At an informal Center seminar on May 12, 1999, two Catholics and one Protestant spoke briefly to set the framework for a discussion of capital punishment. What follows is a lightly edited version of their remarks and the ensuing discussion. The moderator was Michael Cromartie, director of the Evangelical Studies Project of the Ethics and Public Policy Center.

JOSEPH BOTTUM

Michael Cromartie: Joseph Bottum, the Books and Arts editor of the Weekly Standard, will lead off our discussion. Dr. Bottum formerly was an editor of First Things magazine and has a Ph.D. in philosophy from Boston College. He suggested that we have this discussion after he read an op-ed in the Wall Street Journal by the noted Thomist philosopher Ralph MacInerny. Shortly after Pope John Paul II visited St. Louis in January of this year and spoke of the “uselessness” of capital punishment, the governor of Missouri responded by commuting the death sentence of a prisoner. In his Wall Street Journal piece (February 26, 1999), MacInerny said the Pope was simply wrong about the death penalty. Joseph Bottum disagrees.

Joseph Bottum:  Opposition to capital punishment is commonly found on the liberal side of the political and theological spectrum. I believe there is also a strong conservative argument to be made against it, however, and I hope to do that someday. For instance, I believe there are some large, Burkean reasons that could be marshaled against capital punishment, although of course Burke himself wouldn’t have argued them. Also, I think we ought to be dismayed by the breakdown of a carefully evolved common-law distinction between torts and crimes. We see this breakdown happening when the relatives of a murder victim testify at the sentencing of the murderer. That ought to be worrisome. Moreover, conservatives ought to be suspicious, I think, of sociological arguments about deterrence. The deterrence argument is wrongheaded for a conservative, because it allows the detachment of the punishment from the specific crime. Also, to be conservative is to believe that the best government is that which governs least; the state is such a big-footed actor that when it acts for sociological purposes, the law of unintended consequences always kicks in.

That suggests the kind of broad-front argument I want to make someday. But here I have been asked to speak specifically about Catholic doctrine and what the Pope is saying.

A friend of mine in New York—many of you know him: Jim Nuechterlein, the editor of First Things—once offered a joking definition of neoconservatism. “The difference between an old-fashioned conservative and a neoconservative,” he said, “is that every neoconservative has one issue left on which he’s secretly still a lefty.” For a long time I thought my opposition to the death penalty was just my last lingering “lefty-ism.” Then in March 1995 Pope John Paul II issued Evangelium Vitae, with its declaration that the death penalty should be “very rare and practically non-existent.”

Oddly, this did not immediately cause a lot of rethinking on the Catholic right. It seems to me that there are three reasons why conservatives in America have been trapped into defending the death penalty. The first goes all the way back to the Enlightenment. Throughout the Middle Ages, Christian philosophers and theologians developed a set of careful distinctions whose purpose was to limit the punishments imposed by rulers. But then something odd happened in the eighteenth century: Voltaire picked up the anti-death-penalty arguments of the Italian criminologist Beccaria and used them as a stick to beat Christianity. Those traditional Christian teachings, originally set up as limits on punishment, came to be seen instead as typical Christian hypocrisy, as though they were somehow teachings in favor of cruel and unusual punishment. Ever since, it seems to me, Catholic theologians and church authorities have accepted Voltaire’s terms; whether they themselves defend or reject the death penalty, they all seem to accept the mistaken notion that those traditional teachings are in favor of it. Even Cardinal Ratzinger appeared to accept that when he described the Pope’s position as a “development of doctrine.”

A second reason conservatives have been trapped into identifying with capital punishment is more political. It dates to the 1970s in American politics, when the death penalty became a useful symbol for conservatives to use in their attacks upon a criminal-justice system that had lost control of its cities and was perceived to be soft on crime.

There is a third reason Catholics like Ralph MacInerny have been wary of arguments against the death penalty. There is a suspicion about some of the statements that the Catholic bishops were putting out in the 1980s and 1990s, a suspicion—not ill founded, I think—that liberal Catholics were using the death penalty and the idea of the “seamless garment of life” as a way of downplaying abortion. Somehow the horrors of abortion were to be hidden under this “seamless garment” concept. But the Pope, regardless, continued to push the line. Already in 1992 the Catechism suggested that the Church’s death-penalty teaching was not all that strong proponents of capital punishment could wish it to be. Then in 1996 changes were made to the Catechism to bring it in line with Evangelium Vitae. It was at a press conference announcing those changes that Cardinal Ratzinger used the phrase “a development of doctrine” to describe the death-penalty teaching. The Pope has simply gone on and on pressing this point. So we are seeing, if not a development of doctrine, at least a development of the Pope’s willingness to express it out loud.

I want to suggest three points at which we should try to think along with the Pope here. The first is his emphasis upon the dignity of the person and the culture of death. Violence begets violence. If bloodless means are sufficient to defend against the aggressor and to protect the safety of persons, then public authority should limit itself to such means. The Pope’s comments about the death penalty, especially in Evangelium Vitae, come in the context of his lament that the cultures of the West seem to have lost the concept of the dignity of the person. It may be—and in fact the Catechism may suggest—that the death penalty is not wrong per se, that the state has the right to impose it. But it is not right per se, either. What the state has is a set of legitimate and illegitimate motives for imposing the death penalty. That set of legitimate motives seems never to accrue in the West. If the point of imposing the death penalty is to make a show of justice in the world but we live in a culture that has embraced death, then what the imposition of the death penalty ends up demonstrating is that yet more life is valueless, yet more life can be thrown away.

The second thing we should think about in regard to the Pope’s opposition to the death penalty is how he has brought the Church into relation with the modern democratic state. Michael Novak and others have insisted persuasively over and over again that what we see in the history of modern times is a providential emergence of democracy in the world. It can only be understood in terms of God’s providence. At the same time, there is a cost that must be acknowledged. The emergence of the modern democratic state means (a) the loss of the Spanish monarchy model for church/state relations, and (b) the denial that the modern democratic state can be implementing God’s law, divine justice. The question then becomes, Is the imposition of the death penalty a demand of natural law, or is it a demand of divine justice?

