Retributive Justice and Capital Punishment

It is not clear to me how much of Jody Bottum’s moral analysis in ” Blood for Blood ” and ” They Did It ” is meant to apply only to sad case of the person just executed and how much is meant to apply to all uses of the death penalty by modern states.

I will only address the question of whether modern governments (such as our own Federal government and State governments) have the right in some cases to execute criminals. Catholic teaching recognizes four purposes of punishment: deterrence, retributive justice, reform of the criminal, and rendering the criminal harmless.

It can be debated whether and under what circumstances the death penalty deters. It seems to me pretty obvious that there are certain crimes that can only be deterred by the death penalty. What could deter a man already serving a life sentence who has an opportunity to escape prison, but can only do so by killing someone, say a prison guard? Not the prospect of imprisonment, since he is already serving a life sentence. Would torture deter him? Maybe, but that would be much harder to justify than the death penalty. So it would seem that only the death penalty might stop him from killing a prison guard—who might have a spouse, children, parents, and friends.

What could deter someone who has already committed a crime that would draw a life sentence and can only avoid capture by killing the police officer? The threat of the death penalty seems the only way. (There is also the practical use of the threat of the death penalty as leverage to get criminals to provide evidence on confederates who might otherwise escape punishment.)

Then there is retributive justice. I don’t know what Bottum’s “high justice” is. As far as I am aware, it is not a term of either in the law or in moral philosophy. Forget “high justice,” whatever it is, and let’s just talk about plain old justice. The threat of a $5 fine would not deter a murderer, but is that the only reason we would find such a light punishment morally repugnant? Would we not also think it failed to satisfy the minimal requirements of retributive justice?

Retributive justice does not require that the punishment be of exactly the same degree of severity as the crime—which, in any case, isn’t always possible. But it does seem to require that there not be an extreme disproportion between the gravity of the crime and the severity of the punishment.

Just as I would say that a $5 fine for murder is a travesty, so I would say that a prison sentence for what the BTK killer did is a travesty. Call this “risible” if you will, but that is what my moral instincts tell me. Setting aside for the moment whether certain crimes “cry out to heaven” for justice, certain crimes against society cry out for justice from the state.

Romans 13 does not, I agree, legitimize punishing any and every crime by the death penalty. No one ever said it did. The question is whether it legitimizes some applications of the death penalty, and it seems to me pretty obvious that it does.

Does St. Paul calling the magistrate “God’s minister” mean that his justification of punishment applies only to explicitly religious states? Clearly not. What St. Paul says in Romans 13 about the authority of magistrates is in line with what the New Testament says in many places about legitimate authority of every type, whether it be of parents over children, masters over servants, or temporal rulers over their subjects. Such authority comes from God—even if wielded by people who do not acknowledge God.

It comes from God both in the sense that it is sanctioned by God and in the sense that obedience to it is obedience to God. A child who obeys his parents in what they legitimately command is by so doing also obeying God, even if the child is Christian and the parents are atheists or Buddhists or polytheists or Scientologists. Ephesians 3:15 tells us that “all fatherhood takes its name” from the Father who is in heaven, even for fathers who do not believe in a father in heaven.

Even a secular state has legitimate authority whose purpose is to maintain a just order in the temporal sphere. Whatever legitimate authority the state has it receives from God—even if it does not acknowledge God explicitly. The punishing of criminals is part of that authority. Even the government of a state based on some pagan religion that has no god or many gods has the right—indeed the obligation—to protect society and do justice by punishing criminals. And from the Christian point of view both that right and obligation come from God.

Nor does the fact that a government fails to uphold its obligations in some respects necessarily nullify its authority in other areas. (The fact that the U.S. government fails to protect life in the womb, for example, does not mean that it no longer has the authority to punish other crimes.) That would be an absurd proposition that would lead to perpetual chaos and make all government impossible.

Some of the arguments that would deny modern states any right to use the death penalty would also deny them the right to use any grave punishment, including life in prison. After all, we can also ask by what right a government takes away the last fifty years of a man’s life. Why isn’t that also “high justice”? It is a damn high price for anyone to pay, as an old friend of mine who is paying that price can attest.

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. There may be all sorts of reasons why it would be a bad idea to exercise that right in modern times. It may do more harm than good.

I am not here pushing for the death penalty to be used more widely, or at all. But I do think a respectable (as opposed to risible) case can be made for its continued use in some cases. And 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.