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The End of a Consensus

This post is going to be full of sociological claims about which I am uncertain. It's okay if you disagree with me about them, so long as you do so nicely.

First claim: Thirty-five years ago, most conservatives were both very strongly in favor of the death penalty and strongly opposed to torture, where "torture" would have included waterboarding, if they had been asked about it.

Second claim: This is no longer true today. Now, conservatives who are strongly in favor of the death penalty tend to be the same ones who support at least some forms of torture, and conservatives who are opposed to those same forms of torture tend to be, at least, uneasy about the death penalty rather than strongly in favor of it.

Suppose these are both true. What caused the change?

The short answer is that I don't actually know, but I have a few conjectural causes, which are not mutually exclusive.

First conjectural cause: The increasing opposition of the Catholic Church to the death penalty, as represented by the statements on that subject in Evangelium Vitae, has made many conservative Catholics who were previously strongly pro-death penalty feel that they have to modify their views. In particular, it probably (and understandably) seems to many of them that in light of the current teachings they cannot, in response to the question, "Why is it morally right to execute X?" give the simple, old-fashioned response, "Because X has been duly convicted of a crime worthy of death."

Second conjectural cause: The previous support for the death penalty among conservatives had been made explicit long ago, because leftists have been attacking the death penalty for a long time. (Indeed, for a while, it was blocked by the U.S. Supreme Court.) But the previous opposition among conservatives to torture was largely implicit. In fact, I'm having to infer it implicitly. The conservative on the street usually didn't discuss the licitness of torture, even if he discussed a lot of political and moral things, because everybody believed that "we" (the U.S.) didn't engage in anything remotely like torture. Since the position was largely implicit, it was more vulnerable to change than an explicitly articulated and stubbornly held position. That change came about when it turned out that we have waterboarded people, etc., and the left flipped out. Since conservatives know that we cannot trust the left to set our policy regarding bad guys (and boy, do we know that!), there was a somewhat understandable reaction against the left, an assumption that if the left thinks something is wrong or too harsh, it probably isn't. Inductively, this is justified, since the left would like all foreign-captured terrorists to be treated with the same kid gloves they want used on domestic criminals, so that each terrorist can be the center of his own little grievance theater drama, complete with solicitous lawyers, contrived excuses for overturning perfectly legitimate convictions, endless and costly appeals, and irrational protestors who simultaneously claim that he is innocent and that what he did was justified.

Of course, we aren't just dealing with an inductive case. It's not like torture is a black box and we are being asked to pronounce on some undescribed action vis a vis evil enemies of the U.S. about which we know only that the left opposes it. But it's still not entirely surprising that the reaction happened, leaving us with people who, if they were around thirty-five years ago, would have been horrified to think of the U.S. waterboarding prisoners but who now support it.

That is my conjecture as to what happened. And it's a shame. There is something to my mind bracing and healthy about a person who recognizes, sternly, uncompromisingly, and forcefully, the importance of the death penalty, who takes a manly position also on self-defense, who is nowhere close to pacifism, but who views torture with unmitigated disgust and rejection. Can anyone imagine John Wayne torturing anyone? But I can certainly imagine him solemnly sentencing a murderer to death. And what about the Marine hymn? "First to fight for right and freedom, and to keep our honor clean."

My sociology may be all wrong. Maybe the old consensus existed only in my imagination. But I miss it, anyway.

Comments (150)

Lydia,
Thanks for posting this. It is a worthwhile subject. For my part I go to the teaching of the Catholic Church out of obedience. The positions are well founded. I am a pure-bred Vat. II Catholic in that I was born 3 days after the start of the Council and Born Again 13 days after that. I am 46 years old and have yet to find anything that teaches with the clarity of the Church. The Church is often more conservative than American Conservative's and more liberal than American Liberal's and always right down the middle. Chesterton is indeed right about the thrilling romance of orthodoxy.

Lydia,

I've been wanting to comment on Zippy's recent posts concerning torture, but I wasn't really sure what to say, because I find myself in the camp you eloquently describe as follows:

"That change [conservatives who support waterboarding] came about when it turned out that we have waterboarded people, etc., and the left flipped out. Since conservatives know that we cannot trust the left to set our policy regarding bad guys (and boy, do we know that!), there was a somewhat understandable reaction against the left, an assumption that if the left thinks something is wrong or too harsh, it probably isn't."

Part of my own moral blinders on this subject (waterboarding) is a visceral reaction to those who opposed Afghanistan and Iraq and would use any excuse to attack the Bush Administration. Both you and Zippy convinced me I was wrong about waterboarding, although I still think it is important to note that the debate over this subject is still guided by a lot of Bush hatred and/or opposition to any form of harsh interrogation. For example, yesterday I was listening to the Drew Mariani radio show and one of his guests was Dr. Patrick Lee. Dr. Lee was asked directly by Drew if waterboarding is torture and Dr. Lee commented that the Catholic Church has not formally condemned the practice as torture. He also gave a formal definition of torture that left the question open-ended, and he also reminded listeners that inflicting pain on a prisoner to get important information that could save lives was NOT intrinsically evil. Now perhaps Dr. Lee is woefully misinformed about the issues at stake, but something tells me that a guy with his background is not someone who would treat these issues with anything but intellectual seriousness.

Which is to say that those of us who don't want to use the Left's playbook to fight terrorists are genuinely conflicted over how far our brave CIA officers and military personnel should go when dealing with crazed terrorists and therefore find ourselves reflexively supporting the Bush Administration even though it is clear in hindsight that we errored with respect to waterboarding (and should have vigorously prosecuted those who beat prisoners, e.g. Zippy's constant reference to Manadel_al-Jamadi, who was clearly beaten to death or if you prefer, tortured to death).

I think enthusiasm for the death penalty just ran out of inertia. What was it, 1970, when the Supreme Court found the death penalty was okay again? (It was 1976.) In the end, I think support diminished because it became a hastle to administer. It's kind of like the 4th of July fireworks. Yes, it was nice to have it, but taking a half million out of the town budget for it just isn't worth it. (We do have fireworks. As in most communities now, they are privately funded.)

As to how it relates to torture is a good question. I think it is more just tribal affinity. There were many Americans tortured in Vietnam. As those memories fade, our tribal sense of being under attack kicks in. The right was very uncomfortable criticizing McCain's opposition to torture because his victimization had been the source of their prior indignation.

"I think enthusiasm for the death penalty just ran out of inertia."

Besides the "hassle" of administering it which m.z. mentions, there's also the fact of people becoming aware that it wasn't being administered fairly between blacks and whites, richer and poorer, etc. Add to that the problems created by the advent of DNA testing (innocent people on death row, etc.) and you have people like myself, who used to favor it, come to conclude that it seems frightfully wrongheaded to apply it, at least in the manner in which it's currently administered.

there's also the fact of people becoming aware that it wasn't being administered fairly between blacks and whites, richer and poorer, etc.

Rob G., I hope this won't offend you, but I honestly doubt that a lot of _conservatives_ who had really previously been strongly pro-death penalty have been moved by that consideration. The "fairly" there is so obviously, well, statistical. If someone really supported it on grounds of justice, it wouldn't move him. And I know that many people during my childhood did.

The "hassle" conjecture is an interesting one, particularly considering the fact that the "hassle" has been created largely by those who would rather the d.p. were never administered and have therefore set up the "hassle"--for example, the necessity of appealing every single one to the Supreme Court--to discourage it. It may be that they have succeeded, though in that case obviously in an entirely non-argumentative, political fashion.

I think Rob G. is also right. Illinois pops to the top of my head where bungled prosecutions directly resulted in ending the application of the death penalty. That would have been under Republican Gov. Ryan. (I remember all the penalties were commuted, but I don't know if the DP is still on the books in Illinois.)

But do you really think--seriously, now, M.Z.--that those claims changed the minds of people who had been definitely pro before? In any great numbers? Speaking sociologically here, now.

I'm not sure how many people were in that group to begin with. I think most dp supporters were there because they thought it was just to take the life of those who take lives. Once the ugliness of the exonerations of people on death row and the demonstration that we had put to death undeniably innocent people came to light, I think many death penalty supporters stopped romanticizing the justice system. No one wants to defend the taking of innocent blood.

Speaking for myself, I have nothing against the death penalty in theory, but I would not support bringing it back to Wisconsin.

In terms of garnering the political support in state houses, the evidence (from DNA, etc.) that the death penalty, like the rest of the criminal justice system, had been used mistakenly certainly was influential. The accusations of crypto-racism may have moved a few adherents of various critical race or liberation theology theories, but certainly not the majority of the public.

I think Lydia's general assessment is right. Although, I would add one thing: I think, when the waterboarding stories first broke, before there was more trustworthy testimony about what we were dealing with, there was reluctance to accept that it fell in the category of things we call "torture." I know I felt that way---torture was the things I had read about the Gestapo doing to OSS agents, torture was how the Romans martyred early saints, torture was even the various ways medieval criminal justice systems worked. Those all involved hammers, blades, wheels, fire, electrical currents, sexual organs, broken bones, and horrible crunching noises. Comparatively, I'm sorry, but at first blush waterboarding just does not sound like torture.

So take people who are not used to thinking about torture as an issue on the radar in American politics, who generally take something of a the-sob-had-it-coming attitude towards criminals and terrorists, add in some whining from a few pinkos, and of course they're going to argue back. Once more first-hand testimony comes in and suggests that this does, after all, amount to torture, the battle lines have already been drawn.

PS re: the death penalty: That debate has also largely been characterized by a complete lack of nuance. You have "keep the system" people (maybe with a bit of "don't execute innocent people" spice thrown in) and you have "abolish capital punishment" people. I have never heard anyone beyond myself advocate making other real reforms, such as limiting the death penalty to convicts who cannot be safely incarcerated or in time of civil unrest. You would think that a calculated response to JPII would have brought out at least some proposals such as this, that would seek to limit the death penalty to cases where the normal "rules" of western criminal justice don't apply.

Chalk me up as another who believes in the justice of capital punishment for murder per the continuing Noahic covenant, but was nonetheless quite disturbed by the frequency of wrong convictions.

I also oppose the use of torture for interrogative purposes or deterrence (since both purposes do not treat man as an end, but as a means to some other end such as information or public safety), but I would allow it for punishment (as fitting for a man who has committed evil), if the crime were severe enough.

Lydia,

I would describe the change this way: the death penalty supporters became convinced that the power to kill justly also contained the power to torture justly, at least if the conditions were extreme enough (ticking bomb). Part of what is so disturbing about it is that it seems fraught with slippery slopes, because why couldn't every terrorist theoretically be part of a ticking bomb scenario? Secondly, it necessarily creates a legal limbo, where those who have been tortured cannot be prosecuted because we chose to impose an illegal preemptive punishment to gain information that is of questionable accuracy. If torture supporters want to justly impose the death penalty upon terrorists, they need to stop using methods that make legal prosecutions impossible.

I agree with Albert on both counts; and let me add that Paul's post of 6:02 PM is excellent indeed.

And thanks to Lydia for a good post.

“Can anyone imagine John Wayne torturing anyone? But I can certainly imagine him solemnly sentencing a murderer to death.”

I was glad to see you bring up popular culture. Here's first three listings of the 1930 Hays Code, under the category “Repellent subjects”:

“The following subjects must be treated within the careful limits of good taste:

1. Actual hangings or electrocutions as legal punishments for crime.
2. Third degree methods.
3. Brutality and possible gruesomeness.”

Think how often the second two are broken on contemporary television. “Dirty Harry” has replaced John Wayne as the ideal dramatic lawman.

How many John Waynes are no longer possible because of the entertainment culture's embrace of transgression?

The Hays Code said the sympathy of the audience should never be thrown to the side of crime, wrongdoing, evil, or sin by “making evil appear attractive and alluring.” It also opposed films that would throw sympathy “against goodness, honor, innocence, purity or honesty.”

This echoes the Marines hymn's charge to “keep our honor clean.”
While pop-liberals became enthusiastic about violating the Code's proscriptions regarding sex, pop-conservatives have tended to praise “butt-kicking” lawlessness.

Ask either about “the demands of honor” and you'll probably get a quizzical look or worse, a smirk.

Come to think of it, the lawlessness and seeming bloodlust of torture advocates is sometimes shared among death penalty proponents. Just as one couldn't imagine a John Wayne hero torturing, one couldn't imagine him saying “Burn, baby, Burn!” at an execution "party." There's a sense that the dishonorable desire for vengeance has run ahead of the demands of justice.

Everything controversial in society is now immediately assumed into either "conservatism" or "liberalism." This means that all issues become lined up along an imaginary political divide, the members of which are ignorant of theology, philosophy, and history. So when the bishops of the Catholic Church make idiotic pronouncements about issues like the death penalty or immigration, faithless liberals eat it up and portray the Church as just another "progressive" institution. Before long the positions on the issues become the unofficial property of the American political divide. Catholics end up supporting wars they shouldn't or, conversely, end up saying that the death penalty is immoral (which it isn't and never has been).

Case in point, torture, along with the death penalty, is seen as "pro law enforcement" or some other idea that all conservatives must support. Anything that detracts from this is seen as liberalism. Liberals do the same. So now torture and the death penalty, two things that do not have equal moral worth whatsoever, are seen as two issues that must be strongly favored by conservatives in order to combat liberalism. Its pure modern politics.

As it turns out, there are no good/rational arguments to support/justify opposition to justly administered capital punishment, for all arguments against just capital punishment are *also* (and necessarily) arguments for political, followed by social, anarchy. This is becauuse opposition to capital punishment is also, logically, opposition to the very existence of civil government.

Commentator Paul said,

I have never heard anyone beyond myself advocate making other real reforms, such as limiting the death penalty to convicts who cannot be safely incarcerated or in time of civil unrest. You would think that a calculated response to JPII would have brought out at least some proposals such as this

I think that this bears a lot of similarity to the positions I have seen from a number of conservative Catholic friends (and things I have read here and there) in the wake of JPII's statements: a position to the effect that his words don't rule out the dp per se and that it could be justified if there were no other way of restraining the people involved. But I would say, as I'm using the terms in the post and as I use them in real life, that this doesn't count as being "in favor" of the dp but rather as being "uneasy" about it. I would say this because under the old consensus, the dp was justified by purely retributive considerations. The _main_ question was not whether the person could be prevented from committing further harms in the future but whether he deserved to die for a crime or crimes already committed in the past. It was not considered necessary to justify an individual execution on the grounds that the person could not otherwise be restrained. The "just deserts" rationale was far more front and center. It is JPII who does not even mention it in EV (a surprising omission) and who casts the burden on the state to justify execution in terms of preventing further harm, thus creating the "uneasiness" I mentioned in the main post among Catholics. Paul's proposal here works within that non-retributivist new framework and hence would almost entirely eliminate the dp in modern times, regardless of the evil done by the person or the retributive considerations that could be brought to argue that his execution is just in the older terms.