Since the modern democratic state has deliberately said that it is not going to impose divine justice, its magistrates cannot appeal to divine justice in the sentences they impose. The first person I could find who actually said this was the Marquis de Sade. In a pamphlet called “Yet One More Push, Frenchmen, If You Would Be True Republicans” (a pamphlet that the frolicking characters read aloud during a break in Philosophy in the Boudoir), he says: We’ve killed the king, ending the divine right of kings, and so the magistrates no longer are in the line of divine right; consequently they can no longer impose this law. As I said, that is the earliest reference I’ve been able to find; however, my guess is that if you went back through the divine-right-of-kings argument in the Middle Ages you would discover its supporters saying that to deny the divine right of kings would be to deny the authority of magistrates to impose punishment for the violation of God’s law. Pope John Paul II seems to be saying that the modern democratic state can only impose certain penalties—it has lost the ability to impose priestly penalties.

The third thing to look at in trying to understand his opposition to the death penalty is this: the Pope is constantly thinking in terms of the Christian story. Each of his encyclicals can be seen as a meditation on a single biblical text. Evangelium Vitae is the explication of the Cain and Abel story, which carries all the way through the document. In it he says, “By his death, Jesus sheds light on the meaning of life and the death of every human being.” Now, the Pope is walking an extremely delicate line here. If he were to deny that there is such a thing as the demand of justice—that in the Cain and Abel story the ground really does cry out for blood—then he would lose the possibility of allowing any punishment whatsoever. If there is no such thing as divine justice in the universe, if the ground doesn’t cry out for blood, if there is no “blood-debt,” then there is no possibility of justice.

But the Pope also wants to say, it seems to me, that the Christian story demands that we not ask for that blood-debt to be paid, because Jesus Christ, with his death, has paid it once and for all. Now, it is dangerous to leave the argument against the death penalty in the hands of those who no longer believe this story. The people who think there is no such thing as a blood-debt will be very surprised to see crowds outside penitentiaries where executions are about to take place, chanting for blood.

When the jury assigned the death penalty to the man in Texas who dragged the black man behind his truck tied to a chain, one local black spokesman said he was normally against the death penalty but in this case it was payment in blood for two hundred years of lynching. Heinous as that crime was, this ought to be frightening. If, in fact, we deny the Christian story, we are not going to be able to preserve a Christian ethics. A Christian ethics requires a Christian metaphysics. The Pope is insisting that there is a particular story that makes sense both of our impulse to demand blood for blood and of our impulse to refuse to demand blood. Only the Christian story, the Pope is saying, can do this.

If you keep these three things in mind as you read the Pope’s encyclicals and other statements, it seems to me that his argument against the death penalty doesn’t look like a development of doctrine at all. It looks like an explication of something that has been present all along, applied to the particular situation we find ourselves in.

RUSSEL HITTINGER

Russell Hittinger: I will try to connect with a couple of points Joseph made. First, however, I think it would be good to lay out the status of the question using this encyclical, Evangelium Vitae, and the Catechism. To do that, I first want to give you five points that are not being debated, because I think it is helpful to clear the table of useless debris:

First, Catholics are not debating whether the authority to use lethal force belongs to individuals as individuals. The Catholic Church has always taught the anti-Lockean doctrine that the authority to use lethal force is vested by God in the political community. Reputable Catholic theologians have never, to my knowledge, said, as Locke did, that we all are deputized by God as individuals to use lethal force.

Second, no Catholic is questioning whether human authority has power to exact punishment for original sin. God alone can exact punishment for original sin.

Third, no one is disputing the principle that when crimes are punished, the punishment must be proportioned to the offense.

Fourth, no one disputes that the common good can influence the assignment of punishments. To my knowledge, everyone believes this—that the protection and well-being of the community can enter into the consideration of what punishment is assigned for a particular offense, provided that it be done by proper authority and be proportional to the offense.

Finally, I don’t think that anybody is seriously debating whether the reform of the guilty party can also enter into the decision of what punishment to assign, provided, of course, that the common good not be endangered.

Those five points are not part of the debate going on among Catholics about the death penalty. Rather, the debate as I understand it is this: Evangelium Vitae and the new Catechism of the Catholic Church make two slight alterations in the way this issue is considered, both of which could suggest a new doctrine. First, both the encyclical and the Catechism treat capital punishment in the context of self-defense. In fact, both of them cite Aquinas’s famous discussion of individual self-defense in the Summa (S.t. II-II, 64.7). But in that article, Thomas is treating the issue of a private party who unintentionally kills when warding off a threat to his own life. In other words, Aquinas’s discussion was aimed at a private act, not a police action, not war, not the authority of the state to use capital punishment. It is not the right article of the Summa to use in support of capital punishment. How Thomas got cited for this purpose, in both the encyclical and the Catechism—and it’s more than a citation, it is actually quoted—I can’t imagine.

The point concerns the view that capital punishment is permitted only in societies whose existence must be protected. In Evangelium Vitae, section 55, the concrete example used by the Pope is the need to incapacitate the aggressor who is doing, or about to do, serious harm to other people, even when that aggressor is not himself guilty. So we can take the case of a crazy man who has a gun and is about to hurt people. In Evangelium Vitae, the Pope says we would have to use such force as is necessary to stop this man from harming the community. But in this case the potential aggressor is not guilty, so you can hardly say that when the cop shoots the crazy man who is waving a gun he is imposing a punishment.

To summarize, then, the first problem is this: Both the Catechism and Evangelium Vitae, by reducing the issue of capital punishment to the defense of society, (a) have a faulty understanding of the tradition they refer to, and (b) obscure what a “punishment” is, since self-defense and the use of lethal force in self-defense need not be a case of punishment at all.

