Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, April 14, 2006

Robert George on Moussaoui and the death penalty

Robert George sent in the following thoughts, in response to Steve Bainbridge's recent post regarding Moussaoui and the death penalty:

I do not see any way to avoid the conclusion that Moussaoui may not legitimately be subjected to the death penalty under developed Catholic teaching.  Pope John Paul II's encyclical letter Evangelium Vitae, the teaching of which is incorporated into the Catechism of the Catholic Church, is that the state may not execute even those guilty of the most heinous murders unless execution is the only way to prevent them---them, mind you, not other potential murderers who might be deterred by fear of the death penalty---from engaging in further killing.  Given modern penology, as the Pope said, circumstances in which this would be the case are "so rare as to be practically non-existent."  In any event, no one doubts that the United States can hold Moussaoui securely in prison in such a way as to prevent his participation in further killings.

Professor Bainbridge has reminded us of Cardinal Avery Dulles's interpretation of contemporary Catholic teaching as the Cardinal presented it in an article in the April, 2001 issue of First Things.  As always, Cardinal Dulles's work is helpful and illuminating.  However, it strikes me as unsound in an important respect insofar as it seems to suggest that there are circumstances in which the death penalty could be justified despite the capacity of the state effectively to incarcerate the convicted murderer.  I would call attention to points 6 and 7 of Professor Bainbridge's re-presentation of Cardinal Dulles's analysis:

6. The State has the right, in principle, to inflict capital punishment in cases where there is no doubt about the gravity of the offense and the guilt of the accused.

7. The death penalty should not be imposed if the purposes of punishment [which, Dulles rightly points out, centrally include retribution--RPG] can be equally well or better achieved by bloodless means, such as imprisonment.

In context, these points suggest (or leave open) the possibility that the death penalty could be justified for retributive reasons even where the defense of potential future victims of the convicted individual is not an issue (that is, even in circumstances in which effective incarceration is possible).  This simply cannot be squared with the texts of Evangelium Vitae and the Catechism.  The unequivocal teaching of these documents is that the state does not have the right to inflict capital punishment---no matter how grave the offense and no matter how clear the guilt of the accused---unless effective incarceration is impossible and execution is the only way to prevent this particular murderer from killing again.

None of this is to deny the Church's continuing commitment to a retributive understanding of legitimate punishment.  And I hope it goes without saying that Moussaoui deserves to be punished as severely as possible.  He is guilty of conspiring in an utterly monstrous crime.  If the death penalty were ever justifiable for purely retributive reasons, he deserves it.  Moreover, if the death penalty could be justified on deterrence grounds, a case could be made (though it would be disputable, of course) for executing Moussaoui on that basis, too.  But under the developed Catholic teaching, neither retribution nor deterrence (nor some combination) is sufficient to justify execution, even in the case of a depraved mass murderer like Moussaoui.

Of course, there is a debate about the status, level of authority, and bindingness of this teaching.  I'm among those who view the teaching as demanding religious assent of intellect and will pursuant to the norms set forth in Lumen Gentium of the Second Vatican Council.   There are plenty of Catholics of intelligence and goodwill who seek to live in fidelity to the teachings of the magisterium who see it differently.  And even those who see it my way acknowledge a certain unclarity about the status of the teaching.  Moreover, no one asserts that it is infallibly proposed.  In these ways, the teaching is quite unlike the clear, firm, and consistent teachings of the Church's ordinary universal magisterium on abortion, infanticide, euthanasia, adultery, fornication, sodomy, and contraception.  Having said all that, though, I repeat that the plain meaning of the texts of Evangelium Vitae and the Catechism rules out capital punishment in virtually every case one can imagine today---including the case of Zacharias Moussaioui. 

For what it's worth, I remain confused by the statements in Evangelium vitae and the Catechism to the effect that (as George puts it) "the state does not have the right to inflict capital punishment---no matter how grave the offense and no matter how clear the guilt of the accused---unless effective incarceration is impossible and execution is the only way to prevent this particular murderer from killing again."  I agree entirely with George's view that executing Moussaoui could not be justified simply by contending (implausibly) that his execution would deter others.  However, it seems to me that the question to ask is not whether execution is necessary to "prevent this particular murderer from killing again" (this is more of a private-self-defense argument than a punishment-theory argument, I think).  In my view, it is more sound to ask whether, given all the givens, the capital sanction imposed by the contemporary state really serves as retributive justice for homicide (or instead as grandstanding or pandering).  And, of course, even if -- as Cardinal Dulles writes -- the death penalty were, given all the givens, permissible, I suppose it would not at all follow that it is required, or prudent.

So, I agree with Robert George that Moussaoui should not -- and, all things considered, ought not -- be executed.  But I'm not (yet) able to agree that we should think about the justifiability of the death penalty in the same way we think about the justifiability of private violence in self-defense.


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» Robert George on Executing Moussaoui from ProfessorBainbridge.com
Over at Mirror of Justice, Rick Garnett and Robert George respond to the question I asked: Should Zacarias Moussaoui be Executed? Typically thoughtful stuff. [Read More]

Tracked on Apr 14, 2006 3:39:59 PM