Less than a week after Alabamahalted the failed execution of a terminally ill prisoner whose veins were not suitable for intraveneous injection, the U.S. Supreme Court has decided to hear the case of another Alabama prisoner whose medical condition, his lawyers say, make him constitutionally unfit for execution. Strokes have slurred Vernon Madison's speech and left him legally blind, incontinent, unable to walk independently, and with no memory of the offense for which he was sentenced to death. Madison's vascular dementia, his lawyers argue, make him incompetent to be executed. This is the third time since 2016 that Madison's case has come before the Court. In May 2016, the U.S. Court of Appeals for the Eleventh Circuit granted Madison a stay of execution to consider his competency claim. At that time, state prosecutors asked the Court to lift the stay, but with one seat vacant from the death of Justice Scalia, the Court split 4-4, leaving the stay in place. Ten months later, citing uncontroverted evidence that Madison has "memory loss, difficulty communicating, and profound disorientation and confusion," the Eleventh Circuit ruled in Madison's favor, finding him incompetent to be executed. Alabama prosecutors again asked the Supreme Court to intervene. On November 6, 2017, the Court agreed to review the case and in a unanimous unsigned opinion reversed the circuit court's decision. The Court explained that, under restrictions on federal habeas corpus review of state decisions imposed by the Congress in the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the federal courts were required to defer to state-court decisions under most circumstances. While expressing "no view on the merits of the underlying question outside of the AEDPA context," the Court ruled that "the state court's determinations of law and fact were not so lacking in justification as to give rise to error beyond any possibility for fairminded disagreement." Justice Ginsburg, joined by Justices Breyer and Sotomayor, concurred. However, they believed "[t]he issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court." If the issue reached the Court in an appropriate procedural posture, they wrote, "the issue would warrant full airing." The Court's ruling cleared the way for Madison to be executed, and the State of Alabama set a January 25, 2018 execution date. In response, Madison's lawyers, led by Bryan Stevenson of the Equal Justice Initiative, presented the state court with additional evidence of Madison's deteriorating condition and new evidence that the doctor whose medical opinion had provided the court's basis for finding Madison competent had been addicted to drugs, was forging prescriptions, and had since been arrested. The state court denied relief without an evidentiary hearing and Madison's lawyers—emphasizing that this was no longer a habeas corpus case—asked the Supreme Court to grant a stay of execution to review the case. On the evening of the 25th, the Supreme Court issued a stay of execution, halting Madison's execution so it could decide whether to review his claim. On February 26, the Court voted to review the case to determine whether the Eighth Amendment prevents a state from executing a prisoner whose mental and physical condition prevents him from having memory of the crime for which he was convicted. The Court may now review the issue unencumbered by the limitations on habeas corpus cases. The Court will likely hear argument in the fall and a decision is expected by June 2019.
Thank you to all who attended and participated in the “Call for Reckoning” conference on January 25, 2002. Over 500 people from around the country filled the Divinity School’s lecture hall and several overflow rooms to hear the speakers reflect on religion and the death penalty. Provocative questions and profound reflections were offered by attendees and speakers alike throughout the day.
At a time of heightened controversy surrounding the death penalty, most discourse relies upon the political, philosophical, and legal dimensions of the practice, and its racial and social implications. Quite often in this debate, religious traditions and theological perspectives are not fully explored beyond an occasional reference to “an eye for an eye” or calls for mercy and forgiveness. Religious voices, however, provide unique standpoints and important reflective dimensions that illuminate these political and other accounts of capital punishment.
This conference brought together scholars of various faiths and religious backgrounds from the fields of politics, religion, and law to take up a broad range of views on the death penalty. Special attention was given to the following guiding questions:
What resources does religion-including religious beliefs, traditions, and institutions-provide in shaping current views about the death penalty?
In what ways do faith traditions and theological ideas shape how justice is conceived of and meted out? How do positions both for and against the death penalty draw upon various theological understandings of justice? Are these political and religious accounts of justice ultimately reconcilable?
What role ought religious beliefs play in a pluralistic democratic society that often presumes strict boundaries between matters of private faith and political life? How might citizens, jurors, neighbors and people of faith draw upon religious ideas in carrying out their civic responsibilities?
With a discussion of these questions in hand, this symposium grappled with the relationship between religion and public life as it pertains to what is often called the “ultimate punishment.”
SESSION TWO: Religion, Justice and the Death Penalty
JEAN BETHKE ELSHTAIN: The Pew Forum on Religion in Public Life Conference now turns to the theme: Religion, Justice and the Death Penalty. As you’ve already heard at moments today, including the fascinating session we just had with the governor, whenever the death penalty comes up for discussion the question of justice is not far behind. And a question that always occurs is: How does the death penalty square with our understandings of justice and which understandings of justice might those be?
To help us sort out this and related matters we have three distinguished scholars. We’re going to begin with J. Budziszewski, a political theory colleague, who comments frequently on questions of justice, natural law and political life. He will speak to the following: Sending Souls to God; Can the Death Penalty be Justified.
J. BUDZISZEWSKI: I’m glad to speak to all of you about this important subject today. Justice is giving to each what is due to him, praise to the doers of good, harm to the doers of wrong, and so fundamental is the duty of public authority to requite good and evil that natural law philosophers have always made it the paramount function of the state. The New Testament declares that the role is delegated to magistrates by God himself.
“Be subject for the Lord’s sake to every human institution,” Saint Peter says, “whether it be to the emperor supreme or to governors as sent by him to punish those who do wrong and praise those who do right.” Saint Paul agrees. You have heard other speakers quote this morning that he calls the magistrate “a servant of God for our good to execute God’s wrath on the wrongdoer.”
I think that bears reading again because when we hear that phrase, “to execute God’s wrath on the wrongdoer,” we think that that somehow excludes his being a servant for our good or even for the wrongdoer’s good, but Paul makes that point very clear.
So weighty is this duty of justice that it raises the question of whether mercy is permissible at all.
By definition, mercy is punishing the criminal less than he deserves. And it seems no more clear at first why not going far enough is better than going too far. We say that both cowardice and rashness miss the mark of courage though in opposite directions. We say that both stinginess and prodigality miss the mark of the virtue of generosity. Why don’t we say that both mercy and harshness miss the mark of justice?
Making matters yet more difficult, the argument to abolish capital punishment is an argument to categorically extend mercy or clemency to all those who deserve death for their crimes, because to abolish capital punishment is to give all of them less than they deserve.
Now, the question of mercy arises only on the assumption that there is some crime, which does, in fact, deserve death. It might be objected that this isn’t true, that no crime deserves death, and if that objection is valid then abolition is not a question of mercy, it’s a question of justice proper and my whole approach to the question of capital punishment is wrong.
But I don’t think that the objection is valid. Suffice it to say that at least death deserves death. Nothing less is proportionate. And scripture agrees. “Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his image.” The observation has been made, and I think rightly, that it is not only the victim who bears God’s image but also the perpetrator. That fact does not make the gravity of what he has done less serious; it makes it more. It is because he’s made in the image of God that he knows better, that he is accountable for what he does. He is not like the animals who cannot bear praise or blame.
If simple murder warrants death, how much more does multiple and compounded murder warrant it, the murder of many people in series, the murder of many people at once, the compounding of murder with torture? Some criminals seem to deserve death more than once. If we’re considering not taking their lives at all, the motive cannot be justice; it must be mercy.
The questions that we have to address are therefore three: First, is it ever permissible for public authority to give the wrongdoer less than he deserves? Second, if it is permissible, then when is it permissible? And third, is it permissible to grant such mercy categorically?
In these brief oral remarks I would like to try to summarize. I spoke three questions. The first question was whether it is ever permissible for public authority to give the wrongdoer less than he deserves, and briefly I think the answer is yes. Yes, it is sometimes permissible for public authority to give the wrongdoer less than he deserves.
There are two cases now, human and divine. In the Christian view, which is my view, God can grant mercy with no impairment of justice. There is no question here of tempering mercy with justice or balancing mercy and justice; they are both perfectly fulfilled, because in Jesus Christ He took upon himself the burden of human sin. He took the heat for our sins. Divine mercy then means both the divine atonement, which makes His forgiveness possible, and it also means the divine patience with which God waits for us to ask for that forgiveness.
Now, the human case is somewhat different. We are not God. We can’t play God. We should not assume God’s role or pretend that we are God. And yet for our good, not even divine forgiveness means that the consequences of sin in this life are fully remitted, and among these consequences is punishment by human magistrates, who act as God’s agents, whether they know it or not. They have that role according to Christian revelation; that is a fact. It doesn’t require their assent. They are in that role, whether they know it or not.
The sentences of human magistrates cannot be and are not meant to be a final requital of unrepentant evil. That awaits the great day when Christ returns to judge the living and the dead. But human sentences, human decrees, do foreshadow that final justice so that something of the retributive purpose is preserved even in human law. And in the meantime human sentences promote restraint and repentance.
