Friday, January 05, 2007

More on Dulles, John Paul, and the Death Penalty

This is a follow-up to my previous post on the death penalty, based on further reflection on Cardinal Dulles's insightful essay. The starting point, as always, must be John Paul in Evangelium Vitae:

"It is clear that, for these purposes to be achieved, 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."
Although it is well established that there are (in traditional Catholic teaching) other purposes of capital punishment, especially retributive justice, some commentators interpret John Paul as concluding that only defense against the criminal matters today. One such person is none other than Supreme Court justice Antonin Scalia, who declares "... I take the encyclical... to mean that retribution is not a valid purpose of capital punishment". With great arrogance, Scalia declares the pope to be wrong, calling for "new staffers at the Congregation for Prudence in the Vatican". But Scalia's view is also widespread among those who oppose the death penalty, as it is admirably simple and straightforward: the purpose of punishment is simply to protect society, and that can be done without shedding blood. Case closed.

But Dulles happens to think that this view is fundamentally flawed. He notes that the pope says nothing that suggests the traditional understanding was wrong, and indeed writes in Evangelium Vitae that:
"The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offence". Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom."
Punishment needs to defend public order, and public order goes beyond a narrow definition of pure protection from the criminal. In John Paul's language, the protection of society is broader than merely defending against the criminal. In particular, the need for retributive justice flows from the fact that sin requires the deprivation of some good, which has been interpreted to include temporal life. But Dulles suggests that this has been stripped of all meaning in modern secular societies where the death penalty is more likely to reflect vengeance than the divine order of justice. In other words, the death penalty becomes a mere instrument of vengeance, which is not only immoral, but can yield disproportionate evil effects.

This is a neat argument, and has the benefit of allowing continuity with Catholic teaching. Not only defense against the criminal but also retribution call for a different approach in modern society. But there is a weakness embedded in this argument: it supposes that secular leaders in times past were better motivated than the secular authorities today. I'm not sure I buy that, quite frankly. Yes, authorities in past times may have been more attuned to the concept of divine justice, but did the death penalty in practice conform to this? Could we not argue that human weakness makes it exceedingly difficult for us to ever meet the standard of true retributive justice absent all notion of vengeance, and that, for that reason, the death penalty is nearly always wrong (or at least reduced to John Paul's narrow conditions)?

This approach would treat development in the death penalty as akin to the development of doctrine on, say, slavery. It took a long time to fully realize the importance of human dignity embedded in the deposit of faith. Many have taken this approach, including Archbishop Chaput of Denver, regularly regarded as one of the more conservative churchmen in the United States. Chaput castigates Scalia for his dissent, and concludes that "humans learn the hard way, but eventually we do learn". He mentions slavery. He notes that we no longer execute horse thieves.
I think it is therefore possible to bring the Scalia position and the Dulles position closer together. We would do so by acknowledging that, in some theoretical sense, retributive justice is a purpose of punishment, and that can sometimes call for the penalty of death. But it is almost impossible to achieve this in practice, without baser motives (chiefly revenge) entering the picture. Dulles argues that it is less necessary in modern times, owing largely to the increasing irrelevance of retributive justice. But it can also be argued that a clearer understanding of human dignity meant that it was applied far too lightly in the past as well as today, based on an overly-optimistic view of the motivation of the executioners. This is also compatible with John Paul's teaching.

Ultimately, this explains the different perceptions about the death penalty in the United States and Europe. Scalia claims that since Europe has stopped believing in divine justice, the death of the body is the worst thing that can happen, rendering the death penalty a horrendous punishment. But, as Chaput notes, this misses the point. Europe is reacting to a century of "state-sponsored violence against the human person in the name of collective ideals." It is no accident that Europeans now look upon state-sanctioned retribution with horror. The amount of bloodshed witnessed throughout the 20th century led to a transformation in European thinking about war and capital punishment, a positive development that the United States lags.

Whatever position you accept, the real focus is (and should be) on vengeance, and this was clearly on the minds of the Vatican officials when they spoke about Saddam's hanging. This is true whether or not we accept Dulles's nuanced views. Various American commentators who denounced the Vatican commentators as "euro-weenies" and suchlike fail to appreciate this, and it is they (not the Vatican) who are out of step with the Catholic approach to the death penalty.

No comments: