The Capital Punishment Debate, Yet Again

It was at a pro-life gathering in Detroit in the late 1970s. I found myself at dinner next to a young black woman, who had lost her husband a year earlier. He had been in training as a dentist, and they were living in a high-rise building. From her window she could see him one evening, coming home with a pizza he had picked up for dinner, when he was accosted on the street by a teenager. A scuffle followed and her husband was knifed to death. And now, a year later, at dinner, she told me: “the kid who did that is getting out today. That’s what the life of my husband was worth.” At a certain point, the comparative lightness of the punishment marks a deep disrespect for the life of the victim who was lost.

All of this comes back, of course, as a jury in Boston hands down the death penalty for young Dzhokhar Tsarnaev, for all of the people that he and his brother killed and maimed at the Marathon. The news seemed to be received, at least in the first moments, with a quiet assent, that there was something simply, and finally, apt about the judgment. But before long we can expect to see those moral acrobatics played out again: that the people who find nothing worth their moral notice in the killing of 1.2 million small human beings in abortion, will decry a moral universe falling out of order when it comes to the execution of brutal, serial killers.

We will soon hear, though, from another side as people invoke the “seamless garment” of the Church on the taking of life. And yet the teaching of the Church has not been as clear as so many people seem to think. St. Paul said of the man in authority that, “he beareth not the sword in vain. . .a revenger to execute wrath upon him that doeth evil.” Aquinas taught the rightness of capital punishment when needed for defense of the community and the common good. And yet, that kind of teaching moves into the domain of the “contingent” and the speculative: it would justify the taking of life on the basis of predictions about the dangers that may be averted.

That kind of reasoning has seeped into the teaching of the Church, as well as the reflections of the sainted John Paul II. But John Paul II was quite clear that the main justification for capital punishment would have to be found in the moral case for retribution, not deterrence. On probabilistic grounds alone the argument for deterrence has a plausible force, for there is no want of villains who hold back from killing only by the prospect of suffering the punishment of death.

Tamerlan Tsarnaev (black cap) and Dzhokhar Tsarnaev (white cap worn backwards) just minutes before the Boston Marathon bombing
Dzhokhar Tsarnaev (white cap worn backwards) and older brother Tamerlan Tsarnaev (black cap) just minutes before the Boston Marathon bombing [Photo: Bob Leonard/AP]
But strictly speaking, the argument for deterrence suffers a problem of coherence. For we would be told that the killing of Jones would not be sufficient to justify the lethal punishment of Smith, who had killed Jones. And yet, under a theory of deterrence, the community could be justified in executing Smith out of a conjecture about other people he is likely to kill if he is left alive to act out his character. But by what moral reasoning would the life of some person as yet unknown, and some crime as yet uncommitted, be far more important than the life of Jones, snuffed out in the crime that was actually committed?

In Evangelium Vitae (1995), John Paul II wrote that “the community 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.”

The teaching seemed to be that if the prisoner can be rendered harmless and pose no danger to the lives of others, the justification for capital punishment would dissolve. But this too would make the rightness of the punishment hinge, not on the character of the deed that called forth the punishment, but on the contingency of how secure the conditions are in any prison. Any student of modern prisons, any reader of Elmore Leonard novels, could offer an account of the lethal weapons that are readily fashioned in prisons out of utensils and ordinary things, and preserve a regime of capital punishment administered by the inmates.

Twenty years ago, it was common to hear on late night television, jokes springing from the trial of O.J. Simpson for the murder of his wife. But one would never hear jokes made of the murder of victims in the Holocaust. At the end of her book on Adolph Eichmann, Hannah Arendt delivered this judgment on him: That you have done something so evil that the rest of us do not deserve to share the earth with you.

It makes a profound difference when we don’t begin by ruling out capital punishment in those “smaller murders” – the killing of that young woman’s husband in Detroit, or the participants and bystanders at the Marathon in Boston. For what we are saying then is that we take those lives quite as seriously, we attach as much importance to them, as to the lives of those uncles and aunts, grandfathers and grandmothers, who died in the Holocaust.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.