Preliminary Thoughts on Irrevocable Punishment
-- J. Budziszewski
In January, we will meet to consider whether criminals may be killed. The Christian faith recognizes two sources for reflection on such questions: One is the Bible, the record of God's self-disclosure to the community of faith. The other is natural law, the in-built design of His creation, common to all human beings -- which includes among other things the deep structure of the moral reasoning faculties, the first principles of the created human conscience. Both, Bible and natural law, are divine revelation; neither contradicts the other; and they are complementary.
They also speak with the same voice: "Thou shalt not murder." Most translations of the Bible say "Thou shalt not kill," but the commandment has never been viewed, either in scripture or in common conscience, as forbidding all types of killing. What the rule condemns is the deliberate taking of innocent human life. If that were the end of the matter, then it would seem that the death penalty could not possibly be wrong, because criminals are not innocent.
That is not, however, the end of the story. Few things are so grave as the taking of human life -- any life. Not even guilty life may be taken unless other moral conditions are satisfied. For example, the penalty must be carried out only by authorized public authority, not by vigilantes. Even then, the guilt of the offender must be ascertained with reasonable certainty, the punishment must be proportionate to the offense, and the possible grounds for mercy in this world must have been duly considered and found wanting.
Objections to capital punishment fall into three categories. In the first category are objections which misunderstand the point of punishment as such -- chief among them, that the death penalty is wrong because it fails to deter. Suppose that imprisonment too were found useless as a deterrent; would it follow that the prisons should be razed? No, because deterrence is only one of the purposes of punishment, and not the most important. The fundamental purpose of punishment is simple justice: Giving to each what he deserves. At least in the case of murder, execution satisfies this fundamental purpose whether it deters would-be perpetrators or not, for "a life for a life" is hard to beat as a formula of just desert. Some too-clever folk try to get around the idea of desert by simply redefining just punishment as deterrence. Plainly, though, a punishment can deter and yet be unjust -- for example if it is inflicted not on the wrongdoer, but on his family. The death penalty satisfies an important secondary purpose of punishment too. It takes the wrongdoer out of circulation. In short, the argument about the ineffectiveness of capital punishment as a deterrent fails to give a reason for its abolition. At best it undermines an argument sometimes given for its retention -- for "retentionists" too sometimes miss the point of punishment.
In the second category of objections to capital punishment is the absolutism that refuses to distinguish between innocent and guilty life, or between killing for malice, convenience, or emotional relief on the one hand, and killing or justice on the other. From this point of view, all killing is murder, and there is nothing further to discuss. What makes absolutism implausible is that it ignores highly relevant distinctions. The theory by which absolutists damn the public executioner damns equally the householder who kills a cocaine-crazed burglar in self-defense, the police sharpshooter who fires at a kidnapper to stop him from strangling a child, and the Air Force pilot who shoots down a skyjacker on course toward an occupied building. The surest way to give the world over to murderers is to abandon the distinction between murder and justified killing.
The third category of objection must be taken more seriously. I mentioned that even the taking of guilty life by public authority is wrong unless the guilt of the offender is ascertained with reasonable certainty, the punishment is proportionate to the offense, and the possible grounds for temporal mercy have been considered and found wanting. Let us call these criteria Confidence, Proportionality, and Mercy. Some say that although some society in some age might satisfy these criteria, they cannot be satisfied in ours.
The Proportionality criterion does not give much encouragement to those who hold this position. Although reasonable people might dispute whether the punishment of death is proportionate to the crime of armed robbery, it is hard to deny that it is proportionate to the crime of murder. Moreover, this is not one of the things that changes from age to age. If "a life for a life" has ever expressed the proportionality of punishment to crime, then surely it still does.
The Confidence and Mercy criteria seem more promising. Concerning the former, the argument has been urged that the death penalty should be abolished because racial prejudice in our system of courts and juries drives up the probability of erroneous conviction when the defendant is not white. Concerning the latter, the contention has been pressed that because our age has wealth enough to keep dangerous and incorrigible criminals in prison until the ends of their natural lives, we can afford a level of mercy which would have been unthinkable to our ancestors. We no longer have to kill criminals, runs the argument; therefore we no longer may do so. As usually stated, these arguments are open to serious objections, but it may be that they can be made compelling.
Justice and mercy meet perfectly in the crucified and risen Lord. They do not meet perfectly in us. The consignment of a human soul to the Eternal Judge by judges merely human is a grave matter even if it is justified. Can it be justified? Or should the death penalty -- for our time -- be abolished? We should be willing to be persuaded; whether we should be persuaded remains to be seen.
-- J. Budziszewski is an Associate Professor of Government and Philosophy at the University of Texas at Austin. His most recent book is The Revenge of Conscience: Politics and the Fall of Man (Spence, 2000). Professor Budziszewski will be speaking at the conference mentioned above.