The second problem—and this is where I would connect with what Joseph Bottum said—is this: It is well known that in the Catholic tradition, the assignment of punishment can be done for “medicinal” reasons. “Medicinal” refers to the effect of shaping punishment in such a way that it improves society by improving those who witness the giving of the punishment. The new Catechism says this: “Punishment, then, in addition to defending public order and protecting people’s safety, has a medicinal purpose. As far as possible it must contribute to the correction of the guilty party.” Yes, but the contribution to society is left out. Now, this is not the place to go through dozens of traditional texts on this, but I can tell you that the tradition almost always mentions the medicinal quality of a punishment in connection with society, not the guilty party. In fact, Thomas goes so far as to say that often the medicinal effect is only in society, not in the guilty party.

So here is the problem: It is not just that something in the tradition is left out but that—and here I connect with Joseph Bottum—the argument of Evangelium Vitae against the death penalty today really does need the notion of societal medicinality. Why? Because the new argument, as I understand it, goes like this: At least in this world, every human assignment of a punishment has two faces: (1) retribution, the strict order of justice with regard to the guilty party, and (2) its effect upon society, what used to be called medicinality. If society sees criminals “get away with it” without being punished, it tends to degrade the moral understanding of the common order. For Evangelium Vitae’s argument to work, we have to say that in the “culture of death,” in a society in which torts and crime are mixed together, in a society that medicalizes punishment, where people are killed in clinics in the basements of prisons, in a society that has handed out private franchises to use lethal force in the case of the abortion right, and now, in Oregon, in the case of physician-assisted suicide—in that kind of society, to continue to exact the death penalty is not medicinal but poisonous. Rather than manifesting the truth about what crime is, and the truth that there is a transcendent norm of justice, what we tend to do is to reinforce the worst instincts of society, using utilitarian logic as though we can ignore moral problems if we can just get rid of the really bad people by executing them. To make this argument work we have to think of the improvement of society that would come about by refraining from exacting the death penalty. That doesn’t mean the Catechism is wrong—it just means that a premise is missing and needs to be added.

KEITH PAVLISCHECK

Michael Cromartie: Thank you, Russell. We’re grateful to our third speaker for agreeing to fill in for someone who had to cancel at the last minute. Keith Pavlischek is a senior fellow and director of the Civitas program at the Center for Public Justice, which is here in the Washington area. He has a Ph.D. in Christian ethics from the University of Pittsburgh and has written a book on the Jesuit scholar John Courtney Murray.

3. Keith Pavlischek

What makes this issue especially difficult for me as a Protestant and an evangelical is that I’m not entirely happy being on the same side as many people who are also opposed to this pope on life issues. But on capital punishment, I would claim to take a more classical Protestant and even more classical Catholic position.

I am not really sure what Joseph Bottum was getting at with his development-of-doctrine idea. I’m not certain about what the nineteenth-century magisterium taught on capital punishment. My guess is that they at least found it permissible and probably permissible on retributive grounds. Now, if you wish to nuance that significantly, it seems to me that it might be not a development but a contradiction. In other words, if John Paul II is saying something different from Pius XI on the specific question of capital punishment, then let’s just say he has a different view. But that brings up the larger question of papal authority.

Also, I think that the question of natural justice versus divine justice, at least in the way Joseph articulated it, may set up a false dichotomy. He’s saying that Jesus paid the blood-debt and that this is a very strong argument against the retributive notion of capital punishment. I defer to Russell Hittinger to articulate what the medieval view of retributive justice would be, but my guess is that Ambrose and Augustine permitted it for retributive reasons. To base an argument against capital punishment on Christ’s atonement for our sins would be, I suspect, to run against tradition.

More significant, and you won’t be surprised to hear this coming from a Reformed, evangelical perspective, I think it runs against the pattern we find in Scripture where this is addressed, particularly in Romans 12 and 13. In Romans 12, St. Paul says, “Do not repay anyone evil for evil. . . . Do not take revenge, my friends, but leave room for God’s wrath, for it is written: ‘It is mine to avenge; I will repay,’ says the Lord. On the contrary, ‘If your enemy is hungry, feed him; if he is thirsty, give him something to drink. In doing this, you will heap burning coals on his head.’ Do not be overcome by evil, but overcome evil with good.” For private individuals, there is to be no revenge. Then Paul goes right into the Romans 13 passage that begins, “Everyone must submit himself to the governing authorities, for there is no authority except that which God has established.”

Now what is the duty of the public authority? Remember, Paul is writing to Christians in Rome under Nero. He says (13:3), “For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right, and he will commend you. For he is God’s servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God’s servant, an agent of wrath to bring punishment on the wrongdoer.” These are very strong words. The civil authority is a “minister of God,” it is stated in some translations. This seems to be quite a retributive notion of justice—there is not a lot of talk about the common good here. So do we want to rule out all retributive notions of punishment?

And finally, on Russell Hittinger’s point about how, in a culture of death, not only is the use of the death penalty not medicinal but it may be the opposite—it may be poisonous: I think that may be the most compelling argument, but it is a prudential argument. I would be cautious about doing away with the retributive notion. As for defense: if the entire notion of punitive justice collapses into defense of the self or the state, there are theoretically no limits to punishment—it becomes like total war.

Michael Cromartie: Thanks, Keith. Russell, you had a quick response, and then I want others to get in.

Russell Hittinger: My understanding of that passage in Romans was that the divine wrath is more on the medicinal than the retributive side. If we go back and read Ambrose and others on this, one of the roles of the magistrate is not just to retribute and to punish the criminal but to be the agent of God’s wrath, to exhibit to the community that there is a transcendent norm of justice and you’re not going to get away with committing crime. Wrath fits much better on the medicinal than on the retributive side.

Keith Pavlischek: I don’t think so, but to settle this would require a full-scale exegetical analysis of the passage.

Russell Hittinger: It’s an important point to settle, because if so, then that Romans passage would actually be usable for the Pope’s broader argument.

Joseph Bottum: Right. And since “the sword” is a metaphor, we’d have to argue what a metaphor is for, and whether the sword is necessarily a metaphor for the death penalty.

