When Justice Demands the Hangman

So Kermit Gosnell has cut a deal, and will not even face the formality of a death sentence. That might seem to render moot discussion of what he really deserved. But since late-term abortionists like him are still plying their trade across America, there will be more trials like Kermit Gosnell’s, and the question will come up again: Ought such men to die?

There have been moving calls for pro-life Americans to renounce the use of the death penalty, even applied to such men as Gosnell. Some people think it renders our witness for the sanctity of innocent life more credible when we extend it even further to cover the guilty. I disagree. What some call a “consistent ethic of life” or a “seamless garment” I call mismanaged mercy and botched, misguided compassion .

It emerges, most often, from the attempt to short-circuit the natural virtues in pursuit of the supernatural, and among the many fruits of this moral disorder was the clerical sex abuse scandal”where hasty mercy was offered toward “insiders” (fellow priests), at the expense of future nameless victims (all of them laymen). No doubt the bishops who exercised such mercy, who sent their offending priests not to prisons but to rehabilitation centers , told themselves that they were acting as Jesus would. Someone should have told them about the millstones.

In fact, one may not practice mercy without having first satisfied justice”and then only when an act of mercy will not enable or excuse the given crime. Surely, if we can see that an excessive or cruel punishment violates justice, we should likewise be outraged when the guilty are slapped on the wrist”as bigoted white juries used to do to white defendants who savaged blacks.

The mercy we ask of God is different in kind than we as men are asked, or even permitted, to dispense. God’s resources are infinite, and (as Jesus reminded us in the parable of the workers in the vineyard) what he gives to one of us need not be taken from anyone else. Even then, he pardons only the penitent. Human rulers are obliged to insist on the fair distribution of limited goods on earth.

Central to the story of the prodigal son, but often overlooked, is this line, addressed to the aggrieved elder brother: “Son, you are with me always, and everything I have is yours.” In other words, by taking back his wastrel son, the father is not unjustly cutting the elder son’s portion in half. He is satisfying justice, and adding to it mercy. So in begrudging his brother’s forgiveness, the elder is guilty of envy.

Envy is, for Aquinas, the gravest of deadly sins , and envy of spiritual goods (such as mercy obtained) is the deadliest form . Christian love demands that we wish and pray for the eternal salvation of every human soul, however improbable. That includes the souls of men like Kermit Gosnell, Timothy McVeigh, Osama bin Laden, and the Nazis justly hanged at Nuremburg. This wholesome wish has nothing to do with whether or not we favor their deaths.

Those of us who believe in the immortality of the soul can distinguish between death and damnation”as could St. Pius X, who to the end of his reign employed a papal executioner . So could the Vatican city-state’s legal code, which kept the death penalty on its books until 1969. Since St. Paul wrote, Christians have believed that death could rightly be inflicted as a penalty”not merely to stop a murderer from killing again, but as an act of justice. The Catechism of the Council of Trent (and here, few Reformers would have differed) called the civil magistrate “the legitimate avenger of crime .”

Pope John Paul II made history when he issued Evangelium Vitae , then revised the Church’s Catechism to match it, and suggested that the only proper use of capital punishment is in societal self-defense, in cases where even modern prisons could not safely contain a killer. The reason, according to the revised Catechism, is that bloodless means “better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person” (CCC 2267). Some scholars such as Jeffrey Mirus have suggested that we see here a development of doctrine. Others, including Cardinal Avery Dulles , have disagreed.

Since John Paul II’s teaching appears at such variance with previous, equally authoritative statements, it cannot be said to be binding in conscience on Catholics. In terms of authority, an encyclical that teaches something new might be seen as roughly analogous to a district court’s decision; until the Supreme Court (the extraordinary Magisterium”exercised in an ecumenical council or ex cathedra ) weighs in, the question remains unsettled. (By contrast, Humanae Vitae reaffirmed millennia of previous teaching”had it approved contraception, the situation would be akin to that of Evangelium Vitae on this point.)

Furthermore, as others have argued , John Paul’s condemnation of capital punishment rests on his prudential judgment of “concrete conditions””which may or may not be correct, but which rests outside the scope of papal authority. A pope can solemnly teach what makes a war just or unjust, but his opinion about any given war is just that”his opinion. It deserves respect but does not demand “religious submission.” Not every crusade, or papal war supported by interdict, was infallibly justified.

I agree entirely with death penalty reformers who point to the innocent men executed, the paucity of decent legal representation for the accused, and the racial imbalances among those put to death. If the U.S. were largely to cease employing the death penalty until these outrages are fully addressed, that would mark progress for the sanctity of life”because it would be centered on sparing the innocent. (I would add that a better use of energy might consist in trying to stop the routine, rampant rape of prisoners in America.) But when someone is manifestly guilty of heinous crimes of public import, crimes rightly deserving death, to rush to mercy may in fact entail a miscarriage of justice.

Let us go back to Nuremburg. Those men executed for crimes against humanity could surely have been safely contained in prison, and prevented from re-establishing National Socialism in Germany. By the standards of the revised Catechism, it would have better served the common good and the dignity of the human person for such men to spend the rest of their lives in humane prisons”writing their memoirs, answering fan mail, and giving advice to aspiring activists who shared their goals. Is this really true? Would the world have been better served by reading Goering’s prison memoirs? (He killed himself, to cheat the executioner.)

Likewise, for Kermit Gosnell to escape the executioner undermines our respect for justice. In the “concrete conditions” of life in America in 2013, the unborn are treated as worse than chattel”worse than cattle, actually, since those are killed more humanely. Embryos are kept frozen in limbo for our convenience, and through stem cell research are cannibalized for parts. Late-term abortions, such as Gosnell routinely performed, are legal in most states”and the president of the United States, as an Illinois state senator, refused to rule out the killing of babies who survived this gruesome process.

Sending the most hardened murderers off to watch cable TV and share the weight room with embezzlers and drug users makes a mockery of justice. It shows profound disrespect to his victims, and the next victims of our culture of death. In cases as grave as these, where notorious criminals commit appalling crimes that still go mostly unpunished, true justice and genuine mercy demand the hangman.

John Zmirak is author, most recently, of The Bad Catholic’s Guide to the Catechism . He blogs at The Bad Catholic’s Bingo Hall .

RESOURCES

“Should Pro-Lifers Be Anti-Death?” John Zmirak, Aleteia

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