For the last two years, debate about the relevance of the Kermit Gosnell case to wider political concerns has focused on the abortion issue. But with Gosnell now found guilty of murder, the possibility of his execution (now removed as the result of a deal struck with prosecutors) has pitted pro-lifers against one another in a debate over the death penalty.
First, Professor Robert George issued a plea for mercy. Ashley McGuire seconded this, arguing that pro-lifers “must stay focused on saving babies, not on killing their killers.” Calling for Gosnell’s execution, McGuire argued, simply perpetuates the culture of death. John Zmirak then disagreed with both George and McGuire, arguing that sparing a murderer the death penalty “shows profound disrespect to his victims.”
Given that all participants in the debate seem to be Catholic, it might be instructive to look at what the Catechism says about capital punishment:
Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.
If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.
I’d like to ruminate a little on what precisely the Catechism means when it says that authorities should limit themselves to non-lethal forms of punishment if these “are sufficient to defend and protect people's safety.”
Pro-life Catholics who oppose the death penalty generally take an extremely narrow view of what this means. Professor George, for example, has argued 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.”
But it is not clear that this is the only possible way of framing the question. The decision of whether to impose the death penalty is not simply at the discretion of a trial judge who is dealing with the case of “this particular murderer.” Legislators will have already specified the offenses that may merit capital punishment, and will usually provide judges with further guidance such as identifying “aggravating factors” (for example, multiple killings) that invite a capital sentence. Whether the death penalty is imposed is conditioned to a large extent by the legislature. The role of the judge is simply to apply the law in a particular case. Even the Supreme Court’s decision in Gregg v. Georgia (1976) that ruled mandatory capital punishment as unconstitutional does not leave sentencing simply for judges to decide. The Court upheld sentencing guidelines for capital punishment in Georgia that were wholly pre-determined by the state legislature. It goes without saying that strict guidance from legislators is necessary to avoid arbitrary sentencing by judges; this guidance largely determines how the death penalty operates.
Lawmakers cannot deal with the question of whether to execute this murderer, but only of whether to execute murderers in general. In making a judgment as to whether the death penalty is necessary for the protection of public safety, legislators have to consider more than merely the question of whether “effective incarceration” is theoretically possible. The fact that it is possible not to execute killers doesn’t establish that that it is morally obligatory to do so, particularly when there are arguments to suggest that the overall result of abolishing capital punishment (rather than the result of merely commuting sentence in a particular case) would be to place public safety in jeopardy.
When Demetry Smirnov killed his ex-girlfriend in Illinois in 2011, prosecutors discovered that he had researched the law on the internet to discover if the state had the death penalty before going ahead with the killing. It is reasonable to assume that if Illinois had not just abolished it, she might be alive today.
It has also been pointed out that, where the death penalty is abolished and life sentences remain for rape, rapists may be more likely to kill their victims in order to prevent them testifying, since the sentence in either case will be identical. The only way to prevent the incentivization of murder is, therefore, to lower the sentences required for a range of other crimes. But these lower sentences simply make those lesser crimes more likely to be committed, and so on. Abolition has a cascade effect down through the criminal justice system that potentially places public welfare at risk. One only needs to look across the Atlantic at Britain, which, within a few decades of abolishing capital punishment, has gone from having one of the most rigorous sentencing systems in the West to one of the most lenient, leading to frequent and widely-supported calls among the general public for the reintroduction of hanging.
Even when abolition is accompanied with mandatory life sentencing for killers, there is no guarantee that future legislators, judges, state governors, and prison officials will honor this. In 1966 Kenneth McDuff was sentenced to death for the killing of two teenage boys and the brutal rape and murder of their female companion. When the Supreme Court ruled the death penalty unconstitutional in Furman v. Georgia (1972), his sentence was commuted to life imprisonment. Under pressure of serious overcrowding in Texas prisons, he was released in 1989. Within three days he had killed again, and over the next three years would go on to kill at least five more women before finally being apprehended. Countless other examples can be cited of killers who have been released or escaped and have gone on to kill again, or who have killed again in prison. Whether or not the death penalty is required as a matter of strict retributive justice, it is morally repugnant for the state to privilege the safety of a violent criminal over the safety of an entire population.
It often happens that those who spend their lives fighting for a particular cause can—particularly when it is as crucial as the pro-life cause—become blinded to other values which are of equal or greater importance. Fighting to ensure due respect for the sanctity of life should not lead us to canonize human life as the ultimate moral value, as if the final destiny of the human person was simply to go on existing without reference to any further end or purpose. Even when considered in purely this-worldly terms, social order is clearly a higher good than human life. Without social order a genuinely human life is impossible, since humans are by nature social animals.
Whether the death penalty is required to maintain social order in a particular country, at a particular time in history, is a prudential judgment upon which reasonable people will disagree. I am not arguing that criminals must be executed as a matter of retributive justice. Nor am I necessarily calling for the death penalty to be reintroduced in places where it has been abolished. Neither am I calling for Kermit Gosnell to be executed (the deal struck in his case seems perfectly reasonable). But, given that it is not inherently unjust to execute a murderer, legislators and judges should err on the side of protecting public safety, a task that is infinitely more complex than asking the simple question of whether we have enough prison places. To fail to execute offenders where it would genuinely protect the commonwealth would be a dereliction of duty on the part of the state. As Archbishop Fulton Sheen once said, “the refusal to impose just punishment is not mercy but cowardice.”