The Bishops, the Death Penalty, and Michael Perry (whom I love)

I think we're all (as Rick put it) "with the Bishops" on this one, so long as "this one" is defined narrowly enough.  No one carries a weighty brief for capital punishment as it carried out in the U.S. today.  Further, I'm with the Bishops when they write (p.10): "We look forward to the day when our society chooses not to answer violence with violence."  (They might have quoted Lonergan here: "Is everyone to use force against everyone to convince everyone that force is beside the point?").  And I'm still with them when they go on to write (p.10):  "The Catholic Campaign to End the Use of the Dean Penalty is about more than how to respond to violent crime; it is about justice and about what kind of society we want to be."  But the Bishops lose this loyal son when they write (p.9):  "Our prisons must be transformed from warehouses of human failure and seedbeds of violence to places of responsibility, rehabilitation, and restoration."  Though, as I shall mention below, the Bishops elsewhere in the document (p.6, e.g.) acknowledge the right and the duty of the state to punish malefactors, the Bishops' hope to transform prisons into laboratories of rehabilitation is in tension with the justification for incarceration, viz., punishment.  We send people to prison as (not for) punishment.  Again, I don't carry a brief for the state of American prisons, but I agree with Michael Moore (Law and Psychiatry):  "Recasting punishment in terms of 'treatment' for the good of the criminal makes possible a kind of moral blindness that is dangerous in itself.  As C.S. Lewis pointed out some years ago, adopting a 'humanitarian' conceptualization of punishment makes it easy to inflict treatments and sentences that need need bear no relation to the desert of the offender."

Michael Perry writes that "the retributive theory of punishment tells us whom we may punish . . . , but it does not tell us what punishment is justified. . . . .  If one wants to justify executing a criminal, one must look beyond the retributive theory of punishment."  Rick counters that "the retributive theory speaks to the distribution of punishment and to the character/amount of punishment."  I'm with Rick on this one.  The retributivist gives a malefactor what is his due.  While M. Moore is right (The Moral Worth of Retribution) that the retributivist punishes exactly because the offender deserves it, Moore errs in thinking that the question of the quantum of punishment is severable from the question of desert.  They rise and fall together; no one "deserves" to be punished an unspecified quantum.  The traditional way of describing the quantum is as "proportionate."  What I said before, and I'm sticking to it, is that "even John Paul II never said that the death penalty is always and everywhere disproportionate."  Michael "read[s] John Paul very differently," but he does not tell us on what basis.  (Unfortunately, I haven't read the Brugger book Michael mentions, though I shall now). 

Yes, the "not excluding, in cases of extreme gravity, the death penalty" language was dropped from (sec. 2266 of) the 1997 edition of the Catechism, but yes, the 1997 edition, having in sec. 2266 reiterated the traditional teaching on the state's right and duty to inflict "proportionate" penalties (poenas gravitati delicti proportionatas) on malefactors, goes on in sec. 2267 to say: "Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty (ad poenam mortis), if this is the only possible way of effectively defending human lives against the unjust aggressor." How this can be read to say that the death penalty (poena mortis) is always and everywhere disproportionate, I cannot see.  Cardinal Dulles's famous First Things article of 2001 on the Church and capital punishment contained this proposition in his group of ten summarazing the Church's current position:  "The State has the right, in principle, to inflict capital punishment in cases wehre there is no doubt about the gravity of the offense and the guilt of the accused."

Now, I still haven't read the Brugger book, and I know that the Catechism complicates things by proceeding, in the passage quoted above, from an assertion of the right to punish with death (poena mortis) to a conditional limitation on that right to situations of "self-defense" on the part of the state (ad personarum securitatem ab aggressore defendendam).  Michael resolves this by agreeing with Brugger that "capital punishment is never an instance of self-defense, because capital punishment is always the intentional killing of a human being, etc."  I agree that the self-defense rationale does not save capital punishment, because capital punishment is always the intentional killing of a human being.  But does capital punishment (sic) need to justified in terms other than punishment?

What I haven't heard the Roman Magisterium say, what I haven't heard the USCCB say is that the penalty of death (poena mortis) is always and everywhere a disproportionate punishment.  Indeed, the Bishops said this just last week (p. 6):  "Recourse to the death penalty is not absolutely excluded (see no. 2267): the death penalty is not intrinsically evil, as is the intentional taking of innocent life through abortion or euthanasia."  The Bishops' next sentence, to the effect that the death penalty should not be used in contemporary society because the state has non-lethal means to protect its citizens, is a non sequitur.  Punishment does not need to be justified in terms of self-defense, though I understand that, in a halting and incoherent way, the Catechism has moved in that direction.  The Catechism continues to speak of poena mortis, and the justification of defense of self or of others has never been in terms of inflicting a poena on the aggressor.

As to the Bishops' statement that generated this discussion, for my part I don't need persuading that "we" don't need to use the death penalty today (unless of course we conclude that it is exactly what a malefactor deserves).  But because I am not persuaded that the state is ever obligated to punish with death (another penalty is always proportionate), and because the American penal system so readily loses sight of punishment as properly showing respect for human dignity, I welcome much in the Bishops' effort. 

Score?