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How Abolishing The Death Penalty Degrades Both Justice And Mercy


A recent Pew survey shows that a majority of Americans favor capital punishment, with Christians leading the way. It is not just Republican-leaning white evangelicals: a majority of American Catholics support the death penalty, despite the pope’s objections. Tradition seems to be on the side of the laity here, although in the interest of ecumenical harmony I shall not recount the details of the Catholic Magisterium’s previous enthusiasm for executions.

Nonetheless, last year there was a significant (by the standards of Catholic intellectual circles) dust-up over a book by Edward Feser and Joseph Bessette that offers a Catholic defense of capital punishment. Public Discourse published articles by E. Christian Brugger (1, 2) and Christopher Tollefsen (1, 2) that relied on the so-called new natural law theory to argue that capital punishment is intrinsically immoral. These essays, and Feser’s responses (1, 2, 3), have some Catholic inside-baseball elements, but their broader claims against the death penalty are meant to be binding for all Christians, and even for all rational persons.

Meanwhile, in Commonweal, which vies with the Jesuit magazine America to be the voice of left-wing Catholicism in this country, Orthodox theologian David Bentley Hart provided an alternative critique of capital punishment that reaches back to the early days of the church and Christian radicalism. These arguments are made in good faith, and merit engagement from those they seek to persuade, whether Catholic, Orthodox, or Protestant.

Thus, although a Protestant jumping into a Catholic or Orthodox theological debate is usually as welcome as a streaker running through a team’s scrimmage, I shall respond to their broad claims metaphorically dousing myself in orange paint and sprinting onto the field.

The Two Big Death Penalty Criticisms

There are two distinct, and largely incompatible, criticisms of the death penalty. The first, advanced by the new natural lawyers, is that moral reason shows the death penalty is unjust because it directly and intentionally harms the basic human good of life. The second, made by Hart, is that although the death penalty may accord with natural justice, Christians must live according to Christ’s radical teachings without any public-private distinction—Christians must forgo state violence and seek mercy for even the worst murderers.

Despite their differences, these arguments overlap in several significant ways. Both seek more than a unified Catholic (or Orthodox) teaching on capital punishment. The new natural lawyers present their case as one of philosophical reason, knowable by all rational persons regardless of religious belief. Hart makes his case to all Christians, asserting that “no Christian who truly understands his or her faith can possibly defend the practice of capital punishment.”

Those making such broad claims insulate themselves against directly engaging the merits of the death penalty. To effectively critique the new natural lawyers in a fashion they will acknowledge requires engaging with their entire system. This is a worthy project, but it is also a book-length one. Shorter critiques, such as this one, can only be partial and preliminary. Likewise, addressing Hart requires extended discussion of the relationship between Christ’s radical teachings and the responsibilities Christians in public office have—if Christians should be in government at all.

Both Hart and the new natural lawyers sidestep this question of responsibility, which explains why Augustine is largely absent from their contributions to the current debate. Yet they are undoubtedly familiar with Augustine’s consideration of a judge who, in ignorance, may bring the full brutal force of Roman law against the innocent, torturing and even condemning them.

He wrote, “If such darkness shrouds social life, will a wise judge take his seat on the bench or no? Beyond question he will. For human society, which he thinks it a wickedness to abandon, constrains him and compels him to this duty.” But while the judge may be guiltless (he injures from ignorance, not malice), his happiness will be marred by the “misery of these necessities” and if he is pious he will cry to God to be delivered from them.

This passage does not contain any definitive teaching that is binding on Catholics, let alone other Christians, nor does it directly address the death penalty. Indeed, its primary purpose was to illustrate the miseries of earthly life. Yet it introduces an axis of theological and philosophical reflection that Hart and the new natural lawyers have abandoned—that of responsibility and our duties to the necessities of our fellow men with whom we share this life.

Hart simply disavows such responsibilities if they conflict with what he takes to be Christ’s commands, writing that, “On the whole, the Gospel is probably not a very good formula for protecting public safety.” Likewise, the new natural lawyers dismiss any concern for the consequences of following the moral absolutes they believe their system provides. For example, during the Cold War, they insisted on unilateral nuclear disarmament even though they thought it would likely lead to worldwide communist tyranny. They have also argued that it is always wrong to lie, even to save Jews from the Nazis (their example, not mine).

Participating in Government Requires Violence

To be sure, radical otherworldliness is part of Christian ethical reflection, Augustine’s included. But it is only part—the sense of responsibility Augustine described is another part. And if Christians are to participate in earthly government, whether by holding office or simply by voting, they will have to reckon with the violence that is intrinsic to the survival and well-being of any polity in the City of Man.

