The original version of this article was published in faireway.com
Our increasingly divided political climate has pushed many formerly bipartisan stances off common ground. Twenty years ago, the American public seemed to have reached a general consensus regarding capital punishment. Gallup polls found that, in 1994, support for the death penalty reached a historic high of 80%. In the following 1996 presidential election, both Bill Clinton and Bob Dole promised to pass legislation that would expand the number of criminal executions.
Recently, however, support for the death penalty has been dying. According to the same Gallup poll, public support has dropped down to 49%. This change in the public mood is reflected by the 2016 shift in the Democratic Party’s platform, which now calls for the abolition of the death penalty. Since the Second Vatican Council in the 1960s, the Catholic Church has expressed opposition to capital punishment. This position was further solidified by Pope Francis, who has recently deemed the practice inadmissible.
On the right, it is important to note that support for capital punishment does not necessarily follow from conservative natural law philosophy. According to natural law theory, there are objective moral principles that can be attained by human reason and ought to reflect human law. These moral principles find themselves in nature, therefore, acting contrary to objective morality disrupts the natural order. There are many proponents of natural law, especially Catholics, that contend that the death penalty is inconsistent with the theory’s emphasis on preserving life.
Though the Vatican holds a harsh oppositional stance, it is important to understand that Pope Francis’s revision of the Catechism did not rule the practice of capital punishment as intrinsically evil. Doing so would be inconsistent with Augustine and Aquinas, who both argued in favor of the death penalty in certain circumstances. It would also contradict the authority given to human beings by God in Scripture, where in Romans 13:4 the Apostle Paul describes a power of the sword given to legitimate rulers. The change in 2267 of the Catechism reflects the Church’s devotion to the sanctity of human life at all stages; however, the language in the revision that is used does not place the death penalty on the same level of immorality as abortion. Emphasis should be placed on the word “inadmissible” as well as the justifications that the text uses; these points indicate that the teaching is a prudential judgement given specific present circumstances rather than a universal principle. Therefore, it is not heretical for Catholics to consider the death penalty as a reasonable punishment despite Pope Francis’s statements, though significant weight should be given to the Holy Father’s words.
The issue at hand is very sensitive with many points of view. I believe that both sides ought to have their best arguments presented. This article is meant to give an honest account of the popular conservative position for the sake of meaningful public discussion.
Let us first consider the case of Junko Furuta. On November 25th, 1988, she was kidnapped and held captive for 40 days by 4 fellow classmates. Over the course of these 40 days, Furuta was reportedly raped over 400 times.. She was beaten until she would go into convulsions, she could not consume any food or liquid without vomiting, she was lit on fire multiple times, and after she finally passed away from her injuries, her body was placed into a 55-gallon drum which was then filled with wet concrete. One of the assailants, Jo Ogura, reportedly bragged about his crimes. Ogura was released in August 1999, serving only 8 years in prison, but he was arrested again in July 2004 and sentenced to 7 years in prison for kidnapping, assault, and battery.
The sentencings for Furuta’s case were firmly criticized for being far too lenient by the public. Given the severity of the crimes, many would argue that the only justifiable punishment is the death penalty. The natural disgust many people felt in relation to the horrific crime may come from what scholastic philosopher called syndresis—the innate principle in moral conscious that signals to us that a certain action is either good or evil. This principle follows from human beings’ natural understanding of what is evil. For a typical, psychologically-sound person, it does not need to be taught that torturing and murdering another person is evil, and this is reflected by a negative bodily response that immediately arises from hearing of such an event.
In relation to human dignity, if we admit that an innocent human life has infinite value, then destroying that life ought to warrant an extremely harsh punishment. As David French writes, “[t]here are times when it is the only punishment that truly fits the crime.” Though others might argue that life imprisonment is a harsher punishment, they may be underestimating the great human psychological capability to adjust to life-long circumstances while overestimating the severity of prison-life in developed countries (where many inmates may be given televisions, conjugal visits, gyms, etc.). Also, retrospectively, the death penalty would have prevented the crimes committed later by Ogura.
There are, indeed, counterexamples that ought to be considered. George Will from the National Review points to the case of Vernon Madison. In 1985, officer Julius Schutle came to the residence of Vernon Madison in response to a domestic disturbance call. As Schutle arrived at the scene, Madison shot and killed him. In his third trial (as the first two were deemed unconstitutional), Madison was sentenced to death. Madison has been on death row for over 30 years and has developed vascular dementia. He can hardly give an account of the meal he was given 5 minutes prior, much less the crime he had committed 30 years prior.
However, it is important to note that Madison’s prolonged imprisonment was the result of legal activism by death penalty opponents. Along with greatly increasing the number of legal protocols, the ACLU has risen the costs of administering the death penalty to exceed the costs of life imprisonment. Death penalty opponents can then make the argument that the death penalty is more expensive than life imprisonment, which is a problem they themselves created.
But let us assume that there was no legal meddling involved and that Madison still developed his acute mental illness. Executing Madison would be, at best, morally problematic and, at worst, an affront to human dignity. Some conservatives might argue that the death penalty would still work towards a greater good as a deterrent for future horrendous crimes. Unfortunately, there is little to no evidence that the death penalty deters future criminals. However, the issue lies in the fact that the death penalty is applied too inconsistently and too infrequently to properly steer away would-be wrong doers, not in the fact the punishment itself is inadequate.
I find that the strongest conservative defense of the death penalty can be found in the late Antonin Scalia’s distinction between individual and gubernatorial justice. Democracies have a tendency to place government at the same level as individuals, but civilized societies bestow many great powers to the state that cannot belong to the individual. Elected officials are sworn to serve, protect, and administer justice. They are given the responsibility to arrest, try, and punish criminals. Individual citizens cannot perform these tasks because they lack the requisite power and there is too much room for error. Without a social contract that grants power of the sword to a governing body, your neighbor could very easily become your accuser, judge, and executioner. At the same time, you would struggle to defend yourself against the band of thieves breaking down your door. In the words of Thomas Hobbes, life would be poor, brutish, and short.
Though individuals have the power to alter the laws to reflect the society’s ethics, it would seem short-sighted to pass an outright prohibition for a morally ambiguous issue. Advocates of the death penalty will freely admit that there are morally questionable cases like Madison’s, but there are also cases like Furuta’s where the death penalty may be the only just option.
In short, many conservatives assert that the punishment ought to fit the crime, and to preserve the immense value of an innocent life in accordance to natural law, sometimes that punishment ought to be death. Thanks to our democratic system, we can correct the errors of government by holding our elected officials accountable for the misadministration of this great power bestowed on them. As citizens, we ourselves are given the great responsibility to alter the law to account for the specific instances that lead to injustice while still preserving the original intention of the law. We should not shirk from this responsibility by opting for broad legislation for the sake of convenience.
Jorge Plaza is a sophomore studying philosophy and economics. On campus, Jorge plays cello in the Notre Dame Symphony Orchestra and is a member of the O’Neill interhall football team. You can contact him at firstname.lastname@example.org.