Step2, I realize that you and I hardly ever agree, but I think you make a good point about torture and the dp. In fact, I would much, much rather that KSM had been duly tried and executed. It would have been just, and there would also then have been no temptation to torture him for information!

Lydia:

Can anyone imagine John Wayne torturing anyone?

Didn't he torture someone in The Green Berets? I can't recall clearly.

I know that Clint Eastwood tortured the psycho in Dirty Harry. Remember, after Clint shot him in the leg, he stepped on his wound until he told him where he had hid the girl he had abducted. That was 35 years ago, and I'm pretty sure that most of the pro-death-penalty conservatives in the audience were cheering on the torture.

Well, George, here is where you are perhaps rightly challenging my sociology. I have to admit that I was very young 35 years ago. (No, I'm not going to say exactly how young.) And we didn't have a TV yet, and my parents would never have let me watch _Dirty Harry_ even if we had had a TV. My view of conservatives at the time and for some years after was chiefly of fundamentalist Baptist Christians in Chicago and some other parts of Illinois. So I led a sheltered life. And now I _deliberately_ lead a sheltered life, so I still haven't seen _Dirty Harry_ (thank goodness).

But I _think_ that there was a certain brand of conservative that rejected "those sorts" of movies and that would have rejected that sort of behavior.

(I hope you're wrong about the Green Berets.) :-)

The "just deserts" rationale was far more front and center. It is JPII who does not even mention it in EV (a surprising omission) and who casts the burden on the state to justify execution in terms of preventing further harm, thus creating the "uneasiness" I mentioned in the main post among Catholics.

Actually, he did mention it, at #56 (if memory serves), saying that the primary purpose of punishment is justice. But then right after he undermined it (apparently) by saying that punishment must be considered in the light of public safety - most people take his words to mean that it must be considered in the light of public safety and therefore not (primarily) in the light of justice. Now, it is pretty obvious that that the Pope really was personally against the death penalty in all cases - whenever he spoke out for a specific prisoner (and he did this plenty of times) he never once made a comment on, nor established, that the convicted was no longer a safety hazard. The record does not support that he really cared whether such a conclusion could be established. Maybe he just assumed that was true (based on modern prison capability (and tell that to all the prisoners raped and killed in prison)), but we don't even know that.

What is really true is that whatever sense his comments in EV are valid, they are valid and logically consistent with the long-standing position of the Church that punishment is primarily for justice, and the just penalty is justified precisely on account of its being what constitutes a redress of justice.

I guess that tells you that I am still strongly in favor of dp when used justly. And I think that position is consistent with what the Church truly teaches now.

As for torture - my belief is very similar to Albert's and Paul C's posts above, but with some difference. The main reason I oppose the truly extreme forms of torture is that it pries a man's reason away from him, so that he acts as a beast. Punishment used correctly need not do so, and even dp used as punishment was generally intended to bring the condemned to repentance (in addition to restoring justice). I don't see that minor kinds of torture will pry a man right out of rationality, so if they are evil it must be for another reason. I don't buy the "using him as a thing" argument, at least so far as I have seen it, because it seems to preclude physical forms of punishment for the sake of justice as well.

I think that Lydia's social conjectures are on the mark.

because it seems to preclude physical forms of punishment for the sake of justice as well.
I don't see that at all. To the contrary, punishment is something that can only be done to a person -qua- person. Ever owned a dog? Dogs can be trained, but they can't be punished.
I think that this bears a lot of similarity to the positions I have seen from a number of conservative Catholic friends (and things I have read here and there) in the wake of JPII's statements: a position to the effect that his words don't rule out the dp per se and that it could be justified if there were no other way of restraining the people involved.

This is the view I hold, and frankly, I don't see how any other is justified. If a criminal can be incarcerated and his threat to himself, others, and society eliminated, any further physical harm seems (to this humble layman) to be a mere desire for vengeance. I mean, we're (mostly) Christians here after all, right? Somehow, I find it difficult to imagine Jesus throwing the switch on an electric chair.

Support for the Death Penalty rested on a Chesdtertonian paradox; to inculcate a respect if not reverence for human life, it was necessary to enforce the ultimate sanction against those who would transgress a vital civilizational norm through murder.

The new "moral" consensus that emerged after Roe v Wade reduced the paradox to parody. As the horrors of the 20th Century continued to unfold, it seemed the death penalty was not so much a deterrent against man's dark side as just one more expression it.

Conservatives who did not trust the State to deliver the mail had the impossible task of convincing us it could then be trusted in matters of life and death. The internal contradiction was unsustainable.

If a criminal can be incarcerated and his threat to himself, others, and society eliminated

Not possible; not even particularly well approximated. Many of our domestic prisons are factories of cruelty, gangster experimentation, corruption, conspiracy and degradation. Islamic radicalism is only one of dozens of serious problems. There is clearly a "public safety" argument case to be made for capital punishment.

"Comparatively, I'm sorry, but at first blush waterboarding just does not sound like torture."

Does to me. It's just more "refined." Torture need not entail physical pain. What, for instance, about Dostoevsky's fake firing squad? Or the famous 'Chinese Water Torture'? Or something like Poe's pendulum?

One would hope we'd move beyond torture culturally, just like we've moved beyond slavery, at least in the West; defense of the former among Christians is quite surprising, esp. considering that it has far less scriptural support (if any at all) than the latter.

As far as the DP goes, I'm generally against it, but I can see where it might be necessary in some cases where no other option is available.

An excellent treatment of the role of punishment generally, including a helpful discussion about the differences between vengeance and retribution, can be found in John Finnis, Retribution: Punishment's Formative Aim, 44 Am. J. Juris. 91 (1999). I'm spoiled by the vast subscription services of my law library, so I don't know how widely available that article is for the general public---but it's a good one.

Zippy: I don't see that at all. To the contrary, punishment is something that can only be done to a person -qua- person. Ever owned a dog? Dogs can be trained, but they can't be punished.

Then is it licit to punish a known criminal for continuing to withhold information that is vital to society for safety? I.e. for continuing to be an accomplice to a crime about to be committed. Once you tie the fact of his continuing evil with his continuing punishment, you make the case that he may be punished at least until he ceases his evil and gives up the information.

Kevin says Conservatives who did not trust the State to deliver the mail had the impossible task of convincing us it could then be trusted in matters of life and death. The internal contradiction was unsustainable.

Sorry, but that argument just does not work. Even if the state does not use dp, it still uses prison, including life in prison. The state that is trusted with ripping a (potentially) innocent person out of his normal daily family life and putting him in prison for life is a state with grave powers indeed. Nobody thinks that getting rid of dp on the issue of what the state is trustworthy to do also thinks we should get rid of prisons, or life sentences. If the state finds out, 35 years after sentencing an innocent man to life in prison that it did so incorrectly, can the state give the man back his 35 years, his wife, his kids' childhood, his kids' emotional health, his reputation? No, these are not restorable. If these facts do not deter us from using life sentences, then they should not deter us from using dp when justice calls for it.

The reality is deeper: the state has not only the right, but the duty to seek to redress justice insofar as in it lies. Although the state will get it wrong on occasion we do not say the state should stop trying to achieve this justice. God will satisfy for the errors made in good faith (as He will also correct for the true injustices suffered on account of malice). The recent notion that the state is unworthy of dealing in matters of life and death is secular liberalism come out to play: it is based on a despair of God's providence making all things serve His purposes in the end.

Of course there are those in the state who abuse its powers - and there always have been. In the past this was never thought to be a reason for withholding from the state the powers it needs to function and preserve the common good (of which justice is main component). Why does the fact of imperfect men in power change the equation now?

Not possible; not even particularly well approximated. Many of our domestic prisons are factories of cruelty, gangster experimentation, corruption, conspiracy and degradation. Islamic radicalism is only one of dozens of serious problems. There is clearly a "public safety" argument case to be made for capital punishment.

True to an extant, but the solution isn't to simply throw our hands up and say "Prisons are corrupt, now let's warm up the guillotine." If prison administrations are plagued by scum and villainy, they should be cleansed. The justice system is, technologically speaking, perfectly capable of meeting the parameters listed above. Unfortunately, some of its operatives lack the necessary moral virtues. But that isn't inability, it's unwillingness.

Tony:

Actually, he did mention it, at #56 (if memory serves), saying that the primary purpose of punishment is justice. But then right after he undermined it (apparently) by saying that punishment must be considered in the light of public safety - most people take his words to mean that it must be considered in the light of public safety and therefore not (primarily) in the light of justice.
That is very interesting. I would never have thought to hold "justice" and "public safety" in opposition to each other like that; it seems quite odd, so odd that I wonder if some have misinterpreted JPII, his opposition to certain instances of capital punishment notwithstanding.
The main reason I oppose the truly extreme forms of torture is that it pries a man's reason away from him, so that he acts as a beast.
I have sympathy for your view, which seems grounded in a respect for personal human integrity, and I do think "what form of severe torture is appropriate punishment for which crime" is a question up for discussion. And yet, I think the answer to your particular claim would be that in the most heinous and extreme of crimes, e.g. mass rape and murder, the criminal has already pried reason from himself and become like an evil beast; torture is not what did it to him, but it is the appropriate retributive response commensurate with his crime. Lastly, any capital punishment whatsoever "pries a man's reason away from him" because that is what death does: it separates the rational soul from the body. Torture-to-death then, is an extended, more severe form of capital punishment.

I'm going to stop talking about this now; it's like talking about Auschwitz, just the flipside, and I'm starting to get a bit sick.

Kevin:

Conservatives who did not trust the State to deliver the mail
Sidestepping the particular issue of mailing, conservative opinion on matters like this has little to do with trust. Non-utilitarian, non-pragmatist conservatives believe the State has proper normative limits on its vocation. That is all.

Paul:

John Finnis, Retribution: Punishment's Formative Aim
Sounds good; I've enjoyed his work in bioethics. My own thoughts on the nature of punishment owe much to C. S. Lewis's analysis of various theories of punishment. He settles on the primacy of retribution as the only one that treats man as a responsible moral agent, with rehabilitation (therapeutic) and deterrence as incidental to retribution. He especially singles out the rehabilitative view which tends to treat criminals as non-responsible, diseased victims in need of therapy, if it is held to be primary.

Zach, that's why I reject "public safety"--where that means preventing future crimes--as the primary reason for capital punishment. In fact, I'm concerned that such a primary reason could actually justify (ironically) capital punishment against people who have never committed any crime, on the grounds that they may do so in the future. To my mind, the _only_ legitimate primary reason for capital punishment, to which all others are ancillary, is that the person has done something for which he deserves to die. Now, it is true that if we ignore this, we will have other problems, public safety among them. But this is true of so many things. When you ignore justice and the moral law, you get all sorts of consequential problems. The reason not to commit fornication is not primarily to avoid getting STD's, but when we ignore the moral law and fornicate, we are at risk for STD's. Similarly, when the government ceases to carry out its appropriate and important role of executing those who deserve execution, we get all sorts of other problems, including prison rape, the later parole of heinous criminals onto the streets to commit more heinous crimes, and the like. But these problems flow from the fact that the people in question deserved to die, had been duly convicted of crimes deserving death, and the state abdicated its responsibility to carry out that deserved punishment.

"The recent notion that the state is unworthy of dealing in matters of life and death is secular liberalism come out to play: it is based on a despair of God's providence making all things serve His purposes in the end."

Tony,
Why would a Christian trust an agressively secular Liberal State to adminsiter justice?

As noted earlier, our disgraceful prison system is merely a brutal training ground that produces dehumanized socio-paths. Across the river from me, Rikers is in a virtual state of permanent lockdown due to the gang violence that occurs there. And need one dwell on the moral insanity that informs our judiciary?

To mete out justice one must have a viable claim of moral authority. All the more so when the claim encompasses executions. If you have an argument that says we should bequeath such power to our post-Christian managerial class, I for one would love to hear it. Public safety? Please. The thought that we can relieve our overcrowded prison system by killing off some portion of its population, is satire and not a serious proposal. I hope.


We have become a society that does not even want to spank children, a just punishment for a wrong. This matter goes to the heart justice versus morality. There are two undercurrents at work here also, that of the Church and that of American law. Torture is not a just punishment for an offense because there is no offense being punished. Therefore we should not torture. It is a difficult situation, but the principles of our laws must apply to everyone or they are meaningless. Our Constitution says there shall be no cruel or unusual punishments. Our Church says the same. Since this is the standard for punishment, it must be the same standard applied to interrogation.

"Remember, after Clint shot him in the leg, he stepped on his wound until he told him where he had hid the girl he had abducted. That was 35 years ago, and I'm pretty sure that most of the pro-death-penalty conservatives in the audience were cheering on the torture."

Yes, and if they were Christians, it was certainly the "old man" doing the cheering and not the "Christ living in me." Same with those "burn baby burn" cro-magnons at executions.


Kevin, I disagree profoundly with your entire take on this. If one took your perspective to its logical conclusion, we should have no government at all. After all, since we can't "trust" the government to do x, y, or z, why should anyone be put in prison, why should anyone be punished by the government for anything, why should there be police, etc.? If we have to "trust" the specific people or type of people who run the government in order to permit force to be used, we will be forced to conclude that literal anarchy is the only way. I have plenty of libertarian sympathies, but that is a poor argument. You don't have to "trust" your particular government to acknowledge that particular things--like punishing crime, catching and punishing murderers, etc.--are the proper roles of government. Your argument has as much and as little force against the very existence of the power to imprison as it has against capital punishment. Prisons are bad places. We don't want people put there unjustly. We don't trust our government. Therefore, we shouldn't agree that the government should have power to put anyone in prison. If "I don't trust the government to deliver the mail, therefore I shouldn't trust the government do execute people" is a good form of argument, it applies equally to arresting people and imprisoning them. So all the murderers should just go unpunished indefinitely and be left to roam the streets, world without end.

Your whole approach is the wrong one, and irrelevant.

I would question the factual assumptions behind the post. The Death Penalty is still quite popular among the American public, with 65% supporting versus 30% opposed in recent polling. This is down from a high of 80-16 during the mid 1990s, but is still higher than when Gallup first asked the question in 1936 (when it was supported 59-38), and is still pretty high overall. I haven't seen a historical breakdown of the numbers by political affiliation, but in recent surveys self-described conservatives supported the death penalty 74-21 (data available here).

Maybe I'm just a simpleton, but I don't buy the 'retribution' argument. The problem I have is that Christ didn't teach 'retribution', he taught mercy and forgiveness, and we should endeavor always to follow those teachings. A civilization that is eager to end lives (whether of the unborn, the elderly, or of its outcasts) will not have long to live itself. I like to think that, except in the extreme cases we've already discussed, there is a way to 'love thy enemies' without killing them.

