Catholic Tradition on Capital Punishment (2 of 3) (Letter 45 to the Grands)

 Purposes of Capital Punishment 

Classically, we see four purposes for punishment in general: protection, deterrence, rehabilitation and retribution. Briefly we will consider each of these in regard to the death penalty.

Protection

The most obvious purpose is to protect society from aggressors. We can imagine, for example, in the "wild west" of the 19th century, without decent prisons and police systems, prompt execution of murderers was a necessity. Pope Francis, in his correction of the Catholic Catechism, echoes the views of his two predecessors that our modern prison systems are adequate to protect society. This prudential judgement is not at all obvious to me. As mentioned earlier, violence (rape, murder, gangs) is widespread in our prisons and worse in other countries. We must reckon with the reality of Hannibal-Lector-type psychopaths who are a threat to human life, even in prison. A solution to this is solitary confinement for the worst of them. But this is itself, for many people, a form of torture. Arguably, a more merciful approach is execution than prolonged torture.

Scenario: Imagine a country in which organized crime is very powerful, reaching into government, police and jails by bribery and threats to the families of those who enforce rule of law. They have now moved into the kidnapping of the children of the affluent, torturing them on video even to death to extort money. Would it be just to execute those who intentionally torture such children? I think so! In any case the discussion is not to be foreclosed by premature cancelation. 

Deterrence

Here we execute aggressors to prevent future attacks on the innocent. A problem here is that deterrence works best when it is highly predictable. The gravity of a punishment is less effective if it is less probable. The death penalty is less effective if it is rarely inflicted. In modern society, even where it is legal,  juries are disinclined to inflict it. So in current circumstances it is not effective.

As in our consideration of protection, this is a strong, but not a determining factor. We know there have been documented cases, for example, in which burglars are surprised by the presence of a child who could identify them but the little one was spared because one of the criminals feared the death penalty. It is impossible to accurately measure the effectiveness of this deterrence. But let's imagine that in a place like Texas there are 10 executions annually. If we had reason to believe 5 innocents were spared murder, would the practice be justified? We can disagree about this. I would say yes! 

Rehabilitation

Execution forecloses rehabilitation for this life. From a supernatural perspective, however, we know that our purpose on this earth is to prepare for heaven...or hell. We know of many death row conversions. St. Therese of Lisieux prayed for the famous murderer Pranzini. Avery Cardinal Dulles not long ago echoed the traditional view that confrontation with certain death can provoke a life examin and last minute conversion in the manner of the good thief at Calvary. Seen in this perspective, a death penalty can be an act of mercy. This perspective is ridiculous, of course, to the secular mind. It is therefore not intelligible to the modern consensus, but not to the Catholic intellect. As with the prior two considerations, a discussion is warranted and not to be prematurely cancelled.

Retribution

Here we face the most profound, sensitive and entirely ignored element. Retribution is widely confused with revenge. It is the opposite. Revenge is personal, subjective hatred and the compulsion to harm the offender. Retribution is social, objective intention to reward the good and punish the evil. We Catholics believe that at our death, we will face our particular judgement: reward for our good (even if purgatory is required) or penalty in hell for evil. In truth, justice, and mercy God "retributes" (etymologically meaning "assign back") us for what we have done with our freedom. 

Earthly retribution is to resemble heavenly justice: good is rewarded and bad punished. Intuitively, our conscience recognizes this. We want evil punished and good rewarded. This is not just emotional revenge. Our laws, judiciary, prosecutors, judges and juries are functions of justice, not revenge. Retribution is a good thing, not an evil one.

Scenario: Imagine that Russia is defeated in the Ukraine and Putin and his cohort are brought to an international tribunal. What would be a just punishment? In my view, a fair treatment would be long, slow torture. But in mercy we might simply give painless capital punishment. Such would NOT be an affront to human dignity; but an affirmation of it.

My View on Capital Punishment

I am not myself an advocate of it. I am about 60-40 against it. In the state of NJ the last execution was 60 years ago. I would not vote to reinstitute it; for a number of contingent reasons, no one of which is determinative:

1. Errors are often made and the innocent wrongly killed. Developments in DNA and other law enforcement protocols can reduce this but it remains today a factor.

2.In the past  Afro-Americans and today the underclass  unfairly receive the death verdict while the wealthy/powerful avoid it. This is not just. Theoretically this could be overcome; but it is not likely given our class structure.

3. Deterrence is not effective because its use is rare and unreliable. 

4. Our prison system is broadly adequate, although not entirely so.

5. Our current manner of execution is a long, costly and therefore tortuous, inhumane process.  Again, this could be overcome by more expeditious procedures but that is unlikely.

In another place and time I might prudentially favor this penalty.

Freedom of the Catholic Conscience

Framed within Catholic tradition, the blanket condemnation by Pope Francis in the Catechism is here seen as a contingent, prudential judgement which allows for disagreement by Catholics of good faith. This is important in principle and in practice for the Catholic laity. A Catholic cannot coherently support abortion or genocide. But a Catholic prosecutor, judge, legislator or jury member in the 27 states in the USA with the death penalty can in good conscience participate in its implementation if their conscience allows. Were I myself a jury member in such a state, although I would vote against it as a legislator, I would not have a problem implementing it as a jury member since I would defer to the decision of the legislature as allowable morally although not persuasive. I would have a moral reluctance, but not an absolute resistance. The many who agree with Pope Francis would coherently have to excuse themselves from serving in the process.

A New Moral Absolute?

Pope Francis, in his condemnation, does not primarily argue on prudential grounds, although he does mention the adequacy of our protective measures without execution. He declares that execution is itself "a direct assault on the dignity of the human person."

This is a novel, deeply emotional, and radical statement, without any roots in our tradition. We will consider it in our next and last essay on this topic.