Indeed, if Hart wants Christians to abolish the death penalty, they will only be able to do so through participation, and inevitable complicity, in a government that requires violence to sustain itself. Those who seek to improve governance in the City of Man will become responsible for it, and therefore will experience the tension that Augustine so eloquently illustrated in the figure of the wise judge. It is wickedness to abandon their duty, though they may pray even more fervently for the Kingdom of God to come, that they might be delivered from the evils of their necessities.

The new natural lawyers respond to this challenge by claiming that adherence to the moral absolutes their philosophy picks out is a fulfillment of responsibility—a protection of basic human goods. No other responsibility, no matter how weighty, can override these moral absolutes. However horrible the situation is, and regardless of the consequences of inaction, one must avoid the guilt of violating a moral absolute.

However, this philosophy of moral purity is less stringent than it might appear. Their philosophical analysis of act and intention provides a backdoor by which ostensibly forbidden acts may return to consideration, if the acting agent frames his intentions just so. But although their casuistry may cleverly weave its way through apparent contradictions in the pages of a philosophy journal, it collapses in the real world because their model of moral reasoning bears no resemblance to moral knowledge and deliberation as experienced by ordinary people.

Same Action, Finely Parsed Different Intent

This failure may be seen in their discussions of justifiable killings, where they emphasize disavowing the intention to do what one knowingly does. For instance, John Finnis, the dean of the new natural lawyers, has argued that one must never perform an abortion to save the life of the mother in a childbirth gone disastrously wrong. However, the doctor may dismember the child, so long as his intention is not to kill the child (however foreseeable that may be), but only to relieve the obstetrical blockage that will kill the mother.

Thus, if the physician reasons that the child must die so that the mother may live, he is a damnable murderer. If he reasons that the mother should be saved, even if the means involve the foreseeable (but “unintended”) death of the child, he is morally upright. This distinction may hold in a philosopher’s faculty office or armchair, but it will not hold in the hospital, where the doctor will, if he be pious, pray to be delivered from his necessities.

The new natural lawyers reject concrete responsibilities in the name of justice and personal moral purity; Hart rejects them in the name of mercy. For the former, one’s personal responsibilities have no weight against the moral absolutes derived from their philosophizing. For the latter, they have no worth against what he takes to be the requirements of Christian mercy.

Neither of these viewpoints is solely, or even primarily, about the death penalty; each encompasses much more. And both are vulnerable to a critique rooted in the life and writings of Dietrich Bonhoeffer, the German pastor and theologian martyred by the Nazis.

Christians Have Duty to Resist Evil

Unlike Hart, Bonhoeffer came to reject Christian quiescence and to recognize the Christian duty to resist grave moral evils. Unlike the new natural lawyers, Bonhoeffer did not prioritize his personal moral purity (as determined by adherence to analytical moral absolutes) over his concrete responsibilities. Contrary to the new natural lawyers’ emphasis on the imperative of maintaining personal moral purity even in extreme situations, Bonhoeffer suggested that the only thing we cannot avoid is guilt.

In some situations, even principled inaction violates one’s responsibilities. The responsible man or woman will sometimes (and those times cannot be clearly delineated in advance) be willing to incur the guilt of violating abstract principles in order to fulfill concrete responsibilities. In this, Bonhoeffer argues, they will follow the example of Jesus, who

took upon Himself the guilt of all men, and for that reason every man who acts responsibly becomes guilty. If any man tries to escape guilt in responsibility he detaches himself from the ultimate reality of human existence, and what is more he cuts himself off from the redeeming mystery of Christ’s bearing guilt without sin and he has no share in the divine justification which lies upon this event. He sets his own personal innocence about his responsibility for men, and he is blind to the more irredeemable guilt which he incurs precisely in this; he is blind also to the fact that real innocence shows itself precisely in a man’s entering into the fellowship of guilt for the sake of other men. Through Jesus Christ it becomes an essential part of responsible action that the man who is without sin loves selflessly and for that reason incurs guilt.

Those who avoid the guilt of acting to fulfill their responsibilities incur the guilt of the self-righteousness and lack of charity shown in their abdication of responsibility. Rather than using strategies of evasion and redescription (such as the principle of double effect) to deny responsibility for what one deliberately and knowingly does, Bonhoeffer urged a clear acknowledgement of the deeds one is responsible for, including the guilt one might thereby incur.

Abolishing Punishments Also Abolishes Mercy

The new natural lawyers’ flight from concrete responsibilities to theoretical responsibilities rooted in ostensibly basic human goods is a result of their fundamental misunderstanding of the nature of moral knowledge. By attempting to establish universal, impersonal moral absolutes that are demonstrable to any rational person, they discard that which is in need of moral guidance—the individual in all of his or her particularity. Their attempt to demonstrate irrefutable moral truths fails, as, according to Bonhoeffer, all such systems must, and it leads to neglecting actual moral responsibilities to one’s neighbors.

Their attempt to demonstrate irrefutable moral truths fails, and leads to neglecting actual moral responsibilities to one’s neighbors.