God didn't wipe out humanity 'because we deserved it' (and we did deserve it). Instead, he showed mercy and sent his son to redeem us.

Lydia, we in fact do have to trust those who adminisiter our law enforcement apparatus to possess a passable understanding of justice. The State needs to be vested with moral legitimacy in the eyes of those it seeks to defend from crime. Otherwise, most of us will remain very wary of falling within its grasp and view its various remedies with deep skepticism, if not outright dread.

Conservatives, at least theoretically want to limit the power of the State. They shouldn't be surprised when we apply that principle to Leviathan's absurd claim that executions serve as a form of deterrence. Seems absurd; "we live in a culture of death and the death penalty is a remedy".

The State has been waging a variety of domesitic "wars" all of my life. The 2 it has declared against Poverty and Drugs have been disastrous and the causes for both social disorder and a scandalous and gigantic prison system.

Address the causes, recover a Christian ethos to underwrite both our culture and legal system and the death penalty is back on the table. Until then, it is just one more grisly aspect of our moral decline and a feature of the moral anarchy-state tyranny dynamic that feeds late Liberalism and extinguishes everything else. It is your approach that is dated and irrelevant to any genuine restoration of a healthy social order.


Baloney. You don't have to fix all of culture's problems before executing heinous criminals is legitimate. The "root cause" of people's flying buildings into planes and torturing little girls to death is the sin nature of man. The abandonment of the dp is a symptom of cultural decay, not part of the cure.

And I don't know where "deterrence" is coming from, because I've said until I'm blue in the face that consequential reasons should _not_ be front and center in the defense of the dp, though bad social consequences do in fact follow from our abandoning justice. The dp is something the state should be administering as a matter of justice.

Then is it licit to punish a known criminal for continuing to withhold information that is vital to society for safety? I.e. for continuing to be an accomplice to a crime about to be committed. Once you tie the fact of his continuing evil with his continuing punishment, you make the case that he may be punished at least until he ceases his evil and gives up the information.
Sure. It is licit in general to punish a person for failing to do something he has a positive duty to do without a just reason for that failure.

The only reason I can think of offhand why such an obvious observation would trouble me is if it undermined some specific effort to develop a positive formal definition of torture which applied to all possible hypotheticals. But that effort isn't important to me. I don't need that effort to come to a satisfying conclusion in order to know that waterboarding prisoners for information (among other things that we did) is torture.

On the death penalty issue, my conversion from pro- to con- had nothing to do with the (perhaps) evolving Church position. It has a great deal to do with my getting involved with prison ministry. Not all, not many, not even some - but a few - lifers and capital criminals do indeed have conversion experiences. It turns out that these men have influence on other inmates far out of proportion to their prison social status. God takes the grievous sin of these lost souls and uses it for great good. Execution will have short-circuited (pardon the pun) this process in the small number of instances where it would have occurred, and I don't want to be a party to that.

On the torture issue, I think you have wholly mischaracterized the current imbroglio. As I see it, it is less an argument between anti- and pro-torture advocates as it is an argument about what does, and does not, constitute torture. At the extremes, the answer is obvious: milk and cookies are not torture, and slowly crushing the bones of the fingers in a vise is torture. As in every definitional situation I can think of off the top of my head, it's the middle, gray, area where the debate both belongs and occurs. So the issue is not as black and white as you paint it, and while John Wayne would have certainly (in my opinion) come out foursquare against slow evisceration or eyeball puncture with red-hot tongs, I'm not so sure he would have opposed pouring water through a towel into someone's nose (or putting a bug in a box with an arachnophobe) to save a thousand, a hundred, ten, or even one life.

Secular Apostate--so you're against the death penalty for someone who has tortured a child to death (and has been convicted of so doing by overwhelming evidence) but in favor of waterboarding people?

That's, to my mind, the worst of both worlds. Not that I'm a big fan of pacifists, either, but at least their position doesn't have this kind of weird reversal feeling to it--"merciful" where they should be just and merciless where we should hold our hand.

Zippy: I don't need that effort to come to a satisfying conclusion in order to know that waterboarding prisoners for information (among other things that we did) is torture.

So it is OK to punish people for continuing to refuse to do what they are obliged to do, but it is not OK to waterboard prisoners for information.

That leads to 2 obvious questions: Is what we did in waterboarding wrong because we had not yet convicted the prisoner of a crime related to the withheld information? If so, then you seem to suggest that waterboarding itself is not what was wrong with our actions, it was wrong because it was done illicitly - done without the right context.

Or, are you saying that we can punish someone convicted of a crime related to withholding information, including punishments that use pain, but we cannot punish them with torturous punishments? Then it sounds like you are suggesting that it really does matter just where to place the division between the legitimate painful treatments, and torture, because the difference is not in what our objective is, but what we use to achieve that purpose. (Of course, that calls into question your claim that torture wrong because it is using the prisoner as an object, because in this latter case that just does not hold water - the difference is all about what kind of pain is used.)

My suggestion is that to clarify what techniques of instilling pain are allowable, it is easier to see, and simpler to talk about, under the the regime of punishment for a crime, rather than to gather information. If waterboarding is wrong to use even as punishment for the worst of all possible crimes, then you set a good stage for establishing that it is wrong for extracting information. But we then must prove that it is wrong without any obscuring crutches relating whether you "know" that the prisoner is guilty, or "know" that he has the information you want, or "know" that getting the information from him will enable you to prevent some grave future evil.

The dp is something the state should be administering as a matter of justice.

Not if the State is an engine for injustice 2) not, if as you mentioned earlier that it serves simply as a form of emotional release or "closure" for some. Retribution is a very thin reed to hang your argument on.

The abandonment of the dp is a symptom of cultural decay, not part of the cure.

I said that earlier. Roe v Wade rendered any claim that "we cherish life so much that we inflict the ultimate sanction on those who take it" ridiculous.

The question you should answer is; How does the execution of capital offenders retard the encroachments of the culture of death?

"The abandonment of the dp is a symptom of cultural decay, not part of the cure."

I, for one, would find it extremely difficult to appoach the body and blood of Christ on a Sunday morning after cheering for someone's death on Saturday afternoon. But maybe that's just me.

Lydia, I had to chuckle at your restrained (and admirably so) vitriol, but yeah, that's pretty much where I'm at given a couple of caveats...

Caveat 1: I guess I'm not seeing the "merciful" side of life imprisonment, nor do I now see the social benefit an execution holds for society. When I was pro-execution, it had nothing to do with mercy or retribution whatsoever - it was an issue of cost control. A few milliliters of barbiturate or kilowatts of electricity are far cheaper than several decades of room and board. Since I was indifferent to religion, God, and the concept of salvation at the time, as a taxpayer I simply saw executing capital prisoners as a social benefit: e.g., a means of saving several millions of dollars in the corrections budget by discarding (and, much to my present shame, that is the correct word) incorrigible predators who were never going to check out of the system. These days, I'm inclined to agree with Rob G on this issue: "I, for one, would find it extremely difficult to appoach the body and blood of Christ on a Sunday morning after cheering for someone's death on Saturday afternoon."

Caveat 2: You and I obviously disagree on something - and I'm not sure what, since you don't specify - about waterboarding. As I noted above, having water poured into one's nose through a towel just doesn't pass muster as torture to me. For the record, I am totally opposed to the tortures commonly used by Islamic fanatics (e.g., amputations, gang rape, and, yes, execution) and totalitarian governments (brutal labor camps, mass starvations, relentless beatings, electrical shock, and the old reliable executions). Only a Socialist or a postmodernist could justify such behavior. But when the stakes may be as high as lighting up a dirty nuke or an outbreak of engineered pathogens in major metropolitan areas, then waterboardings, or what are in fact "simulated dunkings", just don't pass that definitional threshold for me. Your mileage, obviously, varies. I imagine that if such a thing happened on my watch and I had recoiled from discovering it by my own misgivings about simulated dunking, I would probably think seriously about seppuku.

Tony:

Right: waterboarding is not used for punishment, and is not the kind of thing that even makes sense as a punishment.

Then it sounds like you are suggesting that it really does matter just where to place the division between the legitimate painful treatments, and torture, because the difference is not in what our objective is, but what we use to achieve that purpose.
Correct. The difference between torture and legitimate punishment does, in fact and in general, matter. (Also, in our society we convict the guilty before we punish them; so the fact that waterboarding is done absent a trial and conviction is an implicit acknowledgement that what is going on is not punishment).

What distinguishes acts of sodomy from acts of conjugal love, for example, is the specific kind of behavior chosen. What distinguishes intrinsically immoral acts from licit acts is, more generally, the specific kind of behavior chosen (the "object" of the act, that is, the objective potentialities put into effect deliberately by the acting subject, and their relation to the nature of the acting person). There are other kinds of evil acts, of course; but intrinsically evil acts are evil in their object.

(Of course, that calls into question your claim that torture wrong because it is using the prisoner as an object, because in this latter case that just does not hold water - the difference is all about what kind of pain is used.)
If we continue down the "using as an object" casuistry I would probably argue (or at least assert) that using persons as objects is built into choosing certain behaviors. Homosexuals, for example, may claim that sodomy is an expression of love; but in fact, despite protestations to the contrary, because of the nature of the human person, acts of sodomy are acts of use (both of the self and the partner).

All of which is very interesting, just as many other kinds of casuistry about many other kinds of acts is very interesting; but none of which casts any doubt whatsoever on the fact that waterboarding a prisoner is torture.

not, if as you mentioned earlier that it serves simply as a form of emotional release or "closure" for some.

I don't quite get your point here, Kevin. (I'm trying to live up to Secular Apostate's accolade of "restrained vitriol." :-))

First, when did I ever say anything about the dp's serving "simply as a form of emotional release or 'closure' for some"? I don't even think I ever said anything like this, and I certainly wouldn't have brought it up as an argument for the dp, as in "We should have the dp so some people can experience emotional release." That would be the last thing I would say.

Second, regardless of what it "serves as" "for some," the question is whether it is _right_. The fact that some person feels some way about it doesn't change matters. If someone sat around musing angrily over how much he hoped some murderer would get sodomized in prison, this wouldn't mean we should let him walk free because someone else might think vengeful thoughts concerning his imprisonment. So this is irrelevant.

The question you should answer is; How does the execution of capital offenders retard the encroachments of the culture of death?

Kevin, I could answer that. But I won't. Do you know why I won't? Because to do so would seem to imply that I accept the idea that that is the central question, which I deny. Murderers should be executed because executing them is the right and just thing to do and serves the rightful function of government in the punishment of evil-doers and exacting deserved punishment for the death or vicious mistreatment of the innocent. It is not necessary and only confuses matters to justify the dp in consequential terms of its furthering some larger social program or agenda.

First, when did I ever say anything about the dp's serving "simply as a form of emotional release or 'closure' for some"? I don't even think I ever said anything like this

Right here;
What I'd like to see, Steve, is more people who take my position on torture who would be very hawkish on the death penalty. That would (besides being the correct position) illustrate the best channeling of that desire for justice, righteous anger

The thirst for justice engages our emotional life as, as well it should. I doubt though that executions offer any real satisfaction.

Kevin, I could answer that. But I won't. Do you know why I won't? Because to do so would seem to imply that I accept the idea that that is the central question, which I deny

Wow! Lydia maybe this is where the real division lies. To me rolling back the culture of death is the central mission of this generation. Fail, and the descent into a nightmarish, post-human hell will be final.

Channeling the sense of righteous anger does not _justify_ the dp. It is, however, likely to be a consequence of it.

On your question, think of it this way: If I'm not a consequentialist on abortion, why would I be on the dp? If I don't believe abortion is ever right, regardless of consequences, why would I agree that administering the dp is wrong unless it can be justified in terms of consequences? It's right because it's just in itself.

If we continue down the "using as an object" casuistry I would probably argue (or at least assert) that using persons as objects is built into choosing certain behaviors.

Let's take a punishment that is dealt out to boot camp GIs who have committed some moderate infraction: say, marching around camp for 6 hours with 150 lbs of weight on his back in the boiling sun (or, better yet, freezing cold given that the original subject was Iraq). This is considered an acceptable punishment, nobody that I know thinks it arises to torture, or is even borderline. But it sure is unpleasant and painful. If I use that treatment on a convicted prisoner to get him to talk, then NO, you cannot reasonably say that using this treatment has "using him as an object" built into the behavior.

If a treatment can legitimately be used as punishment, then it cannot have "using as an object" built right into it. Then to say we cannot use it on a convicted criminal to obtain critical information must rest on some other objection than that using this kind of treatment inherently uses him as an object.

If I use that treatment on a convicted prisoner to get him to talk, then NO, you cannot reasonably say that using this treatment has "using him as an object" built into the behavior.
I don't know if I would, but I certainly could, because a prisoner is different (that is, the objective facts about being a prisoner are very different) from a GI. This objection reminds me of the "trainerboarding" objection: SERE trainees undergo waterboarding, the narrative goes, so therefore waterboarding a prisoner is not torture. If we stipulate that trainerboarding is morally licit it remains the case that trainerboarding is a very different behavior from waterboarding though; so trainerboarding-is-licit-therefore-waterboarding-is-licit is a nonsequiter, even if we grant the major premise.

Part of the problem, of course, is that when modern people hear "objective facts" they tend to think "physical facts". But we know that there are many objective, non-physical, morally pertinent facts of various kinds: e.g. "Bob is married to Sally", "Fred stole that money", "Dave owns that car", "Steve is a SERE trainee and Hank is his trainer", "Maher is a CIA prisoner and Mark is his interrogator". Catholics also know, as a doctrinal matter, that physicalism is false.

So yes, we most certainly can propose that ordering a prisoner to do X or else Y is different in its object, is a different species of chosen behavior, from ordering a GI to do X or else Z. And our proposal may be either true or false depending on that reality-thingy that becomes so inaccessible to positivist sentiments that it is treated as irrelevant.

It's right because it's just in itself.

Lydia your argument is sterile and falling apart. You accept the DP does nothing to roll back the culture of death, presumably a goal of yours. The infliction of DP does not deter crimes against life and is not even motivated by the emotional need of wounded victims and shaken citizens, but simply is a social good in and of itself, independent of larger considerations.

I'd say the consensus you pine for died of a fatal self-inflicted wounds.

St. Paul wrote that all things are lawful for me but not all things are expedient. I agree with Kevin: while the DP may be appropriate in certain circumstances and under certain conditions (i.e., lawful) it does not seem to be so under current circumstances and conditions, due both to the mentality underlying it (a result of the hegemony of the modern liberal managerial state) and the inconsistent and haphazard way in which it's applied. Hence, I'd argue that while it may be lawful, it's currently not expedient.

