In the Fall 2017 issue of the Claremont Review of Books, Catholic moral theologian Janet Smith
reviews By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.
Writes Smith:
[T]he central argument of [the book
is] that some crimes deserve death, and that this is now and has always been
the teaching of the Catholic Church.
Anyone who would claim otherwise must contend with Edward Feser and
Joseph Bessette’s unparalleled – and I’m tempted to say, irrefutable –
marshalling of evidence and logic in this important new book.
More from the review:
Because we are no longer accustomed
to rigorous arguments or a relentless appeal to logic, the prose is jarring. Rather than tentative terms like “it seems to
me” or “I would like to suggest,” the authors prefer testosterone-fueled
diction; regularly using terms such as “absurd,” “preposterous,” “simplistic,”
and “reckless” when evaluating their opponents’ arguments. As much as such language has value for its
wallop, novelty (in a scholarly work) and, yes, accuracy, the arguments are so
strong, I timidly suggest, that perhaps the authors should have allowed readers
to “draw their own conclusions” more often. But let me say, the book simply flattens its
opponents. (Testosterone-charged prose is contagious!)
In the book’s first half Feser
systematically refutes the arguments of those who think the Church now teaches
that capital punishment is intrinsically unjust. He helps readers to see how weak our
attachment to justice has become and how little we allow tight reasoning about
justice to govern our thinking…
Feser painstakingly refutes the
arguments of “new natural law” theorist E. Christian Brugger, an ardent
opponent of capital punishment, effectively identifying some of the weaknesses
of new natural law theory itself…
Feser thoroughly and carefully
examines Scriptural approval of the death penalty… He notes that no one has
successfully refuted the claim that the Bible unequivocally supports the right
of states to execute some wrongdoers…
Feser successfully argues that [the Catechism’s] “development” must be viewed as a prudential judgment by Pope John
Paul rather than an authoritative teaching, and thus Catholics are free to
contest it…
Bessette then turns his attention to
the statements about capital punishment put out by the United States Conference
of Catholic Bishops, which are seriously flawed… He reviews extensive
studies on the death penalty’s deterrent power, the number of persons unjustly
condemned to death row, on the charge that racism causes the death penalty to
be applied unfairly, as well as on the claim that it is applied unfairly to the
poor. He uses this data to refute claims
made by the bishops that capital punishment has no deterrent power, that
innocent persons are regularly executed, that the application of the death
penalty has been unfairly applied to minorities and the poor.
End
quote. Smith does raise a criticism of
the book as well. While she does not
deny that the death penalty is appropriate in some cases, Smith argues that we
pay insufficient attention to certain cases where circumstances plausibly
reduce the culpability of the offender to the point that it would be better to
refrain from inflicting capital punishment.
She suggests that the case of Karla Faye Tucker, whose childhood and
teenage years were very troubled and who seems to have been genuinely
repentant, is a plausible example.
This is a discussion
worth having. I would say that the aim
Joe and I had in writing the book was not so much to set out detailed, specific
criteria for exactly when capital punishment is appropriate, but rather to show
that it is appropriate in far more cases than many contemporary Catholics would
like to admit. The pendulum has swung way too far in the abolitionist
direction, and our aim is to restore balance and sobriety to the
discussion. When Catholics once again
pay serious attention to the entire
Catholic philosophical and theological tradition of thinking about this
subject, and to the actual social scientific evidence, the serious issues Smith
raises can be fruitfully addressed.
Slightly off topic, but welcome nonetheless: the Kindle version of Feser's intro to Aquinas is now on sale for 2 bucks:
ReplyDeletehttps://www.amazon.com/Aquinas-Beginners-Guide-Guides-ebook/dp/B00O0G3BEW
I think it's part of their monthly Kindle deals.
She suggests that the case of Karla Faye Tucker, whose childhood and teenage years were very troubled and who seems to have been genuinely repentant, is a plausible example.
ReplyDeleteThis is a discussion worth having.
Good point - it IS a discussion worth having. My initial take is that whether Tucker was truly repentant makes the punishment the right one or not is a problematic position to take. The popes (including JPII) point out that when the DP is embraced by the condemned as just and he is truly repentant, expiation for his sins occurs. It would be a travesty to turn this on its head by only putting to death those who are not contrite. Furthermore, by limiting it to those who are not contrite we would create an impossible incentive for the condemned to feign repentance, and then all the nasty, horrible (and mostly unsolvable) arguments about "is it real or fake".
But I admit that there are other perspectives to consider. I just doubt that repentance alone can be the deciding factor.
