How standards of justice can change

In a previous post, I said that what was not an attack on human dignity in one situation could be in another. I further claimed that such could be the case with the death penalty. I think I owe it to anyone reading to go back and flesh out what I had in mind.

St. Thomas has an interesting perspective on the purposes of punishment in any human community (thanks to Fr. Joseph Bolin for collecting these texts):

For punishments are not directly intended by the legislator, but are so to speak medicines for sinners. And therefore the equitable person does not apply more pain than suffices for restraining sin. (Commentary on the Nicomachean Ethics V, lectio 16)

The infliction of punishments should not be sought for its own sake, but punishments are inflicted as medicines for restraining sins. And thus they have the character of justice just insofar as they restrain sins. (ST II-II, q. 43, a. 7)

The punishments of this present life are more medicinal than retributive, for retribution is reserved for the divine judgment. (ST II-II, q. 66, a. 6)

The punishments of the present life are not sought for their own sake, because this is not the time of final retribution; but they are sought insofar as they are medicinal, aiding either the correction of the sinning person, or the good of the republic, whose rest is procured by the punishment of people who sin. (ST II-II, q. 68, a. 1)

Vengeance is licit and virtuous insofar as it tends to restrain evils. (ST II-II, q. 108, a. 3)

St. Thomas’s point seems to run something like this. We deserve much greater punishment for our sins than we could really sustain, far beyond what would be expedient for the state to inflict. If the state inflicted the death penalty on everybody who committed mortal sin—and thus merited the much greater punishments of hell—the nation would soon be decimated. So the only reasonable thing to say is that finally meting out adequate rewards to everyone according to their merits should be left to God.

OK, so how should the state decide how much punishment to mete out, if not to cover the full extent of the sinner’s debt of punishment? St. Thomas says that the state should mete out just so much of the punishment as would suffice for preventing future evils. It’s a containment approach.

Now, he’s not saying that the state should whack a guy more than he deserves because this will have a useful effect. The state cannot exceed the punishment a sinner owes, not even for the good of the state. But the debt of punishment can and often must exceed what the state inflicts.

Again, he’s not saying that the state should give someone a slap on the wrist for major offenses.  Even if we can’t impose all a guy deserves, the public has to have a sense that somehow justice was served or else evils of one sort or another will in fact follow.

Here’s where I’m going with all this. If the state must not inflict more punishment than is needed for preventing future evils, it follows that, if the amount of punishment necessary changes for any reason, that changes what constitutes a just punishment. In the present case, if it used to be that death was necessary to stop future evils whereas now life-time incarceration suffices, then a death penalty that previously would have been just is now unjust. And precisely as an injustice, it is an attack on human dignity. That seems to me a better argument for Pope Francis’s conclusion than the one the CDF gave.

Now, the big question is whether life-time incarceration is really enough all the time. Another priest I know offered a few examples of where life-time incarceration has not or might not adequately defended public safety:

  • A man, already imprisoned for murder, successfully arranges another murder from within prison (This actually happened in Wyoming—it was our states last execution.)
  • A man, already imprisoned for murder, commits another murder inside prison. (This certainly happens.)
  • A charismatic mass murderer could be imprisoned, but his followers would be killing people and taking hostages, taking hostages to obtain his release (A bit more hypothetical, but suppose that Osama bin Laden had been taken alive.)

These cases may constitute an argument for banning the death penalty generally but imposing it in particular situation like these where incarceration actually failed to prevent further evil.

More generally, Feser and Bechette argue that fear of death stops people from committing crime more effectively than fear of life-time incarceration, so that there will always be a role for the occasional execution. One could respond that, if the difference in deterrence is intangible or in any way hard to nail down, then the state is not obliged to pursue a theoretically maximum safety at the expense of all other considerations.  On the other hand, the above argument for capital punishment in particular situations might be enough to satisfy their main contention.

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Author: Dr. Holmes

Dr. Jeremy Holmes teaches Theology at Wyoming Catholic College. He lives in Wyoming with his wife, Jacinta, and their eight children.

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