Friday, January 13, 2006

That Virginia Death Penalty/DNA Story

From the Washington Post today (click on headline above to go there):

"Modern DNA tests have confirmed the guilt of a Virginia man who had proclaimed he was innocent of murder and rape even as he was strapped into the electric chair and executed more than a decade ago, the governor announced yesterday."

This is an interesting story, on several levels.

First, it does bring a bit of factuality into a subject where the obscurantists had seized the high ground.

Many opponents of the death penalty have placed heavy stress on the "you don't know" argument, which is true to a point; but as this case makes clear, they have overplayed that hand. That argument fits the contemporary mood well, but for that reason is harmful. We do not live in a world of murk, however much we want to believe that, because it exculpates us from committing ourselves, for or against matters of great moral weight. On question after question, contemporary man shrugs his shoulders and says, "who can know?": on life in the womb, life near its end, on morality, God, Christ; even Christians take this pose on many matters.

It seems such a compelling argument against the death penalty: "who wants to execute an innocent person?" Well, virtually no one does. And virtually no one can credibly assert it never happens, even if the posers of this argument can't point to any actual case of an innocent man being executed.

But there's a larger fairness question here: fairness to the larger legal system we have painstakingly erected in this country, building on traditions of justice and due process that extend back into the distant (ahem, Christian) past; a system that has imbedded in it an amazing array of protections, checks and balances, and ongoing review, both from "inside" and "outside." No system on earth can be perfect, but give ourselves our due: we go to great lengths, in dollar cost, in patience, and in forebearance of the guilty being given an easier time than they surely deserve, all with a view to avoiding that terrible fate: an innocent man being punished, let alone, executed.

Second, this story is useful for exposing the credulity of many opponents of the death penalty; sometimes, culpable credulity. "But, but, he said he was innocent all those years!" spluttered some disillusioned champions of the late, executed rapist-murderer. Gee, how surprising!

Third, this is a political story in two ways. Outgoing Virginia Governor Mark Warner has just burnished his credentials as a potential Democratic nominee for the Presidency. He's pro-death penalty, but as a Democrat, he is vulnerable to those on the left-left (there is no right-wing of the Democratic Party!) who viscerally oppose the death penalty. Warner's path to the White House lies along the trail blazed by Bill Clinton: a Southern (liberal) Democrat who seems "reasonable," which is achieved, in part, by being presented as having "conservative" positions on several issues.

The other way this is political is the longterm question: should this even have been done? Will this become routine? Is this a good idea?


Mark Anthony said...

Last things first...

Yes it is a good idea to do this type of review when feasible. It is good if it uncovers erroneous executions, because if the system is so flawed that it kills the innocent, it must be changed. It is good if it upholds convictions because it will bolster confidence in our legal system.

Certainly, some opponents of the death penalty will believe any claim of innocence, but it is equally true that there are many who just as automatically assume a claim of innocence is a sham. Gut reactions and wishful thinking are not a good basis for a life and death decision.

As to the statement that no innocent victim of execution can be named, you admit that "no one can credibly assert it never happens." (Well, there are Christ, but there were extenuating circumstances involved there) What is absolutely clear, though, is that people have been sent to death row and later found to be innocent. Our trend today toward faster executions only raises the chance that we will have a name of an innocent victim soon enough.

Of course the prospect of a mistake is ever-present; humanity is fallible. But the danger in death penalty cases in America is not that we "can't know", but that we "don't know." The unhappy fact is that most people on death row are poor, had overworked public defenders, and never had their cases prepared as completely as a wealthier defendant would have. That is not "class warfare". It is a simple fact that Christians cannot swipe aside as irrelevant.

The death penalty is immoral as practiced inmodern society for two simple reasons: it is not necessary to protect society, and it cuts short the possiblity of repentance and redemption. Ultimately, it is not a matter of guilt or innocence. It is a matter of the sanctity of human life, the vile as well as the pure.

As Gandalf told Frodo, "There are many who live that derserve death, and some who die that deserve life. Can you give it to them? Do not be too eager to deal out death in judgment, for even the very wise cannot see the end of all things."

Anonymous said...

I'm about to put my foot in my mouth, but this is one of the issues I have wondered about for a long time. I try to respect and promote the Church's teachings always. I think if I publicly dissent, then I have no right to be mad at the rainbow sash people. But, to be honest, I am not losing any sleep over the death penalty.

I cannot say that the death penalty is "necessary" to protect modern society. Although a lot of the these inmates (like Tookie) cause a lot of trouble from inside prison. Maybe execution really is the only way to stop their influence with modern communications and press interviews and prison gangs and bank accounts. Regardless, I do think the government has a right to deal out justice for crimes against society.

I especially don't agree with Mark Anthony's view that it "cuts short the possiblity of repentance and redemption." If anything, the certainty of a date being scheduled for the electric chair prompts immediate repentence from a guilty person. The shorter the time frame, the better. They can quit fighting a losing battle and denying their guilt and start getting their soul ready for judgment day. It takes at least a decade to exhaust the legal appeals. Is that not long enough for them to repent?

The other thing that influences me is how I despise liberal politicians that love to raise a stink about this. Susan Sarandon, Snoop Dogg, etc. I have a knee-jerk reaction to take the opposite side of whatever issue they happen to be whining about.

Is it possible to be "neutral" on this one? I'm not for it, but I'm not against it. If a sovereign state chooses to allow capital punishment, then someone who breaks the law knows what they're in for.

Having said that, I try not to get involved in public discussions about the matter, because I acknowledge that I am no moral authority, and I don't want to contradict the teachings of the Church. That's why I'm posting anonymously. I guess that reveals a certain degree of guilt about my assertions. Really, I want to come to the right conclusion about this. Maybe that is just one I will not come to understand. I will just have to obey. But I'm not sending these folks any money. We have bigger problems to face right now, such as abortion and euthanasia.

Someone is going to shred me for this, I'm sure. But that's where I am. Someone help me understand why it's not okay to punish these criminals with a penalty commensurate with their crime.

Mark Anthony said...

The reference I made to "repentence and redemption" relies on the Catechism's discussion of the death penalty. The punishment of convicted criminals is ordered to defending public order, protecting people's safety, and as much as possible, the correction of the guilty party. Catechism, #2266

If non-lethal means are available to protect people from an aggressor, then the state "will limit itself to such means,as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person." The use of non-lethal punishment also prevents "definitively taking away from [the guilty party] the possibility of redeeming himself." Catechism, #2267.

Personally, I really do not think that the intentional taking of a human life is something about which one may be neutral. One may choose to dissent on this matter, of course, but such a person, at the least, must admit he is a dissenter from church teaching.

Fr Martin Fox said...


Thanks, as always, for your interesting comments.

The reason I raised the question about doing the review is the question of "finality" in legal determinations -- at least, I think that's what they call it. I can see reasons to do this, but I think it would be ill-advised to open the floodgates. Perhaps there's little danger of that.

But it occurs to me that the result could be far less decisive than this is -- enough for those opposing the death penalty to make a (PR) argument, but not really enough to call the verdict into question. And that would be harmful, in my opinion.

As to Church teaching...Mark presents it accurately, except that as I would state it, the Church has not completely or definitely ruled out capital punishment. I believe she never will, if I may venture a prediction. I say that, not because I am so perspicacious, but because the matter is not so neatly dealt with.

The same principle of self-defense that applies to individuals applies to society -- i.e., the death penalty remains an option under that principle alone.

Further, the Church has allowed that the state, per se, has a right to apply capital punishment as a police power that none of us possesses as an individual member of a society.

Thus, what the Church has been saying lately about the death penalty is couched, not in terms of intrinsic evil, or absolute prohibition, but rather in the context of necessity.

It seems to me the Church would have to concede, to the state, some legitimate discretion in determining whether the conditions actually apply wherein the Church's quasi-prohibition apply.*

Just for example, the Church teaches, "If, however, nonlethal means are sufficient to defend and protect people's safety from the aggressor..." (emphasis added). The state has legitimate discretion in determining that sufficiency, it seems to me.

