Capital and Other Punishments

Events of recent months”in particular, the execution of Timothy McVeigh and, just prior to it, public airing for the first time of audio tapes of executions in Georgia”have focused attention on the morality of the death penalty, even if administered fairly and equitably. For better or worse, we find ourselves at a moment when considerable national attention is being given to the morality of capital punishment, and readers of First Things in recent months have also been invited to reflect upon the issue in an essay by Avery Cardinal Dulles (April) and in a later exchange between Dulles and his critics (August/September).

Although preserving the death penalty is nowhere near the top of my moral concerns, I can think of no persuasive reason”save perhaps one, to which I will come”why a clearly guilty terrorist such as Timothy McVeigh should not be executed. But I think we are often confused about why it may be appropriate”a confusion that manifests itself in our willingness to give therapeutic “closure” to families of victims by allowing those family members to view the execution.

If and when a state inflicts the death penalty on one of its citizens, it is imperative that such action be understood as public, not private, action. For Christians this is because the state, by God’s ordinance, is authorized in certain circumstances to serve the common good even by taking the life of a duly convicted criminal. When God makes His covenant with Noah after the great flood, promising never again to destroy “all flesh,” this promise is fulfilled in part through government, which, by executing just punishment, enacts fitting retribution for crimes. Hence, what none of us are permitted to do as private citizens on our own authority the state may do”not because it is itself “lord” of life and death, but because it is the authorized agent of the God who is that Lord.

Of course, many of our fellow citizens will not understand the work of government in terms grounded in Genesis 9 and Romans 13. As a people we are more likely to think of government in terms the social contract theorists taught us: as founded to stop the injustice that dominates a state of nature, but founded by our own compact. Even in these terms, however, the distinction between public and private action is crucial. A world in which each of us is permitted to judge guilt and execute punishment, in which revenge and blood feuds are permitted, is likely to be the one Hobbes described”in which the life of man is “solitary, poor, nasty, brutish, and short.” It will be a world given over to injustice.

When, therefore, the state executes a convicted murderer, it is essential that we not think of this as responding to the desires of family or friends of the murderer’s victim(s). We are all aggrieved when one of our fellow citizens is murdered, and the criminal’s punishment (even execution) satisfies not our need for therapeutic closure but our need for a just society. Opponents of the death penalty will rightly note that there is something paradoxical about punishing the taking of one life by taking another, but, of course, the “takings” are not the same. One is done by a private individual acting simply in his own name; the other is done by public authority acting in the name of us all. The force of the objection depends precisely on blurring”or missing”the difference between private and public action. Moreover, this “paradox””if we are given to such language”is only the paradox of government generally; for through criminal law government defends freedom by incarcerating lawbreakers and through civil law it defends our property by imposing penalties on those who have harmed it.

Recent Roman Catholic teaching has teetered dangerously close to losing the centrality of the distinction between public and private killing. At one time, of course, the Church clearly taught that civil government may execute criminals. Perhaps recent “developments” amount to nothing more than a suggestion or claim that, in at least most of the world today, there are alternative modes of punishment that are fit retribution and that can protect society against chaos. And I suspect that those most eager to see more than this in recent papal teaching, those most eager to see genuine doctrinal development, are often at least as interested in opening the door for potential doctrinal developments in other cases as they are in the issue of the death penalty.

Nevertheless, they are not wrong to sense that, intentionally or not, a significant shift lies very near at hand. As scholars such as Christian Brugger have argued, the Catechism of the Catholic Church , most particularly in its revised form, seems to treat the death penalty, not primarily in terms of the special public authority of government, but in terms of the moral norms generally used in Catholic moral theology to govern the use of force in private self-defense. According to those norms, one may defend oneself against an unjust aggressor, but, if at all possible, this must be done by nonlethal means. It seems to follow”as the Catechism, in turn, seems to say”that if a murderer can be kept from killing again by any means short of execution, the death penalty cannot legitimately be imposed.

I do not say for certain that this is what the Catechism now teaches. I will leave that for others to decide”and, of course, the argument of Cardinal Dulles is that no such drastic change has been intended or made. My concern, though, is to note just how drastic the change would actually be; for what is really at stake here is much more than the question of capital punishment. If we lose the distinction between public, governmental action and private action, we are close to losing a theory of punishment altogether.

Suppose, for the moment, that those who read the Catechism as undertaking a radical development of doctrine are right. And suppose a case in which an angered, grieving mother”heretofore a model citizen”were to shoot to death the man who, driving drunkenly, had killed her young child. This woman, model citizen that she otherwise is, poses no ongoing threat of unjust aggression against which the community need defend itself. Not only need no one contemplate the death penalty for her, we need not even incarcerate her. Indeed, on the theory we are considering it is hard to know on what basis we could rightly incarcerate her. There is no need in her case to do what the Catechism calls “rendering one who has committed an offense incapable of doing harm.” We have lost far more than the legitimacy of the death penalty; we have lost the legitimacy of punishment, of public retribution.

