My hesitation regarding retribution as the impetus for state punishment stems from the absence of readily apparent limits. Rick offers that "punishment in excess of desert is impermissible, but also that punishment consistent with desert is permissible." As such, John Couey "may not be punished more severely than he deserves," but "it is possible for a responsible agent to deserve justly-structured punishment." I agree, but what sort of punishment does Couey not deserve? In my estimation, the "but I don't deserve this" defense is categorically unavailable to a man who kidnaps, sexually abuses, and murders a child. If retribution is equated with desert, it seems that the permissible scope of punishments is boundless. Rick wisely notes that Christian love supplies a reason for mercy, but in that case we seem to have left the province of desert. Iran's approach to punishment may be a failure of mercy, but how can it be considered a failure of desert? If mercy is to lead us to alleviate the awful and stark ramifications of desert, maybe an acceptable Christian justification for punishment is "retribution lite" (retribution tempered by mercy), for it can't be retribution as equated with desert, can it?
"What should we do with John Couey?," Rob asks. He continues:
Public safety, deterrence, and perhaps restitution are fairly uncontroversial, but the role of retribution may be contested. Rick asserts that "punishment is justified because and only to the extent that the criminal deserves it and it will redress the disorder introduced by his offense." Michael Perry emphasizes that "[w]e are called to love--to treat with charity as well as with justice--even the most depraved criminal."
For what it's worth, it strikes me that the role of "public safety" and "deterrence" in justifying punishment -- as opposed to structuring and designing punishments -- are, or should be, controversial; and, my "assert[ion]" that punishments are "justified only to the extent that the criminal deserves it" should not be controversial. I invoked desert and retribution -- i.e., respect for the constraints that human dignity imposes on punishment -- to limit punishment. So, I don't think that Michael Perry and I disagree that we are called to "love" even the depraved criminal. For me, the "love" that follows from human dignity means (among other things) that (a) punishment in excess of desert is impermissible, but also that (b) punishment consistent with desert is permissible. I'm confident that Christian love -- the stance appropriate to persons -- does not rule out desert-based arguments (even if it does, of course, supply a reason for mercy).
Rob then asks the excellent question: "Putting capital punishment to the side and assuming that Couey is proven guilty, what is the proper role for retribution in Couey's punishment?" A few thoughts: A retributive punishment theory (one that -- properly understood -- is, in my judgment, consistent with Catholic teaching) would suggest, among other things, that: (a) Notwithstanding Couey's disgusting crimes, he may not be punishment more severely than he deserves; (b) it is possible for a responsible agent to deserve justly-structured punishment; (c) the wishes of Couey's victims' parents -- i.e., to see Couey "rot in hell" -- are not relevant to the question of Couey's moral desert; (d) the calculation of the appropriate punishment cannot be based on claims that he is an "animal," etc.; (e) that a punishment or response which effectively denied Couey's agency and responsibility would be unjust (including to Couey himself, as C.S. Lewis once argued); and (f) that a horrible crime like Couey's should prompt us to exercise particular care in responding, since it creates a serious danger that we might respond out of hate, rather than out of a proper desire to treat him justly.
Here -- something to add to Steve Bainbridge's excellent post, and also Robert George's remarks -- is a link to a very interesting exchange between law professors Rick Hills and Alan Meese about the Schiavo case. Hills writes:
As a proponent of "strong" federalism, I have a pretty strong stomach for state experiments in policy-making that might arguably be offensive. Indeed, I think that the essence of being a conservative supporter of federalism is what I call Nagelism (after Bob Nagel's book on federalism): we should be willing to tolerate states' enacting laws that we would find pretty unpalatable on moral and political grounds. Moreover, we should be willing to tolerate state laws that come close to some constitutional line — that arguably violate a reasonable conception of the constitution — especially when the constitutional doctrine turns on difficult empirical or moral judgments about which reasonable people can differ.
Princeton's Robert P. George offers his thoughts on the Schiavo case here. His comments also bear on our conversation (below) on retribution and the criminal law:
From a moral vantage point, it can be, though it will not always be, permissible to decline treatment — even potentially life-saving treatment — when one's reason for declining the treatment is something other than the belief that one's life, or the life of the person for whom one is making a decision, lacks sufficient value to be worth living. What we must avoid, always and everywhere, is yielding to the temptation to regard some human lives, or the lives of human beings in certain conditions, as lebensunwerten Lebens, lives unworthy of life. Since the life of every human being has inherent worth and dignity, there is no valid category of lebensunwerten Lebens. Any society that supposes that there is such a category has deeply morally compromised itself. . . .
Now let's consider the death penalty. Its supporters typically do not claim that the death-row inmate has a life unworthy of life. That isn't their justification for capital punishment. Their claim, rather, is that the individual convicted of a capital murder should be executed because that is what justice requires as payment for his heinous crime. Their justification for the death penalty is retributive. (Of course, they may also believe that the application of the death penalty will prevent the murderer in question from repeating his crimes and perhaps also deter others.) They may fully recognize the inherent dignity and value of every human life, including the life of the murderer himself, yet believe that by wantonly taking the life of another human being the murderer has forfeited his own right to life. Some supporters of the application of the death penalty in the case of Karla Faye Tucker acknowledged that she had repented of her crime and reformed herself. They certainly did not regard her as unfit to live. Indeed, they believed that, if spared, she would probably devote her life to good causes. Yet they believed that retributive justice demanded her execution.
