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.

Wednesday, December 21, 2011

Kramer on the "Purgative" Justification for Capital Punishment

Distinguished legal philosopher (and legal positivist) Matthew Kramer is publishing a fascinating-looking book early next year, The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences (OUP 2012), in which he offers a critique of current justifications and objections as well as, most intriguingly, a qualified defense of the death penalty for what I believe are particularly atrocious killings.  I have not yet seen the book, so if others with knowledge of it can chime in, I would be grateful.  He calls his partial defense the "purgative" justification.  In this blog post from a few years ago, he describes the defense as Biblically grounded (though he emphasizes that he is "robustly atheistic").  The post is a few years old and it is therefore highly likely that the arguments in the book are changed.  But for interest's sake, here's a bit from that post which may give a rough sense of his "purgative" justification.

Notwithstanding my doubts about the foregoing justifications for capital punishment, I firmly support such punishment in cases of particularly heinous murders. My support is grounded on an alternative rationale, a rationale found prominently in the Bible. (Though I am robustly atheistic, I have long taken the view that one can profit from a good knowledge of the Bible.) We are repeatedly told in the Torah that murderers - and certain other miscreants - should be put to death so that the community can be purged of their contaminating presence. Stripped of its religious trappings, and narrowed to encompass only murders that are especially vile, this purgative rationale for the death penalty is the basis for my stance in favour of capital punishment. A community sullies itself by keeping alive certain people who have acted in such a repugnantly depraved and murderous fashion as to degrade the human species through their membership in it. By sustaining rather than ending the existence of those people, a community retains its association with them - even if they are securely locked away. The only way in which the community and the human species can be purged of the debasing evil of those people is to be purged of those people themselves. That purging never requires torture or displays of heads on pikes; instead, it requires nothing more and nothing less than executions.

This to me all sounds strongly reminiscent of some of the claims made by James Fitzjames Stephen about the social and cultural virtues of expressive punishment; it is one more marker of Stephen's surprisingly contemporary applications.  Kramer acknowledges that his justification sounds in the "denunciatory rationale" (I do not think this adequately captures Stephen's view, but that's another story), though he claims it is different in important ways.  I am looking forward to reading the book to see how he can place the limits on the purging rationale that are reflected in the final part of the indented paragraph above.


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I find it unpersuasive that a "community sullies itself by keeping alive certain people who have acted in such a repugnantly depraved and murderous fashion as to degrade the human species through their membership in it." No community is sullied by the existence, in necessary containment of even the evilest person. A community is sullied by it's choices, and in the case of the death penalty, the noxious choice of killing unnecessarily.

It seems comforting to think that Kramer would reserve this for the "most vile" murders, but that is a mirage. Tell the person who's beloved one was murdered that their murder was not heinous enough. No one will do that, it's simpler to relax the standard out of existence. Either we have the death penalty for all killings, or none. There's no in between that won't get out of hand.

sean s.

Posted by: sean m. samis | Dec 21, 2011 3:57:36 PM

Thanks, Sean. I should add that by describing the claims as "fascinating" I do not mean to indicate that I agree with them. For one, I haven't read the book. And for another, I share at least some of the skepticism that you express. I do think it is interesting to see an academic defense of the death penalty along these lines, particularly by someone of Kramer's well-deserved stature and making claims that recall various older modes of argumentation. No idea really ever dies. Still, contemporary academic defenses of the death penalty are rare birds. I hope to read the book soon.

Posted by: Marc DeGirolami | Dec 21, 2011 4:13:50 PM

...rare, yes, extinct, better. The medical metaphor of contagion sounds downright primitive and its related language and images cry out for Kleinian and group-psychological analysis: I don't doubt "the group," and the individuals that compose it, will find some temporary psychological solace in killing someone deemed irredeemably evil (nothing unites a group like an 'enemy' or shared target of some sort), so evil as to represent the ever-present danger and intolerable anxiety of possible contamination, but this strikes me as an attempt to deny the evil that lurks in their own hearts, not to mention the humanity of the "other," whatever the despicable or evil nature of her acts. This is yet another variant on the theme of ritual sacrifice of living flesh under the larger rubric of ritual substitutionary and vicarious atonement and purification, something that in several religious traditions was rightly abandoned by way of interiorization or symbolization. It's a feeble attempt, yet again, to find a victim worthy of absorbing the fears and anxieties of the group, to protect itself as Girard said, "from its own violence." Capital punishment is here one with other ritual exercises of putatively "good" violence.