All this may be good reason to suppose that the Catechism proposes no such substantial development”and that, even when a criminal has been captured and no longer constitutes a threat to anyone, the appropriate public officials quite rightly render a punishment deemed apt retribution for the crime. Suppose now that the crime is murder. Suppose, even, many murders committed in terrorist fashion by a Timothy McVeigh. It is, under such circumstances, hard for me to find the argument which makes anything less than execution an appropriate punishment.

I suspect that many opponents of the death penalty find it a little hard as well. That is why in McVeigh’s case the argument turned in other directions”in particular to whether families of the victims should be permitted to view his execution. Why just the families? some have asked. Why not all of us? Shouldn’t we see what we are doing and judge whether we really have the stomach for it? This argument”in the mouths of death penalty opponents committed to the sanctity, or at least equal dignity, of every human being”comes perilously close to suggesting that we should use an execution of one of our fellow citizens as a means to desired ends. We should reject even the faintest whiff of that idea.

There is, moreover, no reason to have any confidence that making a media event of an execution will engender clear and careful thought about the meaning of the death penalty. But neither is there good reason to use the occasion of an execution to provide therapy for those who have been terribly”no doubt irreparably”hurt by the murderer’s deed. The intuition that a civil society”which thinks of itself not from above as God’s ordinance but from below as a social compact”needs somehow to take responsibility for executing one of its citizens is sound. Equally sound, though, is the intuition that providing therapeutic closure for families begins to lose the crucial fact that we execute because”and only because”our public order has been wronged.

I find myself wondering whether we might not do some justice to the truth of each intuition by requiring at executions a public presence of randomly selected citizens”something like a jury. They would not in their private capacities have been harmed by the convicted murderer. No one could suppose that we were executing a murderer in order to provide them with some private healing. But their presence as the representatives of us all would bear witness to the fact that an execution is not a claim that some of us are more equal than others, but, rather, that”as a public act of punishment undertaken by a legitimate state”it is a different kind of deed altogether. We do not pull rank when we do it, because we do not act and are not present in our private capacities.

Perhaps there remains one reason why we should never execute”not even execute a terrorist such as McVeigh. In Cardinal Dulles’ discussion of “Catholicism & Capital Punishment” he argued that public, governmental punishment must finally be understood as “a symbolic anticipation of God’s perfect justice.” No state, he says, can render final judgment; only God can do that. If, however, we are to understand punishment this way, and especially if we are to understand the death penalty this way, it must truly be understood in relation to God’s judgment. For that to be possible, Dulles writes,

the society must believe in the existence of a transcendent order of justice, which the State has an obligation to protect. This has been true in the past [when government was understood as God’s ordinance], but in our day the State is generally viewed simply as an instrument of the will of the governed [as social contract theory would have it]. In this modern perspective, the death penalty expresses not the divine judgment on objective evil but rather the collective anger of the group. The retributive goal of punishment is misconstrued as a self-assertive act of vengeance.

Much in that argument is true, but the last sentences go strangely awry. We should not assume that the death penalty must express a group’s collective anger rather than a people’s sense of justice. To be sure, it may readily be misunderstood as analogous to a private act of revenge, but so may other modes of punishment that fall short of the death penalty. To claim that execution can only be understood as “a self-assertive act of vengeance” is, once again, to undercut the very notion of government and punishment”all punishment, not just capital punishment.

A better reason for hesitation”a reason that will remind us what is troubling about the death penalty without calling into question the appropriateness of punishment more generally”is one closely related to Dulles’ concern, yet slightly different. I had the sense that there was a time when a judge, pronouncing a sentence of death, would say to the condemned, “May God have mercy on your soul.” Perhaps that has in fact been done, but, inquiring of several lawyers I was told, “probably only in movies!” Whatever the facts, it directs our attention to something important. Perhaps counter-intuitively, and certainly contrary to what many religious people might suggest, I think the death penalty would be least problematic in a genuinely religious society. Camus suggested that capital punishment could be justified only where there was a socially shared religious belief that the final verdict on any person’s life is given by God, not by us. In such a society it would be clear that even in executing one of our fellows we do not pull rank. We would know that our verdict could be overturned at the ultimate tribunal. In such a society it would make good sense, having sentenced a convicted man to death, to add, “May God have mercy on your soul.”

What of a society in which this could make no sense? In it, Camus thought, execution could only mean elimination from the one community acknowledged by all to exist. And, of course, if execution is equivalent to elimination, it is indeed a godlike act. This, at any rate, is the point that really demands our attention. To the degree that in our public life”as a people”we decline to speak of God, it may be that we”as a people”ought not inflict a death sentence. But it will be very unfortunate indeed if, in our debates about the death penalty, we lose the capacity to articulate clearly the meaning of government, of punishment, and of justice.

Gilbert Meilaender holds the Richard and Phyllis Duesenberg Chair in Theological Ethics at Valparaiso University.