The conversation sparked by Eugene Volokh's post on executions in Iran is an important one. The conception of human dignity underlying Catholic legal theory should have a discernible impact on our understanding of criminal law. Public safety, deterrence, and perhaps restitution are fairly uncontroversial, but the role of retribution may be contested. Rick asserts that "punishment is justified because and only to the extent that the criminal deserves it and it will redress the disorder introduced by his offense." Michael Perry emphasizes that "[w]e are called to love--to treat with charity as well as with justice--even the most depraved criminal."
I'm wondering if we can bring the conversation to bear on a particular, heartbreaking case. John Couey stands accused of kidnapping, sexually abusing, and killing a 9 year-old Florida girl. The sheriff has referred to Couey as "trash," and the girl's father has expressed his (understandable) desire to see Couey "rot in hell." Putting capital punishment to the side and assuming that Couey is proven guilty, what is the proper role for retribution in Couey's punishment? How can the state redress the disorder caused by this unspeakable crime? How should the state show charity (and justice) to Couey? Is a lifetime of physical suffering (e.g., chain gangs) or a lifetime of opportunities to cultivate his own personhood (e.g., prison art classes) more compatible with Catholic legal theory? Should the state aim to rehabilitate Couey so that he could rejoin society, or does retribution trump rehabilitation in some egregious contexts?
In other words, if Catholic legal theorists were asked to advise the prosecutor, court, and prison warden on the just and humane treatment of Couey, what would we say?
In what I see as a clash between the culture of life and the rule of law, I have reluctantly concluded that Congress erred in intervening in the Terry Schiavo case. Since the post in question is mainly not about Catholic social justice theory, I didn't cross post it here, but thought some readers of this blog might appreciate a link to the post on my blog.
In today's on-line Wall Street Journal, former governor Pete DuPont has a short essay called "Europe's Problem -- and Ours: Will the EU Choose Collectivism Over Individualism? Will We?" It might be worthwhile to refer back, after reading the essay, to a post from a few days ago, in which I quoted Bradley Lewis's thoughts on the individualism v. collectivism dichotomy. He wrote:
It seems to me that the basic problem here is to see politics in the categories of individualism and collectivism and to identify the Catholic tradition with collectivism. Individualism run amok (as sometimes seems to be the goal of many political "conservatives"--an odd thing on its face: what's "conservative" about that?) is often vicious, but so is collectivism. The question one should ask from the perspective of the Catholic intellectual tradition is what protects and promotes the common good, understanding the adherence to basic moral norms as itself partly constitutive of that very common good. This leaves a great deal for Catholic citizens and politicians to argue about when it comes to policy, without confusingly assimilating questions of doctrine to those of prudence.
While I suspect that I am more sympathetic to Gov. DuPont's concerns than are some of my MOJ colleagues, I still want to ask him, "isn't there a -- here comes an overused term -- 'third way'?"
In today's on-line Wall Street Journal, former governor Pete DuPont has a short essay called "Europe's Problem -- and Ours: Will the EU Choose Collectivism Over Individualism? Will We?" It might be worthwhile to refer back, after reading the essay, to a post from a few days ago, in which I quoted Bradley Lewis's thoughts on the individualism v. collectivism dichotomy. He wrote:
It seems to me that the basic problem here is to see politics in the categories of individualism and collectivism and to identify the Catholic tradition with collectivism. Individualism run amok (as sometimes seems to be the goal of many political "conservatives"--an odd thing on its face: what's "conservative" about that?) is often vicious, but so is collectivism. The question one should ask from the perspective of the Catholic intellectual tradition is what protects and promotes the common good, understanding the adherence to basic moral norms as itself partly constitutive of that very common good. This leaves a great deal for Catholic citizens and politicians to argue about when it comes to policy, without confusingly assimilating questions of doctrine to those of prudence.
While I suspect that I am more sympathetic to Gov. DuPont's concerns than are some of my MOJ colleagues, I still want to ask him, "isn't there a -- here comes an overused term -- 'third way'?"
MOJ bloggers might (pace Scalia J) be interested to see how
another jurisdiction handled the issues arising in the Schiavo case. An Irish
Supreme Court judgment in 1995 dealing with these issues may be read at
http://www.bailii.org/ie/cases/IESC/1995/1.html
In my opinion, however, the majority decision is open to
criticism. In authorising the withdrawal of artificial nutrition and
hydration from a near-PVS patient, the majority judgments leave
the law uncertain in some important respects. They offer no useful
assistance for determining at what point along the scale of consciousness
this paternalistic jurisdiction kicks in and they also fail to
clarify the extent of the State's interest in preserving life.
