Wednesday, January 03, 2007

Avery Dulles, Saddam Hussein, and the Death Penalty

Following up on yesterday's post on the the Vatican reaction to Saddam's execution, I would like to delve a little more deeply into Church teachings pertaining to the death penalty. To guide me, I will take advantage of an excellent essay by Cardinal Avery Dulles, S.J., entitled Catholicism and Capital Punishment from 2001 on this matter. One of the reasons for this is that some who defend the execution of Saddam (intelligently, as opposed to the blood-baying brigade), such as Stephen Bainbridge, appeal to Dulles's work.

One of Dulles's key premises is that notion of an absolute right to life among the guilty as well as the innocent finds little support from church teachings. The right of the authorities to execute criminals is pretty much taken for granted in the New Testament, and even Jesus (while never exhorting violence) never questions it. The early church, from St. Paul onwards, took a similar view. Leading theologians from Augustine to Aquinas down to John Henry Newman thought likewise.

Dulles concludes that the Church has always taught that (i) crime deserves punishment in this life as well as the next, and (ii) the state has the authority to punish, which can include the death penalty. He rejects what he refers to as the absolutist position. This is not new, as pacifist groups have existed in various manifestations throughout the history of the Church. Modern day Catholic absolutists would argue that past generations failed to fully appreciate the fact that God-given human dignity called for an unambiguous respect for life, and that this was always implicit (if a little clouded) in revelation.

But Dulles remains unconvinced, and not only because of the weight of past Church teaching. He notes that, in the modern incarnation, the opposition to the death penalty is very much a product a secular humanism, a philosophy that denies any role for the transcendent in public life.

How then should the Church judge capital punishment? Dulles starts by noting that punishment can serve four distinct purposes: rehabilitation, defense against the criminal, deterrence, and retribution. A key question is how these four roles are served by the death penalty. As far as rehabilitation is concerned, the death penalty clearly doesn't do the job, although there are cases when impending death brings about repentance (remember Dead Man Walking?). Executing a criminal surely protects society, but what if there are bloodless ways of doing the same thing? As for deterrence, Dulles is extremely cautious, noting that the Church condemns acts that deprive a person of his/her God-given dignity, such as torture, that could easily be used for purposes of deterrence.

This brings us to retribution, the trickiest and most understood of the four purposes. What does this mean? For a start, it is most certainly not vengeance and should never be construed as such. Aquinas argued that sin calls for the deprivation of some good, which in serious cases, means the good or temporal or even eternal life. By this notion, the death penalty provides the wrongdoer with a means of expiation, and allows him/her avoid punishment after death. Of course, retribution by the state is strictly limited, and can only be "a symbolic anticipation of God's perfect justice".

There are also numerous arguments that can be specifically employed against the death penalty. First, the innocent can die. Some countries use "biased or kangaroo courts". Others (including parts of the United States) often deny the poor adequate representation and counsel. And even the best system can simply make mistakes. Second, capital punishment can cheapen the value of life in general, and lead to greater ills in society. And third, the death penalty in practice is most often used a tool of revenge, not authentic justice.

So where do we stand? Weighing the pros and cons, Dulles argues that the death penalty can be justified when "it is necessary to achieve the purposes of punishment, and when it does not have disproportionate evil effects". The word necessary is carefully chosen. This brings us to his core conclusion: the Church today is opposed to the death penalty not because it believes executing criminals is always and everywhere wrong, but because "on balance, it does more harm than good". This is also is accord with past Church teaching on the subject.

In arriving at this opinion, a few key reasons stand out. First, in modern society with developments in the penal system, it is nearly always possible to secure defense against the criminal without resort to the death penalty. This is exactly what Pope John Paul was getting at in Evangelium Vitae when he wrote that "the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent."

Second, the notion of retribution has little meaning in modern secular society, where those who impose the death penalty do not have Aquinas's strict conditions in mind. Certainly, the "symbolic anticipation of God's perfect justice" is not on the minds of the authorities! And this can have consequences that are best avoided. As Dulles puts it, in the modern perspective, "the death penalty expresses not the divine judgment on objective evil but rather the collective anger of the group". In other words, retribution morphs into vengeance, which is always wrong. This insight, is, I believe, a crucially important argument against the death penalty in modern times, on par with John Paul's necessity principle.

So, these factors, combined with other negative consequences (such as the possibility of executing an innocent person) tip the scales decisively against the death penalty.

And what about Saddam Hussein? Stephen Bainbridge, appealing to this very same Dulles essay, defends his execution on the grounds that "the risk of a return by Saddam to power was non-negligible." This strikes me as overly-forced reasoning, and an overly-narrow view of Dulles's position. To justify the execution based on the imminent restoration of Saddam's rule is a bit of a stretch, especially in an Iraq increasing dominated by powerful and militant Shia groups. And anyway, the key to Dulles's argument is the general proposition that the death penalty does more harm than good. We need to consider all of the issues, not merely the fact that defense against the criminal might be ill-served by a potential escape. In particular, the execution of Saddam clearly reflects vengeance rather than retributive justice. In Iraq, this is Dulles's argument on steroids, and this argument alone easily tips the scales against the execution. Just look at the scene: a "dank, filthy shed", hooded Shia militia members mockingly shouting "Moqtada" after their thug of a leader, a senior Shia official accused on making a "snuff video" on his cell-phone of the execution, leaked immediately. This is as far from Thomas Aquinas as can possibly be imagined!

