As a small tribute to Hugo Adam Bedau, who died this past Monday, I thought I’d post this basic bibliography on capital punishment. First, a few observations, followed by material from Professor Bedau’s obituary in The New York Times.
As Timothy Gorringe reminds us in his important book, God’s Just Vengeance (1996),[1] “Attitudes to crime and punishment in the West are, beyond argument, rooted deep in the Christian Scriptures [which of course includes the Hebrew Bible or ‘Tanakh’ of Judaism]. Here, alongside the ordinary punishments of criminal law, we find notions of expiation and atonement.” With regard to the retributivist justification of capital punishment, which is typically discussed in normative terms generated from the philosophical language of consequentialism and deontololgy, we also find presuppositions and assumptions of religious origin: “Retributivists, ancient and modern, have always been lured by one or another form of lex talionis, despite objections dating from post-biblical times to the present. Nor does it suffice to abandon like-for-like retaliation in punishment in favor of restating the basic retributive principle in nontalionic form: Severity in punishment must be proportional to the gravity of the offense.”[2] In fact, as Gorringe explains,
“Only murder always involves the lex taliones. This crime can neither be commuted nor expiated. ‘You shall accept no ransom (kopher) for the life of a murderer. You shall not pollute the land in which you live; for blood pollutes the land, and no expiation can be made, for the land, for the blood that is shed in it, except by the blood of the one who shed it’ (Num. 35:33. A Similar sentiment is expressed in Deut. 32:43). In these texts guilt is understood as pollution, which therefore needs to be dealt with liturgically [cf. the ritual of capital punishment, which begins with the trial]—a notion which survived…even into the work of Kant.”[3]
The criminal justice system’s conception of punishment is an “an inherently retributive practice, whatever may be the further role of retribution as a (or the) justification or goal of punishment,”[4] and both that system and its forms of punishments have ancient, and in this case, disturbing pedigree:
“According to Eichrodt there was from a very early period an analogy drawn between the legal system and God’s activity as ‘Judge of all the earth.’ ‘It was in keeping with the living juristic element in the terms of the covenant …that men sought to elucidate Yahweh’s judicial activity by means of the fundamental principles of human retributive punishment. Above all, it was by applying the maxims of the talion that they tried to illustrate God’s irreproachable righteousness.’”[4]
As is plain, capital punishment is sodden with religious myths, symbols, and ideas, some of which have been given theological articulation since Anselm, only later to crystallize in Calvinism, thereby according them some semblance of intellectual respectability. Drawing on the seminal studies of René Girard,[5] we might view the criminal sentenced to capital punishment as the central figure in a “scapegoat ritual” of sorts, for Girard “illustrates the way in which the scapegoat is, as it were, the reverse side of expiation. If expiation is the voluntary addressing or bearing of guilt, scapegoating copes with it by loading guilt onto the other.”[6] Gorringe combines elements from Girard’s theory with G.H. Mead’s analysis of the public’s response to criminals, citing Mead’s Freudian-sounding argument that “the righteous indignation felt by the public is a sublimation of people’s self-assertive instincts and hostilities,” although I would replace “self-assertive” with “aggressive” and use “violent dispositions” in place of “hostilities.” In short, the aggressive instincts and violent dispositions of individuals are sublimated and projected—by way of the collective or the system of retributive criminal law in general and capital punishment in particular—onto the offender convicted of a capital offense, the death by execution a ritual atonement for both his sins and ours, an account which incorporates features of Durkheim’s understanding of crime as well, for we witness “its [putative] positive social effects in the reinforcement of solidarity, the release of collective emotion, and the symbolic display of collective sentiments. [….] The offender’s suffering, in other words, is a form of propitiatory offering.”[7] Gorringe is right to invoke both Durkheim and Girard, whatever their theoretical differences, but I think the latter enables us to see with pristine lucidity precisely how and why “‘expiation’ is an ideological rationalisation of collective violence, the attempt to give moral cover to an intrinsically immoral act.”[8]
Notes:
[1] Timothy Gorringe, God’s Just Vengeance (Cambridge, UK: Cambridge University Press, 1996).
[2] Bedau, Hugo Adam and Kelly, Erin, “Punishment,” The Stanford Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/spr2010/entries/punishment/.
[3] Gorringe, 43.
[4] Ibid.
[5] See Girard’s Violence and the Sacred. Patrick Gregory, tr. (Baltimore. MD: Johns Hopkins University Press, 1977), The Scapegoat. Yvonne Frecceru, tr. (Baltimore, MD: Johns Hopkins University Press, 1986), and Things Hidden since the Foundation of the World… (Stanford, CA: Stanford University Press, 1987).
[6] Gorringe, 45.
[7] Ibid., 56.
[8] Ibid.
* * * * * * * * * * *
“Hugo Bedau, Philosopher Who Opposed Death Penalty, Dies at 85,” The New York Times (August 16, 2012)
By William Yardley
“Hugo Bedau, a philosopher who preferred to wrestle with the knottiest of public policy issues rather than reason from the remove of academia — most notably in confronting capital punishment, which he opposed as immoral, unjust and ineffective — died on Monday in Norwood, Mass. He was 85.
