Moral, legal, philosophical dimensions of capital punishment

About a week ago, Professor Jennifer Mason McAward of the Notre Dame Law Faculty gave a lecture at the Notre Dame Law School, titled “The Death Penalty: An Affront to Life.” In the talk, Professor McAward chose to educate her audience about the various legal, political, philosophical, and moral dimensions of capital punishment, rather than strictly advocate one way or another. Through her informative and comprehensive presentation, one can recognize that the death penalty fits into the larger narrative of building a culture of life, a culture where the dignity of all men and women is respected.

The pro-life cause espouses a consistent ethic of respecting life from conception until natural death. It is easy, but uninformed, to accuse the pro-life movement of being only “anti-abortion.” However, It is possible to defend against all attacks on human life while recognizing that the unborn deserve special protection, for no other group is under such attack as they. Given Professor McAward’s recent lecture, however, I will use this space to give particular attention to a cause less frequently discussed, that of capital punishment. Restricting myself at the moment to the United States, I believe that it is entirely inconsistent to be a voice for the unborn while condemning others to die.

This case is slightly more complicated, as a convicted murderer is deserving of serious and grave punishment in order that justice be served, whereas an innocent child is not. But a convicted murderer—however horrific the crimes—is no less human, and no less deserving of the same dignity and respect that we accord the unborn. In a sense, because it is so much more difficult to respect these hardened criminals than a smiling infant, we have a duty to afford them extra protection as well. Anyone can get behind a poster-child baby; a true test of this respect for life is whether or not it extends to the undesirable as well as the desirable.

The basic argument for the death penalty is that it fulfills retributive justice, wherein the punishment returns in at least equal measure the value of the crime committed. The basic argument against it, on human rights grounds, is that it should never be used except as a last resort to protect society, basically a self-defense justification. This is echoed in Pope St. John Paul II’s encyclical Evangelium Vitae, where he writes “as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”

Bloodless means, especially in the United States, should always be sufficient to restrain violent offenders. Even within a Catholic justification of capital punishment, which doubtless was permitted in medieval and Renaissance ages (licit when church and state authority were united, and there was no technologically developed penal system), there are a plethora of requirements and factors that are not met today.

The methods used—presently, lethal injection is most common—can violate the cruel and unusual punishment clause of 8th Amendment to the Constitution. As activists against the death penalty, such as Sr. Helen Prejean, author of the novel Dead Man Walking, note, the drugs used in execution are difficult to obtain and use properly. The erroneous drugs have resulted in numerous botched executions in recent decades in which the condemned die painfully, writhing to death due to asphyxiation.

The appeals process within the legal system can be flawed and insufficient; few lawyers wish to take such cases. New DNA technologies have been used to revisit old cases, where they show new evidence indicating innocence. Some studies have estimated that almost 3 to 4 percent of those executed in the last 40 years were likely innocent.

One strict qualification for the death penalty is that it be carried out by a just authority; one can easily make the case against our current governmental order as perfectly just given the scandals and corruption cases plaguing the Trump administration, the Democratic National Convention, and the FBI. Execution has not been proven to act as a deterrent to violent crime, given that states with the toughest laws have the highest murder rates.

And from a Christian perspective, execution does not allow time for reflection and ultimately, as we hope, repentance. It does not address the defect in the person’s soul and attempt to heal it. Our prison system can be atrociously underserved, seeking to brutalize and ignore those within instead of seeking to reform. Capital punishment does nothing to rehabilitate. Whether or not it can be theoretically justified, it would seem that basic mercy and human respect dictate that we do not kill a person, however harshly they may indeed be punished or imprisoned. Add to this the practical concerns outlined above, and it seems that there is legitimate cause to at least suspend the death penalty as it currently stands in the United States.

This is the first step in how we should strive for a culture that respects life so much that it loves those very people who themselves have no love or respect for their own lives. We need to show them how to value human life, while at the same time protecting through law all other innocent lives. We should want to make capital punishment illegal, but also inconceivable. Return justice, yes, but it should be merciful, if strict, justice. This can go hand-in-hand with other life issues like abortion, euthanasia, and civil war; they need not be opposed, as they often are. All of these must work together to build a unified and coherent culture of life.

John Paul Ferguson is a sophomore majoring in the Program of Liberal Studies with a minor in Constitutional Studies, and also serves this year as one of the Vice Presidents for Notre Dame Right to Life. Contact him at jfergus8@edu.