So from this summary, it seems that Feser defends the death penalty in principle and Bessette defends the it in practice? I'm frankly more interested in hearing the arguments for the DP in practice; in my opinion that's the far more difficult case to make. I support the death penalty in principle, but from what I've read and seen on the subject, it's applied so horribly in practice that I'm functionally an abolitionist. (Frankly, some of these recent documentaries on the justice system, most prominently Netflix's "The Confession Tapes" and Ken Burns' "Central Park Five" have made me lose faith in the American court system altogether. Central Park Five in particular made me look into registering as a conscientious objector to jury duty.)
ReplyDeleteFeser says that it is justified in far more cases than many contemporary Catholics would like to admit, so he does think that it is justified in practice in some cases, though where exactly the lines should be drawn he doesn't say.
DeleteHave you read Feser's book, specifically the portions dealing with the issue of wrongful convictions and wrongful executions?
Sean, that's a good quick summary.
DeleteChad, I do think you would gain from reading that part of the book. Although the justice system is badly damaged, the incredibly stringent sifting that goes on for DP cases makes that part of the system less damaged than some others. And in many state, I think that we are no longer putting to death merely "the worst" murderers, it is so narrow and cautious now that they are only putting to death the worst of the worst of the worst: the most horrific crimes, with the least repentant criminals, under the most certain cases.
There's an angle to the DP we as Catholics should take seriously. Who is to do the deed?
ReplyDeleteThere have been cases of demonic oppression of hangmen.
Taking it broadly, the emotional and psychological gravity of performing an execution should not any more difficult than killing enemy soldiers in war, and somewhat less so than than a policeman killing a criminal in the midst of a crime. Yet we let almost any 18-year old join the army to fight our wars and kill the enemy when called on. While there may well be some necessary work for locating the right sort of person to be an executioner, it should not be a virtually impossible task.
Deleteaking it broadly, the emotional and psychological gravity of performing an execution should not any more difficult than killing enemy soldiers in war
DeleteI find that unconvincing. Remember, we are speaking here about emotions, not logic. And there is (undoubtedly) a greater reluctance, and sense of guilt, when killing someone who at the time of the killing is helpless before you, as opposed to someone who is shooting back. There are ways to overcome this, especially at the moment of action, but that doesn't remove the problem.
I'll admit that I did not think of the "helpless" aspect. It leads me to wonder if this very point would be a successful counter-argument to those severe / extreme pacifists who say that we are morally obliged not to respond to violence with defensive force: if it seems "natural" that it is more wrong to hurt someone who is helpless, then it is "more right" to be prepared to hurt someone who is not helpless, and is indeed attacking.
DeleteI am not prepared to entirely abandon my point, though. I suspect that what you are thinking of as "ways to overcome this" are the the same sorts of things that are taught to police to emotionally deal with the traumatic incident of killing an attacker - which emotional difficulty we both admit is a not a reason to have police eschew using killing force. So, maybe we are just talking about the same sort of muddled "my emotions need to be informed by my reason" that applies in both cases. So: yes, it is emotionally burdensome, and no, that is not sufficient reason to abolish executions.
Yes, basically. It also, of course, will vary with individuals. That's tricky - you don't want Barnie running your criminal justice system, but you don't want Fairy Hardcastle, either.
DeleteOne way the troubling feelings can be overcome is a deep conviction of the justice of what you're doing. Many sailors were a bit queasy thinking of the actual fate of submariners they were depth-charging, but this was almost always overborne by their experiences with the merchant sailors they so often saw killed by the same subs.
This is another modern problem that we have brought upon ourselves. We seem actually to believe that our emotions are the deepest part of ourselves, so our emotional response to a possibly repulsive event is taken to define our true understanding of the event. We park our reason at the curb, let our emotions go first and determine the rights and wrongs of the circumstance, and then let reason follow and provide support for our prior determination of the truth of the situation.
DeleteThe policeman who shoots someone who has it coming, and the executioner who carries out the sentence on one who deserves it should apply his reason to the event and accept that his guilt is minimal or not at all.
Notice that I said "should". How many times, in a discussion about the morality of a particular behavior, has your interlocutor asked, "Well, how would YOU feel if ...?" The correct response is, "How should I feel?" Our emotions are what we feel when our bodies are marshalling their physiological resources to respond to a situation. The rightness of the emotion is determined by the rightness of the response thus motivated. Good behavior => helpful emotion; bad behavior => unhelpful emotion (which should therefore be ignored).
Not quite so simple. We are not angels, so it isn't enough to say that unhelpful emotions should be ignored. To make that work, we need training in developing the right emotions, and suppressing the wrong ones. Not something vogue today, but the Greeks understood it well. Aquinas discusses it under "habit".
