The latest on Catholicism and capital punishment

At First Things, Joseph Bessette, Michael Pakaluk, and Fr. Brian Harrison comment on Steven Long’s recent article on capital punishment and the change to the catechism, and Long responds.

Parkland shooter suspect Nikolas Cruz has assaulted a prison guard, illustrating the continuing danger murderers pose even after incarceration.

In the October 2018 issue of the magazine New Directions, Fr. Richard Norman reviews By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.  Fr. Norman says that he is “prudentially opposed” to the death penalty, yet still judges that:

[Bessette and Feser] authored a well-argued defence of the legitimacy of capital punishment within the catholic tradition… By Man Shall His Blood Be Shed is a relentlessly tightly-argued programme… Most importantly, the authors present a compelling theological case for accepting the legitimacy of capital punishment in principle, even if in practice its use is strictly curtailed.  They challenge the theological bases upon which much opposition to capital punishment rests and debunk many sociological assertions on the abolitionist side of the debate…

They argue very coherently as to why this power is properly reserved to the state according to the tradition of the Church… and they expose many inconsistencies and errors in the arguments brought against the death penalty… [T]his book [is] an important corrective within an often one-sided debate among churchmen.

End quote.  Naturally, Fr. Norman also raises some criticisms of the book.  For example, he says:

Bessette and Feser… do somewhat undermine their explanation of the deterrent effect of the death penalty in a chapter in which the capital crimes of seventeen offenders are described ‘in some detail’— the deterrent effect was evidently lost on these men.

With all due respect to Fr. Norman, this seems to me to be a pretty weak objection.  That a punishment does not deter everyone does not entail that it does not deter anyone.   The prospect of jail time, fines, bodily injury, accidental death, damage to one’s reputation, loss of employment, angering one’s spouse, etc. deter people all the time from doing things that are immoral, embarrassing, criminal, or otherwise risky.  Do they deter absolutely everyone, all of the time?  Of course not.  But it would be absurd to conclude from that that they have no significant deterrent effect.  It is no less absurd to question the deterrent effect of capital punishment, on the grounds that there are some people who are not deterred by it.

Another objection raised by Fr. Norman is as follows:

Another question relates to the determination of which authority is empowered to pass capital sentences: what is to prevent a father from applying the death penalty to his child, or the abbot of a monastery condemning a murderous religious?  Each of these has as many responsibilities towards their charges as does the state, but we would surely feel some reluctance at affording them the same juridical powers.

This is also a very weak objection.  One problem with it is that it would prove too much.  In particular, if it really cast any doubt on capital punishment, then it would also cast doubt on every other serious punishment.  For we could equally well ask: “What is to prevent a father or an abbot from imposing jail time or major fines?” and then on that basis argue against allowing the state ever to jail or to fine anyone.

Another problem, though, is that the objection neglects the answer that natural law theorists like Aquinas would give to Fr. Norman’s question.  As Joe Bessette and I discuss in our book, while Aquinas thinks that a murderer deserves a punishment of death as a matter of retributive justice, he also thinks that retributive justice is not by itself a sufficient reason for actually inflicting this deserved penalty, since Aquinas holds that retributive justice is primarily to be achieved in the afterlife.  There would therefore have to be some additional consideration favoring the actual infliction of death in this life – and there is such a consideration, in Aquinas’s view, namely the defense of the community.

Now, only those with authority within a kind of social order have the right to inflict punishments intended to protect that social order.  But those with authority to defend the community as a whole are public officials or governmental authorities.  Hence Aquinas argues that it is only they, and not private citizens (including fathers and abbots), who may inflict capital punishment.

A further objection raised by Fr. Norman is the following:

The greatest difficulty, however, is with the authors’ fundamental idea of proportionality… [A]t least three problems go unaddressed: (i) if there is a direct proportionality between the crime of murder and a capital sentence, is justice lacking in sentences for murder which do not invoke the death penalty and, if not, could justice be also otherwise served where a capital sentence has been passed; (ii) how do proponents of capital punishment account for the many changes over time in the list of crimes which attract a capital penalty, if the issue at stake is one of proportionality, and (iii) how might one signal the moral difference between one capital crime and another if the sentence is the same, e.g. between the drug-dealer who fatally shoots a rival, the sadist who sexually assaults and murders a child, and the war criminal who orders the execution of hundreds of innocent civilians?

The first thing to say in response to these points is that as Joe Bessette and I note in the book, it is a misunderstanding of the natural law position to suppose that it entails that it is always possible in practice to inflict a proportional punishment, or that that we are always morally obligated to inflict it when this is possible.  For one thing, there may in some cases be practical reasons why inflicting a proportional punishment is not possible, or epistemological reasons which prevent a determination of exactly what a proportional punishment would be.  But that simply does not entail that there is not in fact a punishment that would be proportional.  For another thing, the natural law position holds only that there is a presumption in favor of inflicting a proportional punishment, but allows that there are various reasons which might override this presumption, including moral reasons. 

Another problem with the objection is that Fr. Norman seems to be conflating questions about what punishments should be given with questions about what punishments are in fact given today.  It’s true, as he says, that there have been “many changes over time” in the list of offenses eligible for the death penalty, but by itself that has no implications one way or the other for the question of what punishments should be given.  In particular, the fact that there are in fact fewer offenses today for which death is inflicted does not entail that there morally must be fewer offenses for which it is inflicted.

That is not to imply, however, that Joe and I would necessarily want to expand the list.  Again, the presumption that an offender will get just what he deserves can be overridden for various practical and moral reasons, and in this life the imperative of doing what is best to secure the welfare of the community is in practice more important than the securing of strict retributive justice.  So it is perfectly possible for the list of crimes for which offenders should in practice be executed to be much shorter than the list of crimes for which offenders might in theory be executed.  Joe and I do not draw up any detailed list of either sort because it simply isn’t necessary for the specific purposes of our argument to do so.

Finally, Fr. Norman writes:

Another significant challenge to Bessette and Feser, which indeed impacts upon catholic tradition more extensively, is the question as to whether the New Testament ever anticipated Christians in positions of significant civic influence in what might be termed a ‘Christian state.’ When the New Testament recognizes the authority of the state to mete out justice, did its authors envisage Christians on the judgment seat?

The answer to this, I think, is that whether or not the authors of the New Testament writings envisaged this is not really important.  What is important is what the principles they taught would imply when applied to concrete circumstances in which Christians find themselves in positions of civic influence.  And that is a question that has been answered in detail by the Church’s great political thinkers (such as St. Thomas and St. Robert Bellarmine) and by the social doctrine of the Church.