Why the Death Penalty is Still Necessary

The Second Part of Feser's and Bessette's essay on the irreformability of the teaching of Christ's Church on the acceptability of the death penalty.

From Catholic World Report

Given the Church’s longstanding and irreformable teaching that death may in principle be a legitimate punishment for grievous crimes, the key issue for Catholics is an empirical and practical question.

As we showed in Part 1 of this  essay, for two millennia the Catholic Church has taught that the death penalty can be a legitimate punishment for heinous crimes, not merely to protect the public from the immediate danger posed by the offender but also to secure retributive justice and to deter serious crime.   This was the uniform teaching of scripture and the Fathers and Doctors of the Church, and it was reaffirmed by popes and also codified in the universal catechism of the Church promulgated by Pope St. Pius V in the sixteenth century, as well as in numerous local catechisms.

Consider the standard language of the Baltimore Catechism, which was used throughout Catholic parishes in the United States for educating children in the faith for much of the twentieth century:

Q. 1276. Under what circumstances may human life be lawfully taken?

A.  Human life may be lawfully taken: 1. In self-defense, when we are unjustly attacked and have no other means of saving our own lives;  2. In a just war, when the safety or rights of the nation require it;  3. By the lawful execution of a criminal, fairly tried and found guilty of a crime punishable by death when the preservation of law and order and the good of the community require such execution. ¹

Thus, killing another human being in self-defense, during a just war, or through the lawful execution of a criminal does not violate the Fifth Commandment’s rule “Thou shall not kill” (which many modern editions of the Bible translate as “Thou shall not murder”). The permissibility of these three types of lawful killing (unlike the deliberate killing of the innocent, which is always prohibited) depends on contingent circumstances.  As long as (in the words of Pope Innocent III) “the punishment is carried out not in hatred but with good judgment, not inconsiderately but after mature deliberation,” the death penalty may be imposed if it genuinely serves the common good.

Generally, the Church has left these and similar prudential judgments to public officials.  For example, the current Catechism of the Catholic Church expressly affirms that when it comes to judging whether a decision to go to war is morally justified, “the evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have the responsibility for the common good.”  The institutional Church respects the authority and responsibility of public officials, guided by the sound moral principles it preserves and promulgates, to make these judgments.  Similarly, to the best of our knowledge, the Church has fully respected the authority of lawmakers to write statutes on self-defense that detail the conditions under which individuals may use force, including deadly force, to protect themselves and others.

Unfortunately, in recent years churchmen have not been equally respectful of the authority and duty of public officials to exercise their prudential judgments in applying Catholic teaching when it comes to the death penalty, despite the fact that churchmen bring to the debate over capital punishment no particular expertise derived from their religious training and pastoral experience.  Given the Church’s longstanding and irreformable teaching that death may in principle be a legitimate punishment for grievous crimes, the key issue for Catholics is the empirical and practical question of whether the death penalty more effectively promotes public safety and the common good than do lesser punishments.  We maintain that it does and thus devote about half of our book, By Man Shall His Blood Be Shed: A Catholic Defense of the Death Penalty, to making this case.

The current Catechism of the Catholic Church  affirms that “[l]egitimate public authority has the right and the duty to inflict punishment proportionate to the gravity of the offense” and that “[p]unishment has the primary aim of redressing the disorder introduced by the offense.” ² Thus, punishment is fundamentally retributive, inflicting on the offender a penalty commensurate with the gravity of his crime, though it may serve other purposes as well, such as incapacitating the offender, deterring others, and promoting the offender’s rehabilitation.

The significance of this point cannot be overstated.  Secular critics of capital punishment often reject the very idea of retribution—the principle that an offender simply deserves a punishment proportionate to the gravity of his offense—but no Catholic can possibly do so. For unless an offender deserves a certain punishment—whether that be a fine, imprisonment, or whatever—and deserves a punishment of that specific degree of severity, then it would be unjust to inflict the punishment on him.  Hence all the other ends of punishment—deterrence, rehabilitation, protection of society, and so on—presuppose the retributive aim of giving the offender what he deserves. This is why the Catechism promulgated by Pope St. John Paul II reaffirms the traditional Catholic teaching that retribution is the “primaryaim” of punishment.

Among the many reasons why capital punishment ought to be preserved (all of which we set out at length in our forthcoming book), the most fundamental one is that for extremely heinous crimes, no lesser punishment could possibly respect this Catholic principle that a punishment ought to be proportional to the offense.  We devote the remainder of this article to developing this point.

