Saturday, October 1, 2011

On rehabilitation and execution

If you haven’t seen it yet, you should take a look at Steven Long’s response to Chris Tollefsen’s recent arguments against capital punishment.  Tollefsen has now replied to my own criticisms of his views, and I will respond to his latest, and address some of the issues Long raises, in a later post.  In this post I want to respond to some questions raised by a reader of my article on Tollefsen.

The reader writes:

I would think that even if the retributive goal of punishment would prescribe death for the perpetrator, capital punishment could still be (and, I think, is) illegitimate in theory, let alone in practice, because it neutralizes the second goal of punishment, rehabilitation.  It is in this sense -- neutralizing the possibility of rehabilitation -- that capital punishment seems to me to most completely attack the dignity of the criminals in that it robs from them any possibility of making amends for their crimes.

I would make two points in response to this objection.  First, that punishment has three purposes – retribution, rehabilitation, and deterrence – does not entail that each of these purposes must be realized in a given act of punishment in order for that act to be morally legitimate.  For example, we may justly imprison a recidivist thief even if we know from experience that he is extremely unlikely to change his ways as a result of his imprisonment and even if circumstances make it unlikely that his particular imprisonment will deter other thieves.  Similarly, the fact that a given act of capital punishment may not fulfill all of the ends of punishment does not by itself suffice to make that act morally illegitimate.

Second, while there is obviously a sense in which capital punishment can prevent rehabilitation, there is also a sense in which it actually facilitates rehabilitation.  How so?  Consider first that a wrongdoer cannot truly be rehabilitated until he comes to acknowledge the gravity of his offense.  But the gravity of an offense is more manifest when the punishments for that offense reflect its gravity – that is to say, when the principle of proportionality is respected.  A society in which armed robbery was regularly punished with at most a small fine would be a society in which armed robbers would have greater difficulty coming to see the seriousness of their crimes, and in which they would for that reason be less likely to be rehabilitated.  Similarly, a society in which even the most sadistic serial murderers are given the same punishments as bank robbers is going to be a society in which sadistic serial murderers will have greater difficulty in coming to see the seriousness of their crimes, and thus will be less likely to be rehabilitated.  

In short, a society in which capital punishment is at least on the books – in which it is at least officially acknowledged that those guilty of the worst crimes are deserving of death, even if that penalty is never in fact inflicted – is a society more likely to foster rehabilitation, not less likely.  

But wouldn’t the actual infliction of that penalty undermine the possibility of rehabilitation?  Not necessarily.   In some cases it might; there may be some murderers who will go twenty years in prison without a twinge of remorse, but who somehow find repentance after thirty.  But in other cases, “the prospect of hanging concentrates the mind.”  Indeed, it may be that for some offenders it is only the prospect of death that can force them to face up to their crimes and repent of them.  And a deathbed conversion is possible only if you know you are about to die -- knowledge a scheduled execution definitely gives you, while a death from natural causes often does not.  

Moreover, merely having the death penalty on the books may be insufficient to convey the gravity of the worst crimes.  An actual execution now and again may be necessary convey this gravity, and thus to facilitate rehabilitation.  

That is not to say that concerns about rehabilitation are not also a serious reason to limit capital punishment.  They are.  As I noted in an earlier post, insofar as traditional Catholic teaching recommends a certain degree of hesitation in applying the death penalty, this hesitation arguably stems precisely from concerns over rehabilitation.  The point is just that the situation is more complicated than critics of capital punishment seem to realize.  It is no good just to say “Capital punishment prevents rehabilitation, so we should never resort to it except where absolutely necessary.”  For the fact is that it does not “prevent rehabilitation” full stop.  It prevents it in one (albeit obvious) respect, but promotes it in other respects, and all of these respects must be considered when formulating policy regarding the death penalty.

My reader also presents another objection:

Second, and I think this might be more fundamental, your article appears to forget the person responsible for carrying out the punishment, the executioner.  I thought that you were headed in this direction when you mentioned not inflicting rape on rapists; it seems to me that, from a purely retributive perspective, the rapist might deserve rape.  And the most compelling reason for not raping him is the effect on the humanity of the person responsible for carrying out the punishment.  Similarly, throughout history, we have sought ways to minimize the effects of execution on the executioner.  In the middle ages, he wore a mask.  Now, we hide from a panel of executioners which of them actually flipped the switch that caused the death.  If carrying out the execution is so detrimental to the executioner that we have to hide from him that he did it, that should raise serious questions about whether we should be executing criminals.  In that light, I think it distinctly possible that capital punishment might be illegitimate in theory even though certain criminals deserve death because no person, for the sake of his own soul, can carry out the punishment.