Thus I think that although human magistrates are forbidden to let crimes go unrequited, they don’t carry the impossible burden of requiting them to the final degree. Retribution can be moderated. It can be moderated by considerations of rehabilitation, protection and deterrence, even though retribution remains its primary purpose. The only purpose of punishment, which cannot be moderated, is the purpose not of retribution per se but of symbolizing that purer retribution, which human magistrates themselves do not achieve, because human punishment is only a sign of wrath to come.
Now, the second of the three questions that I mentioned is when it is permissible for public authority to give the wrongdoer less than he deserves. Briefly, the answer is that the wrongdoer may receive mercy when the four purposes of punishment that I’ve mentioned are satisfied better by bloodless means than by bloody ones.
To summarize the argument that I’d like to make, the death penalty fares differently under each of the four purposes. So let’s consider them in turn. As to rehabilitation, the prospect of execution may contribute in a way that no other punishment can to at least one aspect of rehabilitation and that is the criminal’s change of heart. “Depend on it, sir,” Samuel Johnson famously said. “When a man knows that he is to be hanged in a fortnight it concentrates the mind wonderfully.”
Let’s speak to the other aspect of rehabilitation, his readmission to society. For that reason people often thoughtlessly say that capital punishment cuts off the possibility of rehabilitation, but they’re thinking of only one aspect of rehabilitation, and I should like to say that the alternative, which the proponents of abolition usually mention, the alternative to capital punishment, life in prison, that does not contribute to the second aspect of his rehabilitation either, because he’s not readmitted to society in that case either.
As to the protection of society from the criminal, despite modern developments in penology, despite the fact that we now put people in prisons instead of throwing them in holes in the ground, capital punishment is still often necessary for the protection of society. Governor Keating made this point very strongly. The problem is not I think so much that dangerous men may escape from prison, but part of it is that we can’t bring ourselves to keep them in. There is a general aversion to punishment of any sort spreading across our society and it has been a long time since a life sentence meant that a criminal would remain in prison for the rest of his natural life.
In some ways, as Governor Keating also mentioned, imprisonment can even increase the danger of criminals to others. They can be a danger to other criminals while they’re imprisoned. And I’d like to add to that that if we do release them they are often more dangerous after they’re released than before they went into prison, because while they have been in prison they were exposed almost exclusively to the corrupting society of other criminals. So we should not think that capital punishment is no longer necessary for the protection of society now that we have prisons.
I agree that there is no unambiguous and conclusive evidence that capital punishment deters crime in general. I don’t know whether there ever will be any. I don’t think that it’s safe to base any arguments, at least for the time being, on the assumption of a deterrent effect, but neither is there evidence that capital punishment incites crime and a deterrent effect is not necessary to justify deserved punishment in any case.
As to retribution, or at least as to the residual symbolic function of retribution, the cynicism that Cardinal Dulles describes – an observation to which Professor Meilaender responded – the cynicism of people in our society who no longer believe in a transcendent order of justice, this is a real and a grave difficulty. Our rulers no longer believe in those divine decrees of which human decrees are at best a hint or a shadow, our intellectual elite does not. But this fact does not make it less important to appeal to justice; it makes it more.
There is a difference between saying that popular ideology no longer expresses the law written on the heart and saying that the law is, in fact, no longer written on the heart. Even now, even in a society like ours people still retain a dim idea of dessert, that proposition A deserves B for doing C has not simply become meaningless to them.
So I think the symbolic purpose of punishment must never be abandoned. It does not depend on whether the magistrates themselves believe in it. The Roman judges of the first century were no less cynical than the American judges, present company excepted — (laughter) — of the 21st, and yet Saint Paul, knowing this, calls the magistrate the “servant of God to execute his wrath on the wrongdoer.”
If we say that because many people no longer believe in a transcendent order of justice, then we in making and executing the laws must act as though we do not believe in it either, then we speak as do men who have no hope, and I am sure that if we act like this, as though we don’t believe it, then no one else will believe it either.
In order for the system of justice to signify the gravity of crimes that merit death, it is probably not necessary that they always be punished with death; as I said earlier, mercy is possible in individual cases, yet it hardly seems possible to signify their gravity if they never are.
Consider the deviant who tortures small children to death for his pleasure or the ideologue who meditates the demise of innocent thousands for the sake of greater terror, for whom the very fact that they are innocent is a reason for killing them because it increases the terror and therefore the effect of his dramatic display.
Genesis says murderers deserve death because life is precious; man is made in the image of God. How convincing is our reverence for life if its mockers are suffered to live?
Question three was whether it is possible to grant such mercy categorically. Taking all four purposes of punishment into account, it seems to be certainly true that clemency remains a moral possibility in particular cases. Even when the crime as such deserves death, the penalty might nevertheless be replaced by life imprisonment for those criminals who are least dangerous, who are likeliest to repent – so far as we can judge this, and of course we’re very poor judges of that matter – and whose guilt is least compounded, provided that the punishment is not so weak in comparison to the crime that the symbolism of retribution is impaired.
And yet the propriety of clemency in particular cases does not seem to be a warrant for its categorical extension to all capital criminals, regardless of their danger to society, heedless of their hardness of heart, irrespective of the heinousness of their deeds.
Now, objections are made to this conclusion. The most interesting and judicious argument for qualified abolitionism – not against abolition in principle as though it could never be justified but at least for its qualified abolition for societies and such conditions as ours – is due I think to Avery Cardinal Dulles, from whom we heard this morning. It’s a very fine argument. It’s painstaking. It covers all the bases. And so I’d like to frame this next part of my remarks with reference to his argument.
Now, to be sure, the Cardinal finds less to commend capital punishment in his own review of the purposes of punishment than I do, and yet even he does not think that a review of the purposes of punishment is sufficient in itself to justify abolishing the death penalty, so perhaps he would agree with all that I’ve said so far.
The crux of his published argument, which is in your conference readers, is found not just in the review of the purposes of punishment, but in four other common objections to the penalty of death, which he also reviews. These objections are: Number one, sometimes innocent people are sentenced to death. Number two, capital punishment whets the lust for revenge rather than satisfying the zeal for true justice. Moreover, number three, it cheapens the value of life. And number four, it contradicts Christ’s teaching to forgive. We’ve touched on some of these already today.
The Cardinal, in his published writing, calls the first objection relatively strong. To the second and third he concedes some probable force, and the fourth he considers relatively weak. So his argument is not a simple endorsement of all four objections, yet he concludes that taken together the four may suffice to tip the scale against the death penalty.
Well, I’d like to revisit these four objections. As to the first one – erroneous convictions – courts sometimes do mistakenly condemn the innocent. That is certainly true. Although erroneous conviction is possible in any case, such as someone on trial for simple burglary, the severity of the error increases with the severity and the irreversibility of the penalty.
It would seem then that the proper remedy is to simply require a higher quality of evidence, a greater sureness of some sort, in capital cases than in ordinary cases, and also to root out the sources of corruption, of systematic bias in our system of justice. Indeed the Cardinal himself acknowledges that point; he approves of the suggestion for which he cites John Stuart Mill that if capital punishment would perhaps be justified, if the trial were held in an honest court and the accused were found guilty beyond all shadow of doubt. His point is that this criterion cannot be satisfied; despite all precautions, errors do sometimes occur and that seems to be true.
The difficulty with the argument lies in the notion of guilt beyond all shadow of doubt. When we say this, do we mean “beyond all shadow of any sort of doubt” or do we mean “beyond all shadow of reasonable doubt,” doubts that a rational person could seriously entertain. In law, it’s the latter standard that rules, not the former and I think that surely this is as it ought to be. Anything might be doubted. We might doubt that we are here in this room together. We might doubt whether we’re awake or whether we’re dreaming. We may suffer the doubt of thinking that the phenomenal world is merely an illusion produced by the character of our minds or perhaps by some evil demon, as Descartes famously suggested.
Now, the Cardinal holds that because even honest courts can err we must not trust any verdict, irrespective of the weight of evidence that supports that particular verdict, but a doubt that cannot be affected by any possible evidence is not a reasonable ground I suggest for letting a convict off the hook.
As to the objection concerning the lust for revenge, of course it’s true that the death penalty might whet the appetite for revenge. Again, I think in all of these objections there is something to be taken seriously. That’s why we need to have a real conversation.
It’s hard to see though why this should be more true of the death penalty than of locking them up for life. Have you ever heard people use that expression and say it with an attitude suggested by their voice of vindictiveness, “Just throw them in prison, lock them up, throw away the key.” There is certainly a lust for revenge expressed there too. Indeed, it’s hard to see why the danger of whetting a lust for revenge should be more true of any sort of punishment than it is true of the other aspects of criminal justice. It may whet the lust for revenge among some people after a violent crime has been committed on the street to see the policeman sailing down the street in their cars. It may whet the lust for revenge to hear the testimony of witnesses in court and hear some of the terrible details, which may be recounted. It may whet the lust for revenge to hear the judge’s solemn charge to the jury.
All of these things might whet the appetite for revenge and no doubt they often do. I don’t think that this is just something imaginary. Should we then abolish policeman testimony and solemn charges to juries?