This is what the much-maligned Cardinal Martino was getting at when he denounced the sentence as "killing for vindication". And what the Vatican press statement meant when it noted that "The execution of the guilty party is not a path to reconstruct justice and to reconcile society. Indeed, there is the risk that, on the contrary, it may augment the spirit of revenge and sow seeds of new violence." These statements are fully consistent with the weight of past Church teaching on the death penalty, despite the contention among some on the right that they merely reflect the thinking of a bunch of effete euro-weenies. There is some parallel here between the way many on the American right cheered Saddam's execution, and the way they supported both the Iraq and Lebanon wars. What they fail to grasp is that actions can have disproportionate evil consequences, all the more so if vengeance enters the picture.


Katerina Marie said...

I really enjoyed this article. Very clear and to the point.

Keep up the good work!

Antoine Mont said...

I am appalled at the reaction so far from the Vatican on first, Hussein’s sentence to death, and finally to the carrying out of the sentence. I do not say this lightly or flippantly, nor because I am part of the rabid pro-blood squad, out for revenge for every perceived slight, but on principle alone.

The Church’s stance on the death penalty is that it is licit, but should not be used merely because (and whenever) the criminal deserves death. On the contrary, (so says the Catechism) the penalty should be applied only when the common good requires it, when public safety cannot be secured without it.

Stephen Bainbridge makes the entirely valid point that if Hussein were to remain in prison, the risk of his eventual return to power is non-negligible. His detractors dismiss this as a concern, but without actually endeavoring to take note of either the probability of such, or the correct application of the probability.

First, to dismiss the concern as possible but not very probable and therefore not germane to the consideration is faulty logic. The rational person does not say “a certain future event is unlikely and therefore I will disregard it altogether.” He instead says that it is unlikely and therefore “I will prepare for its coming to pass with an effort moderated by that degree of likelihood, rather than with a heavy and immediate effort.” (For example – we buy home insurance on the off chance our home will burn down.) So, mere low probability that Hussein will escape prison is not, by itself, sufficient reason to disregard the possible event as if it were utterly irrelevant.

Second, the basis for the possibility being a concern is not merely that Hussein may, eventually, end up out of prison, or even that he may get back to the pinnacle of power, but that as long as he continues to live he will be a locus of attention for possible attempts toward (a) prison breaks (either real or simply claimed), (b) kidnappings and other acts intended to force the government to release him, or (c) attempted coups and similar acts of disruption of the state. And these events may come to pass with or without his cooperation. It is impossible to say definitively that the probability of one or all of these taken as a class is very low and therefore insignificant or not applicable to the consideration. On the contrary, the probability of at least one of them occurring must be considered relatively significant. And any one of them is grounds for real concern as to the safety of the public order. You personally may feel that the likelihood is insignificant, but you are not the prison official whose family may be kidnapped tomorrow.

The entire weight of the Church’s disapproval of the use of the death penalty rests on the presumption that the conditions that we have are those of “the modern state”. This presumptive condition simply does not apply in Iraq in 2006-7. The country is not modern in multiple aspects, and is not stable politically or civilly. There are on-going civil disturbances (called “civil war” by some, but without proper concern for the correct usage) which make it impossible to effectively guarantee continued restraint of any person or class of individuals. There is no realistic way for the government to say that it can securely and confidently hold Hussein and guarantee he would be held permanently in prison – there are simply too many avenues of doubt.

In summary, if the clauses the Church used to qualify her resistance to the application of the death penalty have ANY meaning whatsoever, then this is the situation that they have meaning for. If this is not an appropriate situation where the need for public safety may call for using the death penalty, then THERE IS NO SUCH situation and there NEVER WILL BE, and the Church might just as well go ahead and say that it is never permitted.

Furthermore, the entire body of Church teaching about acts which are licit for the proper authorities in the appropriate circumstances places the locus of responsibility and the right of judging specifically in those proper authorities. By this very fact, other entities (whether actual individual persons or juridical persons like a corporation or religious group) cannot make a determinative judgment and hold such judgment up as morally determinative. The Church has said that it is for the state to determine when the circumstances are such that the death penalty is in fact needed for public safety. If she then turns around and in EVERY SINGLE INSTANCE it is used protest loudly that it is unnecessary, then she appears to be falling into one of 2 possible errors: either she has erroneously stated that the death penalty is licit for the state to use in certain circumstances under the prudential judgment of the civil authorities, or she has erroneously stuck her oar into a prudential judgment which is rightly and properly carried out by an authority who alone has the responsibility for weighing and judging the needs of the common good of which it has the care. At the very least, when she does comment on the specific application of the state’s licit right to put malefactors to death, she should reserve her comments in a way that explicitly declares to the world that her point of view is not determinative, and that she cannot make a determinative judgment because the true authority rests with the state responsible for the common good.

Examine the comments by Cardinal Martino and other Vatican officials. Not a single one of them allows that the civil authorities in Iraq have not only the right but duty to make a prudential determination as to whether Saddam’s continued life poses an unacceptable threat to public safety, and those officials are the ones whose prudence is determinative. Not a singe comment reserves the Vatican’s point of view as the point of view of an entity who is not directly charged with the decisive judgment, does not know all the individual facts and circumstances necessary to make a determinative judgment, and therefore is only a suggestive point of view. The Vatican has been speaking as if its prudential judgment is superior to that of the Iraqi authorities on the scene. This controverts the Church’s official teaching that the civil authority has the right and duty to decide.

Furthermore, the sense of the Vatican’s comments in this case has the gross appearance of suggesting that prior teaching shows that these days the death penalty is wrong and merely makes matters worse. This also is improper because such comments ignore the Church’s own doctrine that there are cases where it is appropriate, and that before the civil authority makes a judgment, such a conclusion for the death penalty cannot be ruled out automatically. Every Vatican comment I have seen presumptively excludes the death