Capital Punishment

Not long ago, someone asked me, "You seem to be pretty conservative politically. How come you're against capital punishment?" I told him there was no quick answer, but that I'd write about it soon. And so I suppose this is my response.

It's been interesting experiencing the change in my own thinking regarding capital punishment. Thirty years ago I had no problem with the death penalty. As far as I was concerned, when it was applied in our country it was applied correctly, and usually only in cases of first-degree murder and treason. I had great faith in our legal system and the appellate process, and assumed no one would be executed unless he were truly guilty of the crime for which he had been sentenced. Admittedly this faith displayed a naivete common among non-lawyers, but I think most Americans held similar beliefs.

Of course today, as a result of DNA testing, we have seen that many people have indeed been convicted unjustly and  sentenced to death for crimes they did not commit. As a result we hear of a growing number of wrongly convected people being released after years in prison, often on death row. How many have actually been executed we will never know since no court or prosecutor is going to pursue such cases after an execution has been carried out. DNA testing made one thing certain: man's justice, as meted out by our courts, was often flawed. But my views on the death penalty changed before the advent of effective DNA testing.

Quite honestly, though, I rarely thought about the death penalty at all. It was simply one of those things I accepted. After all, wasn't it in the Constitution? Actually, the United States Constitution refers to capital punishment twice, both times in the Bill of Rights, in the 5th and the 8th Amendments. In the former it states:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Here the Constitution guarantees that no one can be held for a capital crime unless he has been indicted. It also states that you may not be executed -- "deprived of life..." -- without due process, which consists of proper indictment, trail and conviction. (Note: the 14th Amendment extended this restriction to the states.)

The 8th Amendment, although it doesn't specifically mention capital punishment, does address what it calls "cruel and unusual punishment." Here's the Amendment's entire text:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

As you can see, the wording is pretty flexible and can easily lead to a range of interpretations and judgments. The forms of capital punishment considered usual in the 18th and 19th centuries -- hanging, firing squad, etc. -- would be considered unusual and probably cruel by most Americans today. And the forms of capital punishment common in the 20th century -- electric chair and gas chamber -- have in most instances now been replaced by some form of lethal injection which the state considers more "humane". As far as capital punishment itself being considered "cruel and unusual", today's Supreme Court has generally not intervened in death penalty cases.

And so, the state -- that is, the law of man -- seems to think capital punishment is just fine, so long as it's not too "cruel and unusual". And quite honestly this had been my opinion as well. But what about the Church? What does it say? Well, here's what we find in the Catechism of the Catholic Church:

2267 Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm—without definitively taking away from him the possibility of redeeming himself—the cases in which the execution of the offender is an absolute necessity "are very rare, if not practically non-existent" [John Paul II, Evangelium vitae 56.]

And so the Church is telling us that today there is really no safety-related reason to execute someone, since we certainly have the means to protect society from the convicted criminal through effective incarceration. If this is the case, and I believe it is, our decision to execute the criminal is really based more on revenge than on safety. How often do we hear about the need for "closure" on the part of victims' families? What they really seek is revenge, because in the minds of many the death of the murderer will supposedly balance, if only partly, the death of the loved one. Regarding revenge, the Catechism says:

2302 By recalling the commandment, "You shall not kill" [Mt 5:21], our Lord asked for peace of heart and denounced murderous anger and hatred as immoral.

Anger is a desire for revenge. "To desire vengeance in order to do evil to someone who should be punished is illicit," but it is praiseworthy to impose restitution "to correct vices and maintain justice" [St. Thomas Aquinas, Summa Theoligica II-II, 158, 1-3]. If anger reaches the point of a deliberate desire to kill or seriously wound a neighbor, it is gravely against charity; it is a mortal sin. The Lord says, "Everyone who is angry with his brother shall be liable to judgment" [Mt 5:22].

Pretty serious stuff. And the Catechism also reminds us that we should not take away from the offender "the possibility of redeeming himself." As anyone involved in prison ministry can tell you, personal conversion can take a long time for someone who has never known love, never received a kindness, never experienced anything in his life but hatred and sinfulness.

The Church reminds us, too, that being a Christian isn't always easy. We are called to "be perfect, just as your heavenly Father is perfect" [Mt 5:48] and that's a tall order. We are called to conform our law, as best we can, to God's Law. And perhaps, most importantly, we are called to reflect in our lives the prayer we pray daily when we say, "...forgive us our trespasses as we forgive those who trespass against us." To forgive does not mean we neglect to punish those who are a threat to society, but can forgiveness and capital punishment coexist? Can the Christian say, "I forgive you. Now I'm going to kill you"? I think not.

What got me thinking about this 30 years ago wasn't the Catechism, which at that time had yet to appear, but abortion. I experienced this little epiphany one January during a March for Life in Washington, D.C. as Diane and I, along with several hundred thousand others, approached the United States Supreme Court. As we stood there peaceably, under the gaze of hundreds of U.S. Capitol Police, I realized there was something terribly wrong with a nation that allowed the killing of the most innocent and helpless of its people. Ironically, the Supreme Court's fateful Roe v. Wade decision in 1973 came not long after a 1972 decision that banned capital punishment and threw out most death penalties en masse. In other words, in 1973 the court decided that killing the most innocent Americans was fine, but executing those found guilty of capital crimes was unconstitutional. This remarkable contradiction, more than anything else, led me to question my own beliefs. (Of course, a few years later, in 1976, the Court decided that executions, after all, were okay.)

The legalization of abortion led me to wonder what else the courts could ultimately decide was worthy of the death penalty. And I believe it's important to realize that an abortion is really the imposition of the death penalty on an unborn infant because she committed the unpardonable offense of being inconvenient. You see, that's one of the more practical problems with capital punishment: once you allow it for murder and treason and terrorism and piracy, what's to prevent the state from adding a few more "crimes" to the acceptable list? Just this week, I read that the compassionate Islamic government of Iran has decided to execute two bloggers who it seems "spread corruption" through their blogs. Capital punishment for bloggers -- a radical Islamic form of political correctness. Unbelievable? No, believe it. Can't happen here? If you believe that, I suggest you ask your grandparents if fifty years ago they thought unrestricted abortion would ever be legal in this country. After all, the only modern country that had allowed it was Nazi Germany. Back in the fifties and earlier abortion was universally considered a most despicable crime. But once the Supreme Court weighed in on the issue, like sheep most of our nation went along with it, assuming the courts knew what they were doing as they interpreted the Constitution. Oh, they knew what they were doing all right, but it had little to do with the Constitution. Once you allow the camel to stick his nose under the tent, it's only a matter of time before he joins you in your sleeping bag -- a most unpleasant situation.

And so, those are some of the reasons I'm against capital punishment. I'm too tired today to write any more. And I miss Dear Diane who is away on a cruise with a group of her "girlfriends" and has left me alone to fend for myself. It's all very disconcerting.