The cause was complications of Parkinson’s disease, said his wife, Constance E. Putnam. Professor Bedau’s half-century career encompassed several cycles in the national debate over the death penalty: its decline and eventual rejection by the Supreme Court in 1972, its resurrection by the court later that decade, and its suspension in several states more recently. His most ambitious work, ‘The Death Penalty in America,’ revised several times, has been a standard text since it was first published in 1964.
Professor Bedau took up the issue as well in ‘The Case Against the Death Penalty,’ a pamphlet distributed widely for many years by the American Civil Liberties Union. Written with the help of Henry Schwarzschild, a former director of the group’s Capital Punishment Project, the publication brought together a number of arguments against the death penalty: that it failed to deter crime (using supporting data); that it was fraught with racial bias, wrongful convictions and excessive financial costs; and that it was ultimately an act of ‘barbarity.’
‘The history of capital punishment in American society clearly shows the desire to mitigate the harshness of this penalty by narrowing its scope,” the pamphlet said in a section titled “Unfairness.’ ‘Discretion, whether authorized by statutes or by their silence, has been the main vehicle to this end. But when discretion is used, as it always has been, to mark for death the poor, the friendless, the uneducated, the members of racial minorities and the despised, then discretion becomes injustice. Thoughtful citizens, who in contemplating capital punishment in the abstract might support it, must condemn it in actual practice.’ The essay, heavily footnoted, was less than 9,000 words long. Professor Bedau’s curriculum vitae was more than 13,000.
‘We called him the dean of death penalty scholarship,’ said Michael Radelet, a death penalty expert at the University of Colorado who began working with Professor Bedau in the 1980s. ‘Bedau was the first guy to put it all together and the first to make the general empirical argument against the death penalty — that is, a little race, a little deterrent, a little innocence.’ [….]
Professor Bedau lectured at several universities but spent most of his career in the Boston area as an anchor of the philosophy department at Tufts beginning in 1966. Among the many awards he received was the Abolitionist Award, given in 1989 by the National Coalition to Abolish the Death Penalty. [….]
The full New York Times obituary is here
[A list of our bibliographies to date is found here. There is also a small list of forthcoming compilations.]
And it would be absurd, would it not, to conceive of such repentance and penance as entailing the coerced sacrifice of one's life? For both repentance and penance to be spiritually meaningful, a necessary minimal condition surely has to be the voluntary character of such acts.
Posted by: Patrick S. O'Donnell | 08/20/2012 at 09:55 AM
In order to be reconciled and thus restore the bond of Love through forgiveness, one must repent, do the necessary penance, and desire forgiveness, to begin with.
http://www.scborromeo.org/ccc/p3s2c2a5.htm
Posted by: Nancy D. | 08/20/2012 at 08:59 AM
I am not a Christian, but I attempt to articulate (often not doctrinally prevailing or socially popular) Christian views I have become familiar with over the years (most of which are summarized by Gorringe) in what follows.
Indeed, it is spiritually and morally disturbing that some believe “the power to execute comes directly from God” (which is tantamount to abrogation of God’s power over life and death, and perversely relishes the image of a bloodthirsty deity that dominates the early narratives of the Hebrew bible). It is equally troubling that any doctrine which understands the death of Jesus as expiatory has come to imply the retributive theory of punishment, giving free rein to the morally primitive instinct for vengeance (and a dark current of masochism that has left an indelible stain on Christian religious praxis), which is unequivocally contrary to the teachings of Jesus in the Gospels, ruling out any ethic of true forgiveness (which would require mitigation or remission of penalty). The infliction of evil upon a living soul, as Rashdall argued, does neither that soul nor anyone else any good, ruling out, among other things, the possibility of punishment with a moral psychological and spiritually educative purpose, a purpose precluded by the death penalty. It is contrary to the Christian belief that God is love, that love is the most precious thing in human life (and justice is not the same as love). As Moltmann’s theology of the cross explains, Christ suffered injustice, violence, and betrayal alongside all other victims of man’s inhumanity to man in the course of history. “On the cross Christ ‘bears’ our guilt, but this is not expiation. What happens there is the absorption of violence, the redefinition of power, and the establishment of the possibility of forgiveness” (Gorringe: 247). It is spiritually and morally repugnant that we should seek to use Christ’s death to underwrite violence, legal or otherwise. Cannot the innocent person take the guilt of others to heart and seek to bear it? The recognition of guilt and responsibility is not the sole prerogative of retributivist theory, as it is likewise assumed by any real act of forgiveness. The fundamental law of love cannot be trumped by any law, religious or legal, that elevates retribution so as to diminish, degrade, or trivialize such love. The Church should return to Abelard, and the thread of doctrine that blends Erasmian humanism with Anabaptism:
“If the cross records the in-justice of earthly systems of law…then it is more that all of our theories of crime and punishment are deconstructed, in exactly the same way that theories of sacrifice are deconstructed by the Letter to the Hebrews. That Christ is ‘made a curse for us,’ is effectively THE OVERTHROW OF ALL RETRIBUTIVIST THEORY, its exposure and denial. When we realise the extent to which all punishment involves revenge, the maintenance of power, and scapegoating, we realise that only the mercy of God, as expressed in Christ’s absolute self-giving, is supreme. Punishment involves our adopting a position of judgment which, in turn, denies the offender’s real equality. This stance of judgment is NEVER occupied by God, writes John Milbank, ‘….The trial and punishment of Jesus itself condemns, in some measure, all other trials and punishment, and all forms of alien discipline.’ The cross is not an endorsement of punishment but an announcement of its end.” (Gorringe: 237)
Moreover,
“Punishment as retribution seems to COERCE criminals by inflicting suffering on them against their will. It alienates offenders. [In other words, it does nothing by way of helping offenders come to a free “recognition of the divine majesty and lordship” nor does it aid in awakening an un-coerced repentance and acceptance of death, thereby doing nothing whatsoever to ensure that offenders “die in the grace of God.”] Nietzsche saw this absolutely clearly. Punishment, he notes, is the last thing to awaken ‘the sting of conscience.’ ‘Generally speaking, punishment makes men hard and cold; it concentrates; it sharpens the feeling of alienation; it strengthens the power of resistance…punishment tames men, but it does not make them BETTER.’”
Gorringe further spells out the manner in which the New Testament reveals to us the ends of an imagined (if not utopian) community that,
“far from providing legitimating for retributive practice, in fact advanced the claims of an alternative, nonviolent, way of life. Forgiveness…lies at the heart of that—not as a benign doctrine but as a remorselessly difficult PRAXIS. [….] Forgiveness is a creative act, sui generis, which heals by restoring people to community, by recognizing the mutuality of guilt (‘Let him without sin cast the first stone’).” (Gorringe: 265)
In eloquent and wise words from a novel of the late Iris Murdoch: “To love and to reconcile and to forgive, only this matters. All power is sin and all law is frailty. Love is the only justice. Forgiveness, reconciliation, not law.”
Posted by: Patrick S. O'Donnell | 08/20/2012 at 08:15 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"
http://prodpinnc.blogspot.com/2009/07/death-penalty-support-modern-catholic.html
Christianity and the death penalty
http://www.prodeathpenalty.com/DP.html#F.Christianity
Catholic and other Christian References: Support for the Death Penalty,
http://homicidesurvivors.com/2006/10/12/catholic-and-other-christian-references-support-for-the-death-penalty.aspx
Posted by: Dudley Sharp | 08/20/2012 at 06:38 AM
Romano Amerio, a faithful Catholic Vatican insider, scholar, professor at the Academy of Lugano, consultant to the Preparatory Commission of Vatican II, and a peritus (expert theologian) at the Council.
"The most irreligious aspect of this argument against capital punishment is that it denies its expiatory value which, from a religious point of view, is of the highest importance because it can include a final consent to give up the greatest of all worldly goods. This fits exactly with St. Thomas’s opinion that as well as canceling out any debt that the criminal owes to civil society, capital punishment can cancel all punishment due in the life to come. His thought is . . . Summa, 'Even death inflicted as a punishment for crimes takes away the whole punishment due for those crimes in the next life, or a least part of that punishment, according to the quantities of guilt, resignation and contrition; but a natural death does not.' The moral importance of wanting to make expiation also explains the indefatigable efforts of the Confraternity of St. John the Baptist Beheaded, the members of which used to accompany men to their deaths, all the while suggesting, begging and providing help to get them to repent and accept their deaths, so ensuring that they would die in the grace of God, as the saying went." (3)
Some opposing capital punishment " . . . go on to assert that a life should not be ended because that would remove the possibility of making expiation, is to ignore the great truth that capital punishment is itself expiatory. In a humanistic religion expiation would of course be primarily the converting of a man to other men. On that view, time is needed to effect a reformation, and the time available should not be shortened. In God’s religion, on the other hand, expiation is primarily a recognition of the divine majesty and lordship, which can be and should be recognized at every moment, in accordance with the principle of the concentration of one’s moral life." (3)
Some death penalty opponents "deny the expiatory value of death; death which has the highest expiatory value possible among natural things, precisely because life is the highest good among the relative goods of this world; and it is by consenting to sacrifice that life, that the fullest expiation can be made. And again, the expiation that the innocent Christ made for the sins of mankind was itself effected through his being condemned to death." (3)
"Amerio on capital punishment ", Chapter XXVI, 187. The death penalty, from the book Iota Unum, May 25, 2007 ,
http://www.domid.blogspot.com/2007/05/amerio-on-capital-punishment.html
Posted by: Dudley Sharp | 08/20/2012 at 06:36 AM