Furthermore, these critics of the death penalty struggle with mercy as well as responsibility. The new natural lawyers abolish mercy in capital cases by declaring that it is unjust to execute anyone. But there is no mercy in letting them live if justice demands that they be spared. Those who would abolish the death penalty for mercy’s sake also eliminate mercy. There is no mercy in agents of the state not doing that which is no longer within their power.

If the death penalty is pre-emptively abolished, then it is no longer mercy to spare murderers, it is simply following the law, and mercy established as law is no longer mercy. Only those who established the law could make a claim to mercy, and it would be an attenuated and impersonal one.

Other criticisms may be added. Lifelong incarceration was generally impractical for most of human history, and historically each village was forced to hang its own. Under such difficulties, the case for the death penalty as a form of self-defense was stronger. Furthermore, the new natural lawyers struggle to adequately reckon with Scripture, in which God enjoins the death penalty, and at times even total war, as well as smiting people directly. In response, they flirt with voluntarism to explain away God acting (and ordering others to act) directly against the basic human good of life.

The Death Penalty Restrains State Violence

None of these arguments, or others that could be made, are dispositive. I do not offer a system of moral philosophy and moral absolutes that is universally demonstrable to all rational persons. Like Bonhoeffer, I consider such to be impossible. Therefore, I do not hope to offer an indisputable case for the death penalty, nor shall I offer the inverse of Hart’s casual dismissal of the understanding of the many saints who have approved of the death penalty.

Nonetheless, reflection on the origins and nature of state violence offer reasons to think that both justice and mercy require the possibility of capital punishment for the worst crimes. The origins of the death penalty are clear enough. Every successful polity rests upon a foundation of state violence, and capital punishment is a continuation of pre- and proto-political violence. As Augustine knew, a conqueror such as Alexander the Great was like a pirate or brigand operating on a grand scale.

Every successful polity rests upon a foundation of state violence, and capital punishment is a continuation of pre- and proto-political violence.

However, establishing the death penalty as part of a system of law ritualizes and may restrain the lethal violence on which governments are founded. Law provides for the possibility of public justice, as opposed to private retribution or warlord justice. In developing the state, the death penalty is part of a codification and regulation of state violence, which may develop into a legal system that aspires to justice and proportionate punishment of the wicked.

However, that the death penalty codifies the violence inherent in establishing a political order does not mean that it should be retained. The new natural lawyers would say that capital punishment is a residual injustice that we should remedy—though, as Feser points out, they do not directly dispute that the death penalty is a justly proportionate punishment for some crimes. Hart concedes the natural justice of the death penalty, but holds that Christians should replace it with mercy.

However, eliminating the death penalty does not abolish lethal state violence. The government will still use force against those who do not comply with its directives, even if it will not deliberately execute them. This may seem to be a moral advance, but it actually disassociates state violence from justice. Genuine self-defense, whether by a private citizen or an agent of the state, is justified, but because the violence used in stopping or restraining someone is imprecise, it is not necessarily just.

It may be justified, in defense of self and others, to fatally shoot a violent lunatic, a fleeing suspect, or a home invader. But these deeds, however justified, are not the administration of justice, which demands deliberate proportionality in punishment—something that is impossible in defensive violence.

The Death Penalty Connects State Violence and Justice

A government dedicated to only using defensive violence will still commit lethal violence that is neither just nor merciful. Only including the death penalty as a proportionate punishment for certain heinous crimes can maintain the connection between justice and lethal state violence. Without this final proportionate response to heinous crimes, there will be only the haphazardly lethal outcomes of defensive violence, including defensive violence used to ensure that lesser punishments are meted out. In such a state the deadly violence necessary to the existence of any polity will be not only accidentally unjust, but intrinsically unjust, as it will never be administered deliberately and proportionately.

Without this final proportionate response to heinous crimes, there will be only the haphazardly lethal outcomes of defensive violence.

To abolish the death penalty is to abdicate the civilizational attempt to instantiate justice in law, and precludes the possibility of mercy. Unless proportionate punishment extends to lethal state violence, then all the deadly violence necessary to state survival will be intrinsically unjust. And unless death is a deserved and possible penalty, there is no mercy in sparing a murderer’s life.

These arguments are not dispositive, and perhaps Christians ought to abandon violence (whether defensive or proportionate punishment) altogether, in an attempt to more fully live the gospel. I find Hart’s emphasis on the radicalism of the gospel and early church more sympathetic than the analytic philosophical precision of the new natural lawyers.

Quietism has an attraction that casuistry does not. And I agree that Christians should be uncomfortable with the violent necessities of keeping such earthly peace as there can be. But does this require Christian quiescence, or might we, like Augustine’s judge, fulfill the responsibilities of earthly life while praying for the heavenly kingdom to come and deliver us from them? Perhaps, no matter what, the only thing we cannot avoid is guilt.