You accept the DP does nothing to roll back the culture of death, presumably a goal of yours.

Actually, I didn't say that. I said I could answer the question but didn't want to seem to accept a consequentialist frame for the debate. Surely I made that clear. As a matter of fact, I think that executing evil people who deserve it has _many_ beneficial social consequences. But I'm being extremely careful about how I talk about that, because there was one time (on another blog) where I was not careful about how I talked about that and appeared to be saying something I didn't believe--making a consequential argument for a wider application of the dp.

If you, Kevin, are going to use "sterile" to mean "justified by considerations of the proper role of government and the just deserts of heinous criminals rather than by consequential arguments regarding rolling back the culture of death uberhaupt," then I guess you can use "sterile" to mean anything. I, for one, prefer not to trivialize the use of capital punishment by justifying it on the grounds that it forwards some other agenda of my own, even if it _would in fact_ further that agenda. That, I consider, is precisely the way in which I treat the evil people involved as persons: The state should execute them because they have done things worthy of death, not because it would be useful--in any way, even to some truly good end--to do so.

Lydia,
Your argument is sterile because it ignores historical circumstances, social conditions and the overall moral hygiene of the culture. You are defending a practice by isolating it from all practical considerations and context by placing it under the abstract category of a universal good.

In the early 21 Century West,the DP offers no moral instruction, heals no wounds and advances no higher end. How could it, being administered by a morally insane State upon a de-Christianized culture?


I have never had the least sympathy for the "argument" that "There are a lot of things wrong with our culture, therefore, the dp should not be carried out." The fact that the dp is not carried out more widely is one of the things that is wrong with our culture! Indeed, it is a symptom of the whole over-sympathy for the evil, lack of a robust sense of justice, the therapeutic approach to crime, etc., etc. To the extent that it is still carried out, it is a last remnant of an older and far, far healthier approach to good and evil and to crime. I do not even begin to see the relevance of the considerations you are raising. If considerations concerning the government meant that most of the people executed were merely political prisoners being killed on entirely trumped-up charges after kangaroo trials, that would be a different matter. But it's just this general idea that somehow the atmosphere of our culture is bad and that makes the dp unjust. It makes not the slightest sense to me and never has. At all.

"The fact that the death penalty is not carried out more widely is one of the things that is wrong with our culture!"

Oh, but it is, just in many different forms and guises.

When I speak of capital punishment as being "carried out," I don't mean some "different form or guise." I mean plain, ordinary, direct, official capital punishment. I don't believe in word games. "Capital punishment" has a specific, normal meaning.

"Capital punishment" has a specific, normal meaning.

You rightly state our culture blurs the distinction between good and evil. Does frequent application of capital punishment restore moral clarity?


Indeed, it is a symptom of the whole over-sympathy for the evil, lack of a robust sense of justice, the therapeutic approach to crime, etc., etc.

I am really struggling to understand this from a Christian perspective. I suppose that Jesus, in order to not be guilty of 'over-sympathy for evil', should have executed the Samaritan woman at the well for adultery (five counts, no less) instead of reaching out to her? Did he display a 'lack of a robust sense of justice'? I really hope I'm missing something...

Kevin, yes, actually, I believe it does, but again, I _refuse_ to argue that this must be defended in consequential terms. Besides which, you are changing the subject.

Zach, I have always had little patience with attempts to wring, by strained interpretation, prescriptions for civil government from the Sermon on the Mount, Jesus' forgiving attitude towards individuals, etc. (Absolute pacifism required by "resist not evil" is another example.) That is _such_ poor exegesis. Really, incredibly poor. Scriptural support for capital punishment is unequivocal and occurs in more than one location, as you doubtless know. Jesus exercised mercy upon the woman taken in adultery. Modern Catholics of your mindset wish to make mercy mandatory and universal, to ask the government (rather than private individuals) to exercise it thus universally, and to undermine the crucial role of government in the punishment of the guilty, which St. Paul (and for that matter, Christian tradition) have always assigned to it.

Jesus did give us some notion of His sense of justice when he spoke of the fate deserved by those who cause the little ones who believe in Him to sin, as also when he drove the usurers from the Temple. The image of Jesus in wrath is perhaps a rare one (and for understandable reasons) in Christian history, but it is actually not so rare in Scripture.

Kevin:

You know as well as I that the only way to accomplish an end to capital punishment in America, at least under current circumstances, would be by Court fiat. Is this what you desire, that (like the recent case where the State of Louisiana's statute providing for capital punishment for particularly heinous child-rape was thrown out by the Supreme Court) the self-government of the states be removed on yet another issue of import?

Indeed, perhaps the most egregious recent example of tyrannous Supreme Court reasoning came in the course of an argument by Justice Kennedy, in a case which threw out a Missouri statute providing for the possible execution of 17-year-olds. Kennedy cited foreign law to throw out duly-enacted state law. He should be impeached and removed from office for that.

Lydia's argument has similarities to Anscombe's argument about just war and pacifism -- that is, that by losing sight of the just application of violence people tend to come to view all violence as wicked. And since violence is sometimes necessary and in fact good, this tends to turn many people over time into consequentialists. Anscombe's conclusion is that pacifism is itself a significant assault on the prohibition against killing the innocent; that for every pacifist who sticks to his principles, ten other people are driven to consequentialism either in reaction to the pacifist or from reaching 'pacifist despair' because of some turn of events.

Personally, especially after many years observing the left-right dialectic on many issues including war and punishment, I am not inclined to dismiss the argument.

I would also add that I am not at all sanguine about the justice of the way criminal penalties in general, let alone the DP, are actually carried out in our culture, for a whole variety of reasons. In some ways I think it is more humane to execute a prisoner than it is to turn him over to be gang-raped by fellow prisoners; and the number of false convictions ought to be more than a little troubling to any Christian. But lets not confuse jus in bello with jus ad bellum, if you will.

I would add to the Anscombian argument that I think the embrace of torture in our present situation may be another symptom of a confused culture on the issue of violence. We now have people who oppose ordinary self-defense under attack yet support torture, who oppose the use of the death penalty against heinous criminals yet support torture, and of course many people who support both. It has increasingly seemed to me that proper _leadership_ on the question of the use of "violence" by the government and on the question of punishment would have prevented some of this. It is possible that a number of conservatives would not have gone with the flow and supported torture if they had vocal leaders of their own mind on the importance of punishment, including capital punishment, the distinction between the guilty and the innocent, etc., who spoke out strongly against torture. Had the President said, "We did not torture KSM; we convicted him and executed him. That is clean justice that no one needs to be ashamed of," I think a lot of Americans, especially conservatives, would have respected him. And conservatives would not have seen support for torture as the "conservative" position and opposition to it as of a peace with namby-pamby, soft-on-terrorism, crypto-pacifist liberalism.

Make that "of a piece." I thought of silently editing the poor spelling, but by this time someone else has probably seen it and would think I was covering up for my embarrassing spelling gaffe.

Paul Cella has an excellent point about self-government and the death penalty. Naturally, if I thought it wrong, I would be seeking to have it repealed through legitimate means (as it was in my own state). But that what is in essence a liberal view on punishment should be imposed by judicial fiat is particularly egregious.

Can anyone imagine John Wayne torturing anyone?

--did you ever see THE SEARCHERS?

On Anscombe: it should be pointed out that she was opposed to pacifism not simply because it turned non-pacifists into consequentialists(if I can kill combatants, I should be able to kill noncombatants as well, if it will end the "horror" or war) because also because she thought pacifism so contrary to the Gospels (not to mention the rest of the NT).

On the Marines hymn and the notion of honor: there is no contradiction for a Marine (like, me, for instance) insisting (1) that all Marines and other military personnel adhere strictly to the UCMJ and to the Army field manual for interrogation of lawful enemy combatants; and also believing (2) that unlawful enemy combatants are not owed the same legal protections, rights and privileges as lawful enemy combatants.

Put in the context of “honor,” non-uniformed transnational terrorists who directly and intentionally attack innocents are not due the same honor and respect that Marines should show to honorable uniformed enemy combatants captured on the battlefield (although for good order and discipline, I would argue that anyone captured by military personnel on the battlefield should be presumptively treated as in accord with the Geneva Conventions.) Because unlawful enemy combatants are not owed, as a matter of justice, the same honor, rights and privileges as honorable uniformed soldiers captured on the field of battle, the rules governing the strategic interrogation of unlawful enemy combatants by non-DOD personnel (e.g., the intell community) are different than those for Marine (and other military) interrogators. Needless to say, this does not mean that ANYTHING can be done to unlawful enemy combatants. There are still lines that must not be crossed. Waterboarding, in particular, is a vexing issue because it is, in my view, a close call on the outer limits of permissibility.

I have no problem and see no fundamental contradiction, for instance, in condemning the abuses at Abu G. (and would even insist that a lot more heads should have rolled up and down the chain of command) while simultaneously defending an enhanced interrogation program that allows a range of “harsh” interrogation techniques beyond those specified in the Army (really Joint) field manual.

If someone thinks there is a contradiction between these positions, I’d love to hear it.

Well, Keith, off-hand I don't see any _contradiction_ in your position, though I do think (if I'm understanding you correctly) that it is interesting that you want non-DOD people to do the waterboarding rather than Marines. I applaud your wanting to keep the Marines out of it, but--at the risk of seeming to engage in psychologizing--it seems to me plausible that your position here stems from uneasiness about waterboarding. Sort of a "let the non-DOD people do that edgy stuff" approach.

I just disagree with you about waterboarding, though I see no reason to disagree with your more general point concerning the degrees of rights and privileges of various types of combatants. I am concerned, however, about the idea of translating these differences in rights and privileges into harshness of interrogation techniques. Speaking for myself (and in line with the main post), I'd somewhat rather see those differences translated into differences in terms of the number of hoops jumped through before the person is executed. Pirates captured in their piracy did not used to be given counsel for the defense, the right to call witnesses in their defense, and the entire mechanism of domestic civil justice. They were captured red-handed and after a fairly summary process were hung from the yard-arm. That makes a certain amount of sense to me, but saying, "This guy can be slapped around, but this other guy, in a different class, can be waterboarded..." that's more of a problem.

I have no doubt that some people will find what I have just said horrifyingly blood-thirsty, while others will find it namby-pamby. I aim to offend as many people as possible in as short a comment as possible. :-)

What Lydia said. (Does that mean I accomplish offending as many people as possible with even fewer words?)

Modern Catholics of your mindset wish to make mercy mandatory and universal, to ask the government (rather than private individuals) to exercise it thus universally, and to undermine the crucial role of government in the punishment of the guilty, which St. Paul (and for that matter, Christian tradition) have always assigned to it.

Well, forgive me if I had held the injunction to 'Take up your cross and follow me' to be unconditional. How very strained of me. Governments are made up of people. Individual people. A judge sentencing a man to the gas chamber is just as much an individual as you or I, beholden to the same moral law as you or I. To say that he, as an agent of the state on one hand and a follower of the Christ on the other, is subject to two different moral standards is, it seems, very dangerous. There are ways to exact punishment (i.e. imprisonment) that don't involve the taking of life and the deprivation of the chance to repent. That these ways seem so repulsive to some is something I don't fully understand.

And just to clarify, I am not a pacifist. I don't think violence, even lethal violence, to be intrinsically wrong. I just think that its permissible uses are extremely limited.

(P.S. as much as I have enjoyed following and participating in this discussion, it is the end of the semester. Time is short, and all the work pushed off for so long must now be confronted. If that constitutes a cop-out, I won't argue. :))

Zach, I will answer your question about Jesus and retribution because it is a worthy one, but I don't have much time so I'll give an outline of my thoughts.

Jesus is not opposed to retribution; indeed, he recognizes the necessity of justice-as-retribution. This is why Jesus had to die on the cross and suffer the outpouring of God's retributive wrath. You'll notice that God didn't just say, "Hey, you sinners are forgiven and no one has to suffer my retributive wrath." Instead, because God is not simply merciful but both merciful AND just, Jesus had to be retributively punished for our sin. The mercy was not in the denial of retributive justice, but in the propitiation onto Jesus. At the cross of Christ, mercy and justice met. Hallelujah.

So, if Jesus really did pay the price for our sins in his taking of God's wrath, why is there still punishment on earth? The reason is because there is a distinction between human justice (giving man what he deserves) and divine justice (giving God what He deserves). This is why Scripture can say both that "All have sinned and fallen short of the glory of God" and yet that there can be "innocent blood" (Deuteronomy). The "innocent blood" is with respect to human justice, where it is possible to be just to your neighbor and therefore innocent, while it is impossible to be just to God (which is why we are all guilty).

Jesus took the punishment for our sins against God, but there is still justice toward man which we owe, and for which the government exists as an agent of God's wrath for our sins against our fellow man (see Romans 13, which speaks of God's wrath post-Cross).

One might ask, shouldn't Jesus' propitiation have covered human injustice as well? The answer is that in a sense it has in so far as divine justice is the foundation of human justice, which is in the image of divine justice, which was ultimately vindicated at the Cross (and eschatologically in hell). But in a different sense it has not because human injustice exists as a temporal reality that testifies to the more ultimate injustice against God. As a witness to this reality of Law, God sees fit to continue the punishment of man for sins against his fellow man through the government. As a witness to the reality of Grace, God sees fit to continue the mercy of God through his people, the Church. This will continue until the eschatological return of Christ the God-Man, who will sit on the theocratic throne of human government and at the right hand of God the Father and judge the living and the dead, casting the evil into hell and glorifying his people. Incidentally, this is also the reason why Christians do not engage in holy war: that is the theocracy's vocation (see 1/2 Samuel and King David), which may come to pass only when Jesus returns as the Davidic king. Holy war (war against God's enemies--man, woman and child--is inappropriate until the eschaton.

Hope this was a little helpful, especially the first part concerning the union of justice and mercy at the Cross. I certainly agree that it is complex, but reality is complex.

To say that he, as an agent of the state on one hand and a follower of the Christ on the other, is subject to two different moral standards is, it seems, very dangerous.

First of all, nobody gets sentenced to the gas chamber in the United States. But replace that with "electric chair" or "lethal injection." Second, and more importantly, I don't believe or say this. I hold that the judge or (more often) voting jury member who comes down in favor of capital punishment for the criminal is acting wholly consistently with Christian ethics, because Christian ethics simply does not forbid the death penalty. It's really that simple. Personal forgiveness for wrongs done to oneself is _entirely separate_ from the question of whether the state should enact the just punishment for the person's crimes. I would point out here that this is evident from the rightness of state punishment _at all_, which you, Zach, admit. Personal forgiveness is supposed to be complete. But if not carrying out a penalty against a person represents forgiveness, it is obviously not complete "forgiveness" to throw somebody in jail. The unworthy servant in Jesus' parable got himself in big trouble _not_ for having his fellow servant killed but for having him thrown in jail when he could not pay his debt. So if the state's actions are supposed to _be_ the enactment of the Christian duty to forgive, we would have to eliminate prison sentences as well. This point makes it clear that Jesus simply is _not talking_ about the proper authority's punishment of evildoers when he enjoins personal forgiveness.

