My friend Stephen Barr is one of the gentlest people I know, and I’m surprised but grateful to have him weigh in on the death penalty.
I only wish he were replying to my actual argument—as mentioned in my online discussions of the Ronnie Lee Gardner case on Monday and on Friday, and as developed in greater detail in a 2005 First Things article and in my reply to letters on that article.
I’ve understood for some time that I’m almost alone among our friends in opposing the death penalty as currently applied in the United States, and there is certainly room for disagreement. First Things exists as a forum for this kind of debate, after all. Back in 2001, Cardinal Dulles wrote one of his typically careful and reasoned analyses of Catholicism’s relation to capital punishment, and in 2002, Justice Antonin Scalia added “God’s Justice and Ours,” measuring his reaction to objections to executions. I recommend both these pro-death-penalty pieces to those interested in the debate—along, of course, with my own 2005 development of a new argument against the barbaric and horrifying use we are making of death to bring “closure” (that awful word) to the families of the victims of those we execute.
In response to Steve, I do have to say that the first half of his comment is simply misplaced, arguing against some position that I never said and never held. The issue I bring up over and over is how a state that understands itself to be founded on a secular social contract gains authority to administer divine justice. That it has the authority to administer ordinary social justice, I said several times, as I said repeatedly that such ordinary justice may sometimes require the death of a malefactor.
In fact, we can increase Steve’s point about the legitimate purposes of punishment in a modern democratic state. As I’ve written, we sentence criminals to achieve social justice: Offenders must be withdrawn from society for a period sufficient to allow them to realize the wrongness of their actions—and sufficient to protect society from them until they learn that lesson. Meanwhile, we reestablish social order and repress private vengeance. Along the way, we also instruct ordinary citizens about the general majesty of the law and the particular evil of the criminal’s offense. All of this is legitimate, all with sufficient derived authority, and all may require the death, for example, of the murderous escape artist.
But by executing murderers for retribution, we are trying to tell a different story: a story with poetic closure, a tale of punishment that fits the crime. When the state imposes prison or fines, it acts as the agent and enforcer of normal social justice, with powers derived from and limited by the social contract of its citizens. When the state sets out to kill a killer, it becomes instead an actor in a drama about righteous vengeance.
The death penalty is not in line with the other punishments imposed in the United States. It is a leap out to a different story and a different account of justice. Think about it this way: Where beside the death penalty are criminals sentenced to their crime? No American court orders assailants to be punched, or tax cheats to be defrauded, or rapists to be raped. But the killer must be killed—because it is just that he be killed.
As, indeed, it is. But under any Christian account of political theory, how does a modern democracy gain authority to act on this high level?
Steve writes, “Romans 13 does not, I agree, legitimize punishing any and every crime by the death penalty. But no one in his right mind ever said that it did.” But people have said something akin to this, Steve, with regard to murder, and they have said it over and over again. Note the letter to in reply to my 2005 article that says Evangelium Vitae’s worries about the death penalty proves that Catholicism is a “defective faith.” Note the commenter on my article today who says he suspects that not only is Ronnie Lee Gardner in Hell but I am bound there, too, for my unwillingness to see justice done. People with a strong sense of justice know that murders need to die, and an unexecuted murderer is an affront.
Steve concludes, “The Catholic Church has taught quite explicitly at least since the time of St. Augustine, and continues to teach, that the state does have the right in some circumstances to use the death penalty. . . . I do think that we must be careful that the force of our moral passion not bend out of shape or even break the framework of moral analysis so carefully constructed over two millennia of theological reflection.”
But I said many times that in some cases the death penalty may be necessary. And—here I get up on my soap box, again—it wasn’t me that broke the framework of moral analysis, Steve. If you want that, how about a government that licenses abortion not just as the removal of a non-life, but explicitly in the name of a national refusal to accept metaphysical foundations? That’s what the Casey decision says, and where does that leave the retributive place of the death penalty?
Nowhere, is the only answer—nowhere except as the reply to a tort, the judicial ordering of repayment not to society but individuals. We are using the death penalty as a kind of court of equity, a small-claims court writing huge claims of justice in blood.
June 18th, 2010 | 5:29 pm
Courtesy ABC News is a synopsis of Ronnie Lee Gardner’s history to 1985. You need a scorecard to keep track of the number of violent felonies this man committed before his 25th birthday. On the list are two murders and an aggravated assault which one might assess as an attempted murder. Your vehemence on the subject is baffling.
