It is possible to view Nebraska’s recent vote to abolish the death penalty — a vote that brought together liberals, budget balancers, and social conservatives — as a heartening sign that partisan divisions can be overcome, that moral progress can arrive even in places that vote Republican, and that the brutal façade of structural racism may one day crack and topple. This view has much to recommend it: It appeals to our desire to overcome tiresome divisions, confirms the superiority of the present over the past, and does honor to the principled people who have argued, often very eloquently, that we must unknot the hangman’s noose.
It also suffers from certain defects. Its story of moral progress asks us to overlook the countless cruelties of our criminal-justice system as we congratulate ourselves on the elimination of a relatively rare punishment (Nebraska’s last execution was in 1997). It suggests that the only purpose of criminal justice is deterrence — a view long championed by Beccaria, Bentham, and other apostles of cruel efficiency. It asks us to ignore that life imprisonment, the only alternative to capital punishment, is hardly more humane.
Indeed, comparing our differing reactions to capital punishment and life imprisonment is one of the more direct ways to see what lies behind most death-penalty opposition. As Pope Francis has observed, “Life imprisonment is a hidden death penalty.” His suggestion that we abolish both is rather questionable (taken seriously, it requires parole for Pol Pot, halfway houses for Hitler), but his basic insight is sound. Is it really more barbaric to grant a terrible murderer a dignified death than to force him to live a life of confinement, perhaps to undergo humiliating force-feeding, and then to die in the hands of the state even if not by the state’s hand?
While some writers have made detailed arguments distinguishing death from other punishments, most people who oppose the death penalty do so based on loose intuitions, about barbarity and humaneness, that should apply with equal — perhaps greater — force to life imprisonment. That we are ready to accept the latter but not the former reflects that much of the opposition to the death penalty comes not from moral indignation but from aesthetic revulsion. We have undergone not an increase in conscience but an intensification of our squeamishness. We seek bloodless means, however cruel they may be.
Most people who oppose the death penalty do so based on loose intuitions, about barbarity and humaneness, that should apply with equal — perhaps greater — force to life imprisonment.
How did we get here? As Stephanos Bibas writes in his book The Machinery of Criminal Justice, such Enlightenment thinkers as Cesare Beccaria argued that the purpose of punishment was “to deter crime rather than exact deserved retribution.” As Jeremy Bentham said, criminal justice should function as a “mechanism to inflict enough pain to outweigh the pleasure of crime.” Whenever opponents of capital punishment say that it has no deterrent effect, they speak with the voice of Bentham. Punishment is no longer about just retribution, about reintegration into the community, about moral education: It is simply a matter of brute deterrence.
The views of these thinkers have gained currency because their approach promises to eliminate the inequalities that can result from an ethic of mercy (which is bound to be applied unequally) and the apparent establishment-clause problems that come with ideas of retribution and moral instruction — it was not uncommon for colonial-era judges to deliver religious exhortations to those they were sentencing. Yet this view fails to recognize the moral and human dimensions of punishment — the reference to a higher power, the principle that retribution should be proportionate to the crime, the possibility of reconciliation — that makes criminal justice a matter of punishing men rather than herding animals. It may lead to outcomes that are less “problematic,” but it has gone hand in hand with the rise of a system that is at once sterile, hygienic, and cruel.
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It is regrettable that the claim, made most prominently in John Paul II’s Evangelium Vitae, that deterrence is the only legitimate justification for capital punishment has encouraged an attenuation also of Christian reasoning on punishment. Indicative of this loss is the remark by the Catholic writer and Jesuit priest James Martin that “it is wrong, in all cases, to take a human life.” John Paul II’s words are better read in the broad sweep of Christian tradition, in the manner recommended by Avery Dulles in his article “Catholicism and Capital Punishment”:
The Catholic magisterium does not, and never has, advocated unqualified abolition of the death penalty. I know of no official statement from popes or bishops, whether in the past or in the present, that denies the right of the State to execute offenders at least in certain extreme cases. The United States bishops, in their majority statement on capital punishment, conceded that “Catholic teaching has accepted the principle that the State has the right to take the life of a person guilty of an extremely serious crime.” Joseph Cardinal Bernardin, in his famous speech on the “Consistent Ethic of Life” at Fordham in 1983, stated his concurrence with the “classical position” that the State has the right to inflict capital punishment.
Recently Alex Tuckness and John M. Parrish have written against “the decline of mercy in public life.” If we are to reverse that decline, if we are to erect a criminal-justice system that is less cold and cruel, we could do worse than to defend and extend the death penalty. This is a conclusion that I reach as a Catholic, as someone who has marched against the application of the death penalty in individual cases, and as a native Nebraskan inclined to take pride in his state but unable to do so in this case.
The alternatives to the death penalty are not less cruel, and perhaps more so; the arguments against it are either narrow or absurd; the reasons for it, which have always gone well beyond deterrence, remain as real in our time as they were in Hammurabi’s. Simply as a sign that punishment is not just about the carrots and sticks of deterrence but that it is an inevitably moral project concerned with right and wrong, justice and injustice, the death penalty has much to teach us still. In countless individual cases, mercy will be called for, but both justice and mercy are obscured when we call the death penalty unjust.