Elliott Abrams: I want to get back to the question of defense of society. The new assault on capital punishment argues that it simply is not needed in the societies in which most people live now. Is that argument susceptible to sociological evidence, or is it a sort of “ex cathedra” statement? Suppose I could show you that in the state of Kansas or the country of Belgium the elimination of capital punishment was followed by a great increase in murder and other crimes of violence. If I could make a factual argument about its deterrent value, would you then say that capital punishment is acceptable?

Joseph Bottum: It strikes me that the Pope is very suspicious of arguments of that sort, because, I think, he fears the possibility of separating the punishment from the criminal. After all, why do we even have to have a guilty person for that deterrent effect? Maybe we could deter just as well by preemptively saying, “All children who score below a certain level on the Minnesota Multiphasic Personality Inventory are likely to commit crimes, so let’s just kill them all.” The Pope is suspicious of any such argument; he wants to tie punishment to the crime and to the criminal. Now, Russell Hittinger is saying that when the Catechism phrases the medicinal value only in terms of the criminal, it has made a mistake. But the medicinal value is at least in part for the criminal, not just for the larger society, and if you separate the criminal from that, then you move onto dangerous ground.

Russell Hittinger: In the older tradition, the word “medicinal” was never equated merely with stopping something. It is not a deterrent theory. You are absolutely right: we could have so many capital crimes that we’d be virtually rounding people up to reinforce the social perception that “you’re not going to get away with it.” Aquinas would never have called that medicinal, because a medicinal act must be truth-manifesting. Therefore, to kill or punish without proportion to the crime may stop people from committing crimes, but it doesn’t morally improve them. Once again, this underscores the need to look at society. By stopping a crime you’re not just protecting society but edifying it. That is why I would also say that the defense model in both the Catechism and Evangelium Vitae seems somewhat at loggerheads with the other point these documents want to make.

Joseph Bottum: You are pushing the wrong text in Evangelium Vitae, Russell. The Pope begins the death-penalty passage there by saying that we need to put this in a context. Here is what he says:

“There is a growing tendency, both in the Church and in civil society, to demand that the death penalty be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God’s plan for man and society. The primary purpose of the punishment which society inflicts is to redress the disorder caused by the offense.”

It seems to me that the passages you are leaning on occur within a context set up by the Pope that already has what you are looking for in it.

Michael Woodruff: If we accepted the Pope’s argument, would we be giving up the capacity to hold finally accountable those people whom we see as war criminals? It would disturb me if we did this.

Joseph Bottum: I don’t believe, and I don’t think this pope believes, that human justice is capable of ultimately assigning guilt. That is God’s job.

Keith Pavlischek: Joseph, that does come back to the Romans 13 passage, because you can’t just say that it’s God’s job. Who is to be executor of the right? Public authority is. To say otherwise would preclude any punishment of wrongdoers.

Joseph Bottum: No, it wouldn’t. First of all, the tradition has always looked at the shedding of blood as a case apart. For instance, the canons make it difficult to become a priest if you have shed blood. Capital punishment isn’t just the extreme in a line of punishments. It isn’t directly in line; there is a big step-off toward death.

Keith Pavlischek: But doesn’t that argue even more forcefully that although the tradition recognized that this was a big step, it was allowed for retributive reasons?

Joseph Bottum: What “disorder,” to use the Pope’s word, is being addressed? Is it a disorder of the universe or a disorder of society? If it’s a disorder of the universe—if you are paying the blood-debt by killing this person and balancing the books of the universe—then you are involved in essentially a pagan story.

If, rather, what you are trying to do is to address the imbalance of society, for a variety of reasons—for the protection of society, for medicinal purposes, and so on—then yes, of course you can take life in certain circumstances. And yes, public authority is the only agent that can carry this out. Private people cannot, because private people will always act for vengeance. They will always try to make their action a matter of metaphysical justice.

Keith Pavlischek: It just won’t do to call it pagan—because it is biblical. What is the justification given for the permissibility of shedding blood after the Noah story? God says it is given over to the earthly authority to take care of it.

Joseph Bottum: Of course it would be possible to do this—not to have a pagan story and to balance the metaphysical books of the universe if God directly ordered it to happen. But we live in modern Western democracies, whose magistrates cannot claim to be operating under the directorship of God.

Keith Pavlischek: This was before the Sinai covenant. What I am arguing is that the pattern in Romans 13 follows precisely the pattern laid out in the Genesis story, prior to the covenant at Sinai.

David Coffin: I’d like to comment on three points. First, don’t we all agree that the death penalty is never intended to be an instance of ultimate divine justice? The death penalty is not even in the league with ultimate divine justice; it would actually be a kind of mercy by comparison. Ultimate divine justice is beyond imagining. That’s why we have those terrible images from Scripture. If you persuaded a person of divine justice and said, you may have that or the death penalty, he’d choose death without a moment’s hesitation.

Second, it seems to me that the atonement of the Christian story is not relevant here, either. In the tradition I represent, the Reformed tradition, one of the great questions of the Larger Catechism of the Westminster Assembly says this: “If the wages of sin are death, and sin is satisfied in the atonement of Christ, why do believers die?” Now there’s a question for you. How can the penalty still be enacted? It comes down to a different purpose, the Catechism answers. Since the death penalty isn’t even in the league with ultimate divine justice, then the satisfaction of ultimate divine justice is not relevant to the death penalty, except in a kind of symbolic and temporal way.

My third comment is that while I am moved to some degree by the “culture of death” argument, I wonder this: I am a pastor, and I believe that the Bible actually requires parents to use corporal punishment to help train their children. But in a culture where the connection between parent and child has been considerably reduced, to advocate corporal punishment among people who may have little love for their children may create a severe threat to those children. Now it seems to me that there is an analogous argument to the one you propose. If we live in a culture where parents have so little love for their children that, rather than judiciously using corporal punishment in the right way, they would use it to do harm, should we therefore eliminate the right and duty of parents to exercise corporal punishment?

Joseph Bottum: I guess I don’t see the application here.

David Coffin: You seemed to be saying that in a “culture of death” the use of the death penalty would be wrongly perceived. Whereas what you might say is that in a culture of death what you should do is to continue to pursue the death penalty properly and instruct rightly with respect to its significance.