Oh, and I also do not see at all how a judge (or jury member) sentencing a person to prison is "taking up his cross and following Jesus" but a judge (or jury member) sentencing a person to capital punishment is not doing so. Not even remotely.

Again, this whole equation of what is deemed mercy in sentencing--specifically, not sentencing someone to capital punishment--with Christian charity, forgiveness, and kindness is just entirely misguided and incorrect. That just isn't what Christian charity, forgiveness, and kindness _are_. It's a complete confusion.

You know as well as I that the only way to accomplish an end to capital punishment in America, at least under current circumstances, would be by Court fiat.

Paul, I do not know that. It seems its practice is eroding due to an odd coalition of morally confused, smiley faced nihilists and clear thinking, orthodox Christians have for different reasons and motives, concluded it is time to end it. The old fashion way, by moral suasion at the state level. But at least by raising this "point", you gave Lydia something salutary to attribute to the death-penalty; its practice is essential to self-government. At all times and everywhere. How long will it be before she starts rolling out Joseph de Maistre quotes?

On Anscombe: it should be pointed out that she was opposed to pacifism not simply because it turned non-pacifists into consequentialists(if I can kill combatants, I should be able to kill noncombatants as well,

Poor Anscombe. She makes one sophistical speculation a couple of paragraphs long and now must endure her life's work being tarnished by it. What's next: marital relations lead to adultery: "if I can sleep with one woman, I can sleep with them all"?

Because unlawful enemy combatants are not owed, as a matter of justice, the same honor, rights and privileges as honorable uniformed soldiers captured on the field of battle

Was that the position of King George III? And given that we'll be fighting asymmetrical warfare for the foreseeable future, what do you propose? Actually, forget I asked.

Anscombe's conclusion is that pacifism is itself a significant assault on the prohibition against killing the innocent; that for every pacifist who sticks to his principles, ten other people are driven to consequentialism either in reaction to the pacifist or from reaching 'pacifist despair' because of some turn of events.

Anscombe is headed towards Bill Buckner territory thanks to this thread. A great career overshadowed by one ground ball between the legs. We are to believe that pacifism was such a vital and vibrant force that it clouded the minds of men like Truman to the point that incinerating a couple of Japanese cities seemed logical. It was Churchill's reading of the nutter Bertrand Russell that lead him to gas the Iraqis and bomb German cities and not any dark, primordial impulses of his own. What a trenchant insight into human nature. Europe of the mid-20th Century sacrificed on the pyre of...pacifism. O.K.

If "conservatism" is such an intellectually brittle force that it can't rebut both pacifism and Total War doctrine, or draw basic distinctions between just punishment and rationalized blood lust without sinking into a state of drooling confusion, perhaps it should just resign itself to a comedic role as Liberalism's hapless spawn. A faux alternative traipsed out to give the appearance of dissent, but really just a pale imitation designed to sell advertising time on talk radio.

Say it again; the practice of torture increased as the application of the death penalty decreased. Want to curtail the former? Simply ramp up the lethal injections and watch those rendition flights to the Middle East slow to a crawl. And, by all means, don't make any connection between the debased view of the human person that begins with abortion and ends on a waterboard or an electric chair.

Good Lord.

In the early 21 Century West,the DP offers no moral instruction, heals no wounds and advances no higher end.

Incorrect. It serves justice, which is among the highest of ends, and is among the most critical purposes for the state's very existence.

Mercy can (in some ways) be considered a higher end, (though properly mercy and justice are co-equal) but nobody thinks that mercy belongs in the very definition of the the state and its end.

Furthermore, everyone seems to forget what it means for there to be primary and secondary ends of something, where the primary and secondary are meant quite properly and not accidentally. JPII, and the Catholic Church, and Christian tradition all affirm that restoring justice is the primary end of punishment, and other ends (rehabilitation, deterrence, safety) are all secondary ends. But St. Thomas clarifies that secondary ends (if they are truly secondary and not merely accidental) come about by reason of the effort to achieve the primary end. That is, they are secondary and not merely accidental by being in relation to the primary end as such.

What does this mean? It means that really effective rehabilitation, and broadly and deeply successful deterrence, and long-lasting safety will be achieved in punishment precisely with attempting to restore justice as perfectly as we are able. Punishments that cease to consider justice first, and instead consider rehabilitation, or (heaven forbid) "healing wounds" first, by that very fact will damage the state's ability to promote justice AND diminish the ability to achieve the very goals of rehabilitation, safety, etc.

The comments about Christ's example and His call for us to forgive and be merciful are all completely beside the point. Christ was not telling the state to do so, as St. Paul makes clear (see Romans - the avenging prince). Christ, when he told a person "go and sin no more" was also at that time giving them grace to adhere to the good. Can the state do the same? No, of course not. St. Paul says that different roles are given to different people - teaching, prophecy, etc. I would say that one of those roles is to be the heavy hand of the state for the sake of justice, as Paul describes the prince. For him whose role is to establish justice, false mercy applied as leniency is just plain wrong.

I say "false" mercy, because, as indicated above, the state's application of punishment for rehabilitation must be normally through applying the just punishment, thus helping the criminal to see just how evil his action was. "Mercy" in the form of leniency that does not promote the prisoner's seeing his evil action in its true light is false mercy, for it does not lead him to turn away from moral evil and embrace the good.

Not that either real or even apparent rehabilitation happens in the prison system much anyway.

Holy war (war against God's enemies--man, woman and child--is inappropriate until the eschaton.

Albert,
Will we receive the official fatwa by email and what happens to those with server problems?

From a pro death penalty expert (a former anti death penalty person):

Has Pope John Paul II's Evangelium Vitae had an effect on some folks stand on the death penalty? Yes. Any writings by a Pope is going to affect the positions of many. However, what many don't understand, is that the EV writings are a matter of prudential judgement and, by my take, represent very flawed writings, both theologically and rationally.

see http://homicidesurvivors.com/2007/07/23/pope-john-paul-ii-his-death-penalty-errors.aspx

Catholics in good standing can still, today, support more executions, based upon their own prudential judgement.

In addition, the Pope's prudential judgement was an amendment to the most recent Catechism. I don't believe a prudential judgement had ever been entered into a Catechism, before, and I suspect some are concerned that this one ever was.

Recently deceased US Cardinal Avery Dulles had, recently, voiced his opinion that the Church may return to a more traditional stance on the death penalty.

see http://homicidesurvivors.com/2009/03/18/catholic-death-penalty-support-modern-scholars.aspx

Contrary to some opinions, I find it difficult to overcome the biblical, theological and traditional support for the death penalty.

see http://homicidesurvivors.com/2009/03/17/gov-richardson-hopefully-you-will-consider-these-preeminent-voices-more-authoritative.aspx

and

http://homicidesurvivors.com/2006/10/12/catholic-and-other-christian-references-support-for-the-death-penalty.aspx

I, personally, do not need religious teachings to support the death penalty. Justice is enough.

Another issue is the constant coverage of the many innocents released from death row. Problem is, unknown to the overwhelming majority, is that the constant discovery and release of "innocents" from death row, is no such thing. It is a blatand fraud by anti death penalty folks - a fraud, easily uncovered by the most basic of fact checking. I have been publishing articles on this since 1999.I discovered the deception years earlier.

see http://homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx

The reality is that innocents are more protected by the death penalty than by a lesser sanction, such as a life sentence.

see http://homicidesurvivors.com/2009/01/30/the-death-penalty-provides-more-protection-for-innocents---new-mexico.aspx

Just like the innocence issue, the media coverage is most filled with the anti death penalty position and folks (including some who have written, above) are simply unaware that most of the anti death penalty arguments are weak or false. The following article is a bit out of date.

see http://homicidesurvivors.com/2006/03/20/the-real-death-penalty-in-the-us-a-review.aspx

A note on polling.

Death penalty support is really at about 80%, not the 60-75% rates that have, often, been reported in the past few years. The lower rates come from polling questions, such as "Do you support the death penalty for murder?" However, we only give the death penalty for death penalty eligible crimes, very specific murders, such as rape/murder, terrorism, mass and serial murders, among others. When, correctly, asking about the only relevant murders, capital murders, support is at around 80%.

[Please avoid multiple links in a comment -- Ed.]

Incorrect. It serves justice, which is among the highest of ends, and is among the most critical purposes for the state's very existence.

On a scale of 1-10, rate the State's performance in serving justice and reducing recidivism amongst criminals, mindful as you say; Not that either real or even apparent rehabilitation happens in the prison system much anyway.

On a scale of 1-10, rate the State's performance in serving justice and reducing recidivism amongst criminals

You mean now, when the penal system no longer thinks that justice matters nor that rehabilitation is likely?

Well, let's break that down: For justice, it is still the case that every single sentence helps to serve justice (assuming that the convicted is actually guilty) since every single sentence imposes on the criminal something against his will as a redress to the fact that he choose to give free license to his will contrary to law and the common good. Though not every sentence does so perfectly, because generally there is a failure (in our system that no longer seeks to principally aim at justice) to ensure that justice is the primary reason for each and every capture, trial, conviction, and sentence - and thus there is a breakdown between what the penalty objectively serves as redress and what is subjectively grasped about serving that sentence. Nearly all of the sentences serve justice in part (rate a 9), but nearly all of them serve justice deficiently (rate a 2).

For "reducing recidivism"", obviously there is not much there.

The question is, does it improve matters to say that we will cease to seek to serve justice even so far as we can? Of course not. To the extent that the justice"" system has lost its way, one aspect of the corrective is to try, at each opportunity, to make justice the primary focus. Failing to use the just punishment because other parts of the system are not working well is not corrective of the problem at all, it makes the problem worse.

Tony's 12:01 AM comment is uncommonly wise and well-said.

On a scale of 1-10, rate the State's performance in serving justice and reducing recidivism amongst criminals

"Reducing recidivism" is still ancillary to justice. We may talk about it in the abstract, but the reality is that capital punishment relates to a specific crime or series of crimes in each instance it is applied. The question of justice concerns the punishment for that crime.

I raised the issue of self-government and judicial usurpation because it's a salient issue if we are going to broaden the debate into a wider field of social problems. If you're going to insist that we relate this issue of CP to the culture of life, there is no obvious reason why I cannot introduce self-government as well.

Well, Keith, off-hand I don't see any _contradiction_ in your position, though I do think (if I'm understanding you correctly) that it is interesting that you want non-DOD people to do the waterboarding rather than Marines. I applaud your wanting to keep the Marines out of it, but--at the risk of seeming to engage in psychologizing--it seems to me plausible that your position here stems from uneasiness about waterboarding. Sort of a "let the non-DOD people do that edgy stuff" approach.

Lydia, I want to keep the military out of a lot of things that I would consider entirely legitimate for other institutions and people in those institutions. I don't want the diplomats over at Foggy Bottum doing the wargighting but that doesn't mean that I think warfighting is evil in itself.

In short, my position on DOD personnel sticking to the joint interrogation manual does not stem from my uneasiness about waterboarding. I'm not at all uneasy about the use of the OTHER interrogation techniques, but I don't want DOD personnel involved with them even if they are legitimate (and not intrinsically immoral. It all has to do with setting boundaries specific to distinct offices, roles and responsibilities. And it has to do with the REASONS and INCENTIVES behind the Geneva conventions related to prisoners of war.

Got to run, but I look forward to talking about this more.

If wrongful convictions make one doubt the justice of the death penalty, why don't wrongful convictions make one doubt the justice of imprisonment? (Please don't bother to argue imprisonment can be reversed, that won't pass the laugh test.)

If the difference in application of the death penalty among blacks and white, rich and poor, make one doubt the death penalty, why doesn't the difference in application of imprisonment make one doubt imprisonment?

These problems of the death penalty aren't features of the capital punishment--it's a punishment, not the means by which the guilty are chosen and their fate decided.

**If "conservatism" is such an intellectually brittle force that it can't rebut both pacifism and Total War doctrine, or draw basic distinctions between just punishment and rationalized blood lust without sinking into a state of drooling confusion, perhaps it should just resign itself to a comedic role as Liberalism's hapless spawn.**

Which is, of course, exactly what certain variants of 'conservatism' are.

"It serves justice, which is among the highest of ends, and is among the most critical purposes for the state's very existence."

While in principle this may be true, it doesn't seem to be the case in fact, in part because
"the penal system no longer thinks that justice matters nor that rehabilitation is likely." While I'm against the DP for what might be called "ascetical" reasons, it's not a hill I'm willing to die on. From that perspective I'd agree with the governor/state mentioned above which declared a moratorium on it given the questionable justice of the manner in which it's current applied.

In other words, I don't for the life of me see how the unjust application of a just principle furthers justice.

"Please don't bother to argue imprisonment can be reversed, that won't pass the laugh test."

Really? One would think that given the nature of the death penalty as not only irreversible, but as entailing the taking of the life of a person made in the image of God and thus of infinite value (an event which the Church has always believed to hold an inherent solemnity and seriousness), we would be a tad more cautious in its application than we need to be regarding other punishments.

rate the State's performance in serving justice and reducing recidivism amongst criminals

That's the kind of thing that just frustrates me. How can it _possibly_ be relevant to the question of whether we should use the dp whether the state is good at reducing recidivism, except perhaps as an argument _for_ the dp? If we're going to do consequential arguments on this subject (which I don't do), we cd. argue that the poor showing on reducing recidivism means that we need to use the dp more to protect the public against parolees who commit more heinous crimes. And it certainly is understandably angering when someone who in justice should have been executed is released and murders another child. But *how in the world* can such a point count _against_ the dp? I'd like to see it laid out in premise-conclusion form. "1. If the state can't reduce recidivism well, we shouldn't exercise the dp. 2. The state can't..." etc. At which point it is premise 1 that is a joke.

Rob G., we _are_ a tad more cautious. Every dp conviction is automatically appealed to the SC. Many are thrown out on technicalities that I think they shouldn't be thrown out on. And the general protections for criminals for _any_ conviction, capital or otherwise, are fairly extreme. You can be convicted of a crime only with the unanimous vote of a jury--a fact which, together with the ridiculous race-counting of juries, has resulted in many ludicrous acquittals.

The point about imprisonment and reversal is that people bring it up as an argument against the dp uberhaupt, as you've seen in this very thread.

Rob G., can you point to a case where the death penalty was carried out on a innocent man?

