Capital Punishment and the Sex Abuse Crisis

Many sense that the hierarchy’s rejection of capital punishment and their complacency about clergy sexual abuse are not unconnected. What I want to say on the matter falls under three headings: separation; vengeance; and protection. All of these serve to distinguish justice, which the Church should uphold, from mere “regulatory compliance,” which seems the main thing on offer right now from our bishops.

First, separation. There is a fundamental connection between punishment and separation from the community in which one committed a crime. Children who misbehave at table are sent to their rooms. Dishonest lawyers are disbarred. Someone who commits a mortal sin loses friendship with God and must be “reconciled” to return to the communion of the saints.

Likewise a criminal, by the very act of committing a capital crime, separates himself decisively from society. The sentences of exile and life imprisonment are public judgments which are understood to confirm that separation. Capital punishment is the extreme instance of separation.

It follows that it always remains a possibility that capital punishment be prudentially justified, namely, when society wishes to express and confirm its abhorrence for certain crimes, by the definitive separation of the criminal from society. A clear example would be the execution of the Nuremberg war criminals. These criminals were not merely executed, but also their mortal remains were cremated and the ashes scattered. Why? So that they would in no sense continue to abide as a presence in society. Today many communities reasonably want to separate serial murderers from themselves in the same way.

Thus, an attitude which absolutely opposes the death penalty, in all circumstances, must be an attitude which downplays or even rejects the aspect of separation, so fundamental to punishment.  From that point of view even imprisonment, as it is a separation, can appear suspect. For instance, Pope Francis, in his 2015 letter to the President of the International Commission against the Death Penalty, writing as pope and not as a private theologian, condemned as “unacceptable” not merely the death penalty but also lengthy prison sentences. Separation, he contended, ought never be definitive, and lengthy prison sentences “may be considered hidden death sentences, because with them the guilty party is not only deprived of his/her freedom, but insidiously deprived of hope.”

So then, what happens when a bishop who denies that punishment of itself implies separation, and is grieved by the very thought of definitive separation, is confronted with cases of clergy sexual crimes? 

In the pages of the Pennsylvania grand jury report, one sees repeated instances of bishops unwilling to separate offending priests from priestly ministry. When Donald Wuerl celebrated the funeral mass of one of the accused men, he remarked to the press, “A priest is a priest. Once he is ordained, he is a priest forever.” This is true, but there seems a structural similarity between the idea that, on account of his priestly dignity, we cannot separate a priest definitively from ministry, and the idea that, on account of his human dignity, we cannot separate the criminal definitively from society. This reluctance to separate offending priests has often been blamed on a “clubbish” mentality and more recently on “clericalism.” But could it in fact stem from a lack of a sense of justice? As a Catholic father, I say without hesitation that a priest who, for instance, goes into the room of a young man in the middle of the night to start stroking the young man’s penis (as described in the Pennsylvania report) should be defrocked.

Second, vengeance. As St. Thomas observes—merely summarizing two millennia of human wisdom—vengeance, the habit of soul by which we earnestly wish that offenders receive due punishment, is a virtue, not a vice. No one can genuinely possess the cardinal virtue of justice if he lacks the minor, though essential, virtue of vengeance. But is vengeance contrary to gospel meekness?

The good bear with the wicked by enduring patiently, and in due manner, the wrongs they themselves receive from them: but they do not bear with them as to endure the wrongs which the wicked inflict on God and their neighbor. For Chrysostom says: “It is praiseworthy to be patient under our own wrongs, but to overlook God’s wrongs is most wicked.”

To apply this to the case at hand: It would be wicked for a bishop to “endure patiently” a priest who goes into a young man’s room at night to stroke his member.

Vengeance is the habit of earnestly wishing for and willing due punishment. It follows that anyone who regards punishment as solely remedial, by the nature of the case, cannot have this virtue. Such a person will indeed appear complacent and passive in the face of grave wrongdoing, because vengeance stirs up anger and incites to action. Our hierarchy has evidently been complacent before evil.

But what is the connection between vengeance and capital punishment? In theory, it would be possible for someone to reject the death penalty without rejecting retribution as the basis of punishment. But in practice, opponents of the death penalty also reject retributive justice, presumably because they recognize the immediate fittingness of punishing murder with death, affirmed indeed by God at the beginning of the Bible (Gen 9:6), and wish to neutralize that motive.

Pope Francis, in the previously cited letter, even seems to regard retribution as nonsensical: “When the death penalty is applied, people are killed not for current acts of aggression, but for offences committed in the past. Moreover, it is applied to people whose capacity to cause harm is not current, but has already been neutralized, and who are deprived of their freedom.” Apparently, that a punishment should be meted out in order to match an accomplished crime is itself an argument against such punishment. Obviously, punishment is retrospective, administered for crimes committed in the past—otherwise, murderers who have no reason for killing anyone beside their past victim ought to be released.

Third, protection. Vengeance takes on a combative aspect and is a noticeable trait in a strong father, who, precisely because he loves his child, cannot tolerate wrongdoing in him, as Scripture repeatedly says (Proverbs 3:12, 13:24, Job 5:17-18, Hebrews 12:6). But this makes strong fathers also strong protectors. It is obvious that our bishops have failed to be strong fathers in the face of sexual unchastity. They have combated neither unchastity in priests, nor unchastity in their congregations, nor, for the most part, unchastity in our culture.

“Children are a precious gift from God,” says Cardinal Wuerl on his “Wuerl Report” website (since taken down). Ah, “the children”! But as Anthony Esolen does not tire of saying, so is that woman who is the object of predation by the young men in a priest’s congregation, and the troubled young person who is afflicted with gay propaganda, and the husband and wife who have given themselves over to non-procreative acts. All of these need the “combative” love of a genuine father in their priest and bishop.

The tradition says that the death penalty may sometimes be necessary to defend society against the aggressor, and in such cases the state may even have a duty to use it. It is a gross mistake to take this to mean merely that the death penalty is licit only when necessary to keep a murderer from committing further crimes (with the added thought: and of course we have prisons now to do that). It is likewise a mistake, though not so crude, to say that the penalty plays the role of a psychological “deterrent,” as if it were no more than a heavy fine, the most severe dissuasion.

No, what is meant is rather that the framework of law as applying proportionate punishment defends society, and that, given this framework, something proportionate to death must be promised for capital crimes. The homeowner’s gun may protect him against a night intruder. If he lacks a gun, the promise that the police will soon arrive can play the same role. If the police cannot get there in time, the framework of law plays a comparable role. The promise of proportionate retribution is essential to this order: Be assured that it will be done to you, as you wish to do to others.

We can expect that any bishop who, from his stance against the death penalty, has fully embraced the attitude that punishment is never retributive, but only deterrent, will fail to protect his flock by appropriately punishing offenders. He will misapply the standard of proof for criminality, moving it from past to future crimes: “Indeed, Fr. N. did, beyond a shadow of a doubt, fondle the genitals of that young man, but, unless it can be shown beyond a shadow of a doubt that he will do something like that in the future (and the experts won’t say this much), then he should not be punished.”

Retributive punishment presupposes rather than denies the dignity of the persons involved. In contrast, the purely “remedial” concept of justice, like the legal concepts of training and compliance, involves no more than thinking of others instrumentally. But seeing the dignity of others presupposes that we understand our own dignity. We know that some of the hierarchy lacked seriousness about sexual unchastity in others, because they were not serious about it in themselves. Such men may not believe in retribution, but unless they repent in their hearts they will learn of it at the hands of God.

Michael Pakaluk is professor of ethics at the Catholic University of America.

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