An editorial dissent - death penalty favored for Oklahoma City bombers - Column

Christ's admonition to turn the other cheek has never been written into law, and for good reason. The Sermon on the Mount enunciates a spiritual ideal, not a theory of jurisprudence. The Kingdom of God or the church must not be confused with the political community. Catholicism has traditionally acknowledged the moral legitimacy of the death penalty, just as it has defended just wars, and for similar reasons. In both cases, a defense of the common good justifies the resort to violence.

Those justly convicted for the mass killing in Oklahoma City deserve the death penalty. If justice means anything, it means that the willful, premeditated murder of the innocent cannot be seen to be tolerated. I believe that the execution of Nazi war criminals, for example, was meet and just. The living owe the murdered innocent no less--no less than to assume the full burden of judgment and the responsibility for punishment. The state should end the lives of murderers only for heinous crimes, but it is precisely in those instances that the death penalty alone can express the moral outrage of humanity. Punishment itself expresses and embodies society's moral judgment, and just punishment must fit the crime; it must not be too severe, or too lenient. Unjust punishment or unwarranted leniency undermines our sense of fairness, and thereby the common good. In that sense, the crime of murder is trivialized if we do not reserve the right to inflict the death penalty in the most grievous cases.

The principal objection to the death penalty is that the state cheapens the value of life if it in turn and in kind becomes an instrument of killing. But the logic of this argument fails to come to terms with the inherently retributive nature of justice in criminal cases. Does holding kidnappers in prison against their will cheapen human dignity by merely mimicking the crime? That can't be so. Insuring that punishment is proportionate to the crime is the moral dilemma, not the thin paradox of the state resorting to coercion.

Death-penalty abolitionists argue that imposing life terms on murderers leaves the state in a morally superior position. In short, the state avoids getting blood on its hands. I'm not so sure. Convicted killers kill again, either in prison or after they are released. Innocent people are killed as a direct consequence of not imposing the death penalty on the guilty. Those deaths may be a necessary cost of the state washing its hands of direct killing, but it is sentimental to think that outlawing the death penalty will "end the cycle of violence." Neither death-penalty advocates nor opponents can escape with clean hands.

The church has long accepted the retributive aspect of justice, for without it there can be no individual responsibility and therefore no individual freedom. As C.S. Lewis wrote, only a retributive ethic can make the idea of just or unjust punishment coherent. Cures or deterrents either work, or they don't. Justice--moral accountability--involves a different calculus. Justice demands we treat criminals as moral agents responsible for their actions, and that we assume such moral responsibility ourselves. To be sure, retribution must not be just a fancy word for revenge. For that reason, murder is regarded as an assault on the moral order and the community as a whole. Consequently, the judgment rendered by the community through its competent authorities seeks to "redress the disorder caused by the offense," and only indirectly to relieve the agony of individual victims, no matter how grave that private injury may be. It is the deliberations of the law that effect and legitimize the transference of moral outrage from the individual to the community and in so doing help to vindicate the moral order upon which individual rights depend. It is the law that enables us to distinguish justice from revenge and capital punishment from murder. Only in this way has society tamed the righteous anger of victims and prevented individuals from taking the "law" into their own hands.

Still, some argue that only God, no human authority, has the right to take human life, even the life of a justly convicted killer. Traditionally, however, God is understood to be the ultimate source of all authority, not an alternative authority who renders moot the judgments of temporal justice. Indeed, Catholicism has characteristically held that God's authority must be mediated by human institutions. Civil authority is fallible, often woefully so, but it does not follow that we must be agnostic about our ability to seek or render justice in the here and now. Similarly, it cannot be that the more heinous a crime the more futile our judgment becomes, for that would only immunize the most diabolical criminals by virtue of the enormity of their crimes.

An essential element of justice, and one only the community can perform, is to speak for the victims. As Willard Gaylin has written, in our adversarial system the voices and lives of murder victims are quickly forgotten as we direct our attention, necessarily, to the criminal's rights. Once those rights are secured, however, the law surely fails in its primary task--namely, to make human community and life possible--if it does not speak forcefully for the dead and for the moral order of things. That is why the law itself, and the punishment the law demands, does not seek direct compensation for the victims or eventual reconciliation for the criminal, rather it expresses our moral purposes. In punishing, the law articulates and defends the common good. That is why justice must be seen to be done. In imposing the death penalty for especially heinous crimes, the law proclaims in unambiguous terms the value society places on innocent life and the absolute revulsion in which we hold such murders. Moral outrage, mediated by the institutions of justice, is the best way to secure the sanctity of life.

Just as we cannot take the law into our own hands, we cannot replace retributive justice with a disproportionate mercy--and disproportion is what Christian mercy is all about. Finally, only the victims have the right to absolve the killer. Our duty as citizens is to seek justice. That duty is not primarily to ourselves, or to the future, but to the dead.

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