SALT LAKE CITY (ABC 4 News) Ronnie Lee Gardner has been on death row since 1985, but his criminal record began long before that. His first arrest was at the age of nine. His adult arrest record begins ten years later in 1980.
FEBRUARY 22nd 1980–Ronnie Lee Gardner pleads guilty to robbery. He’s nineteen.
AUGUST 21st 1981–Gardner pleads guilt, and is convicted of attempted escape. That sentence was served consecutively with the robbery conviction.
SEPTEMBER 22nd 1981–Gardner is back in court; this time to plead guilty, and be convicted of, 2nd degree felony robbery. Gardner also enters a guilty plea to burglary of a dwelling and is sentenced to a concurrent sentence for that crime.
AUGUST 6TH 1984– Gardner faces charges of aggravated assault by a prisoner, escape from official custody, and first degree murder. These charges are the result of an attack on an officer at University Hospital. Gardner took his gun, and stole a student’s vehicle and clothing. He shot and killed Melvyn Otterstrom during a bar robbery two months later. The 37-year old father was working the second job at Cheers Tavern to support his family.
NOVEMBER 14th 1985–Gardner faces charges of capital felony, aggravated murder, criminal homicide, aggravated kidnapping, escape from official custody, and possession of a dangerous weapon by a restricted person. In April of that year, Gardner was in the courthouse on the Otterstrom murder charges when a woman gave him a gun. During his attempted escape he wounded Bailiff Nick Kirk, and killed defense attorney Michael Burdell.
A Jury of 12 sentenced Ronnie Lee Gardner to death. In 1990 and again in 1996 death warrants were issued for Gardner. He chose lethal injection both times. Those execution dates were stayed through appeals.
June 18th, 2010 | 5:50 pm
Sorry, Jody, I just don’t see the logic in all this.
The death penalty does not take us out of the realm of “normal social justice” and into the realm of “righteous vengeance”. Normal social justice includes retribution. Even fines and imprisonment have an element of retributive justice. They must, otherwise they would be unjust — retributively unjust. One could deter petty theft, render the petty thief incapable of doing harm, uphold the majesty of the law, and instruct people about the wrongness of theft by sentencing him to life in prison. But everyone sees that this would be unjust. On the other hand, a major drug dealer might justly be sent to prison for life. What is the kind of “justice” that is present in the latter case, but not in the former? It is precisely retributive justice: The petty thief does not deserve life in prison, whereas the drug dealer does. So all the purposes of punishment are present in punishments such as fines and imprisonment including just retribution. When one says that ANY punishment — fines, prison, death — is “deserved” one is precisely saying that it is “retributively just” — they are the same thing — and is therefore talking about just retribution.
Just retribution can be a mild punishment, if the crime is minor, or a severe punishment, if the crime is grave. Just retribution does not get magically transformed into something else (like “divine vengeance” or “high justice”) just because the crime is grave and the punishment correspondingly severe.
I must be missing something. There is some step in your argument that you have forgotten to make or that I am overlooking or that I am just too dense to grasp.
My gentleness or lack of it is not of any relevance. It would only be relevant if to believe the death penalty just and appropriate in some cases made one ungentle. It doesn’t.
I “weighed in” not because I have a particular bee in my bonnet about the death penalty, but because I have a bee in my bonnet about analytical clarity. I can understand your feelings, but not your analysis. I responded to what I thought was your argument. Apparently it wasn’t your argument. Since I now am not clear what your argument is, I should retire from this discussion and will.
June 18th, 2010 | 5:53 pm
By this logic, you can lock up shoplifters for life if that’s how long it takes them to realize the act is wrong, and therefore to protect us from them.
“Punishment that fits the crime” is the only moral form of punishment. We can then try to make it reform them and protect us when picking between fitting punishments — but that it fits is the first moral criterion, the one that justifies reforming the criminal and protecting society.
June 18th, 2010 | 6:48 pm
I am encouraged that the comments here and elsewhere seem to reject Bottum’s nonsense. Once again I will mention the Oklahoma City bombing: One hundred fifty people killed, including 15-20 little children playing in their day care. A society that does not execute McVeigh for this crime is a society that has given up on the concept of justice and embraced a mindless compassion. Bottum has twisted himself into knots, and invented fanciful concepts, in order to advance his specious arguments. I’m not buying it.
June 18th, 2010 | 6:53 pm
just a thought.
assuming the reliability of the gospels and the veracity of jesus’ pronouncement, the only person we know for sure went to heaven immediately upon his death is the repentant thief on the cross.
he states, presumably in a state of grace and perfection: “Dost not thou fear God, seeing thou art in the same condemnation? And we indeed justly; for we receive the due reward of our deeds: but this man hath done nothing amiss. And he said unto Jesus, Lord, remember me when thou comest into thy kingdom.”
if a man about to enter heaven states that his death is “due reward” for his deeds, he’s probably correct in his assessment of justice. he’s also implicitly assuming that pontius pilate and the roman government have the power to mete out his “due reward.”
for some time now, the words of someone so holy have settled the issue for me. even so, i concede it is possible that one can be holy and wrong at the same time.
June 18th, 2010 | 9:41 pm
Maybe all Mr. Bottum is trying to say is that our secular state can’t have it both ways. They can’t forswear divine authority (and thus accountability) in the rest of the law, and then suddenly reclaim that mantle when the crime (and thus the punishment) viscerally tell us that “this goes beyond the social contract, into a realm beyond simple human relationships.” Perhaps this has less to do with the reality of relations between God and authority (which we learn by looking in places like Romans 13) and the way Americans want to frame their communal life, borrowing God whenever it’s convenient.
June 19th, 2010 | 3:54 am
Jody Bottom: I think you make good points. For practical reasons, there’s no need for the death penalty. Also, there’s the problem of logical coherence. Why do we need to punish the criminal in the same that the criminal acted in his crime? as you state, we don’t rape rapists, assault assaulters, etc. But we punish killers by killing them. Hmm. This, as you say, is cosidered by death penalty advocates as just. So, are we being unjust, when we don’t rape the rapist, etc.? I think that you make an excellent point. There’s no coherent reason why the death penalty is a uniquely just punishment.
June 19th, 2010 | 9:32 am
Ex:20:13, Deut. 5:17, “Not shall you murder”. Hebrew Bible. Note, murder (the shedding of innocent blood), and different then the later Greek translation. This individual was not innocent.
If you want listen to what Jesus says, try Matt. 15:4-5, Jerusalem Bible.
For God said: “do your duty to your father and mother” and: Anyone who curses his father or mother must be put to death”.
June 19th, 2010 | 12:47 pm
Brian,
“Our secular state” did not sentence this man to death – - he was sentenced to death by a jury of his peers.
June 19th, 2010 | 5:42 pm
I ultimately don’t accept your argument on this issue, but I do appreciate and agree with a number of points you make. It is, in fact, grossly inconsistent that the majority of Americans insist on talio only for murder, and not for other crimes (though I would draw from this rather different conclusions than you do ). And I could not agree more that the currently popular discourse in the American legal system of the-death-penalty-as-therapeutic-for-the-family-of-the-victim is truly heinous (though, to be honest, the same underlying therapeutic notions run through all our discourse about crime & punishment; it is not limited to capital cases).
I have a few comments/questions, which I hope will be helpful in pinning down the argument a bit.
I. In both your recent pieces, you bring up the Casey decision. Your claim seems to be that (i) in the Casey decision, the United States of America rejected any kind of metaphysical foundation for justice; (ii) the death penalty can only be justified on a metaphysical foundation; therefore (iii) the United States of America does not have the standing to inflict the death penalty (at least, it doesn’t have this standing on the basis of its own claims about itself).
This brings several questions to mind:
1) Does the self-understanding of the United States of America matter? Cannot a state exercise a legitimate power even if it misunderstands the basis for that power? This is an issue which Mr. Barr raised with regard to your point about the secular social contract, and which you don’t really address here.
2) You clearly do not accept the Casey ruling for the purposes of abortion – that is, you wish to see it overturned, yes? Then why should you accept it for the purposes of capital punishment? As a corollary point, does this mean that if the pro-life side should ever be victorious, and Roe-Casey be overturned, you will consider it once again legitimate for the United States of America to execute people?
3) More broadly, would you be more inclined to accept execution if we inflicted proportional retributive punishments for other crimes? It was not all that long ago that corporal punishment was handed down by the courts in the U.S. (I think it only stopped in the 1950′s), and I suspect that most proponents of the death penalty would be fine with its restoration. So if we, say, caned people for felony assault, like they do in Singapore, would this make execution more acceptable in your eyes?
