There Will Be Blood

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 As I’ve written, we sentence criminals to achieve social justice: Offenders must be withdrawn from society for a period sufficient to allow them to realize the wrongness of their actions—and sufficient to protect society from them until they learn that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.