Joseph Bottum: I do think it would be wrongly perceived. How many people do we have on death row now, some 20,000—do you want to see them die tomorrow? If we could clear away all the burdens, are you willing to shed that blood?

David Coffin: Do I want to see them die? “Want” is an interesting word there. Would I be willing to see them die? I would say yes.

Michael Cromartie: Tell us, Joseph, why not? Suppose 20,000 Timothy McVeighs were on death row. Why not execute them?

Joseph Bottum: Because it is a whole lot of blood. Literally. It is literally a whole lot of blood that I don’t want to see. More particularly, the argument I was making, and I think that Russell Hittinger was joining me on it, wasn’t just that the death penalty is being abused in a culture of death but that when it is used, its purpose is directly opposite to what it should be. The death penalty is supposed to teach us that life is precious, and in a culture of death it teaches us that life is cheap.

David Coffin: Let’s just try my analogy. Let’s say that there is some duty of corporal punishment, and while it is not pleasant to administer, it actually does some good. Now, suppose I said that in this culture, where there is growing disaffection between parents and children, what corporal punishment will teach is that fathers hate their children and love to beat them. Would you argue then, that, it was no longer legitimate?

Russell Hittinger: Here is where the analogy is a problem. Suppose that the magistrate has two duties, and that the medicinal is every bit as much a part of his duty as the retributive. Aquinas’s argument is that until the final judgment, when God can look people right in the eye and say, “Buddy, this is just what you deserve,” there will never be pure retribution. Why? Because whoever is applying the punishment always has a social good to keep in mind at the same time. And until the final reckoning, human society is incomplete, fluctuating between progress and regress. The lawgiver will have to consider both retribution and the social good. His duty to the social good is not less than his duty to exact retribution. Once we think of two duties, then, your problematic can be lightened. We can just say, for very important reasons, that the medicinal duty of today tends to overcome the strict and systematic application of the retributive one.

Parents, by analogy, have two duties as well. I would say that, for them, the medicinal is even more pressing, because you simply can’t raise a child well if punishment, even when just, is so misconstrued that the child misses the moral lesson. Surely you have a duty not to aid and abet this misconstrual.

David Coffin: In the end, though, isn’t the learning of the lesson up to the scholar? The fact that my scholars may not understand doesn’t seem to me to eliminate my obligation to deliver the lesson. I may hope that at some future time the light will dawn and the significance of the act will be understood.

Russell Hittinger: There it comes down to a kind of factual question that is going to be hard to settle. Are the Pope and most of the Catholic bishops right or wrong in their judgment that the cultural context being what it is—we mentioned several things, such as confusions of crime and tort, medicalization of moral issues, the private enfranchising of the right to use lethal force—are they right or wrong in reading this with what I am calling the medicinal or instructive issue? If they are right, their argument is not a bad one.

Keith Pavlischek: As I was saying before, I believe that this knife can cut both ways. The failure of the public authorities to execute retributively may lead to vigilantism. But that kind of revenge is precluded in Romans 12. In fact, before the Flood, God looks out and sees this anarchic mess and decides to wipe it all out, and then he says, We are not going to let you go back to this vigilante-type justice. I don’t wish to run that argument now, but it seems to me that as long as you maintain the retributive notion as Russell seems to and Joseph doesn’t, you must allow its execution by the public legal authority.

Paul Marshall: In Genesis 4, after Abel dies, God appears and says, “Your brother’s blood is crying out to me from the ground.” The word “crying” in that context has a range of meanings—anything from just crying out in pain to actually a legal appeal. You could say, “Your brother’s blood is appealing to me from the ground,” using the word in a quasi-legal sense. It’s a call for judgment to be exercised. The actual punishment given here is exile with a mark of protection put upon Cain, specifically to protect him from someone who might want to make the punishment greater than that. That is also described as a seven-fold—very complete—vengeance. I am intrigued by the fact that exile is God’s first response to murder.

Then in Genesis 9 there is a transfer to human beings of responsibility for dealing with these situations. “Whoever sheds the blood of man, by man shall his blood be shed.” But then it adds, “of man and beast you shall require it.” The punishment applies to animals as well as human beings. As we know, there are medieval instances of actually putting animals on trial.

Joseph Bottum: Actually, there is a line of medieval interpretation that would help us through the fact that Cain is not killed, which is to say, Look, Cain can’t be killed, because it is not until Cain builds the first city that you have properly constituted magistrates who might impose the penalty. Thus all the Lord is prohibiting there is private vengeance.

I think, though, that one of the things to notice about that statement “your brother’s blood is crying to me from the ground” is what follows it. The Lord goes on to say, “Now you are cursed from the ground.” It seems to me what is being proposed in that text is the reality of the blood-debt and then the refusal to claim it. I think that is exactly the sort of dynamic the Pope is aiming for in his analysis of Cain and Abel, which runs all the way through Evangelium Vitae.

Russell Hittinger: Locke cites that text in his Second Treatise of Government and goes on to say, “and this is the great law of nature.” I believe that according to the Bible this is not the great law of nature—rather the great law of nature is that no human being has the right to usurp the divine authority over life and death. Locke cites that line for exactly the opposite teaching, which is that all of us are deputized to become Dirty Harrys, before we decide to constitute civil society. The force of the biblical story, with the mark on Cain and the rest of it, is: no usurpation. The magistrate can act as an instrument of God but may not usurp his authority.

Patrick Glynn: A comment on how the death penalty plays into the culture of death: When the Timothy McVeigh trial was finishing up, a radio station in Oklahoma recorded the famous rock song “YMCA” with the words, “Fry Tim McVeigh.” Public executions do not bring out the best in people. Once when a lot of people showed up to hear Churchill in the House of Commons, he said, “This is only a tenth of the people who would be here if I were being hanged.” Nothing draws a crowd faster than a hanging. Public execution tends to reinforce a kind of callousness, a lack of appreciation for the dignity of a human being.