4) I would be very curious to hear the thoughts of Prof. Lawler about this issue vis-a-vis his “builded-better-than-they-knew” thesis. If the Founding was only ostensibly Lockean, but actually Thomist, then does this not mean that the legitimacy is there underneath the secularist language? (I know this is a gross oversimplification of Prof. Lawler’s point, but you get the idea)
II. Regarding punishment as retribution, I think you really need to come to grips more with Evangelium Vitae 56, which reads:
“The public authority **must act as avenger** of the rights violated both in individuals and in society by imposing upon the guilty an expiation befitting the crime.”
(This is my translation; the Latin reads: “Ultricem publica auctoritas se gerere debet…” Note that the official English translation fudges the sense of this sentence horribly. There is no way around the fact that “ultrix” means “avenger.”)
As a final thought, I should say that I think the magisterial documents of the past 50 years have been frustratingly evasive on this issue. They all state clearly in sections on the theory of punishment that retribution is the primary basis for punishment. The Catechism says this (CCC 2266); EV 56 says this (citing CCC 2266) just before the section quoted above. But then when they actually get down to discussion of the licitness of execution, retribution and proportionality are wholly dropped from the discussion, and they focus on public safety and rehabilitation.
I’m sorry about the excessive length of this comment. I hope that at least some of these thoughts are helpful. Should you post again on this subject, I would very much like to hear your thoughts on the above questions.
June 19th, 2010 | 6:26 pm
“The issue I bring up over and over is how a state that understands itself to be founded on a secular social contract gains authority to administer divine justice. That it has the authority to administer ordinary social justice, I said several times, as I said repeatedly that such ordinary justice may sometimes require the death of a malefactor.”
The United States does not understand herself to be founded on a secular social contract. That is New Deal & Post New Deal era misinformation. The founding fathers never intended that we be secular only that we each be allowed to worship God according to the dictates of our consciences and that our individual liberties be protected. Morals gained from religion (read Christianity) was the foundation on which such freedom & protection were built: Charles Carroll of Carrollton, the only Catholic signatory to the Declaration of Independence, whose work in MD was the foundation for the US Senate, admonishes: “Without morals a republic cannot subsist any length of time; they therefore who are decrying the Christian religion …are undermining the solid foundation of morals, the best security for the duration of free governments.” John Adams insists, “[o]ur constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” (http://www.wallbuilders.com/libissuesarticles.asp?id=63)
Neither was there the modern distinction between “ordinary social justice” and “Divine justice.” It was certainly understood that God’s justice would overtake those who escaped justice on earth but, justice on earth was, as it was for the Israelites, man’s participation in Divine justice. Again, the thread of rehabilitation vs punishment is foreign to the founders of the US but is a later progressive, even Marxist concept. The founders believed in punishments that fit the crime, that were neither too harsh nor too lenient.
I realize an automatic response is, but things have changed since the US was founded. For many of us (including a good number of Catholics), that is the problem. It has changed in ways that do not reflect natural law, Scripture or Church teaching. It has changed in ways that allow wrongs to go unpunished. We realize that there are some crimes so heinous they cry out for the death penalty. Crimes such as those of the Amalakites who “attacked [the Israelites] on the way, when you were faint and weary, and cut off at your rear all who lagged behind you.” (Deut. 25:18) Those who lagged behind were the old, the infants, their mothers & young children, the sick & the injured.
Even today, we know such crimes cry out for punishment. And those who engage in such crimes today might justly be put to death not simply to allow such criminals to “realize the wrongness of their actions” nor for a period “sufficient to protect society from them until they learn that lesson.” Punishment of an adult is not punishment of a child. It is, instead, reasonable and sufficient payment for a wrong done to the common community of man.
Whether the death penalty is ever necessary in our modern world is another issue. I, and I think many others, believe it is. But for now, it is important to know what the American experiment actually is. We are a religious country because we are a religious people but we are not a theocracy neither are we a democracy. We are, and the vast majority of us want to continue to be, a Republic. As for justice meted out here on earth, it continues to be man’s participation in Divine justice even when we don’t recognize it.
June 21st, 2010 | 2:18 pm
Drusilla:
“The United States does not understand herself to be founded on a secular social contract. That is New Deal & Post New Deal era misinformation.”
Personally I would re-word the quote above to, “The United States did not understand herself to be founded on a secular social contract. However since the New Deal she has come to see herself as thus, for a clear example see the decision in Casey.” In other words, you may believe the Founders did not see the US of A as being secular, but today’s high court and leadership do. So Mr. Bottom is right in his questioning of the authority to kill. If our government now proudly proclaims itself to be secular, then just where does it get off using a right reserved for the divinely ordered?
