Tuesday, December 20, 2005
'High Justice' and the Death Penalty
I've been meaning to blog on this issue for some time, though due to my own constraints the article which occasioned it is now approximately two months old. Joseph Bottum's August/September 2005 article in First Things, entitled 'Christians and the Death Penalty', barely even caught my attention, and my first reading was little more than a skimming. Bottum's writing style is not one I find congenial to rational debate: I like him more as a poet than as a columnist. It was only when the next issue featured a virtual flood of vitriolic hate mail against Bottum, which the author admitted was only the tip of the iceberg, that I gave the article a re-reading. The criticisms made of Bottum were so confused and irrational that they made Bottum's argument seem rational by comparison. Only on my second reading did I grasp what Bottum was trying to argue, and his argument was so eminently rational that it jumped off the page.
A bit of background. Pope John Paul, of happy memory, won few friends on the Christian right by the legacy he gave us in Evangelium vitae 56. Here he argued that, since "[t]he primary purpose of the punishment which society inflicts is to redress the disorder caused by the offence', the state "ought not go to the extreme of executing the offender except in cases of absolute necessity," cases which, in the Holy Father's opinion, "are very rare, if not practically non-existent."
Cardinal Avery Dulles has argued, on several occasions (including one in the same journal), that the primary reason why the Church has always defended the state's right to execute is not a matter of self-defense, but rather of retributive justice. Dulles claims that modern societies have abandoned the death penalty due not to moral progress, but "to the evaporation of the sense of sin, guilt, and retributive justice." The most obvious conclusion to be drawn from Dulles' repeated arguments is that, even if execution is not necessary to protect the citizens of a given society, it may nonetheless be appropriate as a means of executing justice. Some have taken the additional step of claiming that Pope John Paul's condemnation of the death penalty, in focusing exclusively on the state's need for self-defense (which leads to the foregone conclusion that such penalty is not necessary), ignores the more important reason for executing capital criminals, that of retribution. This I shall call the 'justice argument'.
Bottum's article in First Things should be seen, in this humble blogger's opinion, as a full-fledged refutation of the 'justice argument'. Bottum eventually makes this clear when, after mentioning "several sets of bad arguments for the death penalty," notes that "the worst of these, for a Christian, is the argument from justice."
Bottum continues by analyzing the way society generally responds to accounts of crime. Accounts of most crimes (robbery, arson, even rape) tend to elicit demands for what are, more or less, reasonable and restrained punishments. Restitution and varying lengths of imprisonment reflect a certain 'correlation' with the crime committed. The punishment is seen as representing what is necessary to protect society and restrain criminals, and no more. This is what Bottum calls 'normal justice'.
With the crime of murder, however, a completely different attitude emerges, as the cries go up for bloodletting. This reaction of society to the crime of murder is mythologized in the story of Cain and Abel, where Abel's blood "cries out from the ground" for retribution. And Bottum admits that this reaction is, to an extent, justified: "blood really does cry out from the ground." And in response to this cry, society feels the license, no, the responsibility, to "break free from the social aims of normal justice and pursue closure for a story of high, cosmic justice." The restrained, naturally correlated order of 'normal justice' simply will not do: only the execution of the murderer can quiet the cry of the bloodstained ground. And execution is "an entirely different thing [than normal justice] that aims at restoring the universe and matching a deadly crime with a similarly deadly punishment."
The difference with 'normal justice' is clear. As Bottum points out, we don't demand that rapists be raped, or arsonists be burned. But murderers must die. Why? To bring the story to a close. Bottum speaks of the 2005 execution of Michael Ross as a satisfying story:
It has a completeness, a satisfaction, a narrative arc. It gives a feeling of rightness and a sort of balance restored to a universe gone wrong with the taking of innocent life. It aims, as satisfying stories must, at what we used to call poetic justice: the killer killed, the blood-debt repaid with blood, death satisfied with death.
But, as Bottum points out, as real as this story is, it is ultimately a pagan story, and "Jesus turned all our stories inside out. Especially the old, old ones about blood and blood's repayment." That is why John Paul II, of happy memory, began his encyclical Evangelium vitae with a reflection on the story of the first murder. Abel's blood cries out from the ground, but the Lord refuses to allow anyone to impose the penalty:
The biblical story emphasizes the reality of the blood-debt and the universe thrown out of balance by murder - and nonetheless adds a prohibition against claiming repayment for that debt . . . In Evangelium vitae, John Paul II holds to a delicate line . . . . [T]wo elements in the Cain and Abel story are vital for Christians: the genuine truth that spilled blood calls for justice, and the refusal to demand that this blood-debt be paid with yet more blood.
What Bottum is speaking of here is a genuine demarcation in human thought, brought on by the novelty of the New Covenant. The Incarnation of the Eternal One represented the radical relativization of the temporal realm: the True God showed our false gods for what they were. One of these gods was the divinity of kings, which may have translated into the pretended divinity of modern democratic states.
"What kind of justice - high, low, divine, poetic-," asks Bottum, "can a Christian allow modern democracies to claim for themselves?" In the execution of a murderer, or at least an execution carried out for the purpose of retributive justice, the state is attempting to "balance the cosmic books, to stabilize a shaken universe." Few will doubt that states have the rights to defend themselves - in a just war, for example - Bottum even permits that the state's right to self-defense might in some cases require execution. But he will not allow that the state's right of selfe-defense allows for anything more than what we have defined as 'normal justice' - it does not give the state the license to attempt revenge or 'high justice.'
This whole discussion can't help but bring out the Augustinian in me. The institution of the state can never claim to itself eternal prerogatives, which are the exclusive right of the City of God. If the state pretends to do so - and Bottum believes that retributive executions are exactly such a pretension - it becomes an idol, a false god, that must be cast down. For then, in Bottum's words, it is "overreaching its claim to power to balance the books of the universe - to repay blood with blood."
Cardinal Ratzinger in 1996 described the Pope's teaching on the death penalty as a 'development of doctrine'. Part of this development, if Bottum is right, may be a subtle but definitive rejection of the 'argument from justice'.
# posted by Jamie : 1:00 PM