What’s Really Wrong with the Death Penalty?
A Catholic response to By Man Shall His Blood Be Shed
What’s really wrong with the death penalty?
Nothing. That is the view expressed in the leading book of Catholic death-penalty advocacy, By Man Shall His Blood Be Shed by Edward Feser and Joseph Bessette (San Francisco: Ignatius Press, 2017). The authors maintain that “[t]here is a strong moral presumption in favor of capital punishment for grave crimes such as murder” and that “[t]his presumption can be overridden only when resorting to capital punishment would fail to serve the common good as well as a lesser punishment would.” Ibid., p. 375.
This so-called “Catholic case for capital punishment” is exactly backward compared to the teaching of St. Thomas Aquinas, recognized as the “Common or Universal Doctor” of the Catholic Church [Pope Pius XI, Studiorum Ducem (On St. Thomas Aquinas), 1923, paragraph 11].
St. Thomas was no anti–death penalty absolutist, but here’s his concise demolition of any supposed moral presumption in favor of the death penalty:
If we consider a man in himself, it is unlawful to kill any man, since in every man though he be sinful, we ought to love the nature which God has made, and which is destroyed by slaying him. Nevertheless, as stated above (A. 2) the slaying of a sinner becomes lawful in relation to the common good, which is corrupted by sin. S.T. II-II, Q. 64, A. 6.
[T]hough proceeding from a good intention, an act may be rendered unlawful, if it be out of proportion to the end. Wherefore if a man, in self-defense, uses more than necessary violence, it will be unlawful: whereas if he repel force with moderation his defense will be lawful. S.T. II-II, Q. 64, A. 7.
It necessarily follows from these propositions that there is a strong moral presumption against capital punishment; that this presumption can be overridden only when capital punishment is necessary for the common good; and that it is unjustifiable killing when it is not necessary for the common good.
So why might capital punishment be necessary for the common good? In his concise discussion of the death penalty (“Whether It Is Lawful to Kill Sinners?”, S.T. II-II, Q. 64, A. 2), St. Thomas gave one reason only: “[i]f a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since ‘a little leaven corrupteth the whole lump’ (1 Cor. 5:6).” Likewise, the Baltimore Catechism (quoted in By Man Shall His Blood Be Shed, p. 280) states that human life may lawfully be taken “[b]y the lawful execution of a criminal, fairly tried and found guilty of a crime punishable by death when the preservation of law and order and the good of the community require such execution”—but, by unambiguous implication, not when they don’t.
St. Thomas had little or nothing to say about long-term imprisonment as an alternative to the death penalty, but the principles he did express shed light on this issue for us today, as they did for Pope St. John Paul II in Evangelium Vitae, § 56 In brief: If the common good can be safeguarded while preserving the lives of even the worst offenders, their lives should be preserved. If long-term imprisonment can adequately separate offenders from free society, the offenders should be subjected to long-term imprisonment, not death. It would be disproportionate and wrong to kill the offenders.
John Paul II’s position requires prudential judgments about whether long-term imprisonment is really an adequate alternative to the death penalty in a particular situation. It requires a high degree of confidence that, if the death penalty is to be abolished, the common good will still be safeguarded. But, at least in developed societies today, that high degree of confidence can be attained with sufficient commitment to an effective criminal justice system.
It follows from the principles expressed here that the death penalty, no matter how richly an offender may deserve it, is not justified if it is not also necessary for the protection of the common good. Contrary to what Feser and Bessette maintain, the principle of proportionate retribution for the most serious crimes is not enough to justify the death penalty. The possibility that needless capital punishment might deter some would-be murderers who aren’t afraid of life without parole likewise does not suffice. In Chestertonian simple language, are we to say, “I wish Jones to be wrongly killed, in hope that Brown will then be afraid to commit murder”? Surely not!
Feser and Bessette also present, and supposedly explode, numerous arguments against the death penalty. Some of these arguments actually have merit, and should be included in a discussion of what’s wrong with the death penalty.