Moreover, not only can the love of justice be twisted to wrong, but every good impulse can be twisted to wrong. That’s how wrong comes about. Evil has no creative power. The only way that you can get a bad thing is by taking a good thing and ruining it. Love of country, love of family, compassion for those who suffer; all these things can be distorted. The first may be distorted into fanaticism, the second into jingoism, the third into sentimentality. And, you know, even the love of God can be perverted, and when it is it is a terrible thing indeed. Yet the fact that something right can be perverted doesn’t stop it from being right.
As to the objection concerning the cheapening of life, this strikes a spot in my heart. I’m gravely concerned about the casualness with which life is held in our society, about the lightness with which one-third of the generation of the students that I teach has been destroyed by abortion and the lightness with which we are now considering extending this to infanticide and euthanasia and so forth.
So I think that this needs serious consideration, but let’s consider it seriously. The concern that the death penalty may cheapen respect for life in this society as a whole is, as Cardinal Dulles points out, most closely associated with Joseph Cardinal Bernardin, as he paraphrases it, by giving the impression that human beings sometimes have a right to kill, capital punishment fosters a casual attitude toward evil such as abortion, suicide and euthanasia.
Now, not even Cardinal Dulles considers this argument strong, he says, and in particular he observes that many earnest opponents of these other deeds are earnest supporters of capital punishment, because they realize that the rights of the guilty and of the innocent are not the same. From the perspective of moral philosophy I think that that’s a very strong point and we can pair that observation with another. Many fervent supporters of these other deeds — abortion, euthanasia, assisted suicide, even infanticide now — many fervent supporters of these other deeds are also fervent opponents of capital punishment. Isn’t that true too? The phenomenon is as common as it is strange. Perhaps it’s a form of compensation; conscience demands its pay. Having approved the private execution of the weak and blameless, one now seeks absolution by denouncing the official execution of the strong and ruthless.
Whether or not that explains it, and perhaps it doesn’t, at least two things are plain. The first thing is that it is psychologically possible to hold either of the following combinations of positions: That it’s wrong to kill the innocent but may be right to kill the guilty and also that it’s wrong to kill the guilty but may be right to kill the innocent.
The second thing, which I think ought to be pretty certain here, is that the normal moral reason for upholding capital punishment is reverence for life itself. Indeed, this is the reason why scripture and Christian tradition have upheld it, a fact, which suggests that if anything it may be the abolition of capital punishment, which threatens to cheapen life not its retention.
Finally, as to Christ’s teaching on forgiveness, it is true that Jesus taught to love those who hate us, to forgive those who wrong us and to abstain from hypocritical comparisons between ourselves and those who offend us. These things we should do, however difficult they may be, but let us remember that the same Lord and God who commands his people to pardon their debtors also gave them Torah, which commands magistrates to call them to account.
Cardinal Dulles speaks rightly when he says that personal pardon doesn’t absolve offenders from their obligations in justice and indeed he considers this fourth objection relatively weak and complex at best. My only objection to these words is that they are too polite. (Laughter.) Because the supposition that personal forgiveness implies a requirement for universal official amnesty is not merely weak but absurd. Taken seriously it would destroy all public authority because if punishment as such is the problem, if punishment as such is incompatible with forgiveness then why stop with capital punishment? Must we not abolish prisons, fines and even reprimands as well?
I’ve heard it asked by fellow Christians, “How dare we play God? How dare we wrest into our hands the divine prerogative of life and death,” and that’s a good question. My own answer is that we dare not — we dare not. We dare not wrest into our own hands any of the divine prerogatives of justice, whether the deprivation of life, of liberty or of property. It’s a dreadful matter to kill a man but it is dreadful also to lock him in a whole away from wife, children, parents, friends and all that he held dear in life. It’s a fearsome matter to imprison a man, but it’s also fearsome to use fines and impoundments to confiscate his worldly goods, treasure, which he, for all we know, may have accumulated by honest means and counted on for the succor of his family and the support of his declining years.
I don’t think that we dare to wrest into our hands any powers over our fellow man, but if God puts such powers into the hands of those who hold public authority, what then? Doesn’t that alter the picture? How dare we jerk our hands away, hold them behind our backs, refuse the charge, because the teaching of scripture is just as clear about public justice as it is about personal forgiveness and the teaching of Christ himself is that “scripture cannot be broken.” The magistrate is sent, whether he knows it or not. He’s the servant of God to execute his wrath on the wrongdoer. Yes, we’ve seen that he’s the servant of God’s patience too, but the one charge doesn’t cancel the other. Public authority remains an auger or a portent of the wrath, which will one day fall upon the unrepentant.
The story has another side as well. If you remit deserved punishment too easily, that’s not only a miscarriage of justice but of mercy. When a heart is very hard it may sometimes be the case I think that deserved punishment is the only knock, which is strong enough to break the husk and spill out the seeds of repentance. God himself is said to use this method, those whom he loves he chastens, perhaps even with the prospect of death. And if we’re to imitate his love, I wonder whether sometimes we must imitate his chastening too.
Classically, the church has held that the state has the authority to inflict capital punishment and has also classically held that in certain cases a deserved punishment of death may be remitted but the grounds for possible clemency are particular not universal. I believe that categorical remission of the penalty for all who deserve death contradicts revealed teaching on the duty of the magistrate, has no warrant in Christian tradition. It would weaken three of the four purposes of punishment, confuse the good counsels of compassion and bring about more harm than good. Some say that because there is a risk of error in those directions we should prefer to err on the side of mercy and we should indeed prefer to err on the side of mercy in individual cases, but to err categorically is no longer simply to err. Though I should be greatly happy to be shown that I’m wrong, I greatly fear that it’s to abdicate from justice and to forsake our bounden duty.
JEAN BETHKE ELSHTAIN: Thank you very much. I think that you can readily see that we’re going to have a number of controversies put on the table this afternoon and we’ll count on our next speaker to continue this trend. Our next speaker is a former colleague of mine from Vanderbilt University, Victor Anderson, whose work revolves around the intersection of religion and African American public theology. Professor Anderson will speak to us on responsibility, vengeance and the death penalty.
VICTOR ANDERSON: Thank you. Thank you, Jean.
While most of my work is in philosophical, social and political ethics, Jean has asked me to think more seriously about theology since I am the professor of Christian ethics. I’m going to try to do that today. But I do so with a bit of embarrassment and amusement. I have spent more than 15 years trying to throw off the ghosts of Karl Barth or H. Richard Niebuhr from my ethical thinking and I find myself coming back to them as I reflected on this topic.
And one of the reasons is that I was so immersed in Barth – particularly Barth at Calvin Theological Seminary, where it was just the bashing of Barthianism – and so when I went to graduate school at Princeton University it was a breath of fresh air to read such heretics as Warner Kaufman and James Gustafson and a few others. But I still found myself coming back to some old ghosts for some good reasons and for some good insights. I want to really talk a little bit about what those insights are and particularly from a Christian perspective — I have to emphasize this — is that the position I give any number of Christians can hold a very different point of view about it, but I want to at least lay forward a case or at least my perspective on how I try to balance and look at these situations.
Why Barth and Niebuhr? In some sense, one of the reasons I tried to throw off Barth was because I didn’t like this idea of the God who commands. It seemed too commanding. (Laughter.) And, in fact, as I read the God who commands I was more impressed with the God who said no than the God who says yes. But the more I stayed with Barth, the more I realized that I had the wrong reading of Barth at least with regard to his ethics. As I read Barth, I began to understand that Barth did insist that God’s yes was greater than God’s no. In other words, Barth was saying that the Christian moral life is not lived out of simple obedience to a written rule, however inscribed in the Bible because Barth did not see the Bible as the word of God but as you know who have read Barth a witness to the word of God. So I take that very seriously. The word of scripture is a witness to the God who commands, and I think that’s a very important point and argument that I want to make.
But what is the command of God? The command of God is the command to be. It is a simple command. It is one command. It is not a multiplicity of commands. It is one command. It is the command to be, to live. It is not predicated on a negative injunction. No, folks, you may not dance. No, folks, you may not laugh. No, folks, you may not have sex with people outside your gender. It’s not predicated on a negative injunction. Rather, as I read Barth on it, God’s yes is the yes to life. Live. Be. Flourish. That is the ethical command of God, the one command, the command to be. It is a command that finds its fulfillment in the person and work of Jesus Christ.
So the Christian ethical question is not how can I be a good man or woman, nor is it simply a philosophical question about what does right justice mean, absolute justice mean. And it’s not a question about being philosophically framed between the public and the private. Rather, it is a theological question. It is the question of how has God acted towards us, how has God acted upon us in all our relationships and encounters with the one God.
As I read Barth on this question, God has acted upon us in all things as the gracious God, the gracious God who commands being, life, flourishing, human fulfillment in the human encounter.
But it’s not just a personal relationship that Barth is inscribing for the Christian consciousness. As I read Barth again on it, God was, in Christ, reconciling the world to God’s self. In other words, the claim, the command of God is not simply a claim that is imprinted on Christian consciousness. Rather, it has a universality that extends to all because Barth was indeed a radical theocentric thinker.