The first thing to say in reply to this is that there is a crucial disanalogy between rape and murder.  The reason murder is wrong is that the victim has a right to his life and that right is violated by the murderer.  But that the victim of rape has a right not to have his or her body invaded is only part of the reason rape is wrong.  Another reason rape is wrong is that it involves a kind of sexual perversion, divorcing as it does sexual arousal and activity from the affection and esteem that they ought always to be associated with.  (This is why marital rape is a grave evil; and of course, other kinds of rape involve a third evil of adultery or fornication.)

Now someone guilty of a grave enough offense has forfeited his right to life, and that suffices to make it justifiable in principle for the state to inflict capital punishment on him.  And someone guilty of rape has forfeited his right not to have his own body invaded; in that sense he would deserve to be raped himself.  But the reason it nevertheless cannot be legitimate to inflict this penalty on him is that it would involve the one inflicting it in the other immoral aspects of rape (sexual perversion and either adultery or fornication).  There is nothing like this involved in capital punishment.  Capital punishment is just the taking of someone’s life, where the person has lost his right to that life.  There is no additional factor involved that would give the act anything of the moral character of murder, in the way that raping a rapist would involve acts that have part of the moral character of rape.

But someone might now object: What if we merely tortured the rapist, leaving the sexual aspect out but preserving the aspect of his crime that involved bodily invasion?  Doesn’t the rapist deserve at least that much punishment?  I would say that he does deserve it, but I would agree that we should still not inflict such a punishment on him.  

Why not?  The reason is that the moral hazards involved in such a practice are too great.  Human beings naturally tend to recoil at inflicting pain on others or causing them bodily damage.  The reason nature has given us such feelings is that it is, in general, good for us to avoid inflicting pain on others or causing them bodily damage.  Hence, it is, in general, a good idea for us not to become too desensitized to doing such things.  

Now, this is true only in general, and not in every case.  (And as I have noted before, intuitions and feelings are at best only ever a very rough guide to what the natural law permits or forbids.)  It is, for example, good for surgeons to desensitize themselves, within limits, to the sight of blood and torn flesh; good for soldiers and policemen to desensitize themselves, within limits, to the violence they have to inflict on evildoers in order to protect the innocent; good for judges, prosecutors, and prison guards to desensitize themselves, within limits, to the pleas of families whose loved ones have to spend time in jail because of their crimes; good for parents to desensitize themselves, within limits, to the pleas of children who need discipline; and so forth.  

What is problematic is any circumstance that threatens not merely to desensitize us to imposing harms that need to be imposed, but to obliterate our sense of sympathy altogether.  And that, I would say, is the main trouble with the idea of torturing rapists and other violent criminals.  Making a practice of doing this would put those who have to carry it out in a day-to-day manner at too grave a risk of entirely wiping out their normal revulsion at the thought of inflicting pain on others.

Now a concern for excessive desensitization is, I would suggest, the reason for the practices surrounding the infliction of the death penalty cited by my reader.  Since capital punishment is no more inherently wrong than surgery or police work are, neither is desensitizing oneself to executing the guilty any more inherently wrong than desensitizing oneself to performing heart surgery or shooting an armed bank robber.  Still, it is, all things being equal, better to minimize such desensitizing where we can do so.  Hence we have practices like setting up an execution in such a way that no one knows for sure who flipped the fatal switch, etc.  

So, the fact that such practices exist does not by itself cast any doubt on the legitimacy of capital punishment.  Moreover, precisely because execution can be a relatively quick and relatively painless procedure, it does not involve in the first place the degree of moral hazard that torturing rapists and the like would.  Hence, concerns about the effects of execution on the executioner do not in my view constitute strong grounds for objecting to capital punishment in practice, much less in principle.