Posted by: Patrick S. O'Donnell | Dec 22, 2011 12:13:50 AM

I support the death penalty but think Kramer missed a distinction in the Bible. The death penalties for Jews only, alone had this element of "contamination".... and such death penalties were also for private serious sins like incest. Christianity has seen such Jews-only law as defunct in the new covenant while such laws still delineate for us which actions kill grace in the soul.
The Old Testament passage that is relevant to modern Christians on executions is Genesis 9:5-6 which requires the death penalty for murder only and requires it of all men not just Jews. There is no contamination element mentioned at all in that passage. It is based rather on the victim being made in the image of God....making murder a kind of sacrilege. This is key because God only kills intimately in the Bible Himself when sacrilege is present: Uzzah touching the ark/ Achan stealing gold consecrated to God/ Onan at the deepest level risking the non appearance of Christ who was to come through the house of Judah (4 men ) / the sons of Eli who abused the priestly office/ the 72 descendants of Jeconiah who did not greet the ark / David's son for the murder of Uriah who was sacred to God for not going home while the ark was homeless/ Herod in Acts 12/ the couple in Acts 5. All are killed by God for
sacrilege. Sodom? The attempted rape of angels....unwitting acts still bring on death in several of these cases (Uzzah could have acted in epikeia in trying to save the ark from falling).
Thus only one passage in the OT is relevant for Christians for capital punishment...
Genesis 9:5-6 which equates murder with sacrilege. It's echo in the NT is Romans 13:4.

Posted by: bill bannon | Dec 22, 2011 2:43:11 PM

Interesting comment by bill. Interesting that the OT and Paul in Romans gets cited, but JESUS doesn't make the cut. John 8:7: "And as they continued to ask him, he stood up and said to them, 'Let him who is without sin among you be the first to throw a stone at her.' "

sean s.

Posted by: sean m. samis | Dec 22, 2011 3:51:37 PM

sean s
The entire Bible is from Christ according to Dei Verbum within Vatican II which reads "both testaments in all their parts have God as their author." So when one cites Genesis or Romans, one is citing Christ as in the Trinity. Christ as eternal Word in the Trinity gave the stoning laws to the Jews for adultery and other sins and Christ rescinded it when He came incarnate in your passage. The reason He gave it long before was because the Jews prior to Christ needed great threats just to avoid e.g....adultery because they were without sanctifying grace. Once Christ comes and both lessons the devil's power (Lk10:18) and brings grace (Jn.1:17)....the Jews no longer need great threats to avoid adultery so that the death penalties for mortal sin
All that has zero to do with the death penalty for murder which besides being a sin is
also a crime which adultery is not. And the death oenalty for murder was given to all mankind....not just the Jews.

Posted by: bill bannon | Dec 22, 2011 4:28:44 PM

I admire Bill Bannon's analysis, though I would add a couple of points. First, in that of stoning for adultery (prostitution, really), Jesus did not say that that punishment was unjust. He said that he would not apply to that woman caught in adultery. Then to clarify his message he continured, telling her to avoid that sin in the future. Clearly, he warned her that the penalty for prostitution -- which divides men from women in the community -- is death, but that he is a patient Lord who prefers to give us every chance to reform and do penance. Jesus did not say that prostitution is, all things considered, not such a big deal and that the Jews should just chill.

There are two senses in which crimes that attack human life call for the full force of the law. We can think of these rationales as the "Intensive" rationale and the "Extensive" rationale.

The intensive rationale consists of specific defenses of life. The incapacitation of offenders and the deterring of potential offenders are both in this category. The best estimate of both Ehrlich and Dezhbakhsh are that each execution on average saves 18 lives, and that is an estimate of the marginal savings: the number of life spared by executing Rather Than imprisoning.

The extensive rationale is the service of the law to justify itself to the public. A recent event in Bangladesh makes this point. The fishermen in a certain district had been terrorized for a long time by pirates. When the police managed to capture some of the pirates, it became clear that they were not going to punish them -- very likely the pirates routinely psid "protection" to the police -- the villagers stormed the police station, dragged the pirates our, and hanged them (or beat them to death. I'm not entirely sure which).

When the people have reason to question whose side the police and the courts are on, the "law" has become "anti-law." To execute the guilty in order to validate the honesty of the law, that is fully encompassed within the "defense of human life." Three cheers for the courageous villagers.