“The death penalty violates the right to life.” The authors quote Venerable Pope Pius XII: “It is reserved rather to the public authority to deprive the criminal of the benefit of life when already, by his crime, he has deprived himself of the right to live.” An offender guilty of a crime deserving death, unlike other people, may no longer have an absolute right to life. Nevertheless, because of his God-given human nature which is not entirely effaced by even the worst of crimes, the offender does retain a conditional right to life—that is, if it is not necessary to execute him to protect the common good. Needless imposition of the death penalty, therefore, does violate the offender’s right to life.
“Capital punishment is motivated by vengeance” [ibid., p. 66]. It will be helpful here to refer to St. Thomas’s discussion of vengeance (S.T. II-II, Q. 108): “Vengeance consists in” inflicting “evil on one who has sinned.” If the vengeance is simply repaying evil with evil, it is “unlawful.” However, if the vengeance is directed toward some good, “(for instance that the sinner may amend, or at least that he may be restrained and others be not disturbed, that justice may be upheld, and God honored), then vengeance may be lawful.” S.T. II-II, Q. 108, A. 1.
Now, Feser and Bessette maintain that, for “natural-law theorists” such as themselves, “retribution is not only a legitimate end of punishment; it is the fundamental end” [By Man Shall His Blood Be Shed, p. 46]. And retribution means “inflicting on the offender a harm proportionate to his offense.” Ibid. So the chief (or fundamental) aim of punishing an offender is to inflict what is believed to be a proportionate amount of harm (or evil) on him. But this is exactly what St. Thomas condemns as unlawful vengeance.
Another good to be attained by lawful vengeance is “that justice may be upheld.” S.T. II-II, Q. 108, A. 1. If the offender doesn’t receive a harm proportionate to the severity of his offense, is this in itself a failure to uphold justice? No, it isn’t. St. Thomas explains why not, in discussing why mercy is entirely consistent with justice:
God acts mercifully, not indeed by going against His justice, but by doing something more than justice; thus a man who pays another two hundred pieces of money, though owing him only one hundred, does nothing against justice, but acts liberally or mercifully. The case is the same with one who pardons an offence committed against him, for in remitting it he may be said to bestow a gift. S.T. I, Q. 21, A. 3, reply obj. 2.
Even in the damnation of the reprobate mercy is seen, which, though it does not totally remit, yet somewhat alleviates, in punishing short of what is deserved. S.T. I, Q. 21, A. 4, reply obj. 1.
In other words, justice toward the offender, in imposing deserved and proportionate retribution, sets only a maximum limit to appropriate punishment--not a minimum. The minimum is what is needed to safeguard the common good [S.T. II-II, Q. 64, A. 2].
“An innocent person wrongly executed cannot get his life back” [By Man Shall His Blood Be Shed, p. 77]. It should be added that a guilty person wrongly executed—if, for example, there’s no need to execute him to protect the common good—can’t get his life back either. Feser and Bessette acknowledge that numerous persons with plausible claims of actual innocence have been sentenced to death [ibid., pp. 339-348]. If they have not been executed, this resulted entirely from appeals, post-conviction relief proceedings, and the like. These provide only a fairly flimsy basis for confidence that the innocent won’t be executed, given that appellants and post-conviction petitioners are no longer entitled to the presumption of innocence. The possibility of executing the innocent, and more generally of executing those who should not be executed even if they’re guilty, turns out to be another good reason to avoid needless executions—which, in developed societies today, most likely means all executions.
Feser and Bessette even argue [ibid., p. 77] that the death penalty is all right, despite the risk of executing the innocent, because it’s comparable to other practices in which we tolerate the risk to innocent lives because of the benefits we get from them. For example, many innocent people die in car crashes, but that’s no good reason to make it illegal to drive a car. An obvious fatal flaw in this supposed cost-benefit analysis is that, when you drive a car as carefully and safely as you can, you are taking no risk at all of intentionally killing a person. Even more importantly, executions not needed to safeguard the common good do not produce the only benefit that counts in a truly accurate cost-benefit analysis. It follows that they do not justify the risk of wrongful executions.