  1. (Comment #1)

    Hi Ed,

    Let me begin by saying that I thought your first piece, "In defense of capital punishment", was a very sensible one. Unlike Grisez and Tollefsen, I think there are at least some (very rare) circumstances where the death penalty is morally justified, and I think the arguments you put forward against Tollefsen were highly persuasive.

    I was, however, rather disappointed with some statements in your latest post. I'll come to that in a moment. Before I do, I'd like to make a few comments about Steven Long's article, which I considered unduly harsh. When I read it, I felt like shouting, "Hey! Leave Grisez alone! Don't diss the guy." Let me add that I have met Grisez on two occasions, when he visited Australia. I have reservations about aspects of his moral theory myself, but I thought this comment by Long was really over the top: "This [Grisez's New Natural Law theory] is an account that is not only false, but false in such a way as invites censure by the Church." Long is all but calling Grisez a heretic here. Sure, he goes on to say that Grisez has an "orthodox intention". But someone may have orthodox intentions while putting forward opinions which are objectively heretical. (Think of the Three Chapters controversy.) Long knows this. He's got some apologizing to do.

    I find it almost impossible to imagine what the Catholic Church would have been like without Grisez. Didn't we all grow up with the "Griffinboyle" in the eighties? Back then, there was no-one else defending orthodoxy - at least, not vocally. (Certainly in Australia, Grisez and Finnis were "the big two" defenders of the Church's teaching on contraception, and I never heard about anyone else, except once - and that was Ralph McInerney.) Grisez himself played a pivotal role in the framing of Humanae Vitae. "As a young moral philosopher, he was the right hand man of Jesuit Father John C. Ford, the foremost American moral theologian at the time and most influential theological advisor of the commission who defended the Church's traditional teaching. Together, Ford and Grisez drafted most of the commission's documents setting forth arguments in defense of the received teaching against artificial contraception." ("Father Ford, Paul VI and Birth Control: Germain Grisez Offers New Light on the Papal Commission" by E. Christian Brugger, at
    bru/bru_39birthcontrol.html .) It is a monstrously impertinent of Long to question the orthodoxy of such a great theologian, especially when no bishop has ever censured him.

    In my next post, I'll say a few things about Long's article. Then I'd like to discuss your post, Ed, if that's all right with you.

  2. (Comment #2)

    Hi Ed,

    I'd just like to make three brief comments on Long's article, before I discuss yours.

    First, regarding the incommensurability of Grisez's basic human goods: I have to say I think this aspect of Grisez's moral theory makes a lot of sense. Think of the young Leonardo da Vinci. He could have devoted his life to the arts alone, or to science alone, or to both. Which of these would have been the right choice? Any of them. The basic good of artistic beauty and the good of scientific knowledge are incommensurable; there is no unique right choice here. Long deliberately misunderstands Grisez on this point: he claims that "none of these putative 'goods' is ordered toward the end of the good life or to happiness", but Grisez does not say this. Rather, all of them are - which is precisely why any of them may be chosen.

    Second, Long's affirmation of the transcendence of the common good over the life of the individual doesn't hit the right note - although I'd agree with him that Grisez's analysis is wrong, too. What is objectionable about utilitarianism is precisely that it makes the good of the individual wholly subordinate to the good of society, in the same way that the good of the cell is subordinate to the good of the body - which is wrong-headed because (a) we cannot know what is good for society without first grasping what is good for human individuals, so the good of the individual is logically prior; (b) while the basic human goods sought be individuals can, for the most part, only be realized within a society, it doesn't have to be this or that one - any society will do, which is why people emigrate; and (c) some human goods don't require a society at all for their realization. The reason why a murderous individual may sometimes be killed for the sake of the common good isn't that the common good transcends the life of the individual, but that (a) it is simply wrong (i.e. against the cosmic order) that this murderous individual should go on living, and (b) a society (as opposed to an individual) is the only kind of human entity that can execute him without committing an injustice.

    Third, Grisez accepts the Church's teaching that the intentional destruction of innocent unborn human life is wrong. His application of this principle to certain specific cases is highly questionable; but it is surely his bishop's job to condemn him if he has erred, and not Long's.

    That's all I'll say about Long. Now I'd like to address some comments in your post, if I may, Ed.