Now, I go from that point of view to H. Richard Niebuhr. I’m not saying that Niebuhr and Barth are saying the same things, but I do think they fit within the same framework of the argument. For Niebuhr, the Christian life is lived out as a life of responsibility. But what does responsibility mean here for Niebuhr? For Niebuhr it means this, that we don’t simply relate to each other in terms of propositions. No, our encounter with each other is, in fact, an encounter with the inter-human other. That is, we encounter each other in the same way that God has encountered us, not as discrete individuals, but God’s action in the world was the action for all.
I think one way I was just recently fascinated by going back to Barth’s “Epistles of Romans,” in how many passages in the “Epistle of Romans” that Barth does not insist that what God did once and for all he did for all?
Our life together, it’s a life of a human interchange. We are bound together by the proposition of being, living, flourishing. Fulfilling the life of each other is the one command of God. Now, how do we do that? Niebuhr gives a very fine answer to it. We do it as a life of responsibility. That is, he frames the question of responsibility not in terms of obedience to a command; rather, he defines it in terms of relationality. We stand before the command, the claim of God, as if the claim was, in fact, a question posed to us. In other words, the form of the Christian life is lived as a life in dialogue, in conversation, in responsive action to the action upon us by God or by each other. In other words, in our encounters with each other we encounter each other as making claims on each other.
But what are the claims we make on each other? We make a mutual claim on each other: Let me live. That’s at least the basic claim that even if I were to talk about the social contract, it is at least eminently present in the social contract, let me live. I want to live. I want to be. I want to live and you must be in a relationship with me in order for that to be a possibility. In other words the Christian moral life is lived out in a relational encounter with each other, making claims on each other. But from Niebuhr’s point of view, the claims we make on each other are also related to the one claim that God has made upon us in Jesus Christ. But what is the claim that God has made upon us in Jesus Christ? According to Niebuhr, it is to live in a fitting relationship with the God who has acted upon us in all things as a God of grace and mercy. Grace and mercy define the divine human encounter for both Barth and for Niebuhr. It is therefore a claim of reciprocity by which we ourselves as Christians take up that claim as our own. That’s what Niebuhr means then by the responsible self.
I want to read a passage by him: “We think of all our actions as having the paradigm of what we do, when we answer another who addresses us, to be engaged in dialogue, to answer questions addressed to us, to defend ourselves against attack, to reply to injunctions, to meet challenges; this is common experience. And now we try to think of all our actions as having this character of being responses, answers to actions upon us.”
So grace and mercy define the Christian attitude toward the inter-human encounter with each other – but that sounds so hopeful. It sounds so naïve. Of course, folks, we know we’re supposed to be forgiving as Christians, love one another as I have loved you, but, my goodness, there is another human condition that we meet — we’re humans. And as humans, there are encounters and experiences we have with each other that drive us to the point that we want to kill each other, literally. We are making all kinds of claims upon us.
In a small book by Edward Farley, called “Deep Symbols,” he said our social life is often defined and organized around symbols that are so deep, so sentimented that we fail to even think about it and sometimes we fail to remember them. Among the deep symbols he wants to think about is the symbol of love, really nice in a post-modern, post-Christian age. He wants to think about justice. How can we renew our interest in justice, education and beauty? These are just so naïve. Who wants to talk about beauty when I have children to feed? How elite these symbols sound. I asked Ed one day, “Why in your book are there no symbols such as race, ethnocentrism, hatred and violence? Aren’t these the deep symbols that also frame the inter-human encounter with each other?” Ed’s reply was a simple reply: “Victor, you’re absolutely correct, but I have to regard them as poisonous symbols. They poison. They poisoned when they made the ultimate basis on how we organize the inter-human encounter. They poisoned the deeply inter-human encounter. They poison our abilities to recognize, to respect each other. They poison even the human subject himself and herself.” Poisonous symbols, and among those symbols is vengeance. If you ask can we rationalize vengeance, I’d say no we’re really not after vengeance. What we really want is exact retribution. That’s a nice way of rationalizing a fundamental human possibility. But vengeance has deeply rooted human possibilities in the inter-human exchange. It raises its head all the time in all shapes and forms.
I don’t want to dismiss that possibility. It’s just too real, too deep in the organization of our human interchange.
And, folks, I feel so ambiguous. I can imagine this possibility even for me, professor of Christian ethics, who wants to talk about love, forgiveness and mercy. I’m not exempt from that deeply human possibility of vengeance. My God, when I think of the murder of James Bird, Jr., an innocent man coming home from a niece’s wedding shower, picked up by three white men, beaten unconscious, dragged by a chain until his head was snapped from his body, his skin was stripped from his knees, his arm was torn from his body, left for dead. When I see that picture of what we can do, the possibilities of what we can do to each other, yes, I want the same thing for those men. When I think of Matthew Shepherd, what crime did he commit? What did he do to deserve his death? All he did was live out a possibility that even Barth denies to him, the possibility of living out a sexual life free to himself, free to express, denied because he was gay, left on a fence to die.
When I think of the World Trade massacre, yes, forgiveness, love and mercy seem to difficult and my Christian conscience when I think of the thousands and thousands who were deprived of life in the disaster, the pain, the irreparable pain, pain to families and the like, my heart cries out for — I want to say justice but I think in a deep moment when I think forget about it, get those bastards. That’s what it cries out for.
Kenneth Anthony Weary, the young black man minding his own business, picked up by two youths, taken in a station wagon, beaten unconscious. They left him on the road for dead. They ran over his face or his body and it would not be recognizable.
The things we can inflict on each other do arise, give the possibility for vengeance in my Christian soul, but then there is justice. I cannot go out and take the lives of those three men who took James Bird’s life.
We have a necessity for justice and we have a necessity for committing justice into the hands of those who are responsible for meting justice and punishment in a just and fitting manner.
This brings me back to Niebuhr again. The Christian moral life is not finalized because Christians are supposed to live a life that’s filled by the possibility of mercy; rather the Christian moral life is filled with the possibility for transcendence, filled with the possibility of irreparable pain.
There is one other reason that I feared coming back to Barth – Barth still preaches. For in the possibility where we’ve been wronged, where there is hate we are met with love, where there is dread we are met with hope, where we seem fated we are met with the possibility of transcendence, where we are wronged we are met with forgiveness and justice and where we are guilty we are met also with the possibility of mercy.
Now, I wish I made that up because it sounds so good, but it really is, from my point of view, an inference from the God who commands and from a life of Christian responsibility lived in relationship to the gracious acts of God upon us.
Whether this is translatable outside the Christian community, that’s something we have to talk about, but at least from my perspective it is a Christian morality that is at least viable in connection with this topic of exact retribution.
JEAN BETHKE ELSHTAIN: Thanks, Victor.
And now our third and final speaker for this panel comes to us from the University of Notre Dame Law School, Richard Garnett. He’s going to speak to the intriguing question of how not to think about the death penalty, punishment and human dignity if religious witness and the public square is one’s concern. He teaches courses on the death penalty at the Notre Dame Law School.
RICHARD GARNETT: Well, those are certainly two inspiring and difficult acts to follow. I’m tempted to sit down and let them go at it a little more. Let me throw out a caveat to begin: I had a late night last night with two very sick babies, so if I start muttering about veggie tales or singing Old Macdonald to you I hope you understand.
Thank you very much, colleagues and Professor Elshtain. It’s an honor to be here. A lot of my fellow panelists are people who over the years have taught me a great deal about things like the role of the lawyer and the rule of law and the gift and the content and the challenge of my Christian faith. I’ve learned a lot about the Constitution and the function of this thing we call civil society, and I’ve learned a lot about the crucial contributions that religious believers and religious expression and religious activities in communities make to the health of our public square. I expect to continue to learn from them and from you all today.
Let me begin on maybe sort of a personal note. The focus of our conference today is a cluster of topics that’s pretty close to my interests and to my heart. I’ve been blessed, and I use that word advisedly, with a wonderful vocation. As Professor Elshtain said, I teach and I write about death penalty law, criminal justice, church/state issues, freedom of speech, things like that, the good stuff, at Notre Dame Law School. And I’ve been given the chance to work at and to speak from a place that has a still very real sense of mission. I get to do this in a community of colleagues and students who understand that part of our mission is to inspire and challenge, if we can, young lawyers to carry their faith with them from this community into the public square. Now, on top of all this I represent a young man in Arizona who was sentenced to death 14 years ago now for his involvement in the murder of a police officer.
So this conference in a way is a welcome opportunity for me personally to reflect on the challenge, and it’s one that I try to pose to my students, some of whom are here today, of integrating these aspects of my professional, intellectual and religious lives.
It strikes me that a central aspect of the Pew Forum’s mission and of our purpose here today, as one of the earlier questions indicated, is to encourage precisely this kind of integration, to resist all efforts — and there are efforts afoot — to banish religion and religious faith and religious witness, prophetic witness from the public and professional arenas.
But enough of that. The claim that I want to propose for your consideration today is that there is a crying need, a hole perhaps in the contemporary death penalty debate, and it’s a need to which religious believers and communities can and should respond, in my view.