I know we have a number of cases where innocent men were on death row when exonerated, but I've not yet discovered a clear case of an innocent being put to death.

As I discussed and presented, above, innocents are more at risk if we fail to execute murderers.

O covered many other issues, which are being discussed, as well.

tehag's comment is entirely correct. Kevin's critique is not one merely of capital punishment, but of the legitimate authority of the state, or at least this state, to punish anyone in any manner. Presumably it is not Kevin's intent to follow this to its logical conclusion, but this line of reasoning points toward anarchism. There is no criminal justice system free of error and absurdity, after all.

Put me down on the list of those who think there is nothing merciful about putting people in cages for the rest of their lives.

Not quite to your standard Paul, but a pretty bad case:
http://www.chron.com/disp/story.mpl/front/3472872.html

In other words, I don't for the life of me see how the unjust application of a just principle furthers justice.

Rob, I agree that if it is impossible to be just in the current system, then the dp, and ALL punishments in the system, are merely different ways of being unjust. But that's not the case. The system overall has lost its way in many aspects, but not in each specific detail. THIS particular judge can be just in this particular case, and give the just punishment in a just manner. So while we ought to work on systemic cures to the ills of the whole system, we should ALSO work on justice in each individual case as well.

But to take your words at face value and re-present them: I don't for the life of me see how the just application of a just principle in a faulty system harms justice, or harms the system.

One would think that given the nature of the death penalty as not only irreversible, but as entailing the taking of the life of a person made in the image of God and thus of infinite value (an event which the Church has always believed to hold an inherent solemnity and seriousness),

One would think that people could eventually see that taking the life of a murder does NOT imply a diminution of the value of life. Genesis 9:6 has God saying If anyone sheds the blood of man, by man shall his blood be shed, "for man is made in God's image." God himself attests that the death penalty reinforces the infinite value of human life because of its reflection of His image.

I do not say we should not be careful in using it - of course we should. But the fact that some people have been less than sufficiently careful in the past means we should be unlike them, and should be careful in using it. It does not mean we should be unlike them and not use it when justice requires it.

So I read the article on the Cantu case. So either the eyewitness was lying before or he's lying now. Or, alternatively, over the passage of time he has gotten worried that he was mistaken before and has convinced himself that he lied before. I remain unconvinced that he was lying before. _At most_, they have cast doubt on the conviction, not shown that the person executed was innocent. And the article's attempt to portray Cantu as a sympathetic character does not succeed with me (to put it mildly). Interestingly, they cannot leave out the fact that he was a violent criminal, though not convicted in the other case, because they need to use his other violent crime (against an off-duty policeman) to insinuate that the police had a grudge against him.

Lydia, perhaps I'm not making myself clear. I'm not arguing that the DP is inherently unjust. I would be much more inclined at least passively to support it if we didn't have fifteen appeals for each sentencing, guys sitting on death row for 25 years, etc. If it were carried out swiftly and humanely and thus reflected true justice (and not vengeance) I might still find it problematic spiritually speaking but could see how it might be necessary societally (provided all the constitutional protections are intact). In St. Paul's words, it would be both lawful and expedient.

Right now, however, while I can (arguably) see the "lawful" side of it, I don't see the "expedience" or prudence of it under the current conditions.

Paul, I don't know of any innocents having been executed, but it's not something I've researched, so I can't comment one way or the other.

I agree with Lydia: it sounds like an ugly case out of San Antonio, all around. But Cantu was pretty clearly a thug whose list of crimes was long indeed.

When I sat on a Grand Jury -- which Georgia maintains in its antique function as a sworn body deliberating on many many cases over the course of 8 weeks -- I got a first-hand look at the horrifying injustices inflicted by criminals released on technicalities, our allowed to serve minimal sentences for terrible crimes.

I vividly remember a woman who testified (victim testimony is pretty rare in the indictment phase) whose abusive boyfriend slashed her thigh wide open with a butcher knife and burned a family member's house down. He had only just recently be released from prison for a similar offense. (We added an Aggravated Battery charge that the DA neglected.)

At least by implication the more vociferous opponents of capital punishment, especially when the arguments tend toward anarchism, would have us regard these injustices of underpunishment as paling beside the injustice of a case like Cantu.

Not me. My experience is that as much injustice occurs out of an excess of sympathy for criminals as does out of a vague democratic bloodlust.

I'm not sure claiming he was a moral cretin anyway is really adding to our understanding of humanity here. Wrongful convictions happen. We aren't talking about under 1% of cases either. I would be shocked if we hadn't put innocent men to death. Finding angels on death row is like trying to find angelic victims. They can be found in romantic fairytales, but otherwise they are fairly unknown.

As to soft prosecution, I'm well familiar. I had a gun pointed at me by a guy with a rap sheet the size of a telephone book. Since there was no recovery of the weapon and no other crime was commited, he couldn't be charged with the crime of a felon being in possession of a firearm. The reasoning was that he could have been holding a pellet gun or some other thing impersonating a firearm. I don't see how the dp changes anything there, but the story is at least interesting.

* I apologize for changing psuedonyms midstream here. I hadn't intended to use it here, but did above and will continue to so in the future. Email address is the same though.

There is also the case of Cameron Todd Willingham.

BTW, as a conservative I'm very much a 'law-and-order' guy. I believe in mandatory sentencing, "3 strikes" laws, etc. My discomfort with the DP does not come from any softness towards criminality on my part.


Kevin:

Will we receive the official fatwa by email and what happens to those with server problems?
550 5.5.0 Failure theology@Kevin.com.... Retry alternate.
550 5.5.1 Failure humor@Kevin.com... Server timed out.
Host returned error: Unable to process logic

Hmm, you might want to get that checked out...

I would be much more inclined at least passively to support it if we didn't have fifteen appeals for each sentencing, guys sitting on death row for 25 years, etc.

That's another arg. against applying the dp that just absolutely baffles me, Rob G. I mean, it really baffles me. You must surely know that the phenomena you describe have come about as a result--directly or indirectly--of _opposition_ to the dp. This is true, too, of the great expense of the appeals. I, too, would strongly support fewer appeals and swifter justice. But that is because I am _for_ the dp. The delays have been created by those who oppose it, in an attempt both to discourage the use of the dp and (ostensibly) to prevent its application to innocent people. Go complain to them. How can the roadblocks that have been set up to the application of the dp be an argument against its use or the justice of its use? That just baffles me utterly.

Lydia is absolutely right.

I would be much more inclined at least passively to support it if we didn't have fifteen appeals for each sentencing, guys sitting on death row for 25 years, etc

If it were carried out swiftly and humanely and thus reflected true justice... (provided all the constitutional protections are intact)

Rob, At least in the current climate these are contradictory. The current teaching of "all the constitutional protections" means, precisely, those decades of appeals, etc.

With Lydia and Paul, I agree that justice is better when it is swift, BUT ALSO that justice slow is better than not at all. If the system won't give me quick justice, I am still going to shoot for getting the just penalty as soon as I can get it.

I see no reason to think that if the penalty is provided swiftly it is just, but the very same punishment delayed some years fails somehow to be just anymore.

I take it as a moral certainty that somewhere in the last 200 years we have erroneously used dp on a person wholly innocent of the murder they were convicted of. (For no other reason than this: we humans are just not ever able to achieve 100 percent accuracy on anything we undertake.) I find this not the least part of a (valid) argument not to use dp. It simply doesn't wash. The ONLY way it might possible start to work is by first presuming there is no God and there is no afterlife and there is no way to balance the books of justice after death - and even then it is a problematic argument.

How is that baffling? Basically what I'm saying is that if we're going to do for justice's sake, then goshdarnit, let's have some justice. If it's lawful to do it, then it seems to me it should be done justly and expediently.

My opposition to the DP isn't rooted in the same place as that of the people who have set up these roadblocks. They see it as illicit. I do not. St. Paul says that the ruler does not wield the sword in vain. But I don't see how this requires that he wield the sword in this particular manner.

Speaking for myself, I think I'd almost rather be shot by mistake than imprisoned for years by mistake. Yes, the latter is reversible _in one sense_, though the trauma may not be. As fallible human beings we must work with the evidence we have.

The evidence suggests that lots of people prefer death to 'x' when 'x' isn't a reality. When 'x' becomes a reality, they have a tendency to change their views.

Rob G., I agree with Tony. How can it become unjust to execute a man 25 years later after all those appeals if it was just to execute him sooner? Certainly no injustice is being done _to him_. In fact, the very hassle involved is put in there with the intent that every avenue has been explored for making sure he isn't executed unjustly. If the liberals have made it so hard actually to carry out the dp, then we should take slow justice when we can't get swift justice. But I can't see that that is a reason to give up and say, "Okay, you guys win. You made this a hassle, so we just won't try to carry out the legitimate and important governmental function of executing heinous criminals anymore."

I said: "Because unlawful enemy combatants are not owed, as a matter of justice, the same honor, rights and privileges as honorable uniformed soldiers captured on the field of battle."

And Kevin responded:

Was that the position of King George III? And given that we'll be fighting asymmetrical warfare for the foreseeable future, what do you propose? Actually, forget I asked.

Actually it is the position reflected in the Geneva Conventions, which were designed in large measure as an attempt to provide incentives to rebel militias to "regularize" themeselves. The thought was that if you played by the rules of the game--wore uniforms recognizable at a distance, carried arms openly, subject to orders from a superior, follow the laws and customs of war--you would, if captured, receive the full rights and privileges of POWs. The incentive was to "regularize" the "irregulars. Why should "irregulars" be given an incentive to "regularize?" Because, it was thought that irregular warfare (insurgency warfare) was ethically suspect because it put the civilian population at risk by using them as a "hostage shield." Of course, if you refused to abide by the conventions, you were not entitled to its full range of benefits.

Now, I'm confused about what Kevin means by "forget I asked." But for those other than Kevin who might be interested in his quesion on what asymetrical warfare has to do with such things, let me call attention to (1) Paul Ramsey's classic and seminal article, "The Ethics of Counterinsurgency" in THE JUST WAR. (2) Oliver O'Donovan's discussion in THE JUST WAR REVISITED and (3) My own humble attempt to address precisely the question Kevin asked (before he said to forget he asked) can be found in THE ETHICS OF COUNTERINSURGENCY, a piece I did for The New Atlantis. Here:
http://www.thenewatlantis.com/publications/the-ethics-of-counterinsurgency

It may not be an injustice in that particular case, when considered in isolation, but when that scenario is multiplied by the thousands and affects the entire penal system in a negative way, it subverts the constitutional guarantees related to other prisoners' trials and penalties, etc.

When you add to that the race and class inequalities, I do not see how the DP as applied today results in anything like justice.

I think maybe I caught a glimmer there, let me ask Rob if this relates to his problem with slowness in providing justice: Of the many purposes of punishment, the first is justice. But of that first purpose, manifesting justice, so that not only is the penalty valid, but is seen to be just, is not by any means a mere accident of justice in its truest sense. But a sentence delayed 14 years cannot truly manifest its purpose - at least not clearly and unambiguously.

OK but here the defect, the lessening of justice, is in the justice owed to the state, not the just desserts owed to the criminal. The murderer deserves his death just as much after 14 years of appeals as he does from day 1. It is the STATE which is gipped out of what it has a rightful claim to. This is exactly why those idiots who insist on 7 layers of appeals are obstructing justice itself, not promoting it. Yet even after 14 years of delay, the state's claim on justice is not made more whole by refusing to levy the just penalty delayed, it is obliterated by refusing.

But I don't see how this requires that he wield the sword in this particular manner.

The state is required as one of its gravest duties to seek & maintain justice. That includes just (commensurate) punishment for crimes under the purview of the state. In the case of heinous crimes, that commensurate punishment is death. The state is obliged to use that commensurate punishment except when exceptional and grave circumstances make it impossible to carry out without yet worse damage to the common good. (These circumstances can only occur by way of admitting that justice cannot be achieved in this situation, as another end supercedes the state's duty toward justice. Since there are few such other ends, there can only be few such types of occasions. The only one I can think of is if putting to death a criminal will set off riots.) By definition, then, the exceptions must be seen precisely as exceptions to the rule, and therefore infrequent rather than across the board policy. Taking dp off the table for punishment means taking justice off the table as the end of the state.

A wife kills her husband that had been beating her for half a decade. She had been hospitalized several times from these beatings. If we understand Tony and a few others right, anything short of the State giving her the death penalty is a violation of justice, correct?

But a sentence delayed 14 years cannot truly manifest its purpose - at least not clearly and unambiguously.

Indeed, in the case of somebody who deliberately takes a human life, our willingness to impose the death penalty is our testimony to how seriously we take the value of which he has offended against.

There is nothing brutal in treating a person as a responsible agent who can be held accountable for his acts and requiring he sustain the burden proportionate to the burden he has wrongly inflicted against others.

God Himself commands murderers be executed. In Genesis 9: 5-6, God commands Noah and his descendants to execute murderers because murder is the ultimate violation of the divine image in humanity, and killing the perpetrator is the only proportional punishment.

when that scenario is multiplied by the thousands and affects the entire penal system in a negative way, it subverts the constitutional guarantees related to other prisoners' trials and penalties, etc.

Rob G., I just don't understand this at all. How in the world does going ahead and carrying out the dp for a person who deserves it after jumping through all the ridiculous hoops put in the way subvert these constitutional guarantees related to other prisoners' trials and penalties?

Badger, neither I nor, as far as I remember, anyone in this entire thread had said anything about mitigating circumstances and how they affect the administration of the dp. I would say that truly mitigating circumstances can and should affect sentencing. But I have a fairly strict notion of mitigating circumstances. "X grew up in poverty without a father and has below-average intelligence" is _not_ a mitigating circumstance, in my book. Not by a long shot.

Badger:

Whether the wife in your hypothetical is guilty of murder is a decision to be made at trial. In most states, I believe, the prosecutor would have to prove first degree murder, which usually includes an element of intent. Self-defense is also obviously an issue.

Certainly if she were defending herself, there would be no issue.

The point however is that justice would not be violated by giving less than the death penalty. Lydia attempts to still achieve justice by using a sort of objective criteria, mitigating circumstance. We don't have to go that far though. If a young man steals my coat, I catch him, and I then just say keep the coat, I'm not violating justice. Tony (and some others above) want to argue that unless I press full charges, I'm violating justice. If the state imprisons a man for 20 years rather than giving him the death penalty, a miscarriage of justice has not occured.

Your not pressing charges in the case of the theft is one thing. The state's "forgiving" him is quite another, and in my opinion is a confusion of personal forgiveness and the proper role of the state. But I would say that if he takes your child's life, it should not be up to you to not press charges. Such is the difference between petty theft from a single individual and murder.

Was it wrong to accede to Matthew Shephard's mother's request for the death penalty not be given?