  3. (Comment #3)

    Hi Ed,

    I'm back again. What I found most objectionable in your post was the following passage:

    "Now someone guilty of a grave enough offense has forfeited his right to life, and that suffices to make it justifiable in principle for the state to inflict capital punishment on him. And someone guilty of rape has forfeited his right not to have his own body invaded; in that sense he would deserve to be raped himself. But the reason it nevertheless cannot be legitimate to inflict this penalty on him is that it would involve the one inflicting it in the other immoral aspects of rape (sexual perversion and either adultery or fornication). There is nothing like this involved in capital punishment."

    First, on purely factual grounds, your argument is wrong. Technically, it would be possible to construct a machine which could penetrate a rapist's rectum when a button was pressed by a prison official - although such an act would be utterly evil, I would hasten to add. In such a case, the elements of sexual perversion and adultery/fornication are absent, as there is no arousal - and yet the act is clearly wrong. Why?

    This brings me to my second point: rape is by its very nature a soul-shattering experience. After it, one no longer feels human; one is simply a huge ball of psychic pain. Rape destroys one's whole sense of self, and with it one's very sense of the presence of God, leaving only an empty void at the core of one's soul. One's body alone is never raped; one's whole being is. Read the graphic account of the lesbian rape in Frances Farmer's "Will there ever be a morning?" and you'll see exactly what I mean. Rape shatters the soul. That is why it is wrong. Capital punishment, by contrast, only destroys the body. It is possible for a condemned man to die with dignity and composure, as many martyrs have done.

    Third, it is never right to aim to shatter the innermost psyche of another human being, no matter how depraved he is. To do so is to dehumanize him: even though he is still human, his ability to feel human is gone. Time may heal some of these wounds, but a person who is brutalized is forever a broken individual, and only God's love in the hereafter can mend his shattered soul. Society has the right to punish people, but it has no right to degrade them.

    Finally, all decent individuals instinctively agree that there are certain things you just don't do to people, no matter what. You don't kick a man when he is down. You don't kick a person in the face. You don't urinate on someone. You don't torture them. And you don't rape them. All of these acts can destroy an individual's sense of self-worth, leaving behind a hollow shell. No State has the right to do that to someone, for any reason, no matter what they've done.

    Re desensitization: some kinds of sensitivity are part and parcel of what makes us human. Sensitivity to the sight of blood is not; whereas sensitivity to the suffering of others is. Soldiers should find killing upsetting, even when it is necessary to protect the innocent. I'd feel sorry for a soldier who didn't feel upset at killing.

    By the way, I'm afraid execution is far from being a "relatively painless procedure". Necessary it may sometimes be, but it is painful. Please see here:
    ("The possible pain experienced during execution by different methods" by Harold Hillman. Perception, 1993, volume 22, pages 745 - 753.)

    Bye for now, and thanks for the post, Ed.

  4. Hello Vincent,

    I agree that we all ought to appreciate Grisez's extremely important efforts in upholding Catholic teaching on contraception, at a time when almost no one else (except for the great Fr. Ford) was doing so in such a prominent way. For that, and for other fine things he has done, he deserves a medal. But I don't think Long was out of line. It is important to keep in mind that "heresy" has a precise meaning in Catholic theology, and Long was not asserting or even insinuating that Grisez's views are strictly heretical.

    What he was implying is that some of Grisez's views are, in a less direct way, difficult or impossible to square with Catholic teaching. And I think he is right about that. In particular, I would say that there is no way to square the NNL view that capital punishment is intrinsically immoral either with Catholic tradition or with the Bible. The NNL guys have to jump through logical hoops to try to do it and the end result is, I think, completely implausible and theologically dangerous. Their position implies that the Bible teaches fundamental moral error at the level of principle and that the Church has taught fundamental moral error at the level of principle for 2000 years. And all in the name of some novel theory Grisez came up with back in the 60s. That is simply outrageous. One can say so without calling Grisez a heretic or denying his undeniable virtues. Indeed, one should not let those virtues keep one from saying so, because the issue is too important.

    Re: rape, I think you make some good points and in particular are right to say that there is more to the immorality of rape than the factors I noted. I would emphasize, though, that the reason we shouldn't inflict such psychological pain on the rapist doesn't have to do with any injustice this would involve, but rather out of mercy. And mercy presupposes justice; that is to say, it presupposes that we could justly inflict a certain punishment but refrain from doing so on other moral grounds (such as a concern for the rapist's reform).