The other point I want to make is somewhat unrelated. I do sense the Pope undertaking a kind of development of doctrine. This has been the most curious dimension of this papacy—which is perceived around the world as very conservative—that he, particularly on this issue, and on war, is pushing the envelope of Christian teaching. I think the most interesting analogy is what we saw in the Christian world on slavery. After all, there were some texts of St. Paul that people could cite to justify the maintenance of slavery as an institution. And yet something happened in the development of modern civilization, powered, I think, by the Christian message. Eventually slavery came to be seen as a deep moral wrong, even though you could make the case that it was defended by St. Augustine or St. Paul. I think the Pope is saying much the same thing about the use of state power to kill. There is something inherently wrong with this. Of course there are always exceptions, but I think the Pope is suggesting that we are much too quick to resort to violent methods. That is not the spirit of the Gospel. It is simply a necessity of human history, and we can push that necessity back in much the same way we did with slavery.

Michael Cromartie: Let me just say, Patrick, on your first point: Is it really the case that the public response to the execution of a murderer is callous? Wouldn’t it be callous toward all the victims of Timothy McVeigh not to execute some form of retribution? Maybe it’s not callousness but a soberness about the act.

Joseph Bottum: Exactly the way you just said that, Mike, means that what you think the death penalty is primarily doing is addressing a tort, a harm done to those individuals, rather than addressing a crime against the state. The state ought not to be punishing Timothy McVeigh for what he did to the children of the people who were killed there. During the Oklahoma City trial, there was a lot of confusion during which the statutory processes of courts were changed three times by Congress—e.g., when the judge prohibited television, Congress immediately passed a law saying that the relatives could watch. I think that ought to be really frightening. What the law is supposed to be doing is redressing a balance in society that has been upset by the violation of the law of the state. The confusion over what the state’s punishment is supposed to do makes the lesson of the death penalty not successful. What the lesson should be is that life is sacred.

David Coffin: It seems to me that you are defining edification as that which does, in fact, edify a group of people. The better question is, what ought to edify? Aren’t we duty bound to set before people what ought to edify? And if it doesn’t, isn’t the result a judgment upon them? For example, positively, if I understand my job as a minister of the Gospel aright, it is to try to explicate the truth of God in Scripture. There may be people in my congregation who do not find that edifying. Should I adjust my job description to try to accommodate them?

It seems to me that there is a parallel here with our Catechism, which asks, “Why would God have all men know that there is to be a day of judgment?” The answer is, “In order to help restrain them from sin.” Suppose someone were to say to the Almighty, “You ought to revise that program because very often it just doesn’t restrain men from sin; it is not edifying in that it is not achieving its end.” Maybe God would answer, “No, they ought to have been edified by it. It ought to have restrained their sin, and therefore, it is to their greater judgment that it didn’t.”

Joseph Bottum: I think that if none of your parishioners are learning anything, then you might want to think about finding another job and they might want to think about finding another pastor. There ought to be some reciprocation. If you are preaching to stones, it is the fault of the stones, maybe, but it is also the fault of the preacher.

Russell Hittinger: We could also say (and this is in no way explicating what the Pope has in mind) that it is the responsibility of proponents of the death penalty to take this institution in hand and to do it right. No medical dumping of phenobarbitol into the veins in some hospital clinic in a prison basement. Put them right out there and kill them, not cruelly, but publicly, and make everyone understand that it is being done not by your will but by divine judgment. In other words, if you are really going to teach the lesson that is potentially teachable—by the way, I’m not really disagreeing with you—the whole thing will have to be massively reformed. I don’t think there’s any chance of that.

Joseph Bottum: The reason we stopped public executions is that we became uncomfortable that the lesson wasn’t being learned or that the wrong lesson was being learned. That is why we moved it indoors.

Keith Pavlischek: Russell is saying that you can do it in Christendom, but you can’t do it in a secularized state.

Russell Hittinger: Alas, to say that means you will be misunderstood by 99 per cent of the people. Another good reason to dispense with capital punishment.

Keith Pavlischek: But that argument is different from the one Patrick Glynn gave. He said capital punishment is like slavery, intrinsically evil but seemingly necessary. That is what scares us about this argument from self-defense. There you do evil—capital punishment—so that good may come. The good is defense, and it knows no limits. You see, if you press that argument, then you can obliterate a whole society if it threatens you.

Patrick Glynn: I was getting unclear toward the end of my comment because in my mind I was conflating the capital-punishment argument with the argument about war. They are different, because you have less control over whether you have a war—somebody else may start one. In the case of capital punishment, a society has complete control. I think what the Pope is suggesting is that both of these things should be avoided, even though there may be acceptable circumstances. The state has tended to resort to these methods much more often than is really necessary.

Keith Pavlischek: The distinction between guilt and innocence is being lost. That is the crux. A lot of us fear that a moral equivalence may be teased out here between abortion and capital punishment. The intrinsic wrongness of abortion is that an innocent human being is killed, where-as with capital punishment, rightly administered, you are dealing with the issue of guilt. The same is true of a just war—you are dealing with guilt. That is not a minor point.

Patrick Glynn: But the point in both cases is that the killing is intrinsically wrong. It happens, but “Thou shalt not kill” is out there. Killing happens thousands of times on the planet every day, but you want to avoid this intrinsic wrong as far as possible. Guilt or innocence really isn’t at issue. Nobody is going to take somebody who does what Timothy McVeigh did and set him free. The question is whether he is going to be in prison forever or executed.

Jude Dougherty: It’s news to me that there is a Catholic position on this. I always thought there was a kind of common, Western position that could be traced back to Plato and the Mid-dle Ages. The most articulate spokesmen on capital punishment that I have found in Western literature are Immanuel Kant and Thomas Aquinas. Kant, the theologian/philosopher of Protestantism, and Aquinas, the theologian/philosopher of Catholicism, were in absolute agreement on the death penalty. They both sanction it. Aquinas would even allow one village to wipe out another village if the harassment were significant.

The primary purpose of capital punishment is retribution. The theory on retribution is that serious crime can be shown to be serious crime only if there is a serious penalty attached to it. Now murder and rape, in this country, typically entail forty-eight months in jail. Very few people are executed. Someone mentioned a figure of 20,000 on death row, but over the past ten years only a few hundred have been executed.