We cannot sacrifice the innocent in order to preserve the guilty.

Posted by: Joel Clarke Gibbons | Dec 23, 2011 10:22:09 AM

To add one other element to the woman incident, I would add that Christ had a second agenda: to get the potential stoners to see the failure of the law-without grace...within them. Galatians notes...." had there been a law that giveth life, salvation would be from the law".... and Hebrews..."the law brought nothing to perfection". Christ needed to show these men that maybe they were adulterers in mind (which was His new insight, though in the OT, one could not be stoned for it). Without grace and only with the law, it was inevitable that each had sinned.
Look at the passage. Christ kneeled down and wrote a second time in the dirt and it is then that the men leave. BUT.....look again....they leave one by one and in descending order of age. Think of it....they do not leave as a group but one by one in perfect age order. Why? Because Christ is writing their names in the dirt with a word
or name of a second person that reminds each man of a hidden sin each man had.
What does Christ write in the dirt the first time He kneels? Something from the book of Daniel which presages that the "law" minus grace...as a solution....is over. Go to 2Kings4....a child is dead and Gehazi lays a staff on the child and nothing happens.
The staff is the law without grace....it brings nothing to life. Eliseus then comes and descends on the child himself first conforming his eyes, mouth and hands to the child's.
The child grows warm. Christ has descended on mankind conforming His stature to ours....we grow warm. Eliseus descends a second time onto the child but no mention of eyes, mouth, hands. Why? The second descent of God onto man is the Holy Spirit at Pentecost. The dead boy sits up in bed.
The stoners who were about to kill the woman did not understand 2 Kings4 and that they were dead like the woman until God descended on them. Christ by writing in the dirt their sins showed each man he was dead without grace. 2 Kings4. The most hidden of Trinity prophecies....Augustine...that ex fornicator....spotted it.

Posted by: bill bannon | Dec 23, 2011 11:32:05 AM

What can I say. I agree entirely. The Law is not the source of our life, because Life is God himself.

Nonetheless, the Law (in Hebrew, Torah) was not given in vain. For civil authorities moreover, it is their commission to serve the people and the law is their constitution.

Posted by: Joel Clarke Gibbons | Dec 23, 2011 1:36:31 PM

To Bill and Joel, John 8:7 is not about adultery, nor the proper punishment for adultery. As Joel mentioned, Jesus never said that the punishment was unjust, nor did he distinguish adultery as no longer needing threats to be avoided (which, if true, would apply to all sins, so the threat of death for murder should be no longer needed anyway).

John 8:7 is about the executioners: none are sinless enough to carry out the execution. All are sinners. Mercy is therefore required.

Any Christian who prays the Lord’s Prayer prays some variation of these words: “And forgive us our sins as we forgive those who sin against us.” This asks God to forgive us as we forgive others. If you pray those words but do not forgive, then your prayer Repudiates God’s forgiveness. Your salvation depends on being Perfect; to be without sin. This is something none of us can achieve.

John 8:7 IS consistent with the other passages mentioned: but the Law demands perfection or forgiveness. Only the sinless person can have a hand in one because the death penalty is an unforgiving act. We cannot hope for God’s mercy if we do not extend that mercy to each other; that is the point of Jesus’s challenge in John 8:7. That is the significance of that request in the Lord’s prayer.

sean s.

Posted by: sean m. samis | Dec 23, 2011 3:28:30 PM

sean s
You're editing God by ignoring passages you wish did not exist...i.e. Romans 13:4. "Sword" there is machaira (Greek) and is inter alia an execution sword as it is used in that role in Acts 12:2 where Herod orders James killed by the machaira. "Sword" is also a synecdoche (up to and including death). The reason for execution is not our vengeance but God's wrath being carried out. Read the passage.
Aquinas said God has no wrath literally but that the word is an anthropopathism for what He wills consequent to our choices. Emotion symbolizing His will. If He had wrath literally, He would constantly be changing and He says: "I am the Lord and I change not"....."There is in Him no change nor shadow of alteration."
If you are young or old, you have grown up with over-sweet homilies every Sunday at Mass unlesx you have an outside the box priest. This makes Catholics shrink away from many of the severe passges of Scripture. It is an awful predicament and an editing of God's whole counsel. Paul says to the elders at Miletus: " I have not shrunk from declaring to you the whole counsel of God."
No one shrinks from declaring the sweet. They shrink from declaring the severe.
Scripture unlike our homilies declares both: Romans 11:22...."See, then, the kindness and severity of God: severity toward those who fell, but God’s kindness to you, provided you remain in his kindness; otherwise you too will be cut off."