    Anyway, my aim was not to give a complete analysis of the evil of rape but rather merely to emphasize how different it is from capital punishment. And I think your points reinforce what I said about that.

  5. BTW, re: desensitization, please keep in mind that I explicitly said that it was appropriate only "within limits." So, I agree that it would not be good for soldiers to be completely unmoved by the killing they have to do. The point is just that a soldier also cannot go to the other extreme of wringing his hands and falling into an existential crisis every time he has to shoot an enemy soldier. For one thing, since shooting enemy soldiers is not intrinsically immoral (provided the laws of war are observed, of course) there are no grounds for such a crisis. For another, if he does so he will soon get killed himself, as will the fellow soldiers who depend on him.

    You might say that while too many defenders of capital punishment pretend that life is like a video game or an Arnold Schwarzeneggar movie, too many critics of capital punishment pretend it is like a Morgan Freeman or Terence Malick movie. It is neither.

  6. I think that Dr. Long was right on in his latest article. The new natural law theorists are in my opinion essentially hi-jacking the name of Aquinas while failing to uphold his line of thinking, which was based largely on Aristotle. I believe that the likes of the new natural law theorists are causing much confusion today. They pay lips service to the Church's teachings, while giving a philosophy, which when followed to its logical end does not arrive at the same end.

    Along these same lines, in my opinion again, I think that the Catechism fails in this as well. If we read the entries concerning punishment, 2266-2267 we see an apparent contradiction regarding punishment.

    First off in 2266 we see the Catechism upholds the primary reason for punishment, which is retribution, which redresses the disorder caused the criminal's action. This is the only primary reason to punish anyone. It has to be rooted in the crime they committed in the past. In 2267 however, the Catechism takes back with the other hand concerning capital punishment. It applies a secondary principle, that of the defense of society from possible future crimes that may or may not be committed by the criminal, to dictate if it can be used. So, if we are to read this logically,on the one hand the Catechism says that the primary reason for punishment is retribution, but it gives with one hand and takes back with the other in regard to one punishment in particular, that of capital punishment. This however cannot be. We cannot justify killing someone based on the quality of a prison system, or what may or may not happen in the future. If you are going to do kill based on this principle, it would be immoral.

    There are only 2 conclusions to arrive at after reading these entries. Either we cannot read the Catechism on its own in isolation from tradition, or JPII was completely incorrect in assuming that the quality of a prison system would determine whether or not a criminal lives or dies. That would be preposterous. If the state intends to kill a criminal it must be because that it is a just punishment which fits the crime, and redressed the moral disorder that the criminal has caused. The secondary principle of preventing a criminal from causing yet another crime cannot be used on its own to determine this. If the state was to see a remorse in a criminal, and decided to show mercy on a killer, then it could take into consideration that the prison system would adequately house the criminal, and a lesser sentence could be given, not just because of that, but also because the sentence that was given in mercy was still enough to redress the crime that was committed in the past. What I find to be alarming is that so many Catholics are now blinded into thinking that you justify killing a criminal based on the quality of your prison system. This is clearly absurd.

  7. Hi Ed,

    Thanks for your response. I think the points you made were reasonable ones, and I can see better where you're coming from, now. I do agree that Grisez's position on capital punishment is extremely difficult to square with Scripture and tradition, and is therefore theologically risque. Cheers.

  8. I think what we need to keep in mind with Finnis / Grisez is yes they defend all the right orthodox conclusions (and it is the "conclusions" that form the propositions to which we must assent to be Catholics in good standing etc) - leaving out the capital punishment issue. But their theory or justification for it simply isn't right. And to attack that theory however hard (and I think it needs to be refuted) is not to attack the person provided one sticks with attacking the theory. It's just that it seems whenever someone critiques the NNL theory people bring up all the good person X or Y did in the past. But that is not what is being attacked or critiqued but the ideas. The NNL theory is just a way to make natural law acceptable to the mess known as modern philosophy. Actually as far as unorthodoxy goes what would be interesting is how to square their acceptation of the fact/value distinction with it being condemned in Fides et Ratio. Anyway it all the result of bad metaphysics.

  9. Is this notion that capital offenders should be rehabilitated in some fashion, rather than permanently cast out and excluded from future opportunities to prey, a Catholic one particularly?

