of a man’s soul is concerned, both scenarios have pros and cons, and in the end, as always, the choice is up to the man himself and the Holy Spirit. Honestly, I don’t see that a man who is killed for committing a grave crime has any greater claim to demand more time for repentance than a man killed in the act of committing a grave crime (i.e. a rapist shot in self-defense). In both cases it is true they might have repented had they lived, but they were not unjustly deprived of that chance because they themselves chose to perform actions that they reasonably should have known might result in their death.  

                This is a big topic and I’m not qualified to give more than a cursory view of it. I’m not really even trying to argue one side or another; I’m pretty much just thinking out loud. For what it’s worth, my own conclusion after writing and thinking about the subject for several days is that I think the death penalty is morally permissible, even demanded in some cases, but I’m not sure whether it ought to be a general practice in this country at this point in history.

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