Posted by: bill bannon | Dec 23, 2011 4:07:19 PM

Bill has surpassed himself.

The command to forgive is of course definitive, but we may need to review what it means to forgive. Strictly it means not to seek revenge. So: Do not seek revenge against those who injure you, lest revenge be yours. Elsewhere Jesus went further, telling us not only not to seek revenge, but to love: love those who injure you.

But the people need defense against wicked men. They have a right to that protection, which is the reason why the form governments. As the Council of Trent decreed, defending the innocent is not a violation of life. Just the opposite, it is the defense of human life.

Posted by: Joel Clarke Gibbons | Dec 23, 2011 8:38:33 PM

Jesus' argument against stoning the woman is equally applicable to imprisonment or fines or the stocks or any other form of punishment. We can either conclude that anarchism is the only faithful response to the words of the Master, or we can conclude that this one passage was not meant to be a complete guide to governance.

Posted by: Adam Greenwood | Dec 29, 2011 7:10:58 PM

Sean S:

You are in error, regarding John 8:7, as is clear from both the scholarship, as well as by the passage, itself

John 8 and the death penalty: The Woman Caught in Adultery
Compiled by Dudley Sharp

1) Anti-death penalty activist Sister Helen Prejean, often inaccurate, get this right: “It is abundantly clear that the Bible depicts murder as a capital crime for which death is considered the appropriate punishment, and one is hard pressed to find a biblical proof text in either the Hebrew Testament or the New Testament which unequivocally refutes this. Even Jesus’ admonition “Let him without sin cast the first stone”, when He was asked the appropriate punishment for an adulteress (John 8:7) – the Mosaic Law prescribed death – should be read in its proper context. This passage is an entrapment story, which sought to how Jesus’ wisdom in besting His adversaries. It is not an ethical pronouncement about capital punishment . Sister Helen Prejean, Dead Man Walking.

2) What about the woman caught in adultery? From “Why I Support Capital Punishment”, by Andrew Tallman, sections 7-11 biblical review, sections 1-6 secular review See Part 11

"the Pharisees wanted to make Jesus a heretic for opposing capital punishment, but He evaded their trap. The tremendous irony is that now, two thousand years later, people who claim to love Jesus teach that He was precisely the heretic His enemies wanted to paint Him as."

3) "Sanctity of Life & the Death Penalty: Flip sides of the same 'Divine' coin", Richard Eric Gunby, Quodlibet Journal: Volume 5 Number 2-3, July 2003
ISSN: 1526-6575 John 8:2-11 (NRSV)

"Therefore their motives (to entrap Jesus) were nothing but evil. They were not seeking to follow God’s Law-Word in godly fashion; rather, they were attempting to employ surreptitiously what Moses said, towards their own evil ends of trying to trip Jesus up. What a foul thing."

"This cannot be read as an example of Jesus doing away with the law. Far from it! This is an example of Jesus, again, going by the clear unencumbered dictates of the law and not allowing it to be used towards evil ends in His presence. It is Jesus together with the Law triumphant over His enemies and their tradition. This is clearly an upholding of the law."

http://www.quodlibet.net/articles/gunby-sanctity.shtml as of 4/24/10

4) John 8: The Woman Caught in Adultery – Dealing with Capital Offenses Lawfully

"John 8 in no way sets a precedent that would eliminate the penalties for committing capital crimes such as adultery, murder, rape, sodomy, abduction, etc. Instead, it re-establishes them and demonstrates the continuity of Theonomic Law into the New Testament era initiated by Christ. It is only the ceremonial elements of O.T. Law like instrumental music during worship, blood sacrifices, avoidance of certain meats and food/fabric mixtures, New Moon celebrations etc. that were done away with at Christ's crucifixion. These things are made clear in the Epistles of Paul (Galatians 2-3) who re-establishes the old principle that "obedience is better than sacrifice".