Now, this need is not so much – and I hope this isn’t presumptuous – for our views on empirical questions about deterrence or nice points of constitutional law or the relative merits of certain crime control techniques, those these are all important questions, all worthy subjects. Instead, and this is sort of a thought I’m wrestling with myself in the context of the First Amendment, it seems to me that the need in the debate is for a coherent and compelling and counter-cultural moral anthropology for what Maritain once called a true humanism.
What we need is an account of what it means to be human, to be a person, and an account of why it matters that that’s what we are. It is my view that the dominant account today, and Professor Budziszewski made this point, is really just not up to the task that’s required.
One of the questioners reminded us earlier this morning that the dominant anthropology today is really reeling from the effects of this eclipse of transcendence. It fails to capture the richness of what it means to be a human person, and by using that phrase I’m sort of self consciously drawing from a lot of what the Holy Father has written about personalism and moral anthropology. My point is that dominant anthropology today can’t serve in the end as the firm foundation for a compelling argument about why it might be that persons ought not to be executed, even if they have committed horrible crimes.
Now, those of you who are familiar with the conventions of the academy and particularly with the peculiar habits of law professors were probably not surprised to see that I gave my remarks this cryptic and ponderous title. I just hope you noticed though that there was a colon in there. That is essential to the success of any law publication effort.
All kidding aside though, my hope for the talk is to add some value to the discussion by asking what it is that a distinctively religious understanding of this phrase “human dignity” can, may and should contribute to our public conversations about the death penalty. In other words, if, as I believe, we are called as religious believers to bear witness to the truth and to this thing called the dignity of the human person, then what exactly is it that we should be saying in the context of the capital punishment debate?
The talk has three parts and I hope they tie together. First, I want to talk briefly about what I take to be the premise of the conference and indeed of the Pew Forum on Religion and Public Life itself, namely the proposition that arguments and expressions of religious believers and communities have a place and should be welcome in the public square of civil society.
I realize it’s a bit late in the day to sort of justify why we’re here, but I think it’s still worth doing. (Laughter.)
Given the nature of a gathering like this, it’s tempting to take the premise for granted, to treat it as a given, and I don’t think that we can or that we should. After all, many intelligent and influential people believe that it’s in quite bad taste to bring religion into discussions of public policy. Still others might say not only is it in bad taste, it’s undemocratic, unconstitutional, maybe even immoral to inject these kinds of arguments into the pristine arena of public reason. These arguments are, in my view, misplaced but they require a response.
Next, having convinced you I hope that we have something to say, that religion has a contribution to make, I want to offer for your consideration my thoughts about what that contribution might be. Again, what I think the discussion might need from us is a distinctive moral anthropology, not a faith-based echo of what’s already being said, but a more radical message, an argument and a story that can explain exactly what it is about the human person, not just the condemned, not just the murder and not this thing called the individual but the person that can do the heavy lifting that’s required and moral arguments about how we ought to treat each other. My sense is that such an account is too often missing from the capital punishment debate and that the debate suffers from its absence.
Finally, and although I have to admit this part of the talk has been preempted in a sense by some of the wonderful talks that have gone before, I want to try to connect these admittedly somewhat general observations about religious freedom and anthropology to the question of the death penalty and particularly this notion of retribution.
Those of my students who are here will not be surprised that I’ve taken up half my time introducing my talk — (laughter) — but pressing on.
The front burner debate and one of the areas in which I teach and write, this law and religion, for lack of a better term, concerns the extent to which the contemporary liberal state can, should or must allow religiously grounded arguments into the public square, and this is a debate obviously in which many of my fellow conference speakers are prominent participants.
Given that we’re gathered here today at least in part because of our shared belief that religion does have something to say and something to say to public life, we might be tempted to dismiss the debate as kind of an academic sideshow, but it isn’t. I don’t think we can dismiss it. Not only that, though, I think the debate about religion and public life can serve as a useful point of entry into this broader discussion we’re having about the death penalty.
A lot of you probably remember almost ten years ago now Professor Carter wrote a book, provocative, well-received book, called “The Culture of Disbelief.” And among his many points was the claim that while our nation prides itself with much justification on its tolerance of religion, at the same time American law and culture often exacts from religious believers a high price for that tolerance. As he put it, religion is accepted; just don’t take it too seriously. Just don’t unduly challenge or upset the secular order.
Now, thankfully the constitutional law dealing with religious freedom and expression has, in my view anyway, come a long way in the ten years since Carter wrote this book. There is in the courts – and maybe even in the culture – a greater appreciation for the fact that the separation of church and state does not entail, does not require the banishment of faith from civil society. There’s an increased realization, in other words, that freedom of religion doesn’t require freedom from religion. I wish I’d come up with that phrase; that’s such a great little phrase. I use it anyway.
Still, even a cursory survey of the law reviews and the latest academic press releases confirms that there remain those who insist in the tradition of Rawls and Bruce Ackerman and others that a tolerant and liberal democracy requires a naked public square. People who insist that one of the demands of good citizenship is that we check faith at the door of public debate, that believers translate their arguments into more accessible terms, into the jargon of public reason, that all policy proposals and enactments have a strictly secular rationale and are not justified with respect to any comprehensive world view, and that religious conviction is kept in the purely private arena.
Indeed, there are those who argue that these kinds of exclusionary decrees are not just a matter of taste, good taste but a matter of constitutional law. Dean Kathleen Sullivan of Stanford has argued quite forcibly that — this is an intriguing interpretation — the Establishment Clause not only got the government out of the business of running churches, it got the government into the business of affirmatively maintaining the secular character of our public debate. The Establishment Clause in a way is sort of a rule of discussion rather than a structural rule of government. In her view, it sets the ground rules and one of those rules is that faith is a matter for home and hearth alone.
On the United States Supreme Court as well, Justice Scalia’s colleague Justice Stevens seems to have a similar view. It seems, not wanting to be uncharitable, that for him religion is a divisive and dangerous thing, a force that while I suppose it has to be tolerated, should certainly be feared and restrained.
Just by way of example, in his opinion in the Court’s latest religions expression decision, a case called Good News Bible Club, Justice Stevens appeared to argue that government could and should distinguish between disinterested speech about religion, which is okay in the public square, and religion based arguments to change people’s hearts and minds, which were to be kept out.
Now, any number of scholars and writers, including Professor Elshtain and some of my colleagues at Notre Dame, have demonstrated that the demands made by people like Dean Sullivan and Justice Stevens are unreasonable and they’re unfair and they’re illiberal.
As Professor Carter has put it, “Given the ability of religion to fire the human imagination, religious people shouldn’t be forced to disguise or remake themselves before we can legitimately contribute to the public debate.”
And as Professor Elshtain has pointed out, persons of faith can’t bracket their belief when they enter the public square, nor should they. If we push too far the notion that in order to be acceptable public fare every religious claim must be secularized, we simply wind up depluralizing our polity. We end up eradicating the pluralism that we in other contexts celebrate.
So these illiberal demands that religious believers retreat from civil society are thankfully increasingly rejected in the courts as well. Justice Scalia’s colleague on the bench, Justice Thomas, recently observed that it’s quite a bizarre reading of the First Amendment that would “reserve special hostility for those who take their religion seriously and who think that their religion should affect the whole of their lives.” I think that’s a great point.
I remain cautiously optimistic that this course will continue with the Cleveland School Voucher case, which is before the Court next month. My hope is that that case will give the Court and the justices a chance to bury for good this idea that religious schools and religious communities are somehow unworthy participants in the public enterprise of education.
You might be thinking that’s all well and good, I’m so relieved to learn that my participation in this conference does not make me ill mannered, but what does all this have to do with the death penalty?
Well, my claim is that the misguided assertion that religion and faith-based argument have no place in public deliberation reflects not only a misunderstanding about liberal democracy and it reflects not only a misunderstanding about religion itself, but it also reflects at the most basic level an anthropological mistake, a mistake about human freedom and the human person and about what it means to be a person.
This misguided view depends on a particular picture of the person in which the person is this kind of autonomous, self-governing, decontextualized monad kind of bouncing around in the universe. In this picture, to be fulfilled is simply to choose to be free and simply to be unconstrained, and religion therefore like any other hobby can be tolerated but because it’s the self that is supreme – the demands and challenges of religious faith have to be muted, its practices have to be kept in check. I think there is a better account of religious freedom that’s available, one that rests on a richer explanation of what it means to be human. On this account we don’t protect religion just because it’s a hobby or because it’s an object of choice, but because it’s a comprehensive, lifelong effort to be what it is that we were made to be. This richer account is grounded not on the lonely sovereignty of the individual as autonomous self but on the dignity and the transcendent destiny of the person as child and creature of God. And it’s because the dignity of the human person consists not in this capacity for indifference to truth but precisely in the person’s desire and duty to pursue it and find it and cling to it that it’s appropriate that the Second Vatican Council gave the title of “Human Dignity” to the letter on religious freedom.
So here’s the connection that I’m sure you’re all eagerly awaiting for: It seems to me that by challenging the culture’s dominant anthropology, religious believers and communities appear to be succeeding in shifting the terms of the debate about the place of religion in public life. There seems to be an increased recognition that, as John Paul II the put it, a society or culture that wishes to survive cannot declare the spiritual dimension of the human person to be irrelevant to public life. My hope is that we can make a similar contribution as religious believers in communities and with similar effect when it comes to capital punishment.
I asked earlier about the distinctive contribution that we could make. We’ve been admitted to the public square. We’ve sort of fought our way in. We’ve refused to pay the price of admission that we check our sort of radicalness, our propheticness at the door. So what should we say once we’re in?
It seems to me that it can’t be — I’m sort of repeating what I said earlier — that we’re just called to chime in with our views about certain empirical problems or certain administrative problems, for instance, what’s the appropriate level of funding for capital defense counsel. I happen to think it should be much higher. Is that something I can speak to as a religious believer? I’m not sure. It seems to me we’re not called to offer our views on the hyper-technical constitutional questions that seem to clutter the court’s death penalty docket these days. When does the Constitution require an instruction that the alternative to a death sentence is life without parole? It’s a very important question. I love teaching that stuff. I’m not sure that that’s what, having fought my way into the public square in this question, I’m called to offer.
It seems to me instead we’re called to give something a little more unsettling perhaps, something again more counter-cultural, a moral anthropology that does justice to who and what we are. In other words, our message should be again, in John Paul’s words, “the moral truth about the human person.” There’s a vacuum in the discussion. I think our goal should be to fill it.
You might be wondering, what is this notion of moral anthropology? It sounds like a buzzword that this guy keeps talking about. And why does he think it matters? Is it just a snippet of high-sounding academic jargon or does it mean something? I think it does. Let me try to say what that is.
It seems to me that every moral claim and every moral argument ultimately depends on certain bedrock foundational premises about what it means to be a person. In other words, as Professor Elshtain has put it, every moral claim is built on certain anthropological presuppositions.
Well, I believe that our nation’s public morality – and increasingly its constitutional law – rests on some unsteady foundations of a flawed moral anthropology. This misguided – and, in my view, unworthy – account was captured pretty well in the somewhat narcissistic rhetoric of the joint opinion in the Planned Parenthood v. Casey decision. I think we’re all familiar with the famous mystery passage where we’re told that at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.
Now, make no mistake: It sounds like a sophomore philosophy paper. It’s really an important anthropological claim. (Laughter.) It’s a claim about radical moral self-sufficiency and unbounded autonomy. It’s an incomplete account of the human good, which is all the more dangerous, because it purports to be a complete account.
Unfortunately, while it’s impoverished, it is, as Professor Elshtain has put it, simply part of the cultural air that we breathe.
Our culture’s foundational premise then, it seems to me, is that the person is and should be treated as untethered and alone. As my colleague Tom Schaeffer puts it, “every person in this vision is her own tyrant.” Sure in this vision there’s plenty of talk about human dignity but it’s empty, there’s plenty of pleasant sounding language about human rights, but the anthropological premises really can’t do the work of supporting those important claims about human rights.
As Richard Neuhaus has put it, the problem with the current account is not so much that it gets it wrong about the awesome dignity of the person; it just can’t explain why the person possesses this awesome dignity and it cuts the person off from the source of that dignity.
So, returning to the issue of capital punishment, I do not believe that the anthropology of the mystery passage, which again is simply part of the cultural air that we breathe, is capable of sustaining a convincing argument against the death penalty.
In fact, as John Paul warned in Evangelium Vitae, it seems to me that it’s precisely this flawed set of premises that’s fueling the steady deadening of our conscious and fueling the expansion of this thing he calls the culture of death. It seems increasingly clear to me anyway that our public morality is simply not up to the task of explaining why it is that a murderer should not be executed, assuming for now that this is a claim we might want to defend.
It’s politically effective and therefore possibly worth doing, for death penalty opponents to argue that capital punishment doesn’t deter crime or that capital punishment costs too much. After all, death penalty supporters can simply say deterrence isn’t the only game in town, cost isn’t the only game in town.
Nor is it enough to point out, although it is important to point out, that our system of capital punishment is administered unfairly, that the poor and minorities don’t receive adequate representation, that there seems to be racial discrimination in terms of the selection of those who are sentenced to death, and that mistakes sometimes occur. These are all points worth making, but again these observations don’t tell me what I’m really wanting to know, which is why is it that we shouldn’t execute Timothy McVeigh. Why is it that we shouldn’t execute a white guilty well-represented defendant?
So if the cultural air that we breathe can’t sustain the moral case against the death penalty, then perhaps we’re presented with an opportunity to rebuild the debate on a steadier anthropological foundation. This could be our contribution I think as religious believers and communities to the conversation, the contribution that I think the Pew Forum is inviting us to make.
We do, after all, have a counter-cultural alternative to propose, one that in a way turns the received anthropology on its head. I can’t possibly do justice to the account here, but it should be enough to point out that this alternative account emphasizes not so much our autonomy and our self-sufficiency as it does our dependence and our incompleteness.
This alternative account acknowledges our limits and it recognizes, as my colleague Professor Meilaender put it in a recent essay, that we occupy a kind of in between place between the beast and god. This alternative account grounds our dignity not so much in claims of self-sovereignty but — and this is the counter-cultural part I think — it grounds our dignity and our status as creatures; that is, as John Paul has proposed, “the greatness of human beings is founded precisely in their being creatures of a loving god,” not the “authors of their own destiny,” as the mystery passage would have it.
The fundamental proposition of this alternative account, I think, is that the person is a good, towards which the only proper and adequate attitude is love and whose proper due is to be treated as an object of love.
Finally, I think this alternative account directs our attention to the questions that in the end need to be the focus of the continuing struggle with the issue of capital punishment, namely is this sanction in conformity with the dignity of the human person. My fellow conference participants are leading the way in trying to answer that question in a faithful way within the context of various teaching traditions. I have to concede that for all this huffing and puffing about moral anthropology, it could well be that in the end the answer is yes, sometimes perhaps the execution of a murderer is consistent with this vision, is consistent with our obligation to treat people as an object of love.
I’m not convinced of that yet, but it has to be a possibility. Still, it’s worth the effort, it seems to me, even if that ends up being the answer, to change the terms of the debate.
I said at the outset I wanted to try to suggest a connection between these general ideas about religious freedom and the courts and moral anthropology on the one hand and this notion of retribution that’s been explored in such depth today.
My title indicated, as you might still remember, that I have a view not only about what our contribution should be to the death penalty debate but also about what it shouldn’t be. That is, I have an idea not only about what’s missing from and needs to be added to the public conversation but I also have an idea about what might be better left unsaid. And I recognize that might be somewhat presumptuous.
Fortunately, my colleagues, particularly Professor Meilaender, have already and quite eloquently captured some of my concerns, but here it is in a nutshell. I’m concerned that framing the issues in the death penalty discussion in terms of human dignity and in building the discussion on this alternative moral anthropology, that we’re going to enable, maybe even encourage sloppy, squishy, maybe even dangerous thinking about the purposes and justifications of punishment.
This danger was realized, I’m afraid, and I say this with respect, in my bishop’s recent pastoral letter, “Responsibility, Rehabilitation and Restoration.” In that letter the bishops, in my opinion, seemed to move too quickly from what struck me as fairly superficial invocations of the dignity of the human person to what I believe is a mistaken equation of retribution and revenge, although I don’t dispute the point that was made by my colleague that retribution often can serve as a fig leaf for what really is revenge. I just don’t think the two necessarily need to be equated.
In the letter, retribution is simply equated with this thing called punishment for its own sake, which is never defined, although it’s repeatedly invoked, and then it’s contrasted with the good stuff — restoration. But, of course, retribution properly understood is about restoration and it remains even when the person is properly understood the primary justification and purpose of punishment I believe.
What’s more, that retribution does retain this place is not only in the best interest of the common good, it’s also I think in the best interest of the criminal. This is kind of a counterintuitive claim that I beat my first year Criminal Law students over the head with time and again because it’s so easy to equate retribution sounds bad, it sounds like vengeance. I propose the idea that retribution, if correctly conceived, protects the defendant from the overreaching ambitions of the state. It sets a limit on punishment: This far may you go and no further. You can’t punish somebody in order to achieve some side benefit like deterrence. You can’t punish somebody in order to make them a better person. You may punish them because they deserve it and only to the extent that they deserve it and only for the purpose of restoring the moral order in society.
That is, it is precisely the idea of retribution in its protective and restorative sense and not in this assaultive variety that I think was associated with Judge Stevens, who said it’s virtuous to hate criminals, that is most in keeping with the anthropological premises I’ve tried to articulate.
As I see it, retribution serves not as a license for vengeance but as a restraint and a check. On the other hand, what C.S. Lewis once called in an essay that he had a really hard time getting published, “The Humanitarian Theory of Punishment,” that theory makes all too easy the sort of creepy prospect of punishment as therapy, a point made earlier by Rabbi Novak. It’s retribution properly understood and not therapy and not deconstruction, not sociology, that accords us I think, in Lewis’ words, “the respect that we’re due as human persons made in God’s image.”
