The Bishops 1; Rick Garnett & Patrick Brennan, 0

Rick Garnett & Patrick Brennan, whom I love, are deeply confused about retribution and the bishops' recent statement on the death penalty.

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.

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.

Patrick writes:  "The proper question, from this angle, is whether the penalty of death is disproportionte to a particular convict's culpability."  But this is not the proper question for one who concludes, as the bishops do, that there is no justification for executing a criminal, no matter how heinous his crime.

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).

Patrick then writes:  "The Bishops' . . . focus on the non-retributive grounds of punishment obscure the Church's teaching that fault is (a necessary condition) and proper basis of punishment."  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.

If you look at the Catechism of the Catholic Church, you'll find only a self-defense justification for some instances of capital punishment.  But, as Brugger explains, capital punishment is *never* an instance of self-defense, because capital punishment is *always* the intentional killing of a human being; self-defense, by contrast, is *never* the intentional killing of a human being, even though some instances of self-defense foreseeably kill a human being.  The Doctrine of Double Effect, etc.

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