So, while one can dissent from this, those who would count as dissenters would not, to my mind, include those who might believe the circumstances justifing a death penalty are exactly those the Church allows for.

* For everyone's benefit, here are the relevant sections of the Catechism:

Legitimate defense

2263 The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing. "The act of self-defense can have a double effect: the preservation of one's own life; and the killing of the aggressor. . . . The one is intended, the other is not."65

2264 Love toward oneself remains a fundamental principle of morality. Therefore it is legitimate to insist on respect for one's own right to life. Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow:

If a man in self-defense uses more than necessary violence, it will be unlawful: whereas if he repels force with moderation, his defense will be lawful. . . . Nor is it necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one's own life than of another's.66

2265 Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm. For this reason, those who legitimately hold authority also have the right to use arms to repel aggressors against the civil community entrusted to their responsibility.

2266 The efforts of the state to curb the spread of behavior harmful to people's rights and to the basic rules of civil society correspond to the requirement of safeguarding the common good. Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people's safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party.67

2267 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, nonlethal 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 are more in conformity to the dignity of the human person.

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent.NT

Anonymous said...

I'm not trying to be difficult, but...

2266 says, "Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense."

Then 2267 says "the cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent."

I am thinking, so what if it's not "necessary" to kill them? We still have the right to get rid of them, don't we?

Capital punishment is proportionate to the gravity of the offense for mass murderers. The death penalty used to be used for a variety of less serious offenses, such as rape, treason, or even cattle theft. it's still used to punish "blasphemy" in some Muslim places. So the Church is telling us not to use capital punishment when it is disproportionate to the offense. But what about when it is proportionate to the offense?

I repeat, that ticking clock on death row could be highly conducive to repentence. We tell the man, "You will be executed on Tuesday. Which priest, minister, rabbi, or imam would you like to speak to?"

I know this sounds kind of Old West (I am probably influenced by all the Southern Baptists down here in the Bible Belt).

Mark Anthony said...


First, the insistence on proportionality in these matters is not a matter of "How much can we do?" but "Only do what is necessary." This requirement is not meant to broaden the options for the state, but rein in the state from going too far.

It seems evident that the Church teaches that the only time capital punishment is necessary, and therefore permissible, is when no other way exists to protect the innocent and the common good. It is a corrolary to the right of self-defense for an individual. If I kill someone who is attacking me, or someone I have an obligation to protect, with deadly force and my only choice is to strike back, it is not a violation of the Fifth Commandment even if I kill him. So, too, if a state is faced with a chaotic situation in which a deadly risk is posed to it and no other means (police, army, courts, prisons, etc.) exist to suppress the danger, then execution of the offenders -- most likely an immediate execution -- may be allowed, and even necessary.
However, as the Catechism notes, such circumstances are virtually non-existent today.

Note too that the only permissable "necessity" is protection and defense of people's safety. Substitution of other "necessities" such as justice, example, or deterrence, are not valid bases for invoking the contingency of necessity.

Which raises the interesting point...

Imagine if someone kills my family, and i cannot stop him at the time. I think I know who did it. I gather evidence, build a case, have it reviewed by several different persons to make sure it is fair and give him every chance to prove me wrong. Still convinced, after years of careful study, I pick a day, go to his house and kill him. Would that be moral or legal? Of course not.

Yet, that is exactly what we do as a state when we execute. By the time a convicted criminal dies, any valid basis for taking his life is long past. In a sense, every execution is a textbook example of premeditated murder.

And as to dissent, I agree with Father that those adhering to the emergency exception provided by the Church -- including myself -- are not dissenters. However, anyone who supports the death penalty as practiced in the United States today is adopting a position of dissent and should be honest about it.

Anonymous said...

Mark, I have to say that is probably the best answer I have seen so far, regarding proportionality (dang, I thought I was onto something there!...)

