Many thanks to Rob, Robby, and Marc for their contributions regarding the death penalty and public reactions to the exercise of this penalty in particular cases or circumstances.
By way of making a small contribution to the development of Catholic legal theory regarding this method of punishment, the following might be considered.
One place to begin is to contemplate what is expected from the punishment of one who has clearly committed a great wrong that has threatened individuals, the common good, and perhaps the entire human family? Retribution? Rehabilitation of the convicted? Protection (self-defense) of the society from further harm from a particular person who has been justly convicted of grievous crimes? Some combination of the preceding? All of the preceding?
With regard to any punishment, there is a need to consider the principles of proportion, the justification, and the discriminating use of the sanction. In this context, is the offender’s permanent removal from society the wisest approach to achieving all the legitimate goals of punishing the offender who has committed the most heinous actions against others? If so, does not perpetual incarceration become attractive if the rehabilitative element of punishment includes giving the offender the last possible chance for making a good and sincere act of contrition that would aid in his or her own salvation? Even if society has been forced to suffer a great evil at the hands of this person, should society respond in kind? Or should it take stock of St. Paul’s counsel, “do not be overcome by evil, but overcome evil with good.” (Romans, 12:21)
It would appear that life’s imprisonment is the only way in which the convicted can reflect on the wrong or wrongs perpetrated and the means for reconciling with those who have suffered as a result.
Providing this opportunity to the convicted would not preclude or minimize just punishment. By the same token, it would provide the longest period of opportunity for the offender to reconcile with the neighbors who have been harmed. In a Catholic context, the notion of reconciliation is not complete unless the wrongdoer has been reconciled with both God and the neighbor.
The redemptive power of God, through Jesus Christ his Son, ought to be available to the wrongdoer for as long as it may take, which could be a natural lifetime. We must always be mindful of the words of Jesus: “the Son of Man came to seek out and to save the lost.” For how long God chooses to seek and save is for God, not for us, to decide.
Inevitably the justly convicted person’s premature death accelerated by capital punishment will terminate the possibility of reconciliation with God and the neighbor and the wrongdoer’s salvation. Reconciliation with God and the neighbor is, for all of us, a vital element of God’s plan for the sinner to seek forgiveness. The Christian sense of reconciliation enables even the most egregious wrongdoer, whose penitence is sincere, to become a “new creation in Christ.”
However, with the imposition of capital punishment, this possibility is denied. When the wrongdoer can no longer reflect on his or her transgressions because of premature death through execution, God’s plan has been interrupted.
But, with a life ahead until natural death, the thinking of the convicted goes on for as long as God wills.
A need for clarity about the concerns of society and the wrongness of the incarcerated person’s actions must be addressed at this point. Abstaining from capital punishment does not entail eliminating a just and severe punishment. Only a particular form of punishment that interferes with God’s plan for salvation and redemption is abandoned. The justifications for punishment based on deterrence, rehabilitation, and even retribution can be served with a life sentence of imprisonment. In the meantime, the wrongdoer is given the maximum opportunity to make amends for the crimes and sins committed. The lifestyle of imprisonment can be simple, even stark, but not inhumane. Such a penalty contributes to justice and all legitimate interests of society and those, in particular, who have been harmed by the wrong committed.
On a different yet related matter, the sentence of life imprisonment provides all persons who are concerned with the opportunity to rely on emerging scientific technologies that could well demonstrate that the convicted person did not, in fact, perpetrate the crime allegedly committed. Recent cases have demonstrated that some persons condemned to death, with the introduction of appropriate and reliable post-conviction evidence relying on breakthroughs in forensic science, were, in fact, not responsible for the heinous crime with which they were accused and convicted. Avoiding the death penalty in such cases does not inhibit justice; rather, it enhances it.
Heinous crimes are usually sins as well, and no person is without sin. However, neither is anyone excluded from God’s plan of redemption. If it is God’s will that redemption is available to anyone who seeks it, then it is not the role of any person to interfere with His merciful plan. To interfere with this salvific plan is not a proper human activity. Even if the condemned were to give consent, should anyone interfere with God’s justice and God’s reward or denial of His plan? Even the justly convicted person ought to be given the opportunity for redemption. To reduce by human means the time in which the convicted person’s redemption might take place is to place a human judgment before God’s.
Are we our brothers’ and sisters’ keepers? The answer to this ancient question is clear: yes, we are. If society abstains from the death penalty, it would seem to be avoiding another evil and embracing an important good—the mercy of God to those who seek His forgiveness. And for those who don’t, they will never again taste the freedom that we often take for granted.
