Just punishment?

Author:Waiss, John R.
Position:Correspondence - Letter to the Editor

In "Capital Punishment: The Case for Justice" (August/September), J. Budziszewski makes a strong argument for capital punishment based on justice in accord with Scripture. However, I think that in focusing on justice and clemency rather than on signs or sacramentality he focuses on the wrong issue. What we need to ask is: What does capital punishment say sacramentally? That is, what is the deeper, supernatural reality that God wants us to understand when He prescribes the outward sign of capital punishment for certain crimes? What is God teaching us?

Although Professor Budziszewski refers to murder as categorically deserving capital punishment, he fails to mention fornication, adultery, sacrilege, etc. Would he advocate that we put to death categorically all fornicators as the Mosaic law prescribed? What about politicians who make sacrilegious communions? Such a position would be consistent with his use of Scripture.

God shows mercy to David after he commits adultery and murder. He is more deserving of death than an ordinary murderer since he used the power received by his anointing as king to accomplish his crimes. But God knew his heart and the powerful lesson he would teach us. This was more important than "justice."

Prof. Budziszewski focuses on the justice of retribution. Let's face reality here: for certain crimes, no punishment will ever do justice in this life. How can you restore lost innocence too a child who has been defile? How do you restore lost life to someone murdered?

Capital punishment can teach that one deserves eternal death for certain acts, but only in the context of a society's religious belief. In an irreligious society, capital punishment teaches something else: that the state has absolute power over life.

By contrast, doing away with capital punishment teaches that life is sacred. It teaches that only God can say when life ought to begin and when it ought to end. And it teaches that true justice is only achieved in eternity.

(The Rev.) John R. Waiss

Tilden Study Center

Los Angeles, California

The strength of J. Budziszewski's argument for the primacy of retribution in punishment is that it provides for proportionality between the gravity of offenses committed and the severity of punishments imposed. When persons or their relatives are seriously and intentionally harmed, they have a prima facie claim that substantial punishment should be imposed. However, Budziszewski has not established his claims that capital punishment is consistent with the New Testament and that retributive justice requires that society retain it.

Professor Budziszewski maintains that "at least death deserves death, [and] that nothing less is sufficient to answer the gravity of the deed." He reasons that through the application of deserved punishment the wrongdoer pays a price equivalent to the harm he has done and society is protected morally by the restoration of just order. But it is far from evident that to punish the crime of homicide with death is the most just punishment or is just at all. Advancing a principle of proportional retribution does not in itself reveal the justice of any specific punishment. The punishment for homicide could, for example, be exile, life in prison, life with hard labor, periodic torture without death, torture followed by death, or death by humane means. Prof. Budziszewski asserts that "[S]ome criminals seem to deserve death many times over." Later in his piece he refers to "the deviant who tortures small children to death for his pleasure" and "the ideologue who meditates the demise of innocent thousands for the sake of the greater terror." We may ask: Why should such persons not be subject to torture?

An answer may be found in Prof. Budziszewski's rejection of those "grotesque and torturous methods of execution" that, he says, "seem most likely to deter." He rejects them because "they are incompatible with human dignity." But this is a criterion other than retributive justice. Moreover, Prof. Budziszewski further mitigates the requirement that "death deserves death" by appealing to God's forgiveness and patience and to Christ's having taken the punishment of those "who repent and turn to him." Thus he reasons that not only criminals in general but "perhaps capital criminals" can "be punished less than they deserve." Then, in the final adjustment of his position, Prof. Budziszewski ends his article by agreeing with Pope John Paul II that in our time "cases in which the death penalty is still necessary are 'very rare, if not practically nonexistent.'"

This is an enormous leap, for the bulk of Prof. Budziszewski's arguments aim to refute opponents of capital punishment. Why seek to defeat anti-death penalty arguments if one ends by concluding that the death penalty should be practically abolished? If human dignity and mercy are significant enough to rule out "torturous methods" and greatly reduce the occasions for capital punishment, why not conclude that they should rule out these intentional killings by government entirely?

Prof. Budziszewski rightly says that it "is a fearsome matter to imprison a man." But if there was an error, the imprisoned person can be...

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