"How in the world does going ahead and carrying out the dp for a person who deserves it after jumping through all the ridiculous hoops put in the way subvert these constitutional guarantees related to other prisoners' trials and penalties?"

You seem to take the view that each execution is its own hermetically sealed instance of "justice." As I specifically said, one instance doesn't subvert it when considered in isolation, but when it's multiplied thousands of times, it creates in the system a very apparent sense that "something's not right here." That observation, though, cannot be due solely to the fact that the executions are not carried out quickly or numerously enough. In addition, the accretion of many small injustices of the other sorts I mentioned adds to it and creates a situation in which the entire system is out of kilter. But as Kevin stated above, I do not think that we can solve the problem by frying people earlier and with more frequency.

"God commands Noah and his descendants to execute murderers because murder is the ultimate violation of the divine image in humanity, and killing the perpetrator is the only proportional punishment."

I don't see why this necessarily has to continue under the Christian dispensation, just like we (hopefully) no longer call down blessings on those who dash the infants of our enemies against the stones. And please, no 'Noahic covenant' stuff. I'm not a 'covenant theology' guy.


But, Rob, the "something's not right" things you are talking about are of utterly different sorts. On the one hand, the sense that something is "not right" about spending oodles of taxpayer money and many years on pointless appeals of the conviction of somebody convicted by overwhelming evidence is "not right" in the sense that he should have been executed sooner--not for _his_ sake, but for the sake of others. The "injustice" is on the pro-dp side. On the other hand, the "something's not right" that you wish to bring up concerning (supposedly) erroneous convictions and (what bothers you about) the differential conviction rates in terms of race are (supposedly) actual injustices against the criminals. I totally disagree with you that those latter considerations mean we shouldn't be carrying out the dp, but at least I have a vague idea of why they are thought to be considerations against carrying it out. The first of those simply _does not make sense_ as an argument against carrying it out. It doesn't, either in the individual case or the aggregate, count against it. The fact that we take umpteen years and zillions of appeals to execute people doesn't mean we are undermining constitutional protections for criminals. How could it mean that? How is that supposed to work? If anything, it is an _exaggerated_ kind of protection for them. All you've said is that it leads to a feeling that "something isn't right." You're darned tootin' something isn't right, but not (at least not from that consideration) in the direction of our having too few constitutional protections for criminals!

I have gathered in the past that there are some people who think it is actually _cruel to the prisoner_ to execute him after 25 years. (These are Europeans or Britishers I've heard uttering this.) I gather the idea _there_ is that by serving all those years the poor, poor fellow has already paid his debt to society and should be left alone. I think that's stupid, but at least I know what they are saying. I gather, however, that this isn't your way of using the length of time before execution as an argument against administering the dp.

How can it _possibly_ be relevant to the question of whether we should use the dp whether the state is good at reducing recidivism, except perhaps as an argument _for_ the dp?

It was once a basic conservative insight that the moral authority and competence of an institution determined how much power we would willingly bequeath to it. Now according to Cyrus and others such a view may lead to anarchism, or in Lydia's case is irrelevant.

“… on any given day more than 2 million people are incarcerated in the United States, and that over the course of a year, 13.5 million spend time in prison or jail… Within three years of their release, 67% of former prisoners are rearrested and 52% are re-incarcerated, a recidivism rate that calls into question the effectiveness of America 's corrections system, which costs taxpayers $60 billion a year.” http://www.prisoncommission.org/report.asp

Ought to force all of us to look at the State's role in contributing to such a debauched view of human life and decrepit system of justice before we crank-up the electricity.

we cd. argue that the poor showing on reducing recidivism means that we need to use the dp more to protect the public against parolees who commit more heinous crimes

Such logic subverts your pro-life stance elsewhere should you dare offer it.

Put me down on the list of those who think there is nothing merciful about putting people in cages for the rest of their lives.

Yeah, the death penalty as mercy killing. Maybe Lydia will finally get second thoughts.

You seem to take the view that each execution is its own hermetically sealed instance of "justice."

Rob G., well said.

Albert, just hold the eschaton without me, but could you tell Chuch Hagee and the boys to sit tight until the Holy War is official?

A wife kills her husband that had been beating her for half a decade. She had been hospitalized several times from these beatings. If we understand Tony and a few others right, anything short of the State giving her the death penalty is a violation of justice, correct?

No, no, no. A thousand times no. Badger, the entire discussion above about dp assumes (from both sides of the debate) that the criminal in hand is both known to be guilty and is guilty of the worst sort of crimes, like cold-blooded, pre-meditated assassination of a cop for money, for example. The ins and outs of mitigated guilt and reduced punishments are a whole nother problem and a whole nother discussion. Please keep the discussion on track and only deal with the situation where we ALL agree the crime itself is one deserving of the worst of punishments.

Second claim: This is no longer true today. Now, conservatives who are strongly in favor of the death penalty tend to be the same ones who support at least some forms of torture, and conservatives who are opposed to those same forms of torture tend to be, at least, uneasy about the death penalty rather than strongly in favor of it.

Suppose these are both true. What caused the change?

There's a change in the right that you didn't account for, Lydia. The Right began to fracture during the late days of the Clinton administration and finally broke apart a few years after 9-11 into two basic categories: right-authoritarians and right-libertarians.

The right-libertarians are the conservatives who maintained the traditional instinct to distrust government and saw clearly the increasing level of abuse that the public is suffering at the hand of law enforcement officers and prosecutors. For them/us, it's hard to support the death penalty when the Innocence Project is going through many jurisdictions' convictions like Robespierre on a day he woke up on the wrong side of the bed.

As the level of corruption rises, it will be increasingly impossible for anyone of decent character to support the death penalty because there are just too many people in The System who care more about their careers than seeing justice done. Thankfully, there is a special place in Hell reserved for those who God gave authority to and who used it for such wicked ends.

Now, I'm confused about what Kevin means by "forget I asked." But for those other than Kevin who might be interested in his quesion on what asymetrical warfare has to do with such things, let me call attention...

Keith,
I read your very interesting essay and enjoyed it, but did not see any recommendation on how to treat the non-state, assymetrical insurgents that emerge from the earth's crypts once they are captured.

There seem only 2 real choices. First, treat them as unlawful combatants and place them in the no-man's land of renditions, invisible prisons and all the abuses that follow. Or, treat them as POWs and afford them the protections covered by the Geneva Conventions. Those who take the term Christian soldier to heart will painfully opt for the latter approach, knowing there are few things worse than losing one's honor while sinking to the level of a merciless enemy.

Kevin, I think we all agree that there is way too much crime, and way too many people in prison for a healthy society. The question is not whether there should be a better system, certainly there should. The question is, will choosing to NOT use a certain penal sentence that is admitted to be just be more likely to make the system worse, or

more likely to make the system better.

I admit that there could be ways in which employing the death penalty badly - in a poor manner - might make the system even worse. But then, prison and fines employed badly won't improve the system either. The problem is not in the kind of punishment, but how it is employed.

If death is the penalty that fits the crime, the using the death penalty in an appropriate manner will improve the system overall.

Kevin quotes statistics on recidivism rates and follows them with

Ought to force all of us to look at the State's role in contributing to such a debauched view of human life and decrepit system of justice before we crank-up the electricity.

Honestly, I'm losing my patience with this nonsense. Kevin, please show me logically and rigorously why recidivism rates should make us not carry out the death penalty. Do you know how to use premise-conclusion form? Try. Please at least try to show me why this should be remotely positively relevant to the anti-dp conclusion. Because I cannot for the life of me see the slightest support it offers at all. I look at those recidivism rates and say, "Yep, the whole rehabilitation thing was just as stupid as it looked to begin with. Man is fallen. We need to get back to viewing punishment as punishment. And a heck of a lot of those guys should beyond all doubt have been pushing up daisies long ago. Liberals! What jerks!" And be more strongly confident of my dp position than ever.

If death is the penalty that fits the crime, the using the death penalty in an appropriate manner will improve the system overall.

Tony, I give you credit, unlike Lydia who is sealed off in her Hangman's Hermeneutics, you claim more frequent application of the Death Penalty will improve our criminal justice system and society as a whole.

There are over 3000 prisoners on Death Row. Please elaborate on the positive social impact we can expect from their executions.

"Yep, the whole rehabilitation thing was just as stupid as it looked to begin with. Man is fallen. We need to get back to viewing punishment as punishment. And a heck of a lot of those guys should beyond all doubt have been pushing up daisies long ago.

Lydia you're not now saying we're coddling criminals and have made prison life so soft former inmates are anxious to return, are you? Or are you saying rehabilitation of criminals is not even a worthy goal and we should just let them stew in their concrete cages?

Something tells me you hold prison ministry in low regard.

There seem only 2 real choices. First, treat them as unlawful combatants and place them in the no-man's land of renditions, invisible prisons and all the abuses that follow. Or, treat them as POWs and afford them the protections covered by the Geneva Conventions.

What?!? Why? Why aren't there about 46 options? I can think up at least 3 off the top of my head.

1. Think up a new classification explicitly for asymetric warfare users (abusers) that holds them under different rules.

2. Turn them over to the wives of the men murdered by Hussein. Or the fathers of boys and girls killed in funeral procession bombs.

3. Turn them over to the World Court. Hahahaha. That's one's pretty funny, I know.

The point is, there are plenty of ways to deal with prisoners that are not inherently evil, without deciding to grant POW status under the Geneva Conventions to people and situation for which the conventions are not applicable and should not be made applicable. Such a status is a man-made classification, and while parts of it relate to the natural moral law at root, this specific application of those laws are human laws and are neither sacred nor all-encompassing.

The point is, there are plenty of ways to deal with prisoners that are not inherently evil

Well then, give us one of your top 46 with the guidelines for their treatment.

Good discussion, though I haven't finished reading through it. Assuming these haven't been brought up yet, here's some info on the Catholic tradition regarding capital punishment:

Innocent I

"It must be remembered that power was granted by God [to the magistrates], and to avenge crime by the sword was permitted. He who carries out this vengeance is God’s minister (Rm 13:1-4). Why should we condemn a practice that all hold to be permitted by God? We uphold, therefore, what has been observed until now, in order not to alter the discipline and so that we may not appear to act contrary to God’s authority."

(Innocent 1, Epist. 6, C. 3. 8, ad Exsuperium, Episcopum Tolosanum,
20 February 405, PL 20,495)

Innocent III

"The secular power can without mortal sin carry out a sentence of death, provided it proceeds in imposing the penalty not from hatred but with judgment, not carelessly but with due solicitude."

(Innocent III, DS 795/425)


Pius XII

"Even in the case of the death penalty the State does not dispose of the individual’s right to life. Rather public authority limits itself to depriving the offender of the good of life in expiation for his guilt, after he, through his crime, deprived himself of his own right to life."

(Pius XII, Address to the First International Congress of Histopathology
of the Nervous System, 14 September 1952, XIV, 328)


Catechism of the Council of Trent

"The power of life and death is permitted to certain civil magistrates because theirs is the responsibility under law to punish the guilty and protect the innocent. Far from being guilty of breaking this commandment [Thy shall not kill], such an execution of justice is precisely an act of obedience to it. For the purpose of the law is to protect and foster human life. This purpose is fulfilled when the legitimate authority of the State is exercised by taking the guilty lives of those who have taken innocent lives.

In the Psalms we find a vindication of this right: 'Morning by morning I will destroy all the wicked in the land, cutting off all evildoers from the city of the Lord' (Ps. 101:8)."

St. Pius V

"That horrible crime, on account of which corrupt and obscene cities were destroyed by fire through divine condemnation, causes us most bitter sorrow and shocks our mind, impelling us to repress such a crime with the greatest possible zeal.

"Quite opportunely the Fifth Lateran Council [1512-1517] issued this decree: 'Let any member of the clergy caught in that vice against nature . . . be removed from the clerical order or forced to do penance in a monastery' (chap. 4, X, V, 31). So that the contagion of such a grave offense may not advance with greater audacity by taking advantage of impunity, which is the greatest incitement to sin, and so as to more severely punish the clerics who are guilty of this nefarious crime and who are not frightened by the death of their souls, we determine that they should be handed over to the severity of the secular authority, which enforces civil law.

"Therefore, wishing to pursue with the greatest rigor that which we have decreed since the beginning of our pontificate, we establish that any priest or member of the clergy, either secular or regular, who commits such an execrable crime, by force of the present law be deprived of every clerical privilege, of every post, dignity and ecclesiastical benefit, and having been degraded by an ecclesiastical judge, let him be immediately delivered to the secular authority to be put to death, as mandated by law as the fitting punishment for laymen who have sunk into this abyss."

(Constitutionn Horrendum illud scelus, August 30, 1568, in Bullarium Romanum, Rome: Typographia Reverendae Camerae Apostolicae, Mainardi, 1738, chap. 3, p. 33)

By the way, I believe Lydia is exactly right about the old consensus among conservatives about the death penalty and torture. It's demise could prove to be a catastrophe.

Kevin, I weary of your misrepresentation of my position. If I were one of my colleagues who is fairly draconian on that, I'd start deleting or editing them. I will say this once more: I do in fact believe that the exercise of the dp has many valuable social consequences and that our lessening of it, putting roadblocks in its way, and in some states eliminating it has had very bad social consequences. Indeed, to my bafflement, I find anti-dp people like yourself and others arguing totally incomprehensibly from some of these bad consequences (prison rape, recidivism) _against_ the dp, which is utterly senseless. I just two minutes ago read a very perspicacious comment by Auster about Sweden's creative new idea--train convicted murderers to be doctors. Auster commented that when we do not punish murder seriously it is hard to punish it at all. The non-judgmental comments from Swedes in the article about turning a murderer into a doctor were disgusting. I would say, similarly, that when we do not understand that heinous murder deserves death, and show that we understand that by state action on the dp, we are letting ourselves in for all sorts of trouble, and that Sweden's training murderers to be doctors shouldn't surprise us all that much.

However, I refuse to argue that this is the primary reason _why_ we should carry out the dp, because if it is not just in itself and in the individual case, then it is unjust. Conversely, if it is just in the individual case and is a proper and important role of government, this is true aside from consequential considerations. As I have already said, on a previous occasion on a different blog I was misunderstood to be saying that we should carry out the dp wholesale to clear the prisons for purely consequential reasons. This was not what I meant. Rather, I meant something like what I have said above about the bad consequences of ignoring justice. These bad consequences can alert us to something wrong in the state's not carrying out the dp, just as the bad consequences of sexual promiscuity can guide us to reflect on the wrong of sexual promiscuity. But consequential arguments should not be our sole or main reason for acting rightly.

Now, stop misrepresenting me, or I'll start editing or deleting you.

