Tuesday, April 20, 2010

Capital Punishment and Genocide

I've been thinking about the death penalty lately.

In this case, I generally take the mainline conservative Catholic position. Namely, the State retains the right to execute criminals for the good of society, but that in the modern day the greater good is rarely if ever served by executing criminals as opposed to just locking them up for life.

So, on the one hand, I would vigorously argue against those who try to make the death penalty an absolute evil. Against those who have this progressivist notion that we "know better now," as if the social mechanisms of today for handling such things are somehow moral absolutes by which we can pass judgment the past, regardless of the past's different social context. (You will note this is true for slavery as a social arrangement as much as the death penalty.)

In reality, the change has not come from any sort of progressive human enlightenment or greater empathy, merely different socio-economic conditions (which have their own systematic exploitation, worse for their greater subtlety). So I explain that in the past the State was well within its rights to use the death penalty, and that the Church was definitely not at fault for not speaking out against it, nor even for explicitly supporting it at times. That the JPII attitude toward the death penalty (though I largely share it) is not dogma or an absolute principle or anything like that.

But, at the same time, I'd try to convince people that it was no longer necessary or good today and that I support its removal from our justice system, because it isn't ideal, has always been prone to grave abuse, and there are better ways of dealing with the same issues in the modern world.

However, I've been thinking more and more about capital punishment and, though I would still say all of the above in terms of it being objectively neutral on the part of the state (but subjectively bad for our world today), my feeling that it is subjectively bad has greatly increased, exactly because of the possibility of abuse.

Because I started thinking...the Holocaust was carried out under the auspices of the State too. Now, admittedly, there were some big differences. Namely, there were no trials, the reason for the killing was merely "being" something, not committing a crime, the conditions were cruel and unusual, and children were killed who could not be guilty of anything, etc...

And yet it seems like a difference in degree, not nature. Because under Catholic teaching, the State was never limited to using the death penalty only for Murder. Up until the 19th century, someone could be hanged for crimes as minor as theft. In some Asian countries still, execution is prescribed for crimes that are not murder, even just for drug offenses or adultery. The Old Law itself prescribed this, so it is clearly not absolutely wrong.

Theoretically, Catholics are free to have different prudential opinions not only about whether the death penalty should be used, but about for which crimes it is used for. And there is no limit to how petty this could be if someone thought it was for the common good.
There are several schools of thought today, of course, and most do limit the category of crime, thank goodness. One is absolutely against the death penalty. Another believes that a life should only be taken in retribution for taking a life. Others, however, would support it for non-lethal grave crimes like child rape and treason. Most Americans would not go any further than this, and yet China does go further, and it is not outside the "theoretical" bounds allowed by Catholic teaching just because it is outside the bounds of decency arbitrarily set by American public opinion.

Yet it seems to me this is a slippery slope. Execution was once used for crimes as petty as theft even in Europe and America. And this is "theoretically" within the power of the State over human life for the greater good, is theoretically a prudential question. A Catholic is theoretically free to support the death penalty even for minor crimes if they truly think that is proportional to the good caused for society. And in medieval society, it may have been. Who knows.

And yet this seems dangerous. Because what if the Nazi's had done things a little different? What if they had simply outlawed smoking, made the punishment for smoking execution, and then selectively enforced the law only against Jews and other undesirables? Or jaywalking, or chewing gum, or being out after curfew, etc. Theoretically the State retains the power to execute for any of these things, and yet you could eventually indict the whole population on one of these offenses at some point or another because nobody is perfect ("let he who is without sin cast the first stone"...)

You might argue that the selective enforcement would be itself unjust, and it would, but don't think it doesn't happen in our own country; a black man is much more likely to get sent to jail for a crime that a white gets merely a fine or community service for, when such discretion is left to judges. Of course it would be tortuous to argue that execution was proportionate or necessary for gum chewing or jaywalking, this is hyperbole...and yet the point is that such a call is technically by nature in the realm of prudential judgment rather than objective absolutes (albeit seemingly very obvious prudential judgments; but the problem is people could be disingenuous in order to achieve their ends).

When you start admitting to the State the power over human life and make the limits on that merely a matter of "prudential judgment" and subjective judgments of proportionality and such, and tell people that there is room for disagreement about it...well, at the very least I'll say: you have to be very prudent indeed, or soon we'll be hanging shop-lifters. You must be very careful, or things could easily get out of hand.

I guess my point is just that even within the limits of what is "theoretically" valid, even within the limits of "theoretically" acceptable positions, under such a theory we essentially forfeit our lives to the whims of the State and its fallible human judgments about what is a crime and what is an acceptable punishment thereof. So we'd better hope those whims remain very moderate and limited when it comes to the application of capital punishment, because none of us are perfect, so the State "retains the right" (and certainly the practical power) to kill us all if it so chose. It's why I am very suspicious of the State.


sortacatholic said...

Only God creates and takes life. Abortion, euthanasia, the death penalty = moral evil. No compromises. The state has no moral right to end life. State execution is as morally repugnant as murder itself.

One of the conditions of EU membership is the abolition of the death penalty. I am not familiar with the life incarceration statistics of EU member states. I would wager that such states are able to cope with life terms for incorrigible offenders. I would also wager that EU member states are able to imprison for less. The United States has the highest incarceration levels of any developed nation. Perhaps we should re-evaluate why we imprison. Are all prisoners unable to be reformed?

It's important to remember than state Death Rows often contain innocent or poorly tried inmates. Many are minorities that may not have had sufficient legal representation. Some prisoners are intellectually disabled. Does intellectual disability, ethnicity, income, or background necessarily imply innocence? Certainly not, but the chances of mistrial is quite high. States such as Texas that run through executions may satisfy vengeance, but when has retribution equaled justice?

In my view, conservative American Catholic support of the death penalty stems from the uneasy marriage between Catholics and evangelicals that arose in the post-Nixon GOP. The retributive legalism sometimes seen in evangelical circles often takes priority over Catholic social justice concerns.

I understand that American Catholics have to choke down GOP membership because of abortion. We've settled for much less in our bargain with the GOP. Rather, American Catholics should be more vocal about a consistent life ethic. I am convinced that our political marriage to evangelicals obscures the reality that all life is sacred.

A Sinner said...

Well, according to the consistent Catholic teaching, the State does have a right, "theoretically". But I'm uncomfortable with that nonetheless as the post expresses.