    Does the predator retain a moral claim against his victim?

    I can't seem to make any sense of it.

    Recall that moral incompetents and predators needn't be killed, or even imprisoned in a conventional sense, in order to be permanently excluded from association.

  10. After having read a number of these essays now, I see that my earlier comments are completely irrelevant to the topic considered within the context which is presumed in these discussions.

    This is a Catholic dialog; and an attempt to reconcile public policy choices with fidelity to Church doctrines: not a discussion on whether "society" really exists, or whether a presumption of "one inalienable humanity" is logically forced upon us and is then morally obligatory in some sense in the public arena.

    That said, I did find these remarks interesting from a logical point of view. From Professor Feser's recommended link,

    Steven Long:

    " ... we are told that a list of goods — with no normative order or connection either among themselves or to happiness prior to choice — must never be acted against, although how we interweave them is wholly our own affair (but for what end? — one can’t ask this, because there isn’t any on this account, since none of these putative “goods” is ordered toward the end of the good life or to happiness). Why do we call these “goods” if they are not, precisely as goods, ordered as normative parts of the whole of the good life? ..."

    "What Tollefsen and the New Natural Law Theorists generally deny, is that all action is in view of the end, and that there is a normative unified teleology embracing both proportionate natural end and supernatural beatific end. Hence, as Russell Hittinger so aptly pointed out many years ago, we have a theory according to which nature “speaks with a forked tongue” inasmuch as the goods are utterly disunified and subject to no morally normative order prior to choice. It cannot be said too often: if goods are not “co-measured” teleologically, if they are not normatively teleologically commensurate prior to choice, then there is no reason whatsoever for considering them to be good."

  11. I'm wondering what your position is on the inevitable execution of innocent people where the death penalty is practiced. Don't get me wrong: there was a time when I was opposed to the death penalty in principle. These days I am more inclined towards it, yet if offered a vote on it, I would still vote against, mainly because, if you are in favour of captital punishment, it is absolutely necessary to accept that a number of innocent people will be executed, with the best will in the world, and those in favour of the death penalty will have to consiously decide that that's a price worth paying. I can't accept that; the death penalty is theatre, and theatre only works were the audience accepts all the conventions.

  12. @ Corrigan1

    Would you also accept that ruling OUT the death penalty will, also, result in the certain deaths of people who will be murdered precisely because there is no death penalty.

    Seems to me that both avenues have to be spoken of, it one is. We know for sure that there will be mistakes, and even though we don't will them we will accidentally put innocent people to death. And, we know for sure that there will be murderers who ONLY commit that murder because they were not put to death when the state had them in its hands, tried, convicted, and ready for sentencing.

    Is there any reason to think that the numbers for the former (innocent but executed) severely outnumber those for the latter?

  13. Yes, Tony, I would accept that. The trouble is, you can't really know if you're saving lives by executing, whereas it generally does eventually become apparant if the innocent have been executed. There are, with the best will in the world, only so many permutations the human mind can contemplate. If the choice is a] do not execute and save those innocents we know will die, or b] execute, and perhaps save others who may or may not die, I don't really see how we're doing wrong by not executing.

  14. To me it is quite simple. It is wrong to demand that the state give up a legitimate just punishment, which it should have recourse to restore the moral order. Crime demands retribution, period. The state must exact some sort of retribution for crimes committed against innocent people. If the state views life in prison as not being sufficient retribution for a criminal which has committed heinous crimes against humanity, then it should have recourse to use the highest form of retribution, which is capital punishment.

    If we look at Richard Ramirez for example, also known as the Night Stalker, he murdered and brutally raped many women, and admitted to doing it. He has shown no remorse, and even mocked the victim's families openly in court when he was prosecuted. Life in prison was not viewed by the state to have been enough to restore the moral order undone by him, therefore the state legitimately used a just punishment to restore the moral order.

    All this talk over the few innocent people that have been sentenced is in my eyes fairly inconsequential. Do we think that the past popes like Pius XII who said that this form of legitimate punishment was beyond any particular culture, to have been naive as to the fallibility of court systems across the globe? That conclusion would be absurd. This is quite simple really. Should we be more prudent concerning the use of capital punishment? Yes. Is it rare in the US? Yes. Should anyone in their right mind demand that that the state give up altogether a just from of punishment? Absolutely not, and I think it is quite dangerous for people to parade around lording themselves over a legitimate state which is using a legitimate form of punishment in retribution for these types of crimes against humanity. If the state is using this fro of punishment to restore the moral order of heinous crimes which were committed by criminals, then no one has the right to force it to abandon this moral form of punishment. I would also argue that those who are doing so are on dangerous ground concerning the common good of society. There is a big difference in arguing for a prudential use of capital punishment, and outlawing its use completely. The first is a tenable position to hold, the later is in my eyes not.

  15. Off topic,

    Does anyone know if someone has taken up Ralph McInerny's last project concerning the collected writings of Charles De Koninck? i.e. will Notre Dame University Press be publishing volume 3?


  16. > All this talk over the few innocent people that have been sentenced is in my eyes fairly inconsequential.

    Then it all comes down to some form of consequentialism? How many innocent persons can be put to death before capital punishment becomes practically speaking a net bad? Four? Ten? Maybe some percentage of all executions?

    Eh. Maybe it’s worth it to keep capital punishment on the books and execute somebody now and again, just to let criminals know we’re serious. But I tend to think Blackstone was onto something.

  17. James, do you think that the Popes of the past were complete idiots, and had the impression that every court system was infallible? Why punish anyone at all, they could be innocent? Do away with the prison system altogether and let everyone go free to do as they please. Also, I never said to intentionally kill an innocent person did I? Why make that implication when you know that is not my argument?

  18. corrigan1 said: "if you are in favour of captital punishment, it is absolutely necessary to accept that a number of innocent people will be executed, with the best will in the world, and those in favour of the death penalty will have to consiously decide that that's a price worth paying. I can't accept that;"

    If you are in favour of driving you will have to accept that innocent people will die in road accidents.

    In almost every area where humans have sufficient physical power to kill someone there will certainly someone be killed (industry, transportation, some sports etc...), because:

    -first, there will be accidents, because humans are not infallible

    -and second, because when an accident happens there is enough power to kill someone (per hyp.).

    So, I dont think that the mere possibility of an accidental death of an human beeing is reason enough against a any kind of system.

  19. monk68: Have you tried contacting John O'Callaghan at ND about the book? He may know something about the status of the book.

  20. Papabear

    Good thought. I'll do that. In fact, I'm currently readng O'Callaghan's book concerning a Thomistic critique of the "linguistic turn", but I had forgotten about O'Callaghan's relationship with McInerny.



  21. Then it all comes down to some form of consequentialism? How many innocent persons can be put to death before capital punishment becomes practically speaking a net bad? Four? Ten? Maybe some percentage of all executions?

    Some states or countries have experimented with leaving capital punishment only for those who actually confess to the crime, so there is virtually no chance of the innocent being executed. This leaves the state with the principle that the death penalty is legitimate and morally appropriate in some cases. Whether to apply it in these cases and not in those cases is a prudential issue, and does not unravel the principle.

    But for a state to formally and completely give up the death penalty is for the state to ACCEPT DEFEAT about achieving justice in some aspects, and may (if the integrity of human nature holds true) lead to a persistent and continual expansion of the degradation of justice in its system. For a state to formally deny the very licitness of the death penalty is to deny human nature knowable by natural reason, and to deny revelation.

  22. I have a small quibble with your post--though I don't necessarily disagree with your overarching position. You say "For example, we may justly imprison a recidivist thief even if we know from experience that he is extremely unlikely to change his ways as a result of his imprisonment and even if circumstances make it unlikely that his particular imprisonment will deter other thieves."

    I think this fails to capture the minor, but important, point that jailing the recidivist thief in your example *does* does serve the interest of deterrence, namely specific deterrence. That is jailing the thief will at the very least deter that same thief while in jail from stealing again.

    Again, this is a minor point insofar as it doesn't affect the overall argument at all, but I do bring it up because *specific* deterrence is an important, yet often overlooked aspect of the goals of punishment.

  23. monk68, if you learn of any developments concerning the third volume, please let us know!

  24. If someone is executed (by the goobers or privately) because they murdered someone, that person no longer commits crimes. These days, that's all most people want out of capital punishment. In that sense, execution -is- deterrence, ipso facto.