Rick & Patrick v. the Bishops, cont'd

Thanks much to Michael and Patrick for weighing in on the Bishops' latest statement re: capital punishment.  As for Michael's conclusion that Patrick and I are down to the Bishops, 1-0 . . . I'm seeking a reply on the goal-scoring play.

Michael writes:

The retributive theory theory of punishment tells us whom we may punish (the guilty, not the innocent), but it does *not* tell us what punishment is justified.  The retributive theory of punishment does not tell us, for example, that one who is convicted of torturing and then killing his victim may be tortured and then executed (by the state).  Nor does it tell us that one who is guilty of murdering his victim may be executed.  If one wants to justify executing a criminal, one must look beyond the retributive theory of punishment.

I disagree.  The retributive theory speaks both to the distribution of punishment and to the character / amount of punishment.  That is, (a) no one may be punished who does not deserve it, and (b) no one may be punishmed more than he or she deserves.  Of course, that one deserves to be punished does not necessarily mean (though I think Kant thought otherwise) that one must be punished, or that one must be punished to the full extent of one's desert.  But, I agree with Michael that there could well be criminals who deserve to be executed, and whom it might -- under some circumstances -- be justifiable to execute, but whom it would nevertheless be immoral to execute given our circumstances.

Michael continues:

According to the bishops'  statement on the death penalty, there is no justification for executing a criminal, no matter how heinous his crime.  Now, one may disagree with the bishops, but neither Rick nor Patrick has explained where the bishops' argument in this regard misfires.  Indeed, neither has set forth for MOJ-readers the bishops' argument.

As I understand the statement, the bishops make their judgment -- i.e., "there is no justification for executing a criminal, no matter how heinous his crime" -- turn on the claim that (a) the death penalty does not deter and (b) there are non-lethal ways of "protecting society" from convicted murders.  This suggests (I think) that the moral permissibilty of execution turns on such consequentialist concerns, and I do not think that it does.

A little later, Michael says:

Patrick then writes:  " ... even John Paul II never said that the death penalty is always and everywhere disproportionate."  I read John Paul very differently.  But more importantly, E. Christian Brugger (like his mentor, John Finnis) reads him differently.  See Brugger's Capital Punishment and Roman Catholic Moral Tradition (Notre Dame 2003).

Lord knows my friend John Finnis's brain is much, much bigger than mine.  But, I do not think John Paul can be read as having said (even if he believed) that the death penalty is always and everywhere disproportionate.  John Finnis believes, I think, that the death penalty -- insofar as it constitutes "intentional killing" -- is never permissible.  My own, less-schooled view (for now) is that some intentional killings are, or can be, permissible.

Michael writes, responding to Patrick:

But that "fault is a necessary condition and proper basis of punishment" doesn't help us decide whether capital punishment is ever justifiable.  Yes, only the guilty may be punished.  That is not the contested issue.  The contested issue--the question-in-chief--is whether the guilty may ever be executed.

Right.  And, what are the reasons given for the bishops' conclusion (actually, I don't think this is their conclusion!) that the "guilty may [never] be executed"?  It seems to me that the document should proceed in this way:  (a)  Even convicted murderers retain their human dignity; (b) the notion of human dignity constrains what may be done by the public authority to convicted murders; (c) punishments of criminals is justified, in accord with principles of retributive justice; and (d) the death penalty is morally permissible only if (i) it is consistent with principles of retributive justice and (ii) does not violate the dignity of the criminal.  In my view, the bishops mistakenly suggest that the question lurking in (d) should be resolved by considering questions of deterrence and incapacitation.

I say, the Bishops' goal is called back.  Rick and Patrick shoot . . . they score!