Defending the innocent doesn't mean foregoing justice
With the conviction of infanticidal abortionist Kermit Gosnell, the question arose of whether he ought to face capital punishment – as any three-time murderer in Pennsylvania might. (As it turned out, he struck a deal for life in prison.) An academic hero to pro-lifers and defenders of marriage, Princeton’s Prof. Robert George, wrote a moving cry for mercy, urging defenders of unborn life to rally against the use of capital punishment even in such a case. I wrote my own piece in answer, arguing that sometimes justice and genuine mercy demand the hangman. If this issue concerns you, I suggest you look at the exchange, which includes extensive discussion of whether Pope Bl. John Paul II’s new perspective on the proper use of capital punishment is binding Church teaching, or simply his prudential judgment.
Since St. Paul wrote, Catholics have accepted that the state has the right to exercise the death penalty. Indeed, the Old Testament is full of crimes for which scripture accepts nothing less. Traditionally, there were two reasons offered for why capital punishment can be appropriate. Both appear in the writings of St. Thomas Aquinas, and each was cited by the Catechism of the Council of Trent—and by subsequent popes up through Pius XII.
2) To serve justice, with punishments befitting the crimes.
Both rationales appeared in the first edition of the new Catechism of the Catholic Church. But when Bl. John Paul II issued Evangelium Vitæ, he revised the Catechism to eliminate the second reason, and only allow for capital punishment in cases where no other means existed to keep society safe. I won’t here rehearse the debate over how binding on conscience this innovation was; faithful Catholics differ. It was certainly influential. It has practically become a point of faith among some pro-lifers that we must oppose the death penalty except as an absolute last resort. I would like to examine the range of possible arguments underpinning this position, and see which ones hold up.
- You can’t say you’re pro-life if you’re in favor of killing.
This one has emotional force, but little logic. If this statement is true, then pro-lifers must become absolute pacifists, and even renounce the use of force in personal self-defense. Few except the Amish and perhaps some Catholic Workers will pay such a price. I wouldn’t, and neither should you.
- There is a growing recognition of the dignity of the human person, which has caused most developed societies to renounce capital punishment. This is moral progress, which the Church is right to endorse, correcting its previous, imperfect teachings on this subject.
Lots of problems here. For one, the elimination of the death penalty in Western societies tracks almost perfectly, on a timeline, with their legalization of abortion. Even as we began to spare the guilty, we started to target the innocent. It’s hard to see a trend toward greater human dignity there. Instead, it seems our notion of justice (punish the guilty and spare the innocent) began to decay. It was replaced by a crude utilitarianism: we don’t really need to execute anyone to stay safe, but those fetuses are really getting in the way.
- If we would witness to the sanctity of life, we must go the extra mile and defend all lives – even those of the guilty.
This is not a moral but a tactical argument, and it deserves a careful look. Even those who support the use of capital punishment in service of justice recognize that abortion and euthanasia are much more important issues. As I have said to pro-choice liberals who yelled “hypocrisy” at pro-death penalty pro-lifers: “Fine, let’s make a deal. I’ll give up capital punishment if you give up abortion. If you’ll stop killing the innocent, we’ll stop killing the guilty.” No one ever takes the deal, because for most pro-choicers abortion is not about death; it’s all about sex. Abortion is the penicillin that cures a nasty STD called pregnancy, full stop. People who don’t care about their own unborn children will not be swayed by our tenderness for murderers.
So while this tactic is well-intentioned and on the surface reasonable – I’d much rather save the unborn than execute criminals – it doesn’t work. It might make pro-lifers feel all warm, fuzzy, and prophetic, but it doesn’t move the ball down the field.
- The 20th century was the scene of so much reckless, callous destruction of human life by governments (some 169 million civilians killed, by one estimate) that we should take that power away from the state wherever possible. Dictatorships like China and Saudi Arabia execute citizens with abandon. We should rebuke the Culture of Death by embracing life, even at its most repulsive.
Now we’re getting warmer. A healthy suspicion of people in power who wish to end the lives of others is a reasonable response to the one hundred years following 1914. Bl. John Paul II’s personal experience of two totalitarian states – and let us remember to give him credit for helping to bring down the Soviet bloc – might well have moved him to think along these lines. And it’s worth taking this idea seriously: that modern, secular governments have grown so lawless and unprincipled that they have squandered (at least for now) their claim to further justice. We can cooperate with them to maintain order and protect our lives and property, but we should learn to see them (as Augustine saw the Roman empire) as largely a conspiracy of robbers. Countries that tolerate abortion are the last places where magistrates have any claim to act as God’s lieutenants, dispensing death.
- We ourselves, as a society, have proved too callous toward the lives of the innocent. We are too easily tempted by abortion, euthanasia, stem-cell research, in vitro fertilization, and other abuses of human embryos. We have lost our claim to employ capital punishment in service of justice because we have shown we do not really care about justice. No nation that commits so many crimes against the innocent has any business dealing death to the guilty.
This last argument, suggested to me by the brilliant Anthony Esolen, bears some further thought. Given that we shrug at the news of drone strikes destroying villages, and at the million-plus abortions every year in America, perhaps it is mere hypocrisy for us to invoke “justice” when we hang someone at whom we’re angry. A Christian society could put someone to death to answer his crimes, precisely because it believed he had an immortal soul. When modern secularists execute someone, they think they are destroying him forever. That would be an act of vengeance, and one we shouldn’t encourage in these bloody-minded times.
The last two arguments are enough to make me think, but not to convince me. The decay of respect for justice will not, I think, be arrested by backing away from it still further or by stating that we can kill people when they endanger us, but not because they deserve it. In fact, that principle sounds eerily close to utilitarianism: the question of life or death for a criminal rests not on his deserts, but on how secure our prisons are or how much of a threat he poses to us. May we then execute innocent people who threaten our well-being? China coerced abortions for just this reason.
There is no other answer but to fight for justice at every stage of life and death, to answer foolish and sentimental arguments with clear logic and potent analogies. Here is my favorite: the death penalty is to abortion as prison sentences are to kidnapping. Given how hard most people find the analogies section on the SAT, I am not sure whether this argument will win them.
John Zmirak is the author, most recently, of The Bad Catholics Guide to the Catechism. He blogs at The Bad Catholics Bingo Hall.