In the American states today the only crime for which the death penalty may be imposed (according to U. S. Supreme Court decisions) is murder.  (The Court has not ruled on the legitimacy of the death penalty for the national crimes of treason and espionage.)  Western societies, both before and after the rise of Christianity, never imposed the death penalty for all unlawful killings.  As far back as our records go, laws reserved the ultimate punishment for intentional and maliciouskillings and usually imposed a lesser punishment for negligent killings and those resulting from a “heat of passion.”  The thirty-one American states with capital punishment today are even more selective, reserving the death penalty for the most heinous murders, such as multiple murders, rape murders, torture murders, and the murders of the very young and the very old.

A close analysis of the 43 murderers executed in 2012 reveals the true depravity of the crimes and the criminals that merit the death penalty in the United States today.  Here are nine of the cases (space does not allow a complete listing):

• David Alan Gore, who, with his cousin, cruised central Florida in the 1970s and 1980s, abducting, raping, and murdering at least half a dozen teenage girls (and the mother of one of them).  In his last murder, the 17-year-old girl, repeatedly raped by Gore, had managed to free herself and then ran naked from the house where she was being held.  Gore chase down the girl, dragged her back towards the house, and shoot her twice in the head in the driveway in full view of 15-year-old boy who was bicycling past the scene.

• Edwin Hart Turner, who during a robbery shot and killed an unresisting convenience store clerk pleading for his life and then shortly thereafter robbed a customer at a gas station and shot and killed him while he was on the ground also pleading for his life.

• Robert Brian Waterhouse, who early one morning left a bar with a 29-year-old woman and later beat her with a hard instrument, raped her, and sexually assaulted her with a large object.  She was alive throughout this assault.  He then dragged his victim into the water where she died of drowning.  She was discovered completely naked and her injuries were so severe that she was unrecognizable.  Fourteen years before, Waterhouse had broken into a home and killed a 77-year-old woman, for which he served 8 years before being paroled.

• Timothy Shaun Stemple, who murdered his wife to collect her life insurance by beating her in the head with a baseball bat, driving a truck over her head, beating her again, driving the truck over her chest, and then driving over her at 60 miles per hour, killing her.  While awaiting trial Stemple tried to get other inmates to arrange the death of several witnesses in his case.

• Henry Curtis Jackson, who, in an attempt to steal money from his mother’s home, murdered a 2-year–old girl, a 2-year-old boy, a 3-year-old boy, and a 5-year-old girl.  He injured two other older girls and stabbed a 1-year-old girl, leaving her unable to walk.

• Daniel Wayne Cook, who, with an accomplice, killed a 26-year-old man after beating, torturing, and sodomizing him over a 6-7 hour period.  A few hours later the offenders sodomized and strangled to death a 16-year-old boy.

• Robert Wayne Harris, who in retaliation for his firing from a car wash, murdered the manager and four other employees by shooting them in the back of the head at close range while they were kneeling on the floor.  Another survived but was left with permanent disabilities.  When he was being interviewed by police about this crime, he volunteered that he had previously abducted and murdered a woman and he led police to her remains in a field.

• Richard Dale Stokley, who with an accomplice abducted two 13-year-old girls from a campsite, drove them to a remote area, raped them, stabbed them in the eye, killed them by stomping on their necks, and then threw the naked bodies down an abandoned mineshaft.

• Manuel Pardo, Jr., who killed seven men and two women in five separate incidents over a four-month period.

Altogether, the forty-three offenders executed in 2012 killed a total of 70 individuals and injured another 12 during the capital crimes for which they were executed.  We also know that eight of the forty-three (19%) had previously killed at least one other person, and several had killed more than one.  And many of those who had not (as far as we know) killed in the past had previously committed other very serious crimes.  Altogether, at least two-thirds of those executed in 2012 had previously committed a homicide, sexual assault, robbery, felony assault, or kidnapping.

As these facts and a wealth of other data show, we reserve the death penalty in the United States for the most heinous murders and the most brutal and conscienceless murderers.  This is not, as some critics argue, a kind of state-run lottery that randomly chooses an unlucky few for the ultimate penalty from among all those convicted of murder.  Rather, the capital punishment system is a filter that selects the worst of the worst.  Here is one particularly telling statistic:  of the murders that resulted in the 43 executions in 2012, more than a third involved the rape of the murder victim or of another person either by the executed offender or his accomplice.  Yet, among all homicides in the United States in recent decades, only about 1% involved a sexual assault.  In nearly all of the thirty-one American states that currently have the death penalty, legislators have identified rape murder as especially heinous and thus potentially deserving a death sentence.  Indeed, before someone can be executed in the United States legislators must agree that the kind of murder committed potentially merits death and prosecutors and juries must agree that this particular murderer deserves to die for his crime(s).

