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the many controversies swirling around the death penalty, whether
or not Tim McVeigh's execution should be
observed by
the relatives of his victims is the most misleading. For it subtly
discredits capital punishment by implying that it is a form of private
revenge for the benefit of the victims' families.
Admittedly
there is a link between justice and revenge. Bacon expressed it
well when he described revenge as "a kind of wild justice."
When we move from a state of nature to a civilized society, however,
we give up our rights of self-protection and revenge in return for
the state's promise of justice and retribution. And McVeigh's execution
is the expression of that public retribution rather than of private
revenge.
The eighteenth
century took this view even further, holding that public retribution
required a public execution. As Dr. Johnson pointed out, this gave
a certain dignity to the condemned man who was visibly paying for
his crimes. He would sometimes make a speech of repentance and admonition
from the gallows: "Friends, be warned by my fate. Here is the
dreadful consequence of a life of crime. I go now to seek mercy
from the God who will judge us all. Pray for my wretched soul. Etc."
We no longer
hold public executions because we think ourselves more civilized.
In fact, we may merely be more squeamish. Restricting the seats
at an execution to a victim's family is arguably less justifiable
than a public gallows. For it treats a man's death not as an awesome
punishment for a terrible crime but as a means of emotional compensation
for those he has injured. Retributive justice is thus replaced by
therapeutic revenge — a step toward our sentimental modernity but
away from a civilized rule of law.
Of course,
some argue that the death penalty is uncivilized by its very nature.
But the death penalty, like all formal legal punishments, is a sign
of civilization. It is to civilization what lynching, vendettas,
and vigilantism are to barbarism and anarchy. Those who describe
capital punishment as "barbaric" are generally defining
"civilization" and "barbarism" quite arbitrarily
to mean whatever they like or dislike. Thus when they say, "The
death penalty is uncivilized," their words should be translated
as "We don't like the death penalty." That is not a statement
about reality, nor a logical argument, but a pure expression of
preference.
To be sure,
some undoubtedly civilized European nations have abandoned the death
penalty in favor of other punishments in the last few decades. But
the political elites in those countries usually did so over majority
public opposition. What that demonstrates is not that Europe is
more civilized than the U.S. but that it is less democratic.
So we come
finally to the argument that the death penalty is a cruel and unnecessary
punishment offensive to religious (and specifically Christian) morality.
In recent years something like this view has been adopted by no
less a figure than Pope John Paul II. This has raised difficult
questions for Catholics (and indeed other Christians) who have thus
far supported capital punishment.
They will be
helped through the theological thickets by a fine article in the
April issue of the religious magazine, First Things, by the
newly created Cardinal Avery Dulles (the son of John Foster Dulles.)
Cardinal Dulles agrees with the Pope. But because the death penalty
is a question that mixes both moral and secular prudential judgments,
he also makes room for conscientious disagreement by Catholics after
prayerful consideration of the Church's teaching.
The Cardinal's
strongest points, as it seems to me, are that the death penalty
should not be imposed, first, if there is a serious risk of wrongful
execution and, second, if the legitimate purposes of punishment
can be equally well achieved by imprisonment. He feels that these
considerations override the traditional Christian endorsement of
capital punishment. But do they?
Take miscarriages
of justice first. The number of known wrongful executions is tiny
and the legal safeguards against them are so strict that very few
murderers ever reach the electric chair. The last federal execution,
for instance, took place 38 years ago. Above all, the arrival of
DNA — which has both exonerated some people on Death Row and increased
public nervousness about capital punishment — ensures that the already
low risk of wrongful execution will now be reduced still further.
Since there was a risk of wrongful execution down the centuries
when the Church supported capital punishment, our recent progress
to a lesser risk strengthens the case for it.
Nor can imprisonment
effectively mimic the death penalty for the very clear reason that
it is less final. Some murderers are imprisoned, released, and able
to murder again. As Professor Paul G. Cassell pointed out in his
testimony to the House Judiciary Committee in 1993: "Of the
roughly 52,000 state prison inmates serving time for murder in 1984,
an estimated 810 had previously been convicted of murder and had
killed 821 persons following those convictions. Executing each of
these inmates following their initial murder conviction would have
saved 821 innocent lives."
Nor does life
without parole entirely solve this problem: Five of the murders
were committed in prison. Again, we have no reason to think that
in the modern world imprisonment safeguards us as effectively as
capital punishment.
Where Cardinal
Dulles does persuade me is in rejecting public executions on the
grounds that, in our debased Survivor and MTV culture, they
would quickly be transformed from an awesome deterrent into bloodthirsty
Roman spectacles — unless, final irony, the death penalty is abolished
even as our society spirals downwards into a new sort of barbarism
which mingles casual cruelty with sentimentality and moral self-congratulation.
This
originally appeared in the Chicago
Sun-Times.
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