Despite What You Heard, The Death Penalty Is Legitimate. Feser and Bessette’s “By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment”
Because, very oddly, there has been a changing of the catechism from the constant and ancient teaching (“the pope is distracting the world with fresh meat for the spirit of the age. He tinkers with words for applause…”), it is important to revisit this topic. See also Feser’s older very strong comments on the subject, and then read his newest even stronger words.
Sometime in the mid-1990s in Colombia, Luis Alfredo Garavito Cubillos lured a 6-year-old boy into an isolated spot and sodomized and murdered him. There were bite marks and other evidence of “prolonged torture” found on the boy’s body. The boy’s head was discovered some distance from his torso; the boy’s penis was severed and stuffed into the corpse’s mouth. This act might have occurred while the boy still lived.
Cubillos, unaffectionately known as La Bestia (The Beast), confessed to the crime.
He also confessed to a second crime where he sodomized and tortured a young boy to death. And then a third. And a fourth. And fifth, sixth, seventh, …
Altogether, La Bestia admitted to sodomizing, maiming, torturing, and murdering 147 boys, but he admitted his memory was hazy, and some say the real total approaches 300.
Cubillos was arrested, tried, and found guilty of murdering (only) 138. Colombia’s constitution says “The right to life is inviolable. There will be no death penalty.” That same merciful attitude is responsible for the country forbidding lifetime imprisonments, too.
In 2006, the Superior Court of Bogotá reduced Cubillos’s sentence from 30 years to 22 because of a technicality. He is due to be released in 2021, though, if I understand correctly, with good behavior he can be out by 2018. La Bestia will be 61 in 2018.
Many Catholics would say that the mercy shown to Cubillos represents a true “pro-life” position, and that those who say Cubillo should be executed say so only because they themselves are “eager to kill” and are “bent on maximizing killing no matter what”.
The official stance of the Catholic Church, however, as reinforced by some 2,000 years of teaching, is that the death penalty can be, has been, and continues to be, a just punishment. In the case of Cubillos, it is surely his due. Scheduling his execution, offering him the sacraments, and then speedily carrying out the sentence is the best chance La Bestia has to save his soul. As it now appears (though only God knows), Cubillos is on a blood-greased slide to Hell.
I do not want to make light of this, but it is better than a good bet that unless Cubillos after his release is restrained by illness or circumstance or he is not killed or otherwise incapacitated by vigilantes, La Bestia will kill again. That blood, if God forbid it should flow, will be on the heads of those authorities who refused their Christian duty.
Why Capital Punishment?
Enter By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment by Edward Feser and Joseph Bessette, a book so thorough and so relentless that it is difficult to imagine anybody reading it and coming away unconvinced by the lawfulness and usefulness of capital punishment.
Whether to hang any man is in each case a matter of prudential judgement, because the circumstances surrounding any crime always varies. Two Catholics can disagree whether Cubillos should be executed, but that execution might be a just punishment is a question long settled. Which makes you wonder why some, including members of the United States Conference of Catholic Bishops (USCCB), say things like “human life is sacred…[which] compels us as Catholics to oppose…the use of the death penalty.”
Capital punishment is a theorem of the natural law, a philosophy which the Church “strongly affirms” (and which is well examined in the book). “Moreover, since it arises from a natural inclination, the tendency to punish is a virtue, so long as it is motivated by justice, say, rather than hatred,” a position held by inter alia St Thomas Aquinas, who (as quoted by Feser and Bessette) says, “Vengeance is not essentially evil and unlawful”.
Punishment should fit the crime—the legal phrase is lex talionis—which flows from the principle of proportionality.
The restoration of what Aquinas calls “the equality of justice” by inflicting on the offender a harm proportionate to his offense is known as retribution, and it one of the three traditional purposes of punishment, the others being correction or rehabilitation of the offender and the deterrence of those tempted to commit the same crimes the offender has. Other purposes are incapacitation…and restitution.
To “deny proportionality is implicitly to deny desert, and thus implicitly to deny the legitimacy of punishment.” Cursed be he that withholdeth his sword from blood (Jer 40:10).
Aquinas says “the death inflicted by the judge profits the sinner, if he be converted, unto the expiation of his crime; and, if he be not converted, it profits so as to put an end to the sin, because the sinner is thus deprive of the power to sin no more.”