DeleteProfessor Smith’s quibble about the Karla Faye Tucker case may seem incidental in the context of an otherwise favorable review of your book, but I think it demonstrates why the arguments advanced in "By Man Shall His Blood Be Shed" are likely to prove insufficient to carry the day. Here we have someone who accepts the proposition that the death penalty can be morally imposed in serious cases, and concedes that Tucker was guilty of intentionally committing a truly horrific crime; and yet, even as she must know that the judge and jury (and eventually the governor) were conscientious in the performance of their duties, Smith still senses that an injustice was done in Tucker’s case. And while she suggests that the problem here is merely procedural – that we need to be more expansive in our view of mitigating circumstances – this is the exception which swallows the rule. She assumes against all evidence that there is a line that can objectively, consistently, and to every reasonable person’s satisfaction place future Karla Faye Tuckers on the right side of the “mercy” divide; but as no such line can be drawn, Smith must ultimately choose between allowing for the possibility that other cases which she considers to be unjust may occur in the future, or abolishing the death penalty altogether so as to preclude that possibility. And unless and until the case is made that the state not only has the right but the absolute moral obligation to maintain the legal capacity to sentence murderers to death, the Professor Smiths of the world are going to be increasingly inclined to accept abolition.
ReplyDeleteSmith still senses that an injustice was done in Tucker’s case.
ReplyDeleteSay, rather, that she senses that an injustice may have been done, because of "insufficient attention to certain cases where circumstances plausibly reduce the culpability of the offender "
"Plausibly" is not "certainly," nor "convincingly" or even "probably".
She assumes against all evidence that there is a line that can objectively, consistently, and to every reasonable person’s satisfaction place future Karla Faye Tuckers on the right side of the “mercy” divide;
James, this is a standard that NO system of penalties has EVER been able to meet. Or ever could. The very nature of the case is that there are judgment calls about the exact degree of evil in THIS instance of the crime, and about the precise degree of deliberateness in the criminal, and in the degree(s) of mitigating factors. That's just what you get in concrete cases, which are not abstract but are filled with minutiae that affect the judgment one way or the other. According to the judge's prudential wisdom. This is why we need judges who have judgment, and are not rote robots.
If penal justice had to meet your standard, there could never be any punishments for ANYTHING, ever. Fortunately, they don't need to meet that standard. Society does not have to satisfy every reasonable person that a penalty was the right amount. It does not have to specify a line that would work in EVERY case, in order to determine a line in one case. It is sufficient that the penalty be reasonable, in the judgment of the judge, whose judgement is generally held to be sound by enough others.
And, by the way, it's not necessary - in order to determine the just penalty for the Tuckers of this world, to decide whether she is on this or that side of the "mercy divide". The criminal NEVER has a right to mercy, they only have a right to justice - a just penalty. It is on behalf of society as a whole, and the whole common good, that the judge (and the governor, and anyone else empowered to hand out mercy) to judge whether to grant it to someone like Tucker. This does still take judgment, of course, but it is the judgment involved in gift-giving wisely, not that of determining the just punishment.
And unless and until the case is made that the state not only has the right but the absolute moral obligation to maintain the legal capacity to sentence murderers to death, the Professor Smiths of the world are going to be increasingly inclined to accept abolition.
Only if they hold to an unreasonable (and untenable) premise that to be in a position to make any mistake is an intolerable thing, and then illogically follow that unreasonable premise by illogically not also getting rid of all forms of punishments, as well as all forms of mutual contracts, and all other relationships involving judgment of due treatment (whether of justice or mercy). If to be able to make a mistake is an intolerable condition, just kill yourself and be done with it.
Regrettably, you either misread or misconstrued my post. I am not claiming that there can be an completely objective standard for imposing the death penalty; rather, I am suggesting that Professor Smith mistakenly believes that there can be such a standard. This is implicit in her claim that a more refined definition of culpability may have prevented an apparent injustice in the Tucker case. And precisely because no perfectly objective standard can ever be applied to the death penalty, people like Smith - who genuinely worry about the morality of executing particularly sympathetic axe murderers - may be persuaded that it is better to abolish a death penalty which is rarely imposed anyway in order to remove any possibility of executing someone who has a plausible claim for mercy.
ReplyDeleteThe implicit error in this mode of thinking, which is essentially the USCCB position, is that there is no real difference between keeping a seldom-if-ever-used death penalty law on the books, and simply abolishing the law altogether. If you have read "By Man Shall His Blood be Shed", you know this is a significant fallacy. But so long as Catholics are told that Church doctrine allows the state to abolish the death penalty, they will be under significant pressure to do so. That is the heart of my very limited criticism of this otherwise magnificent book, which is that (in my opinion) it stops just short of explicitly making the case that the state has a moral obligation to maintain the legal capacity to execute murderers, even if it rarely if ever chooses to do so.
Sorry, James, I misread your point. Thanks for the clarification.
ReplyDelete