I still have kind of a gut instinct for revenge, and I'm not ready to drive down to Huntsville and protest in the streets for the next one that comes up... but I feel that I am a little more in communion on this one, and can support the church's teaching.

My own feelings especially bothered me because JP2 was such a strong voice against capital punishment. I love him, and I hate to be against him on anything. At least I'm not happy about being a dissenter, that's worth something, right?

I'll check out your blog - maybe you can teach me some more stuff. Although I'll have to be on guard since you indicate you are a fan of comic books and the movie Dogma. heh heh.

Anonymous said...

I often hear that we now have the ability to protect society from from criminals and therefore capital punishment is not longer needed. While often stated, I seldom if ever hear anything about how that can be carried out and what the costs of doing such is, morally and materially.

First, how much protection does society have the right to? I am not sure that any prison can be made escape proof, and if so, then society is always at some risk from the unexecuted prisoner. Can one find an acceptable level of risk? Maybe as long as the risk is less than that of being killed in an automobile accident. And that is fine for everyone but the victims family.

How about the protection of the prison society? Do we owe them protection also? And if so, how much of a risk can we reasonably expose them to? Do we confine a convicted murderer to a small cell and never let him/her come into contact with other prisoners? Whould that be moral, or cruel and unusual punishment?

Financially, how much of a burden should the society have to bear? It is not cheap to keep a man in prison, particularly in the US where it is expected that he will be fed, housed, clothed and given full medical coverage. Is it moral to give someone that has seriously violated the laws of society such treatment when we will not even do that for those law obeying citizens that can not afford such luxury?

Would a sentence that says "you are hereby confined to solitary confinement until such time as your natural death occures" be any more acceptable? Or maybe amputate his/her hands so that they can't use a weapon?

It is easy to say that we have other ways of protecting society, but much harder to find ethical ways of carrying that out.

Anonymous said...

I am no lover of the death penalty but anti-death people seem to have a pollyanish attitude toward murderers. Recently, here in super-liberal Mass, two murderers, who in many other states would have been executed, committed murders in jail. One murdered a guard so he could escape, another murdered a fellow prisoner (who was not a murderer). Do each of these get a chance to go for three? Anti's are convinced of the infallibility of the prison system, but clearly the prisons cannot infallibly keep murderers under control--so how many have to die to warrant someone finally being given the punishment he deserves???

Anonymous said...

I think that reviews are good, but probably expensive.

So, I would rather see the time and money used for those still living. That way, if found innocent, then they have a chance for freedom; if their guilt is confirmed, that is good also.

As far as the death penalty is concerned, I have mixed feelings. I am officially against it, because of believing from birth to natural death. BUT, it doesn't seem right to allow vicious criminals to prey on others while in prison. Nor to force thier potential victims in prison to be in solitary confinement for protection, either.

Jenny said...

Early this morning, California executed an inmate. He received the death penalty for arranging a triple murder from prison to cover evidence for the murder in was in prison for; however, this incident occurred 25 years ago and the man was 76 when he died today.

I think the Holy Father hit the nail on the head with his stance on the death penalty. There are times and circumstances when it is the only or best option. However, whether or not your think those circumstances exist in the U.S., the system we have in place does not begin to address them. The man was locked away for murder, but that didn't stop him from being responsible for 3 more deaths. You could say that he can't kill anyone now that he's dead, but he couldn't for the last 25 years on death row either.

The average death row inmate will stay there for 18 years. How does that protect society any more than a long prison sentance?

Anonymous said...

It is nice to say the murderer who murdered again from his regular lifers jail cell finally stopped murdering while on death row. But can you imagine the screaming, the lawsuits, the court convolutions if ALL convicted murderers were put in the equivalent of solitary confinement for life so they won't kill again.
I would like to see a search done to see how many murders have been done over the past 50 years by murderers who in past times would have been quickly dispatched to protect innocent people. It is a statistic I have not been able to find, I presume because the liberal media is so overwhelmingly in favor of protecting murderers instead of potential victims.