Execution days ahead?

William F. Buckley
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Posted: Mar 24, 2001 12:00 AM
A new play opens next week in New York on Nuremberg justice ("Judgment at Nuremberg"). The four defendants (including star Maximilian Schell) are judges who collaborated in the Nazi enterprise. The prosecutor meets privately with the chief defendant, just before the curtain closes, and says, "I'll make you a wager." The defendant, having just been sentenced to life in prison, isn't in the mood for wagers, so he just grunts, whereupon the prosecutor says, "I bet you people are out in the streets in five years."

A doom-sounding voice comes in as the curtain closes, divulging that that is exactly what happened to those defendants. In the big trial, 1945-1946, only Rudolf Hess actually spent his whole life in prison. Most criminals who get lifetime sentences (there are exceptions: Sirhan Sirhan's 11th appeal has just been denied) are let out after a while, but whenever this happens, there is someone there to complain. Their voices are heard on Broadway in 2001.

That is a situation that strengthens the hand of those who believe in capital punishment, one strength of which act is precisely the finality of the judgment. But abolitionists gain force every day, and agitation on the subject crops up in the media and in the mail weekly. "First Things," the lively Monthly Journal of Religion and Public Life, enters the fray in the current issue with an essay by the august Avery Dulles. He is the son of John Foster Dulles, and to the dismay of his Presbyterian parents, he entered the priesthood as a young man and, last month, was made a cardinal. In between, he developed his enormous skills as a theologian, and now he writes "Catholicism and Capital Punishment."

It goes almost without saying that Cardinal Dulles opposes capital punishment, but in his learned essay on the subject he leads ambivalent Catholic opinion less successfully than he no doubt hoped. The background is this. American Catholic bishops, echoing the pronounced views of Pope John Paul II, have opined against capital punishment, but with less than the two-thirds vote required to make for an "official" episcopal statement.

What Cardinal Dulles does is review the tradition in Christian history, and of course the punishment was routinely administered, with the cautious approval of reigning theological giants. Thomas Aquinas stressed that a human being was not the agent of the punishment, rather merely the administrator of the law or of "the rule of rational justice."

What Dulles does is examine the four grounds traditionally cited in defense of capital punishment. Rehabilitation was one of these, by which was meant that, as was the case of the thief who died at the right hand of Christ on a cross, corporal punishment can bring on penitence.

That argument doesn't fly very high in a secular age, so what about the argument of "defense against the criminal"? This argument holds that if an unsated murderer escapes to kill again, one would wish him to have been executed before this happened. But John Paul in an allocution spoke of the rarity with which people get out of high-security prisons, though of course this observation doesn't bear on prisoners whose sentences are commuted.

The third traditional ground is deterrence, and Cardinal Dulles here acknowledges that evidence is not conclusive, and remarks in passing that executions being at this point pretty private affairs, such attention as they used to get when done in public squares no longer serves to dampen the spirits of inattentive potential murderers.

So that we are left with the fourth question, which is retribution. But final justice being in the hands of God, "retribution by the state can only be a symbolic anticipation of God's perfect justice." The theologian is less than persuasive in writing that "In this modern perspective, the death penalty expresses not the divine judgment on objective evil but rather the collective anger of the group. The retributive goal of punishment is misconstrued as a self-assertive act of vengeance." That is to deal lightly with democratic authority to create laws that reflect the gravity of society's disinterested commitment to guard human life.

Dulles concludes: "The pope and the bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like our own, the death penalty ought not to be invoked, because, on balance, it does more harm than good. I personally support this position."

It is a position arrived at, by this formidable theologian, with less than the kind of clarity and conviction that exercise an arresting hold on the morally discriminating. What engages the curiosity more piquantly is precisely the argument that life sentences should be for life. Surely it is wrong, in the Christian perspective, to foreclose on hope?