And so my view is that if it’s true that the death penalty is unjustifiable, it’s not because the death penalty is retributive; it’s because it’s not.
So in conclusion, another C.S. Lewis essay, a wonderful piece called “The Weight of Glory,” he wrote, “There are no ordinary people. You’ve never met a mere mortal. Nations, cultures, arts, civilizations; these are mortal and their life is to ours as the life of a gnat, but it is immortals that we joke with, work with, marry, snub and exploit. Everlasting splendors or immortal horrors.”
Our challenge is to propose a vision of the human person and to propose it in the public square, as religious believers, and to demand that the question of the death penalty stand or fall on whether it’s consistent with the fact that there are no ordinary people.
JEAN BETHKE ELSHTAIN: Thank you.
In case I forget to say this later, I just want to say that the quality of the presentations we’ve heard today has been quite extraordinary. I go to lots of academic conferences and I can assure you that sometimes these meetings over a period of three and a half days you’re lucky if you hear one or two things that are worth taking notes at. But today I’ve been busy taking notes on every presentation, not just because it’s my job but because so much richness has been presented to us. So on behalf of the whole company, I want to thank all of you and those of you in the morning.
We have come to our second 45-minute period of public conversation. The same draconian rule against speeches and jeremiads pertains. With that, we will begin the questioning. Let’s turn to our first question. Remember, you can direct it either to a specific person or to the panel in its entirety. So please go ahead.
QUESTION: Thank you. I guess this question is directed in general to the panel but maybe most specifically to Dr. Budziszewski. In ethics, we often have to work with intuitions. Even the Protestants are often regarded as especially wary of doing that sort of thing. We often find that we’re forced to work with intuitions in trying to come up with general guidelines on these hard questions. And I recognize the difficulty of coming up with the principles that will guide us on these questions, but at any rate I want to raise a question about the logic of a kind of defense that I’ve been hearing today for the death penalty.
On the one hand a lot of people have appealed today to a sense of a kind of fittingness between murder and the death penalty or a comment about retributive justice. But all of our speakers this morning also thought that the death penalty should be very rarely used, and correspondingly they gave examples of especially bad people who they thought they would invoke our intuitions that the death penalty was deserved — Nazis, mass murderers and terrorists.
Now, the fittingness notion to me suggests a stronger view and I wonder whether Budziszewski might support this view that the death penalty actually ought to be applied more often. Reluctance to do so could be grounded in epistemic reservations about how certain we can be about whether a crime was actually committed by the accused person, but I suspect that we can have confidence in more than 1/12th of 1 percent of the cases of homicide that the actual accused person has, in fact, perpetrated this homicide in question.
If so, it seems to me that the choice we have is between the following: We have to either follow the logic of the principle of fittingness and argue that the death penalty should be applied less rarely, something that most of our panelists have been reluctant to do, or I think we may have to find another principle to fit the intuitions that are being offered.
JEAN BETHKE ELSHTAIN: So you would like a comment on that?
J. BUDZISZEWSKI: I think that there are two considerations that we have to take into account, and that’s why I began my talk the way I did. Yes, there is a principle of fittingness, a principle of dessert that is the retributive principle, that is the foundation of the idea of justice, giving each person what is due to him.
Now, if it is true, as I would claim at any rate, that at least for the crime of death, death is proportional, and if that were the only consideration, then it would certainly be true that we would be putting an awful lot of people to death because there are an awful lot of people who kill.
I don’t, in fact, think that we should put an awful lot of people to death, because I don’t think that fittingness is the only consideration here. That was why I went through all of that time-consuming hullabaloo about whether considering the gravity of the duty of justice, mercy is possible at all, and I think that it is. It’s possible for God for one set of reasons. It’s possible for us for another set of reasons, principally because although something of the retributive purpose is still important of human justice, we are not required to requite evil to the last degree and our actions should bear witness not only to God’s justice but to his mercy, his patience.
So in other words I don’t see not killing lots and lots of people as an issue of justice as it would be if uncertainty of guilt were the only reason. I see it as an issue of mercy and I think mercy is sometimes proper.
JEAN BETHKE ELSHTAIN: The next question, please.
QUESTION: We’ve heard a number of references to retribution and revenge, and the distinction is held out as being crucial in a lot of the thinking on this subject. I wonder whether the panel would reflect on whether there is any real working difference between retribution and revenge and whether retribution is really just measured revenge.
JEAN BETHKE ELSHTAIN: I think that issue has been joined a number of times today, but, Professor Anderson, would you like to start and then we’ll have Professor Garnett weigh in.
VICTOR ANDERSON: Sure. I want to make at least one qualifier here with regard to the ultimate punishment. It’s predicated on the principle of exact retribution.
Now, that sounds like retribution itself is such a bad thing. I don’t think you can have a proper theory of justice without some theory of retribution. The real question is whether exact retribution ought to be the best way to construe a justice of retribution; that is to retribute to someone the harm, that is to make good the harm that has been done to another. And I do think you’re right about that: It does involve or entail some theory of restoration.
Now, with that in mind, it does make problematic the idea of exact retribution, where the exactness is a matter of death to death. It’s very hard to see that as an issue of how restoration applies then.
Revenge, as I construe it, is a deeply human possibility, deeply human condition that all of us are capable of, given certain kinds of conditions that may allow our morals, the morals that restrain us from this, because none of us want to commend revenge as a normal and proper way of our life together. And so we have ways of symbolically organizing and repressing this deeply human capacity for revenge and we call it ethics and morals. And so revenge nevertheless is kept in check by the moral constraint we place on each other.
Without those constraints, the harm that we are capable of doing to each other is beyond measure, so revenge remains a deeply human condition; retribution is one way in which we answer the problems and the harms that arise out of the claims and harms that we inflict on each other.
JEAN BETHKE ELSHTAIN: Professor Garnett?
RICHARD GARNETT: I think it’s a very hard question. Let me suggest just three possible distinctions and see if you think they work. The first one is just kind of a formal one. Maybe it’s cheating, but it seems to me that there is a meaningful distinction to be drawn between pain inflicted by a private party, which I think we can call revenge, and pain inflicted by a legitimate public authority, which we might call retribution.
Less formally, maybe there’s something in the motives; that is, it seems to me that when I think of revenge I think of the motive as being to humiliate the offender and to sort of aggrandize myself, as I’m the one who’s exacting vengeance. Whereas with retribution I tend to think of the motive as being more about restoring this equilibrium that we read about a lot.
And then a third possibility might just be what’s the nature of the thing to which we view ourselves as responding. I’m sorry, that’s an awkward way to put it, but when I think of revenge I think of the person exacting revenge as trying to redress the pain done to him, the wrong done to him or her. When I think about retribution it seems to me it’s more of a community effort to redress this kind of unjust grab of liberty. What’s happened? The criminal has taken more freedom than he or she is due and society is restoring the balance that the defendant has upset.
So those all strike me as sort of plausible working distinctions and I’m sure there are fault lines in all of them.
JEAN BETHKE ELSHTAIN: Thank you.
QUESTION: My question is for Dr. Budziszewski. I was interested in your reference to rehabilitation. You talked about how the death penalty or life without parole, how neither really allows the rehabilitation with society and then you made this reference to the possibility that we sort of collapse rehabilitation to that societal dimension and that there’s a spiritual dimension too. And you said that even with the death penalty there’s this possibility of rehabilitation, that nothing so concentrates the mind, that there’s this time where the person who is condemned has to either connect with their maker or however he or she conceives that.
And it seemed to me that you cut short this possibility for spiritual rehabilitation within prison. I know that our prison system has many, many problems, so I don’t want to sound naïve either, but I’m just thinking of how hard we work at religious freedom in the prisons and I think that one of the reasons for that is because we do see that there is some possibility for this kind of spiritual rehabilitation to happen in a life without parole as well. So I just wondered if you could speak to that.
J. BUDZISZEWSKI: Yes. I think that it’s a good question.
Sometimes when we think of rehabilitation we forget what the word means. We make a mistake about the root of the word. We think it means returning the criminal to his habitation or to his habitat, because it sounds like it — rehabilitation. But if you look at the Latin roots of the word, it really means restoring him to his former condition, and that includes to his former moral condition. So there are really two elements here. There is the moral healing of the criminal — that is one part of rehabilitation. And there is his reintegration into society.
Killing him obviously does not promote his reintegration into earthly society, although it may promote his moral healing before his death because of the prospect of death looming on him, and it may in that way promote his reintegration with the eternal society of all redeemed creatures, which I think that we want to look forward to.
Now, the questioner raises the very good point of whether living in prison without the prospect of death may also contribute to his moral healing, and I think that that is true; it might. And I don’t claim to know when one contributes better and when another does, but I’m only making a negative argument here that we should not assume that it’s impossible for the prospect of death to make its own contribution to moral healing, to restoration.
JEAN BETHKE ELSHTAIN: The next question.