"The Pharisees, upon hearing Christ condemning them by quoting the context of the Law and knowing that they were without witnesses (v.17) turned their accusations against him as a true witness of the Law. (v.13) Jesus responded to their "fleshly" accusations (v.15) by revealing to them that he was not only a true witness of the Law but rather the author of it. (vs.16,58) He was one of the three witnesses of Heaven, the second person of the Triune God. (1 John 5:7) Let us not fall into the same error as the Pharisees by circumventing the Law. Let us rather honour it by demanding that our ministers of the Law enforce it. Doing so will enhance the proclamation of the Gospel and sinners will understand that if the temporal punishment of sin is so great, how much more the eternal punishment that God will bring upon those who disobey is righteous commands. Let us "Go, and sin no more!" (v.11)

5) Excellent review of the challenges to the authenticity of John 8
http://www.multiline.com.au/~johnm/religion/spurious.htm as of 8/6/10

Start here: • John 7:53 - 8.11: The "woman taken in adultery" story: Metzger's statement. Just before page 105 and through page 201



Posted by: Dudley Sharp | Aug 20, 2012 11:44:40 AM

Jesus and the death penalty
Dudley Sharp

God/Jesus: ‘Honor your father and your mother,’ and ‘Whoever curses father or mother must certainly be put to death.’ Matthew 15:4

This is a New Testament command, which references several of the same commands from God, in the same circumstance, from the OT.

Jesus: Now one of the criminals hanging there reviled Jesus, saying, “Are you not the Messiah? Save yourself and us.” The other, however, rebuking him, said in reply, “Have you no fear of God, for you are subject to the same condemnation? And indeed, we have been condemned justly, for the sentence we received corresponds to our crimes, but this man has done nothing criminal.” Then he said, “Jesus, remember me when you come into your kingdom.” (Jesus) replied to him, “Amen, I say to you, today you will be with me in Paradise.” Luke 23: 39-43

It is not the nature of our deaths, but the state of salvation at the time of death which is most important.

Jesus: “So Pilate said to (Jesus), “Do you not speak to me? Do you not know that I have power to release you and I have power to crucify you?” Jesus answered (him), “You would have no power over me if it had not been given to you from above.” John 19:10-11

The power to execute comes directly from God.

Jesus: “You have heard the ancients were told, ˜YOU SHALL NOT COMMIT MURDER” and “Whoever commits murder shall be liable to the court”. But I say to you that everyone who is angry with his brother shall be guilty before the court; and whoever shall say to his brother, “Raca”, shall be guilty before the supreme court and whoever shall say, “You fool”, shall be guilty enough to go into fiery hell.” Matthew 5:17-22.

Fiery hell is a considerable more severe sanction than any earthly death.

The Holy Spirit, God, through the power and justice of the Holy Spirit, executed both Ananias and his wife, Saphira. Their crime? Lying to the Holy Spirit – to God – through Peter. Acts 5:1-11.

No trial, no appeals, just death on the spot.

God: “You shall not accept indemnity in place of the life of a murderer who deserves the death penalty; he must be put to death.” Numbers 35:31 (NAB) full context http://www.usccb.org/nab/bible/numbers/numbers35.htm

For murder, there is no mitigation from a death sentence.

God: Genesis 9:5-6, from the 1764 Quaker Bible, the only Quaker bible.

5 And I will certainly require the Blood of your Lives, and that from the Paw of any Beast: from the Hand likewise of Man, even of any one’s Brother, will I require the Life of a Man.

6 He that sheds Man’s Blood, shall have his own shed by Man; because in the Likeness of God he made Mankind.

Of all the versions/translations, this may be the most unequivocal - Murder requires execution of the murderer. It is a command. The Noahic covenant if for all persons and all times.


"All interpretations, contrary to the biblical support of capital punishment, are false. Interpreters ought to listen to the Bible’s own agenda, rather than to squeeze from it implications for their own agenda. As the ancient rabbis taught, “Do not seek to be more righteous than your Creator.” (Ecclesiastes Rabbah 7.33.). Part of Synopsis of Professor Lloyd R. Bailey’s book Capital Punishment: What the Bible Says, Abingdon Press, 1987.

Saint (& Pope) Pius V, "The just use of (executions), far from involving the crime of murder, is an act of paramount obedience to this (Fifth) Commandment which prohibits murder." "The Roman Catechism of the Council of Trent" (1566).

Pope Pius XII: "When it is a question of the execution of a man condemned to death it is then reserved to the public power to deprive the condemned of the benefit of life, in expiation of his fault, when already, by his fault, he has dispossessed himself of the right to live." 9/14/52.

"Moral/ethical Death Penalty Support: Christian and secular Scholars"

Christianity and the death penalty

Catholic and other Christian References: Support for the Death Penalty,

Posted by: Dudley Sharp | Aug 20, 2012 11:47:04 AM