Andrew:
“if a man about to enter heaven states that his death is “due reward” for his deeds, he’s probably correct in his assessment of justice. he’s also implicitly assuming that pontius pilate and the roman government have the power to mete out his “due reward.””
Tell me, if the event took place in 1850 and the man being executed was a horse thief, would you see it differently? We don’t kill folks for stealing horses anymore, and for all we know the “good thief” did something that today is seen as even less evil. So time and place have a lot to do with it, do they not? You can be raised to believe just about anything in any time or place, so the fact that he believed his punishment just does not mean that a man living today would agree. Not so long ago leprosy got you a life sentence away from society, today it does not as we have a cure. Not so long ago you maybe needed to kill people because you couldn’t otherwise keep others safe from their ways, today that’s no longer true.
Finally, I’ve read all the posts regarding this subject, and what interests me is that nobody points out Jesus’ forgiving of his executioners. Is that not significant? I also wonder, had many of the posters I’ve read lived back in Paul’s day (bill bannon comes to mind), would they have allowed Paul to live long enough to be converted, or would they have happily trotted him off to his death after the execution of Stephen? Me thinks had Mr. Bannon lived about 2,000 years ago we would have no Pauline epistles.
June 23rd, 2010 | 10:24 am
Again. Mr. Bottum is wrong on the facts and reason.
He writes: “Where beside the death penalty are criminals sentenced to their crime? No American court orders assailants to be punched, or tax cheats to be defrauded, or rapists to be raped. But the killer must be killed—because it is just that he be killed.”
You missed some.
First, we do take money way (fines) from criminals how take money (steal). We hold criminals against their will (incarceration) because they hold folks against their will (kidnapping).
We do so, not because they are somehow “equal” to the crime, but because we find such sanctions just and appropriate for the crime committed.
All sanctions are different. We have probation, fines, community service, incarceration and the death penalty, based upon just and proportional sanctions for the crime committed.
In other words, contrary to Bottum’s inaccurate point, sanctions are in line with the crimes committed.
The degree of sanction is proportional to the crime committed. Therefore, it is often the case that the type of sanction given are very different, based upon the level of transgression, just as it should be.
Bottum writes: “We are using the death penalty as a kind of court of equity, a small-claims court writing huge claims of justice in blood.”
You almost have it right. The death penalty is not in small claims court, it is in huge claims court, because an innocent life was taken by a guilty criminal and the jury may decide between two huge sanctions for that transgression, a life sentence or execution, just as we have a small claims court, for lesser sanction, such as speeding, jay walking and the like, where fines and probation may be appropriate.
The problems with all of your flawed arguments is that their underpinning is not fact or reason, but simply on an emotional dislike of the death penalty, which has done nothing but help you deliver very weak writings in opposition to a sanction, which has broad and deep social, secular, philosophical, biblical, theological and traditional support.
June 24th, 2010 | 9:27 am
Bibbit
If governments proclaim themselves fully secular, they get their right to execute from man’s law.
If God’s is always the giver of man’s governance, than it is irrelevant what man thinks, the power to execute still come from God.
If biblical instruction and theology mean anything to you, then the crimes designated by God to be death eligible, should be death eligible, by God’s law. However, there is a difference between biblical based governments and secular based governments.
Of course forgivness matters. But that doesn’t negate just sanctions, as well.
Regarding, the stoning of Stephen and the involvement of Saul/Paul.
If the entire incident were based upon human justice, the conspiracy would have been uncovered. Saul and all the leadership involved would have been tried and sentenced to death, because they colluded and allowed false testimony to condemn an innocent man, who was subsequently executed – that would have been a death penalty crime.
As it was the leadership that colluded in Stephen’s immoral trial and execution, Saul could not have been tried and executed for his “crime”, because the leadership had manipulated the “evidence” for Stephen’s guilt and condemned him under law. Therfeore, Saul was implementing a “just and lawful” sentence and was, therefore, not subject to sanction – certainly not by the leadership that was the governing authority which colluded to make it happen.
But, God works in mysterious ways, which man may not fully comprehend.
Stephen was, possibly, the first Christian martyr and became St. Stephen, a most admired and inspirational force. So much so, that his final words were most likely the driving force in Saul’s conversion, allowing him to become the great St. Paul.
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