The State Without an Executioner

I don’t think anybody was surprised. On April 16, the U.S. Supreme Court handed down a 7-2 decision upholding the constitutional legitimacy of lethal injection as a method for executing those condemned to death for their crimes. It’s hard to imagine any other outcome. If hanging and electrocution aren’t “cruel and unusual,” then why wouldn’t lethal injection pass constitutional muster?

What is constitutional, however, is not necessarily right. After all, we are presently locked in a perverse situation where something so patently unjust as late-term abortion is deemed a constitutional right, as were the vicious Jim Crow laws only a few decades ago. A legal system that permits gross injustices will not long endure, and we should be thankful that our jurists, however closely they cleave to precedent, try to find ways to bend and guide our constitutional system away from the very worst excesses of our sin-infected society. I’m all in favor of a constitutional conservatism, but accepting binding precedent is not the same as blindly accepting precedent.

Although I’ve come to think capital punishment wrongheaded, I welcomed the decision to uphold lethal injection. The death penalty is not a simple matter of justice or injustice. As Avery Cardinal Dulles argued in First Things a few years ago, the consistent teaching of the Catholic Church has affirmed capital punishment. In his considered judgment (and when is his judgment not considered), “to vindicate the order of justice and to sustain the moral health of society and the security of innocent people against potential criminals it may be appropriate to punish certain crimes by death.” Clearly, from a Catholic perspective, capital punishment is not like abortion or racism. It’s not intrinsically evil, and its use is not, on its face, a sign of a deeply unjust society.

Acknowledging the moral legitimacy of the death penalty is important, because the rhetoric of a “consistent ethic of life” tends toward a simplistic view that makes our bishops, priests, and leaders seem morally untrustworthy. You don’t need to be a rocket scientist to see that condemning the death penalty as a “violation of human dignity” involves making no distinction between guilt and innocence, a failure of moral reasoning that is rightly repugnant to any well-formed conscience. The same line of reasoning will cause us to reject any and all uses of lethal forces for the protection of the common good from assault. It’s a conclusion that troubles anyone who has a sense of civic responsibility.

Yet recognizing that capital punishment is morally permitted does not rule out a practical judgment that it ought to be set aside. In Evangelium Vitae , John Paul II’s encyclical on the Christian commitment to life, the late pope affirmed the formal legitimacy of capital punishment but argued against its use. The death penalty is materially just, he wrote, only “when it would not be possible otherwise to defend society.” In other words, there is a prudential judgment to be made. Capital punishment is like going to war. The state can use lethal violence only to defend the cause of justice¯and only if no other realistic options are available.

It’s a sound principle, and one not difficult to understand. The sword is a cruel instrument of power, and certainly it needs to be restrained by both the principles of justice and a presumption in favor of life. But the problem comes in application. What, exactly, does it mean to “defend society”? This question, it seems to me, is not easy to answer. In fact, all questions about what is “necessary” for attaining crucial social goods tend to be difficult to answer, which explains why men and women of goodwill can so passionately disagree about politics.

So how should we think about the need to “defend society”? At the most obvious level, John Paul wanted to draw attention to the fact that modern industrial societies have vast resources. This gives us options. These days we can build expensive super-max prisons rather than gallows. We have the luxury of punishing without killing, and, by John Paul’s reckoning, the gospel of Christ teaches us that we should embrace this luxury.

Undoubtedly, prosperity changes many equations. But there is another, more symbolic sense in which our practices of punishment “defend society.” The earthly city is not simply a compact of men and women organized for mutual protection. Society also embodies and expresses a moral vision. As legal theorists have recognized, the law gives important public form to this moral vision. When the jury pronounces judgment and the judge sentences, they are acting for a moment as teachers. “This is wrong,” says the verdict, and “it’s exactly this bad,” says the sentence weighing out the punishment. You know a lot about a society when you find out what it criminalizes and how it punishes. Rightly are feminists outraged by older judicial systems that assessed and punished male and female sexual transgressions according to different standards.