Steven Goldberg makes the latter point in his When Wish Replaces Thought and Fads and Fallacies in the Social Sciences, pointing out the non-negligible frequency of murderers (including of guards) that take place in prison, and of those committed by criminals released who otherwise might have been executed. This argument is usually ignored by those who offer lifetime imprisonment as an alternative for executions.
Feser and Bessette acknowledge this argument. In one harrowing section, they list the gruesome crimes committed by the forty-three murderers executed in 2012 in the USA. Many are recidivists.
Take Robert Brian Waterhouse. In 1980, he beat a woman severely with a “hard instrument”, raped her, “assaulted her rectum with a large object, and stuffed her bloody tampon down her throat” and then drowned her. This was after he was released from prison for the murder of a seventy-seven-year-old woman; he served only eight years before being paroled. While in prison for the “twenty-one years and tens months” awaiting his execution, he “committed sexual battery on a cellmate”.
Or how about William Gerald Mitchell? He was “on parole…for the stabbing murder of a woman” when he brutally raped and murdered another woman, by “[running] over his victim several times with his car”. You could go on and on. Our authors do.
And this brings up a pretty point. We have all heard the media report upcoming executions, giving full voice to anti-death-penalty activists who usually attend these events. These reports go something like this (my summary, but the quotes are genuine):
Critics of the death penalty gathered outside State Prison to protest the upcoming execution of Luis Cubillos. Longtime prof-life advocate Father Mercyme, a priest in the Catholic Church, pleaded with the governor that the death penalty is “a violation of the sanctity of human life”, and that the state “is usurping the sovereign dominion of God over human life”. Cubillos was accused of a 1995 murder.
The media never gives the details of the crimes committed, because this, they rightly suspect, would lead listeners to conclude the criminal is getting what he deserved. (This is the same argument against showing the results of abortion victims.) Righteous anger is fled from, and effeminacy embraced. John Crysostom: “He who is not angry, where he has cause to be, sins. For unreasonable patience is the hotbed of many vices, it fosters negligence, and incites not only the wicked but even the good to do wrong.”
Common pro and con arguments
The death penalty is racist and discriminatory. It is. Whites are disproportionately executed over blacks (this knowledge may cause some to support capital punishment). (Blacks commit violent crimes at rates about eight times higher than whites.) But, I hasten to add, those on death row earned their punishment.
The death penalty does not deter. Please, no statistical arguments. I have yet to see any statistical evidence, for or against, that was not wrong-headed. Of course the death penalty deters. Everybody knows increasing the severity of a punishment leads to greater abatement of a crime. Why would not moving to the ultimate penalty prove the strongest deterrence (Goldberg makes the same argument)? Our authors supply anecdotes—which are perfectly acceptable evidence—of men who would have killed except that they were worried about getting the chair. Even just one instance of this is sufficient empirical proof of deterrence; fancy models are not needed. The penalty would do a greater job of deterrence were it not common knowledge that even for the worst crimes, the legal systems lets men stretch their day of judgment out for decades or forever (as it were).
Why not life imprisonment? For one, if “mercy” demands the cessation of executions, why does not mercy also demand, as in Colombia, the cessation of life imprisonment, or the cessation of any punishment at all? For another, violent (even demonic) men in prison who would otherwise be executed commit crimes. And see the next point about rehabilitation. The subject of how often the innocent are wrongly executed is a tangle, made so on purpose by those who want to exaggerate this rate. The authors delve into this thicket and clarity does emerge.
What we do not know is whether any innocent person was executed during this period. From 1977 through 2014, thirty-four American states executed 1,386 convicted murderers and the federal government another 3. Were any o these 1,389 actually innocent of the crimes for which they were sentenced to death? Although there is no way to know this with certainty, it seems likely that at most 1 or 2 innocent persons—and very possibly none at all—have been executed since the Furman decision of 1972…
In Wish Goldberg (p. 29) says “even the opponent of the death penalty who emphasizes wrongful executions is willing to sacrifice thousands of lives each year for the social advantages of motor vehicles.” And he reminds us that if the death penalty deters it saves lives.