John Paul II didn’t start out as a sociopolitical philosopher. He has learned that on the job, so to speak, and much of what he learned was in the context of the former Soviet Union and the totalitarian regimes in Europe. In speaking about capital punishment he did not have in mind what goes on in the United States, where the process is so long and drawn out that it is exceedingly rare for anybody to be executed without sufficient reason. You have to think about the Pope teaching globally and not to America in particular. And I think you also have to distinguish between doctrine, common teaching, and the prudential application of that. He sometimes blurs the distinctions.

Russell Hittinger: One of the issues at stake here was whether or not

to treat the medicinal function as broadly as what I was urging. I want to read one sentence from Aquinas now that shows him to be much different from Kant: “The punishments in this life are more medicinal than retributive, for retribution is reserved for divine judgment which is pronounced against sinners according to the truth (Romans 2)”(S.t.II-II 66.2 ad 2). For Kant, it would be immoral not to apply the retribution. For Aquinas, it would be immoral not to apply the medicine in the right way. This is a standard medieval argument—it is not just Aquinas who makes it—that only God has plenary authority to look you in the eye, at the very end, where there is no more question of improving anybody, no contingencies of society involved anymore, and to pronounce retribution. So long as there is still an imperfect and changeable society, then the medicinal is always an issue. Now, granted, deciding how to weigh the retribution versus the teaching effect on society would require a prudential, case-by-case argument. I don’t see any a priori way.

I take your point about Pope John Paul’s global outlook as a good one—except that we know he developed his phrase “culture of death” for us.

Joseph Bottum: I undoubtedly overstated the case when I said that there is absolutely no development of doctrine here. Obviously something is going on. But what I wanted to point out was that, in fact, the medieval theological and philosophical traditions are much more complicated than the way they have been presented since the Enlightenment. The 1914 Catholic Encyclopedia says this about capital punishment and the commandment “Thou shalt not kill”: “The just use of this power, the power of capital punishment, far from involving the crime of murder, is an act of paramount obedience to the commandment which prohibits murder.” It seems to me that that sort of line, that you are not merely not violating the commandment “Thou shalt not kill” when you execute that criminal, that in a weird way you are actually affirming it—that line of argument, in the Catholic Church, is relatively new. The question is much more complicated in Thomas Aquinas, and in Augustine, and in Anselm for that matter. It seems that the medieval tradition became flattened out in the nineteenth century, and this pope is enriching it again.

Keith Pavlischek: Probably the same can be said for Kant. I would not want to claim Kant as the quintessential Protestant philosopher, but I wonder whether mercy extended to the criminal who deserves to be executed is medicinal. It seems that the medievals would say that justice needs to be tempered by mercy. Not to execute somebody is a merciful act of the public authorities, and that is medicinal. But you can have mercy only if there is justice.

Russell Hittinger: Listen, I would in no way try to defend this case—about refraining from using this punishment—in the absence of retribution. To throw retribution out just makes the whole thing silly. The question is whether a good case can be made for refraining from the use of this power in our place and time.

Jude Dougherty: Can you make an argument for retribution on purely secular, humanistic grounds?

Joseph Bottum: Yes, absolutely. That is what the whole pagan story is. The Romans thought they had such an argument.

Russell Hittinger: Apart from religious grounds, the ancient notion of what makes a crime different from a tort is that the harm done laterally to someone else is solved by reparation—someone gives something back. Harm done to society cannot be solved by giving something back; that is why we have punishment. Punishment always has to do with crime, not torts. That distinction is rooted in a religious insight, I believe, that there is some difference between what is owed in punishment to a violator of the community of the gods and what is owed in recompense to the victim of a tort. Now it takes legal systems centuries and centuries to distinguish them systematically so that Nicole Brown Simpson’s family doesn’t show up at the trial to confuse crime with tort. The insight is religious.

Robert Royal: I think it is helpful to look at the only part of the world that has actually tried to do without the death penalty. Europe has, for a long time, generally banned capital punishment. It also, out of the same civilizational impulse, I think, has gone very weak on waging just wars. The French like to go into Africa and make sure that their economic lines are not disrupted. But in terms of a kind of noble war, Europe has been very reluctant to get involved, as the Balkan situation shows. And that raises a question: Has Europe’s reluctance to use force in both instances supported the case for a “culture of life” that the Pope is trying to make? I think the evidence for that is quite poor.

Second, I want to go back to an earlier point, one that I find troubling. Joseph suggested that the Pope has kind of reconciled the Church to democracy by saying that secular rulers have no right to enforce divine law, or to claim divine sanction for what they are doing. I find it odd to think that the Pope has made that argument. He certainly accepts the reality of secular regimes, but if he were to accept the fact that in politics there is only secular authority, he would be a legal positivist. I think that is very far from his thought, and that he’d like to argue very strongly that something needs to be reintroduced—particularly into the European tradition, though more and more here in the United States as well—to stabilize some of these questions about who has authority to do what.

Joseph Bottum: In suggesting that the Pope says secular rulers have no right to enforce divine law, by “divine law” I didn’t mean natural law or the truth of human nature. I don’t think the Pope would ever say anything like that. But somehow these regimes have eliminated any necessity to appeal to anything other than their own authority to make law. The secular state no longer has any kind of claim upon a “priestly” justification for imposing the death penalty. The last vestige of that, it seems to me, was the divine-right-of-kings theory, in which a divine right moves down through the king to his magistrates. We cannot appeal to those passages in the Bible and the tradition that seem to justify the death penalty by claiming a priestly authority given directly by God. The Pope is saying we no longer have that.

One of the things that make Evangelium Vitae such a brilliant document is the Pope’s perception that there has been some regression in the world. We had reached a certain point, and now we seem to be receding from it. He sees abortion as a regression. He looks around the world and sees increasing slavery, and he thinks that we are falling back somehow. He is trying to find out why.

