Is death penalty moral?

January 18, 2003

BY THOMAS ROESER

George Ryan's departure from government was neither platitudinous nor banal. He emptied the death cells and prompted a great furor over the future of capital punishment. In doing so, he was criticized--properly so, in the minds of many--for seeking to overshadow the scandals of his tenure as secretary of state and the uproar caused by his broken promises as governor.

One may doubt the governor's motivations and still reject the death penalty. There is no doubt that, historically, the state has affirmed it has legitimate power to exact the ultimate punishment. Philosophers have argued that, by receiving authority through natural law, the state also derives the right to use necessary means for attaining its end, which means that the death penalty is such means. The question is: Should the state's power continue as it has, or be limited? Although at one time I defended blanket capital punishment in at least one public debate, I now would argue for a much narrower construct.

One reason is that there have been proven police brutalities and modern tests of DNA that overrule other evidence. A second is that the poor are not equipped as are the wealthy to mount a vigorous defense. These two reasons alone should argue that the penalty should be severely curtailed. But what about the basic morality of the penalty?

This is the transcendent question. My own Roman Catholic Church--and Christianity generally--has long justified the penalty. It is underscored by St. Paul's words that ''the State is there to serve God for your benefit. If you break the law, however, you may well have fear; the bearing of the sword has its significance. The authorities are there to serve God; they carry out God's revenge by punishing wrongdoers'' (Romans 13:4). Among the errors of the Waldenses, a heretical sect censured by the church, was the tenet that capital punishment was immoral. Thomas Aquinas defends capital punishment as part of the common good, arguing that the body resembles the state because it has many members, and a surgeon may amputate a diseased limb so as to save the others. And yet . . . and yet . . .

No one likes quarreling with Aquinas. But Pope John Paul II has taken a different tack--with an eye to refining the ancient strictures. He reasons that capital punishment can be justified only in ''strict necessity.'' He argues that societal protection can be ensured through modern imprisonment, as was not the case earlier. A vitally important argument is that no matter how long it takes for execution, the death penalty may well cut off the time needed for remorse or contrition, which in the Christian sense is needed for redemption of the soul. This would militate for a drastic narrowing of the capital punishment formula, based on concern for the soul of the sinner, no matter how heinous his deeds. It is here where I have decided to be counted.

Having reviewed all these things, where do the current problems leave us? Capital punishment should not be applied even for those who with premeditated act take a life and who with certitude of DNA and other means are convicted with thoroughly adequate and even eloquent legal counsel. That's hard for victims' families, I know. Yet, killers should be given life imprisonment without possibility of parole. But in my mind there should be an exception--and this is when society is threatened as a whole. Capital punishment should be reserved for those who by their actions alter the future of a nation or kill a large accumulation of people, such as the Oklahoma City bombing. The assassination of a president would be a case where a single act of murder would endanger the well-being of an entire state. The 9/11 massacre was, of course, done by suicide pilots, but those living who participated in its planning should, if convicted, be administered the penalty.

Overall, capital punishment should be curtailed severely. The goal is to temper justice with mercy--and mercy in these terrible times is a virtue that is hard to extend, but is required for a nation that calls itself civilized.

All the foregoing argues that capital punishment must be severely curtailed, surviving only to be used in extraordinary cases. Overwhelmingly, the case against capital punishment is eloquent as we seek to build a society based on mercy as well as justice.