The death penalty does not rehabilitate. Does it not? As everybody quotes, a hanging wonderfully concentrates the mind. In a wonderful section, the authors tell the story of repentance of several of the murderers on death row. Repentance, I say, the most important thing in any man’s life. All of us stand in need of it (at times), but those guilty of the worst crimes stand in greatest need. Concentration of the mind encourages salvation.
The death penalty encourages vengeance. Does all punishment encourage vengeance? If not, why not? The authors give a nice history and derivation of vengeance, incidentally, contrasting its old and new uses, and its distinction between retribution. In another terrific section, the authors write of the family members of victims, of their satisfaction of the punishment of the criminals, and of their forgiveness, too. The feeling that a debt has been paid, not only by the family members, but of the criminals and members of society, is great. When that feeling is missing, there is often despair. And vigilantism. When people lose hope of the government doing its job, they often take vengeance into their own hands.
There is no decent argument that the Church does not authorize use of the death penalty. It is true authorities lately have emphasized “mercy”, but mercy does not obviate capital punishment. And don’t forget “forgiveness and mercy presuppose that the offender really does deserve the punishment we refrain from inflicting.” What follows here is only the barest, briefest sketch of the vast wealth of material in the book. Experts on this subject may be assured that Feser and Bessette have covered every facet with the same assiduity of a lawyer preparing a Supreme Court brief.
First is scripture. God, you will remember, has warned that the potential punishments awaiting unrepentant sinners is far worse than the early shuffling off of this mortal coil. The threat of punishment (as we saw above) deters. And God said, “He who kills a man shall be put to death…” (Deut 19:11). And far from repudiating this law, Christ said in the Sermon on the Mount, “Think not that I am come to destroy the law, or the prophets…I am not come to destroy, but to fulfil” (Mt 5:17). “Then there is Romans 13:1–4, traditionally understood as a straightforward affirmation on the right of the state to execute criminals”.
The Fathers and Doctors of the Church supported the death penalty. Among the others, “Saint Jerome…says that ‘to punish murderers, the sacrilegious, and poisoners is not the shedding of blood, but the duty of the laws.'” The First Vatican Council decreed that “it is not permissible for anyone to interpret Holy Scripture…against the unanimous consent of the fathers.” And
…even those among the Fathers who were largely or wholly opposed in practice to capital punishment—and who thus had every incentive to try to find in Scripture or Tradition a warrant for an absolute condemnation of the practice—affirmed that capital punishment in principle morally legitimate…It is inconceivable that they could have been mistaken about this matter of moral principle, given the authority of the Church has always attributed to them…
The Catechism agrees on the licit nature of capital punishment, “not only in order to ‘protect the innocent’ but also to ‘punish the guilty’ and ‘avenge…crime'” (ellipsis original). And so do the popes agree—including even Pope Saint John Paul II and Pope Francis. Yes, even Pope Francis, about whom our duo says, “Given the obscurity and lack of precision in some of Pope Francis’ remarks…” which is all the quotation I believe this audience requires, except to add that Francis’s words are “plausibly read as having rhetorical rather than doctrinal import.” Whether plausible or not, that’s the way they have to be read to keep his thoughts in line with the constant teaching of the Church.
Now it’s true that the USCCB has waded into the debate implying that the “‘values of the Gospel’ are contrary to the use of the death penalty” (where have we heard that language before?), but these good men forgot to mention the possibility of Hell. Feser and Bessette show that “every element of the bishop’s case against the death penalty fails, including their scriptural interpretations, their moral and philosophical arguments, and their understanding of the practical effects of capital punishment.”
The authors are correct when they say “we now find ourselves in the rather odd situation in which the majority of churchmen appear to be against the death penalty but Catholic teaching is not. This is a recipe for massive confusion among the faithful.” Worse, if we do not execute our worst criminals,
Society will lose sight, first of the idea of proportionality, then of the idea of desert, and finally of the idea of punishment itself. And when the idea of punishment goes, the very idea of justice will go with it, replaced by a therapeutic or technocratic model that treats human beings as cases to be managed and socially engineered than as morally responsible persons. Nothing less is at stake in the death-penalty debate.
And so let us remind ourselves, as do the authors in their last word, of Genesis 9:16, Whoso sheddeth man’s blood, by man shall his blood be shed: for in the image of God made he man.