Put another way, to sentence killers like those described above to less than death would fail to do justice because the penalty – presumably a long period in prison – would be grossly disproportionate to the heinousness of the crime.  Prosecutors, jurors, and the loved ones of murder victims understand this essential point.  As the mother of the murder victim of one of those executed in 2012 said to the sentencing jury, “I would beg this court and this jury to see that justice is done.  And justice to us is no less than the death penalty.”  Even offenders themselves sometimes recognize that justice demands their death, as three of those executed in 2012 fully acknowledged.  One who killed two men after a minor traffic accident said, “I killed two people.  I’ve always accepted responsibility for the taking of their lives. . . .  I believe in justice and I believe that the victims, their hatred, their anger, they need to have justice.”  Another who killed a 63-year-old prison guard during an escape attempt pleaded guilty and waived all appeals, resulting in his execution just one year after sentencing.  In a letter he wrote a week before his execution he commended the prosecutor and affirmed the justice of his punishment:  “I do not want or desire to die, instead I deserve to die; this I have always stated.”  In concluding he wrote, “It’s not about me or any future killers, it is about ensuring that in contested cases that the victims and their families get their intended and needed swift justice.”  And one who abducted, raped, and murdered a 9-year-old girl told a federal court, “I killed the little girl.  It’s just that the punishment be concluded.  I believe it’s a good thing, that the death penalty does inhibit further criminal acts.”  He added, “I killed.  I deserve to be killed.”

We have focused here on the retributive purpose of the death penalty because, again, according to Catholic doctrine retribution is the “primary aim” of punishment.  In By Man Shall His Blood Be Shed we also show that capital punishment has various practical benefits, such as protecting prison guards and other inmates from the most dangerous offenders, and protecting members of the community by giving “lifers” who escape from prison strong reasons not to kill while on the run. We also argue that capital punishment almost certainly deters at least some potential murderers, and gives murderers a strong incentive to plea bargain to very long prison sentences, which likely saves lives by increasing the deterrent and incapacitative effect of long prison sentences over shorter ones.  (We also refute the common charges that the capital punishment system in the United States results in the execution of the innocent and discriminates against minorities and the poor.)

But make no mistake:  retributive punishment in and of itself makes the world a safer place and upholds the common good:

• It powerfully reinforces society’s condemnation of the crime of murder, making it less likely that those growing up in a community with the death penalty would even consider killing someone in the first place.

• It anchors the entire schedule of punishments for serious crimes to the principle of just deserts, ensuring the survival of retributive punishment as a key element in the criminal justice system and thus shoring up the schedule of punishments against powerful modern tendencies toward ever greater leniency in criminal punishment.

• It reassures the families and other loved ones of the victims of grave crimes that they live in a society that is just, and that shows respect for the lives of victims by inflicting on their killers a penalty that is truly proportionate to the gravity of the offense. 

• It encourages repentance insofar as it makes offenders aware of the extreme gravity of their crimes and also of the shortness of the time remaining to them to get themselves right with God and to ask forgiveness from the families of their victims.

• Perhaps most importantly, in its supreme gravity it promotes belief in and respect for the majesty of the moral order and for the system of human law that both derives from and supports that moral order.

For well over a millennium the popes of the Catholic Church exercised civil authority over a large swath of territory in central Italy called the Papal States.  In that capacity they frequently authorized the death penalty for murderers and others.  Although we do not have data for how often they did so before the nineteenth century, we know that between 1796 and 1865, six popes authorized a total of 516 executions, four-fifths for murder.

This papal endorsement of capital punishment, though rather recent in the history of the Church, is largely ignored in Catholic debates over the death penalty, as is the striking fact that from 1929 to 1969 the criminal code of the Vatican City itself included the death penalty for the attempted assassination of the pope.  The many dozens of popes who approved executions in the Papal States and the representatives of the Church responsible for the Vatican City criminal code understood a truth that too many in the modern Church have forgotten:  that justice demands the death penalty for the most heinous crimes and that if “the punishment is carried out not in hatred but with good judgment, not inconsiderately but after mature deliberation,” it promotes public safety and serves the larger common good.

ENDNOTES:

¹ The Baltimore Catechism is available from many online sources.  The death penalty is addressed in the third volume of the catechism, which is for older students.  See www.baltimore-catechism.com/lesson33.htm, accessed June 4, 2015.

² Catechism of the Catholic Church, Second Edition (Libreria Editrice Vaticana, 1997), sec. 2266, p. 546.