QUESTION: I’m a physician and physicians help with executions, by law in most states where they do executions. I know that the execution has an incredible psychological and moral impact upon those people who actually do the killing for the state when they’re doing this retribution. Would you mind from your moral position to discuss a little bit how I, for example, might talk with a medical colleague of mine about his participation in doing the killing for the state?
JEAN BETHKE ELSHTAIN: So you’re thinking of a physician who participates in a lethal injection, for example.
QUESTION: I’m an anesthesiologist. I give injections.
JEAN BETHKE ELSHTAIN: Okay. Does anyone want to speak to that? We don’t have any physicians or counselors here, but we certainly have moral philosophers. So, Richard, why don’t you start?
RICHARD GARNETT: There’s a wonderful book, and the questioner might have seen it, by a man named Don Cabana, who was the warden for years in Mississippi, called “Witness to the Execution.” And it’s a really provocative and sensitive and kind of heartfelt account of what it did do to him to participate in the process. I haven’t participated and I can’t presume to judge whether he’s got it right or not, but I was struck not only by the effect that it did have on him but how seriously he and everybody in the prison seemed to take their involvement. There wasn’t any sort of frivolousness that one fears might happen in a context like this. People seemed to take it very seriously and in a way the death house was the most sort of respectful place in the Parchment Farm Prison in Mississippi.
As opposed when you get to the issue of sort of moral philosophy and advice, I imagine a lot hinges on whether we think that it’s evil to execute somebody. If it is evil to execute somebody, then there’s a whole rich debate about what constitutes cooperation with evil and I take it that one can’t cooperate with evil, so that would sort of resolve the matter. If it’s not evil, then it’s a question of private conscience I guess.
VICTOR ANDERSON: I think one of the reasons we went to lethal injection is because we had a threshold criteria of unusual punishment, a debate over the electric chair, the gas chamber, our precedents and cases of cruelty. So whether execution under those circumstances constitutes cruelty we move to a more humane way of terminating another’s life, one that many doctors felt more agreeable with that they could participate if the process of execution were more humane than other means that they witnessed.
And what happened is that we took our precedents from how we treat ill and damaged animals. The irony of the injection is that it wasn’t predicated on human rights or any human dignity; it came from the humane way we treat our pets and the way we treat other animals when they are ill, when they’re dying and when they’re dangerous. We’ve extended that form of execution as a fitting response to the question of cruelty.
So the question would be whether a physician can participate in that practice when the practice is no longer seen as cruel but the most humane way of terminating another person’s life.
That also has crossover effects when you look more broadly at the question of euthanasia. Is the physician in this context producing an effect that in effect brings about a good death? If that’s true, it may mean some harm to other physicians about injection as a punishment. If, in the end, this is the fact a physician assisting in a good death, it raises other questions about how reasonable execution is if that deters its purpose. If the purpose is a punishment and exact retribution, to render such a process, the issue of a good death raises some other issues, but I think a physician would have to look in those terms from the point of view of a good death and contributing to the most humane of ways of terminating a person’s life under those peculiar conditions.
JEAN BETHKE ELSHTAIN: And certainly there have been victims’ family members who have said this is too humane and too kind a way to do it and you’ve got the Hippocratic Oath, do no harm, so there are all kinds of issues.
J. BUDZISZEWSKI: I think first it should be separated from the question of justice of whether this is necessary to do. There are a lot of things, which are necessary to do that are also difficult to do, as with soldiers. But I think there’s also the question of who should take such a job. Obviously, people of unusual sensitivity should not take such a job. Obviously, people whose personal moral views are opposed to capital punishment should not take jobs as executioners.
I also think that the involvement of doctors in this, I think that the state has made a mistake here, because just as centuries ago it began to be taught that the vocation of a priest is inconsistent with taking life, with serving, for instance, as a soldier, even though what a soldier does in a just cause is not necessarily wrong but that it’s just inconsistent with the priest’s vocation, I think it is also inconsistent with a doctor’s vocation. He is pledged not to do harm. He’s not pledged not to do harm unless it’s just to do harm; he’s pledged not to do harm. There are vocational differences, and I think that we should respect them.
JEAN BETHKE ELSHTAIN: Thank you.
QUESTION: Good afternoon. My name is Laura Horton. I’m a Unitarian Universalist Seminary student. And my question is for Dr. Budziszewski. I heard you say that you believe that someone who is truly repentant should still be executed if they have been sentenced to that. I think Karla Faye Tucker is probably the obvious example. I find that shocking and I would be grateful to hear more about your theological grounding of that position to help me, who does not believe in a vengeful God who punishes, just to help understand where you’re coming from.
J. BUDZISZEWSKI: Well, if you don’t believe in a god who renders final judgment and if you believe that human justice is absolutely final, I think that it may be that you can’t find a logical justification for this, although I would think that it would also be difficult for you to find a logical justification in that case for the very existence of the moral order or for the responsibility of the state to uphold justice too. So I think that by opening that can, one gets involved with an awful lot of worms.
From my own point of view, should a repentant person ever be executed? This is like the question of deterrence and nuclear policy. Some have tried to take the position that although it would be wrong ever to use a nuclear weapon, it may be okay to use it for purposes of deterrence, but the problem is it isn’t going to serve the purpose of deterrence unless the other side thinks you may use it, and if you never will then they know you won’t. It’s something like that here. If you abolish the death penalty, if you never execute a repentant person, then the person loses the incentive provided by the imminence of death to repent. And I don’t know how to deal with that, but I think it’s a real paradox.
There is a second problem. There is also the fact that just as it’s difficult to determine guilt and mistakes can be made, there can be miscarriages of justice, it’s also very difficult to determine repentance. God can see that; we cannot with very much skill see that and there are miscarriages in diagnoses of repentance I think sometimes just as there are miscarriages in diagnosis of guilt for deeds committed.
RICHARD GARNETT: As everybody probably knows, it’s common in the criminal justice system for people’s punishments or sentences to be reduced if they accept responsibility, if they cooperate, if they repent. And the federal guidelines, if any of you have any familiarity with those, you get a couple steps knocked down in the grid if you accept responsibility.
So I think the sort of insight of the question that repentance is relevant to the punishment is an important one. I don’t know whether it has to preclude the death penalty, but I think we see all the time that repentance is taken into account when meting out punishment.
QUESTION: Professor Garnett, this is directed towards your closing statement, that it should be religious believers who form this new idea of human dignity, which obviously leaves out those citizens who do not use religious beliefs in the public sphere.
How would a secularist, assuming his or her right to participate, enter in a conversation about the death penalty if this exclusively religious consensus was found?
RICHARD GARNETT: Well, it’s a great question. I guess I think the question has the same premise that a lot of the objections to religious participation in the public square have, namely that you can’t really have this kind of public deliberation or conversation if people are talking past each other and if one party is sort of invoking premises or principles that are just inaccessible to the other one.
I’ll concede, I suppose, that religious believers, if they’re not able to frame their witness in ways that are going to be received by their hearers, are not going to be particularly effective. I guess what I reject is the idea that there’s something illegitimate about them trying.
Why should it be a one-way street? Why is the burden on the religious person to censor his views to make them more accessible to the person you call the secularist rather than vice versa? A different point is that I don’t concede the point that religious arguments are inaccessible to people who are sort of just trying to reason together. I think that objection has been overstated in a lot of the arguments. But I do take your point that there would be a risk if one’s contributions to the public square were just sort of too overtly sectarian, that you really wouldn’t move the ball much and I would want to avoid that.
JEAN BETHKE ELSHTAIN: Presumably would you agree with this? Your call for a richer moral anthropology is not in principle inaccessible to nonbelievers. Now, the nonbeliever might say I reject the source of this human dignity but it’s not a notion that is simply isolated off and exclusively reserved only to religious believers.
RICHARD GARNETT: I would agree, although I might still stand on the idea that in the end it’s a religious world view that’s best able to account for why this moral anthropology is true.
VICTOR ANDERSON: Because also it does matter how we construe the table. You can construe it in such a way as Jeffrey Stout does in which you have all these secular intellectuals and people who care about stuff sitting at this table and then you bring in the voice of theology because we need a theological voice there, and then every time we say something theological then the secularists say, “Oh, see, these people are trying to take over the table with their rhetoric.”
And so that’s one way of construing the table, but what if the table conversation is really not about my faith as such, but I come here as a believer. But the concern is about something that we share already. What if what’s on the table is really about hunger or poverty? That’s neither a particular point of view of a person who has a faith position, nor is that a particular domain or concern of a secularist. What if what is on the table really is about how we treat the dignity and respect of teenagers in crises?
In other words, the more concrete the issue is that it’s publicly shared, we at least have a possibility of binding our voices around them. So it’s not as if you start off saying, “Well, I’m the religionist and this is what I’ve got to say.” I bring a religious point of view to a set of problems that are publicly shared, and that’s what we have to be concerned about.
J. BUDZISZEWSKI: The other two speakers have said almost everything that I would say. It’s just that I’m a religious believer in an overwhelmingly secular environment, a secular public university, and I have to find ways to explain myself in ways that they can understand. It seems to me that if a secular person should find himself in a society where everybody holds a religious view he has to do the same thing.