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Absent a Board of Pardons intervention today, or some other unlikely event, Ronnie Lee Gardner will die this Friday, June 18”shot by firing squad in Utah as the penalty for his 1985 conviction for the murder of a lawyer during his failed attempt to escape while on trial for another murder.

Much of the commentary on Gardner’s execution has focused on the fact that he will be executed by the dated and now barbaric-seeming method of firing squad. But no traction against the death penalty is really to be found there: Gardner chose it himself over alternatives, and, besides, Utah has eliminated the method for all more recently convicted murderers.

In that phrase “more recently convicted,” however, are the real grounds for taking this case as a strong example of why we don’t need to use the death penalty”and why, as a consequence, we need not to use the death penalty. Twenty-five years have gone by with this man incarcerated. What could his death possibly gain us?

Nothing”except justice, of course, and justice of a particular kind. Take the strongest possible way to state that claim: Gardner is a murderer whose victims’ blood cries out from the ground. He deserves death, by any measure, and our clear intuition”an intuition manifested in nearly every culture that has ever been”is that the balance of the moral universe itself requires his death. Justice requires retribution.

Grant all that, as strongly as the argument for justice can be stated. But add one small question as well: Who has the authority to carry out this justice?

The question isn’t an arcane one. Everyone agrees that you and I, as individuals, lack the authority, and we would be immediately and correctly charged with murder if we did kill the man. But once we agree that authority may be lacking, the question is on the table. So where does the legal system of a modern democracy derive authority to act on this high level?

A government has two legitimate goals in its justice system: the protection of the state’s existence, and the maintenance of ordinary, common justice for its people. And sometimes these may require the death of criminals”as in treason, for example, or when citizens cannot be protected from someone except by that person’s death.

But where comes the other kind of justice, the particular kind of justice that would justify the execution of Ronnie Lee Gardner”not the ordinary justice of the social contract but high justice , the justice of God, the balancing of the cosmic scales? We want to see good people find good ends and bad people find bad ends. And God, and God’s agents, could carry out this justice.

Of course, the foundation of a modern democratic state, born of a social contract, is exactly that the state is not God’s agent. The early modern thrones got around the problem with a theory of the Divine Right of Kings, but we rejected all that. The ancient pagan cities held the sword of punishment because, in however confused a way, they believed in the supernatural foundation for the earthly city, but that, too, we dismissed. Ancient Israel had direct revelation, but modern nations refused to hold revelations for themselves.

Without some form of the divine, who has the right to pay blood with blood? Who has the authority to undertake high justice? Not us. And our attempts to apply that justice are under constant threat of devolving back into barbarism and revenge: the prepolitical justice of family and individual. Listen to the language that swirls around every execution in this country: It’s the language of damage to the family, and closure for emotions, and repayment to the victims after their death.

All this is real, God knows”but that’s the point: God knows. We have let creep back into our justice system the dangerous idea that murder is a tort, a harm done individuals, and not a crime, an offense against the law.

I’ve made these arguments before , in greater detail, and answered objections to them . But Ronnie Lee Gardner is such a clear case where we gain nothing except this kind of unauthorized justice from his death.

Curiously, he might once have stood as an example of legitimate execution: On trial for one murder, he committed another, killing an officer of the court, in an escape attempt. The state has the duty to protect its citizens and its own existence. Given a man this uncontrollable and violent, the social contract could well have required his death.

That was a twenty-five years ago, however. In the intervening quarter century, Utah has proved its capacity to control him. The only reason to kill him now is that high justice demands it.

Shouldn’t we be afraid of a government that, without submitting itself to the divine, thinks it has divine power in its hands?

Joseph Bottum is editor of First Things .

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