RJA sj
Thursday, September 8, 2011
Rob Vischer's questions are legitimate and important. I believe that the correct answers are yes, yes, and yes. I also agree with Rob that his third question is the most significant one. Even if one believes, as I do not, that the death penalty in certain cases can be justified, one should not be cheering executions. I find something troubling even in cheering the execution of a mass murderer, such as Osama bin Laden. As best I can tell, President Obama effectively ordered bin Laden's execution. He could have been taken alive, but the SEALs evidently understood that their mission was not to take him alive. Perhaps others see the matter differently. If, in fact, the SEALs mission was to kill him, whether or not it was necessary to do that, I disagree with the President's decision, though I understand it. The death penalty is a far trickier moral issue than, say, the killing of innocent unborn, mentally handicapped, or frail elderly human beings. Moreover, the Church's teaching historically accepted it (on retributive grounds), though it has now---rightly, in my view---taken another course. The key thing, though, is that even the execution of someone like bin Laden was nothing to cheer about. And the same is true of the execution of people convicted of capital crimes in our courts. Perhaps someone will say, "well, we're not cheering for the death of the offender, we're merely cheering the fact that justice has been done or a threat to public safety has been eliminated." I would reply that although that is a logical possibility, it is always unwise to cheer. Cheering in the wake of anyone's death, even if one regards the killing as justified, suggests a lack of awareness of the respect owed to human life as such, and the gravity of any death-dealing action, even one that is justified.
One sometimes hears the clanging of warning bells that the country is headed toward "theocracy." But even if one defines a "theocracy" in comparatively capacious terms -- say, as a society which is influenced strongly by religious arguments in its public decision-making -- it seems that American Catholics are overwhelmingly oblivious to and uninterested in documents prepared by the United States Conference of Catholic Bishops dealing with Catholic teaching on political matters, documents which the USCCB prepares for every election cycle. My colleague Mark Movsesian has the details.
Following up on Rob's death penalty post, readers here may know that in Graham v. Florida, decided last year, the Court held that the Eighth Amendent prohibits the imposition of a sentence of life without the possibility of parole on a juvenile convicted of a non-homicide crime. This was a moment when Justice White's famous decision in Coker v. Georgia (as glossed in Kennedy v. LA) that the death penalty is a different sort of crime, requiring a categorical rule against its imposition in all cases but homicide, was seemingly rejected. The DP was no longer different; now LWOP, the second most serious punishment, was categorically different too for certain entire classes of criminal. The decision followed from the Court's seemingly expanding Eighth Amendment jurisprudence in, e.g., Roper v. Simmons, which held that it is cruel and unusual punishment to impose the death penalty on juveniles.
The obvious next move was to challenge LWOP for juveniles convicted of homicide offenses. But the 11th Circuit, in Loggins v. Thomas, released yesterday, rejected that argument. The procedural posture of this case is quite complex, but suffice it to say that on the facts, this looks like an exquisitely inauspicious case to make an argument for the extension of Graham. The defendant's conduct was barbaric -- atrocious in the extreme. You can find Judge Carnes's description of the events leading up to the victim's murder (and thereafter as well) at pp. 2-5.
The legal heart of the decision occurs at pp. 36 and following, and I want to note a couple of interesting features of the opinion.
Continue reading
Should we be concerned by this exchange about the death penalty from last night's debate? Should we be troubled that a GOP front-runner for President has never even struggled "at all" with the possibility that one of the 234 human beings whose executions he has presided over may have been innocent? More significantly, should we be troubled by a political climate in which the mere mention of those 234 executions draws cheers from the crowd?
Victor Muniz-Fraticelli has posted an interesting new paper, The Distinctiveness of Religious Liberty. Here's the abstract:
The model of religious freedom in diverse liberal-democracies has been mistakenly incorporated into the multicultural paradigm. The wholesale incorporation of the religious liberty paradigm into the multicultural paradigm is an institutional, historical, and conceptual mistake, and it distorts our understanding of the institutions that enshrine religious liberty and underlie our justification of them. The Western paradigm of religious liberty is a complex product of diverse historical conflicts and political traditions, and only contingently overlaps the multicultural argument. The purpose of this essay is to differentiate religious liberty from multiculturalism as theoretical categories, and to at least identify some of the consequences of this differentiation.
Wednesday, September 7, 2011
The American Bankruptcy Institute Law Review, Center for Bankruptcy Studies and Center for Law and Religion at St. John’s University School of Law are hosting a joint conference, “Religion and Bankruptcy,” at the Law School’s Queens campus on Friday, September 16. The conference keynote will be given by Geoffrey Miller (NYU). If you are in town, I hope you will drop by.
The full schedule is here, and here is the description:
From the time of its creation and throughout its evolution, bankruptcy law has affected and been affected by religion. Important aspects of current bankruptcy law, such as the discharge of debt and the exemption of personal property, originated in religious traditions before making their way into secular law. At the same time, religious individuals and institutions are themselves often parties in bankruptcy cases, and a number of Bankruptcy Code provisions specifically address religious matters. This symposium will bring together leading bankruptcy experts and thinkers who will examine both sides of this relationship.