G. K. Chesterton once said, “The world is full of Christian ideas gone mad.” Ideas that started out Christian were stripped of their Christianity but kept on going. The notion of progress is what you get when you have history moving towards its eschatological end and then you forget what its eschatological end is—and all you have left is history moving somewhere. There are people who think that there is no such thing as a blood-debt—that the blood doesn’t cry out from the ground, that we’ve all gotten past that and don’t have to believe it anymore. It seems to me that the people who think that, yet also dismiss Christianity, are in for a big shock, because what we are going to get is, as Victor Hugo put it, “Thor screaming again with his hammer for blood.” What we will get is the rebirth of a demand by the normal populace that blood be repaid with blood.

This is frightening, because we’d actually gotten past that. For two thousand years of civilization, Christianity had civilized us into no longer demanding that the blood-debt be paid. The Pope sees the loss of the metaphysical framework in which that makes sense as allowing a decline. In the last twenty years in this country, support for the death penalty has increased from 50 per cent to 80 per cent of the population. I see this as a mark of exactly that decline.

David Coolidge: We have been talking about whether just punishment requires both “retributive” and “medicinal” elements. Russell Hittinger said he believes that both elements are essential. Keith Pavlischek said the retributive was essential, but he did not address the medicinal. Joseph Bottum seems to be saying that the medicinal is essential, but he sounds unclear about the retributive. I would like to ask Joseph, Do you believe that just punishment still requires a retributive element? If so, how is it different from the idea of the “blood-debt” that you are discussing?

Joseph Bottum: When the Pope introduces the subject of the death penalty in Evangelium Vitae, he says that the fundamental purpose of punishment is to address the disorder in society caused by the crime. There is obviously justice that has to be done—a balancing of the books—but it is the balancing of society’s books. The magistrate has a duty here to punish and thereby balance the books so that you and I don’t reach the age of seventy and say, Well, we didn’t commit any crimes, but our virtue was wasted because the people who did commit crimes got ahead. But the magistrate in a modern Western democracy cannot claim that he is balancing the books of the universe. No magistrate should claim the authority of divine justice; he can only balance the social books. The question is, does that demand the death penalty for anything? I don’t see that it does.

Michael Woodruff: The magistrate works within a statutory framework in which a legislature has spoken as to what the range of penalties would be. So if the state differentiates between first-degree and second-degree homicide and the jury’s finding makes the second degree first degree, that limits the magistrate’s options. State by state there will be variations in the interplay between the jury and the judge and the application of that punishment. Perhaps the Pope’s moral message of the value of life speaks directly to judicial systems—the United States, China, and others—that are incapable of making these moral differentiations. They don’t understand circumstances in which a proper application of the death penalty may be in order.

Therefore, given that inability to differentiate, it is better simply to suspend capital punishment. So the argument becomes more prudential, but comes out on a moral side to affirm the dignity of life. Do you have any sense of whether the incapacity to make proper moral differentiations in the United States has had an effect on the Pope’s message?

Joseph Bottum: I am not sure, but you are absolutely right to focus on the prudential. Whether or not to do this becomes a prudential question only if it has already been decided that we do not have a positive duty to do it in all circumstances.

David Coffin: Joseph, are you and Russell both saying that for Aquinas and the tradition generally, the medicinal can trump the retributive?

Russell Hittinger: Let’s not use the word trump, which suggests obliteration. The punishments in this life are more medicinal than retributive. Aquinas goes on to give the reason in a part that I didn’t read. One could say that in this place and time, to enact that penalty actually harms society at this other level.

David Coffin: So that the element of retribution, then, can be eliminated.

Russell Hittinger: No! Because we are not saying to the criminal, you can go free.

David Coffin: Retribution as it is expressed in capital punishment, then. The medicinal could lead you to say that there is no positive duty for retribution as expressed in capital punishment. Aquinas is saying that?

Russell Hittinger: It is permissible, but not required. The consideration is going to be made in the prudential order. A lot of this is going to be fact-driven—not just whether the person is guilty, but what the likely effect upon society will be. You cannot make a priori determinations. The only thing Aquinas is willing to say, a priori, is this: Until the final judgment, when there is no longer anything to be perfected, every human judgment and assignment of a penalty will have a medicinal feature. What that medicinal feature is will differ from culture to culture. Obviously, if you tried to send a flood in order to send man a message today, it wouldn’t do very much good, because we would build better ships. You have to think of all sorts of different ways of dealing with human beings, who are changeable and imperfect. That is all that Aquinas is saying about this. There is a duty to punish, but there is not an absolute duty on the part of the magistrate to exact the death penalty.

David Coffin: So retribution, as expressed in the death penalty, is not an essential part of the meaning of the act of punishment.

Russell Hittinger: The question is whether the retributive factor must be death-for-death. If you completely cancel out the retributive factor, then punishment can no longer be medicinal. Otherwise you could just round people up and cut their heads off, and you would have the effect of deterring crime. The question comes back: What message are you sending when you drag prisoners into clinics in prison basements, give them more sedatives than they have been taking already for the past twenty years on death row, and execute them quietly, allowing their relatives to sit behind the glass and rage. What is the lesson?

DISCUSSION PARTICIPANTS

Elliot Abrams, president, Ethics and Public Policy Center; Joseph Bottum, Books and Arts editor, The Weekly Standard; David Coffin, pastor, New Hope Presbyterian Church, Fairfax, Virginia; David Coolidge, director, Marriage Law Project, Ethics and Public Policy Center; Michael Cromartie, director, Evangelical Studies Program, Ethics and Public Policy Center; Jude Dougherty, dean emeritus, Department of Philosophy, Catholic University; Patrick Glynn, associate director, Institute for Communitarian Policy Studies, George Washington University; Russell Hittinger, Warren Professor of Catholic Studies and Research Professor of Law, University of Tulsa; Paul Marshall, senior fellow, Freedom House; Keith Pavlischek, director, Civitas program, Center for Public Justice; Robert Royal, (then) vice president, Ethics and Public Policy Center; and Michael Woodruff, managing partner, Gammon & Grange.