Mike T.'s 5:50 p.m. May 1 comment is very good. I'd push the roots of this conservative crack-up a bit further back, but it definitely became more prominent at the end of the Clinton years and then moreso after 9/11.


**But, Rob, the "something's not right" things you are talking about are of utterly different sorts.**

Yes, Lydia, I know that, as implied in my statement. But the fact that they are of different sorts doesn't necessarily mean that they A) are completely unrelated and B) don't contribute to the overall mess.

"If death is the penalty that fits the crime, the using the death penalty in an appropriate manner will improve the system overall."

Not necessarily, i.e., not if the other problems in the system go unaddressed.

"I refuse to argue that this is the primary reason _why_ we should carry out the dp, because if it is not just in itself and in the individual case, then it is unjust. Conversely, if it is just in the individual case and is a proper and important role of government, this is true aside from consequential considerations."

This is just the radical either/or of the thing that I reject, mainly because it can't be proved that it is just in every single individual case. I'm in no way convinced that every single prisoner currently on death row deserves to die, given the past and present abuses, anomalies, and all-round general cock-ups in the system.

Lydia,

Even if it were true that 35 years ago conservatives were generally anti-torture per se, if you take a longer view,looking back, say, 35 decades, I think you would have to admit that dp and torture, which was used then in some capacity as a judicial instrument in every state, were both accepted as a matter of course. Therefore, if, as you say, some conservatives have recently moved away from the anti-torture position, it can also be argued that they have returned to a more traditional position.

George R., you have a point historically, and you'll notice that I didn't advertise the consensus I prefer as "true traditionalism" or something like that. By itself, the fact that something is "traditional" within a given culture or civilization doesn't mean that it's good. FGM is "traditional" in Muslim culture, where they could do with a lot less tradition.

Rob G., again, if the delay in administering the dp "contributes to the mess" it doesn't do so because administering the dp at the end of the artificially lengthened process contributes to the mess. That is, it isn't the dp part of it that is part of the mess but the extreme lengthening of the process. But then, it is ironic that you should be bothered by the 25-year wait while at the same time demanding some sort of super-guarantee that a person has committed the crime, apparently deeming the determination "beyond reasonable doubt" by unanimous vote of a jury of peers to be insufficient. You should _prefer_ a long wait between conviction and execution, because this provides time for either legitimate or contrived arguments to be brought up that result in the questioning/overturning of the verdict and that give you such pause when they are brought up in other cases after execution has occurred.

Something tells me you hold prison ministry in low regard.

Kevin, funny you should say that. I actually hold it in very HIGH regard, and believe that there should be much more of it. I have strongly considered entering into it when I no longer have babies and toddlers to care for.

I, like popes of at least 19 centuries, see nothing contradictory about ministering to those about to die, and asking the state to put to death those who justly ought to die and for the good of the state need to be put to death. Just as there is a proper Christian ministry to death row inmates, there is a proper Christian role of being the avenging prince to visit justice on those who transgress.

This is just the radical either/or of the thing that I reject, mainly because it can't be proved that it is just in every single individual case.

Couldn't this be said of any kind of punishment? Since justice is what we seek, the solution would seem to consist of always imposing less than justice demands, since we might be wrong in a single case.

And even if one imposed some lesser punishment, one always could be wrong. It is a terrible thought to imagine putting a wholly innocent man in prison for twenty years, even if he was found guilty of a crime that normally has, say, a thirty-year penalty. The truth is that any penalty is fallibly applied, and we have extremely high standards of evidence and many opportunities for the defendant to be released, so much so, that it is undoubtedly true that many defendants are released unjustly--i.e., when they are obviously guilty. (Thinking OJ, here.) While I can understand _somewhat_ of a weighting of the criminal justice system so that it is more likely to yield "false negatives" (the release of guilty people) than "false positives" (the punishment of the innocent), I believe that our system has swung from the just balance on that matter to being _overwhelmingly_ far in that direction. What I am not willing to do is to eliminate a whole class of clearly just punishment on the basis of an exaggerated sense of the badness of _accidentally_ punishing the innocent, so that we don't even want to have it be possible that that should happen.

Just as there is a proper Christian ministry to death row inmates, there is a proper Christian role of being the avenging prince to visit justice on those who transgress.

Tony, the trouble with Death Penalty Absolutism is that is disregards both the current cultural context in which it is practiced, and the moral status and administrative competence of the State that imposes it.

A Christian arguing for the secular State's right to inflict capital punishment will have to square several circles. Like; a de-Christianized civil society's understanding of justice with the traditional Christian one. Retribution, redemption, mercy - mean radically different things to the traditional Christian than they do to post-Christian man.

On top of that, traditional Christians cannot ignore the State's role in creating the conditions for violence, despair and death. As it multiplies social pathologies, the State also gathers more power, gladly bequeathed to it by a confused populace languishing within a listing Tower of Babel.

Finally the suggestion made by some that the blurring of the line between good and evil is due to under utilized electric chairs and that more robust application of capital punishment will contribute to a renaissance in moral clarity is a delusional short-cut. It could only sound plausible to an age soaked in ideology.

A Christian arguing for the secular State's right to inflict capital punishment will have to square several circles. Like; a de-Christianized civil society's understanding of justice with the traditional Christian one.

Yes, but the dp is just under both a Christian state and a non-Christian state. No square circles there. As for De-Christianized: if part of the way it became de-Christianized was to disregard the natural law and justice in punishments, then you'll never succeed in turning around the de-Christianization without a proper regard for justice.

On top of that, traditional Christians cannot ignore the State's role in creating the conditions for violence, despair and death.

One of those conditions was refusing, for stupid reasons, to use just penalties. That pathology can be corrected without waiting for the whole of society to be corrected.

Finally the suggestion made by some that the blurring of the line between good and evil is due to under utilized electric chairs and that more robust application of capital punishment will contribute to a renaissance in moral clarity is a delusional short-cut. It could only sound plausible to an age soaked in ideology.

Nobody has suggested that under-use of dp was the sole (or even principal) cause, and nobody has suggested that return to the use of dp should take place without efforts on a broader scale. But this is all besides the point. You are arguing about the better political method of improving the failing state, of getting from here to there - where there is admitted to be a situation where the ability of the state to use dp when it is the just punishment has not been impeded by other degenerate conditions. I.E. a just state.

So, you agree with the implied conclusion that a just state uses the dp when it is the just punishment for a crime, yes? I will readily argue the practical politics of how to make the needed improvements (and admit there may not be easy methods of returning to much broader use of dp), if we agree on the foundational principle that a just state uses the dp.

Yes, but the dp is just under both a Christian state and a non-Christian state.

Really? Third Reich and the Soviet Union? Your absolutism is unjust, to say the least.

you'll never succeed in turning around the de-Christianization without a proper regard for justice
.

Indeed, so how does modern Leviathan's warped sense of justice entitle it to administer the Death Penalty?

Again, let's imagine we execute the 3000 plus inmates on Death Row this year. Describe how that elevates our sense of justice?

So, you agree with the implied conclusion that a just state uses the dp when it is the just punishment for a crime, yes? I

Sure, and I said as much at the beginning; Support for the Death Penalty rested on a Chestertonian paradox; to inculcate a respect, if not reverence for human life, it was necessary to enforce the ultimate sanction against those who would transgress a vital civilizational norm through murder.
However, I am equally open to the idea that a morally sane society with a well-developed sense of justice might also ban the practice. I am only certain of one thing; the death penalty in today's culture is adding more fuel to a raging fire.

Me: "This is just the radical either/or of the thing that I reject, mainly because it can't be proved that it is just in every single individual case."

William Luse: "Couldn't this be said of any kind of punishment? Since justice is what we seek, the solution would seem to consist of always imposing less than justice demands, since we might be wrong in a single case."

Yes, William, but you need to take into consideration the reasons why we might be wrong. Being human, of course, means we're not always going to get it right. But given the nature of both the state and the system right now, at this present time, it seems to me that we are more apt to get it wrong, due to, as I said above,
"the past and present abuses, anomalies, and all-round general cock-ups in the system." And, again, execution is irreversible.

"how does modern Leviathan's warped sense of justice entitle it to administer the Death Penalty?"

Just so.

Tony: "you agree with the implied conclusion that a just state uses the dp when it is the just punishment for a crime, yes?"

Kevin: "I am equally open to the idea that a morally sane society with a well-developed sense of justice might also ban the practice."

Ditto on both accounts. Interestingly enough, I've heard that in some areas of the Byzantine Empire, in its more Christian moments, the DP was either eschewed or used very sparingly.


Indeed, so how does modern Leviathan's warped sense of justice entitle it to administer the Death Penalty?

Note--Tony, you aren't required to go on answering such foolish, loaded questions from Kevin. I don't intend to, myself.

Rob G., I worry a bit that you seem to be concluding that the _majority_ of people found guilty of capital crimes in the U.S. (whether or not there is a dp in their particular jurisdiction) are in fact innocent. And when I say "innocent," I mean _really_ innocent. I don't mean, "If we hunt around and ask this criminal's nasty associates who have nothing to lose by 'confessing' to the crime now or by saying they lied about him, we can find one to say he lied and cast doubt in some people's minds about the case." I don't mean, "Well, if we brought in the expert we've scrounged up to challenge the expert testimony that testified at the time at the time, and if we held the trial again, we could get people to worry that maybe this person might be innocent, even though his conviction rested on more than just that expert testimony. And if the trial had gone that way instead, he would have been acquitted, in which case you couldn't without committing libel say he had done it, so legally he would be 'innocent' even if in fact, in the ordinary sense, he is guilty as hell of the crime for which he was convicted." In other words, I think you are probably overestimating the probability that truly innocent people are being convicted of serious crimes, much less being executed. Kevin can make all the analogies he likes, but the truth is that the men on death row just aren't political prisoners who have been framed by an evil state and convicted in a kangaroo trial.

"I worry a bit that you seem to be concluding that the _majority_ of people found guilty of capital crimes in the U.S. (whether or not there is a dp in their particular jurisdiction) are in fact innocent."

No, it's just that I tend to believe that there is a higher percentage there than may be "permissable" due to basic human error, given the current warped nature of the system. I do not believe we're like Stalinist Russia, but neither do I believe we're God's gift to human justice.

the truth is that the men on death row just aren't political prisoners who have been framed by an evil state and convicted in a kangaroo trial.

True. Our vast penal system of 2 million inmates is not the Gulag revisited.
It is rather a testament to the futility of attempting to build a just social order without God.

The experiment has resulted in anomie, disorder and death and it is obvious the perpetrators of this cultural collapse are unfit to morally and effectively wield all the awesome power they have usurped.

Tony, you aren't required to go on answering such foolish, loaded questions from Kevin

You need not worry Lydia, about Tony responding to any of this, because he can't. He said earlier, opposition to the death penalty was "secular liberalism coming out to play", when it it truer that the Death Penalty in its current context is really secular liberalism coming out to kill. Again.

Kevin,

Tony, the trouble with Death Penalty Absolutism is that is disregards both the current cultural context in which it is practiced, and the moral status and administrative competence of the State that imposes it.

Competence is secondary to the corruption issue. Anyone who follows civil liberties issues knows that the modern prosecutor class tends to care more about its careers than the administration of justice as shown by the lengths that many prosecutors will go to "prove" that someone committed a crime, and how they will fight it until God Himself comes down and declares the person innocent.

I think that modern American government is simply too corrupt to trust with the death penalty. Until there is a culture of accountability for law enforcement and prosecutors, I don't think they can be trusted.

Situations like this one are why I don't see how anyone can just trust the average prosecutor to hold the keys of life and death in their hand.

Mike T, the average prosecutor does not hold the keys of life and death. We have this thing called a jury trial, and the requirement that the jury decide unanimously that the person is guilty beyond reasonable doubt.

Mike T, the average prosecutor does not hold the keys of life and death. We have this thing called a jury trial, and the requirement that the jury decide unanimously that the person is guilty beyond reasonable doubt.

That's true, on paper. However, even assuming that the jury is not reduced to a collection of mouth-breathers by both the defense and the prosecution, that assumes that the jury is able to get all of the information it needs. Prosecutors are almost never punished for introducing untrustworthy witnesses, withholding exculpatory evidence and bringing charges that they know are not in the spirit of the law they are "enforcing." Police are, likewise, almost never punished for testilying.

You can quote theory all day, but in practice the jury is a very weak institution compared to what it used to be.

I've heard of a number of cases in which a conviction was overturned on appeal because exculpatory evidence was withheld. In some of these cases, it even sounded frivolous to me. That is, the evidence did not seem like it should have been exculpatory, but the conviction was overturned nonetheless.

I've heard of a number of cases in which a conviction was overturned on appeal because exculpatory evidence was withheld.

And again, were the prosecutors charged with a crime? Were they fired? Almost invariably, you'll find that they were not. So, while the system may work in a lot of cases, it doesn't in many, many others.

It's all well and good to bring this into the light, but if these deeds then go unpunished, that only emboldens the evil-doer because the light becomes an obnoxious joke to him.

"I don't see how anyone can just trust the average prosecutor to hold the keys of life and death in their hand."

Mike T,
I have family who are members of that most unique of tribal sub-cultures; urban police officers, and a very close friend who is a well-known judge in the Bronx. They would for many varying reasons, extend your criticism to the larger law enforcement system that grinds down the best of people, while rewarding clever opportunists.

We are all complicit to some degree. The first, near universal reaction to a jury notice is; "how do I get out of it?" The jury system not only draws froms a morally confused culture at large, but due to the final pool that produces jurors, tends to be the people most vulnerable to being rolled by either side. As you say, the keys are in very unsteady hands.

Kevin, I know you're having difficulties communicating through email, but the Post Office is open at least till 4pm. I'm sure your intellectual peers are looking forward to your insightful remarks. Maybe they'll send you an instruction tape on the Rapture in kind.

Be sure to let them know about your email problems so they send it in the mail.

For a bunch of so-called Christians...I can't even finish the statement. None of the men tortured were tried or even charged with crimes at the time of their torture. Some of them were probably guilty of horrible things; a lot of them were guilty of absolutely nothing, and we can't tell the difference from where we're sitting. We do know that the vast majority who have been afforded the right to see the evidence against them (by stupid pinko liberals like the ACLU), the government hasn't been able to produce anything.

And for a bunch of so-called informed people, apparently unaware of the effects of long-term sleep deprivation, isolation, and exposure of a person's psyche and personality, and blithely writing off what amounts to the destruction of the image of God...I'm speechless. I grew up Protestant, and the Catholics (I believe) have put us to shame on this issue generally, but I would really appreciate it if we could stop pretending that God is just peachy with this. He isn't. These people, frequently ripped from their homes and families on the basis of nothing and shipped halfway around the world, are our neighbors. How we treat them speaks volumes about who we are and who we serve.

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