Perhaps it would be more accurate to say they do not justify the near certainty of wrongful executions. Why more accurate? Because the standards in common use today for imposing the death penalty do not require, nor even suggest, that the death penalty should not be imposed if imprisonment would suffice to negate the danger posed by the offender.
For example, in Indiana, a defendant found guilty of murder may be sentenced to death if the state proves one or more specified aggravating circumstances—such as that the defendant committed more than one murder, or intentionally killed the victim while committing rape, robbery, or another specified serious crime—and if the jury then finds that those aggravating circumstances outweigh any and all mitigating circumstances. Period. The jury always has the option of recommending life without parole instead, but this is only an option, which the jury is free to disregard.
This reveals the fatal flaw in Feser and Bessette’s account of the teaching that “capital punishment could be lawfully applied against those fairly convicted of serious crimes if public officials concluded that it was necessary to preserve law and order and the good of the community” (By Man Shall His Blood Be Shed, p. 280–italicized words not found in the Baltimore Catechism). The fatal flaw is that public officials don’t really do that. Rather, they enact and apply statutes that permit the death penalty to be imposed if the offense and its aggravating circumstances are bad enough, without regard to whether imprisonment would suffice to “preserve law and order and the good of the community.”
“Racial minorities and the poor are disproportionately sentenced to death” [By Man Shall His Blood Be Shed, p. 283]. Feser and Bessette point out that this is a comparatively weak argument. Almost all offenders sentenced to death are men, but this does not prove unjust discrimination against men [ibid., 357]. And the evidence, at least as to racial minorities, does not consistently show a disproportionate effect [ibid., pp. 357-366]. Still, it would be extremely hard to believe that the risk of needless execution is just as great for defendants who can afford an extravaganza defense as for those who cannot.
The most basic failure in reasoning underlying Feser and Bessette’s advocacy of the death penalty is the erroneous view that proportionate retribution for harm done is the fundamental purpose of punishment. In reality, as we have seen, the fundamental purpose of punishment is to safeguard the common good. In the simplest terms, the death penalty is justified only if both of two requirements are met: (1) the offender deserves it, on the basis of the nature of the offense and the offender’s character; and (2) it is needed to safeguard the common good. Feser and Bessette pay too much attention to the first requirement, and far too little to the second.
So what’s really wrong with the death penalty? If needlessly imposed, the death penalty violates the offender’s remaining right to life, embodies morally unlawful vengeance, and increases risk to the lives of the innocent. There are no safeguards against needless imposition of the death penalty when imprisonment would suffice to protect the community. And, although there are safeguards designed to protect poor defendants, the risk of needlessly imposing the death penalty is still present.
What is the solution? One possibility is to repeal all statutes allowing the death penalty, on the basis of high confidence that human life and society will still be sufficiently protected. Another possible approach to abolishing the death penalty in practice would be to limit it strictly to cases in which imprisonment has not sufficed to safeguard the common good—for example, cases in which the defendant commits murder after escaping from prison, or in which a person serving a life sentence for murder commits another murder while in prison. If no such cases arise, then the death penalty would be effectively abolished in practice.
For those who are not confident that no prison inmates will escape and kill, this second approach would be more acceptable. In practice, it would be precisely equivalent to repeal of death-penalty statutes, to the exact extent that we are justified in our confidence that long-term imprisonment is an effective alternative to the death penalty. And all Americans of good will–which, alas, do not include those who favor needless imposition of the death penalty for the purpose of unlawful vengeance–should be able and willing to unite in making or keeping such confidence fully justified.
Parts of this article have previously appeared in Today’s Catholic (Fort Wayne-South Bend diocesan newspaper) and in a brief review on Goodreads.com.