Death dramatizes. Sophocles and Shakespeare knew it, as do today’s moviemakers. So do voters, and here we come, I think, to the core of the current popular support for the death penalty. An execution is like a bullhorn. It says loud and clear, “As a society, we see this criminal’s act as unequivocally wrong, and we will resist it to the utmost.”

We live in complicated times, and I’ll admit that I have found it reassuring that American voters have resisted the sirens of moral relativism, soft-headed liberalism, and rhetorical simplifications. The popularity of the death penalty is not a function of primitive desires for revenge that overtake beer-drinking guys with guns in their pickups. Support for capital punishment is not a sign of a latent lust for violence in American society. It no more reflects a culture of death than does the Book of Deuteronomy. On the contrary, persistent support stems from a collective confidence that some acts are deeply wicked, and that as a society we need to respond with the firmest possible “NO!”

I share the sentiment. I think any person with a sense of our collective responsibility to moral truth should. But I also worry that times have changed. In his First Things essay “Christians and the Death Penalty,” Joseph Bottum meditated on our modern political condition. As he observed, the secular state is not vested with the same divine purpose as the older sovereignty of Christian kings. In fact, one feature of our American consciousness is the conviction that the older view of sovereignty was overinflated and dangerously sacred in its self-image. If this is so, then perhaps we wrongly look to the courtroom and prison and other instruments of the state for fullest expression of our shared moral vision. The expectation is especially suspect when it comes to what Bottum calls “high justice” of a properly authorized and painstakingly orchestrated execution on behalf of justice.

To a great extent, the American experiment in limited, secular sovereignty has won out in the West. After their bloody modern experiments in the deification of the nation-state, Europeans societies have embraced a much more modest view of the moral and spiritual role of their governments. Not coincidentally, they have also taken away from government the power to inflict the death penalty. The Bible consistently teaches that God alone has the power of life and death. Human authorities rightly possess that power only as authorized by God himself. Thus, to abolish the death penalty sends a clear message: The secular state has no avenue to divine authorization. Given the history of Europe and the countless dead bodies piled up by governments self-ordained to serve the various modern gods¯the People, History, the Master Race, and the Workers¯it seems to me that the European abolition of the death penalty has been extremely prudent. As John Paul II knew only too well, the modern ideological state serves strange and bloodthirsty gods, and is easily tempted to use death as a means to assault and destroy society.

Perhaps because we inherited an Anglo-Saxon system for constraining governmental power, America has seen many unjust social policies, some with lethal consequences, but never political prisoners marched to the gallows for mass execution. This goes a long way, I think, toward explaining our singularity. Europeans view our loyalty to capital punishment as barbaric, but, in truth, we retain the death penalty in large part because we have no rich history of barbarism to give us a sober sense of the need to remove the sacred power of the sword from the hands of the secular state.

Prudence is easy after the fact, but the wise seek to avoid evils before they overwhelm us. We would do well to give some collective thought to our present situation. Global terrorism now requires the already powerful security apparatus of Western governments to extend their reach. Today, closed-circuit TV puts the city of London under constant observation. American intelligence services monitor global Internet traffic, and secret operations now seem to be a matter of course. In these and many other ways, our government and the governments of our allies project power ever more deeply into the fabric of our lives.

This expansion of state power is necessary. Those we elect must do exactly what John Paul II identifies as the bottom-line responsibility of civil authority: defend society. But we also need to exercise caution. These days our government seems compelled to operate secret prisons in various places around the globe and to hold prisoners without trial. Such policies, however justified, however temporary, however rightly criticized by Congress and duly corrected by the courts, cannot help but remind us of methods once used by the Nazis and the Soviets. It’s a chilling thought, especially since we continue to vest our government with the power to execute. Therefore, in these perilous times a prudent citizen should seek the abolition of the death penalty. An ounce of prevention is worth a pound of cure.

R.R. Reno is features editor for First Things and professor of theology at Creighton University in Omaha, Nebraska.

References

Baze v. Rees , the Supreme Court decision on lethal injection

” Catholicism & Capital Punishment ” by Avery Cardinal Dulles

Evangelium Vitae

” Christians and the Death Penalty ” by Joseph Bottum