Capital Punishment

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Scenario

Imagine that with the community facing an unprecedented increase in violent crime, ‘law and order’” becomes the key issue of the Victorian state election. Both government and opposition promise to get tough. The state’s Attorney General proposes a Bill, calling for the reintroduction of capital punishment.

The proposed Bill appears to have widespread support, with talkback radio and the public opinion pages of newspapers overwhelmed by members of the public voicing their approval. Aware of the sensitive nature of the Bill, both the Premier and the Leader of the Opposition allow for a ‘conscience vote’.

Imagine further that you are James, the Member for an outer Melbourne electorate, one of the areas hardest hit by the upsurge in violent crime. Memories are still vivid, and emotions high, regarding a particularly brutal crime in which a young nurse was raped and beaten, before being left to die. The dead girl’s father, Bob, has been a tireless campaigner for victim support groups, and an advocate for the reintroduction of the death penalty. Bob contacts James, urging him to support the Bill.

Despite assurances that it will be a ‘conscience vote’, James has also received considerable pressure from fellow parliamentarians. He feels that subtle hints are being made about the future of his career. James is a Catholic. In the days before the parliamentary debate and ‘conscience vote’, he meets with his parish priest, Fr Mulrooney, to discuss the Church’s view.

Although James is determined to evaluate rationally the arguments for and against capital punishment, he is haunted by the prospect that the reintroduction of capital punishment may, at some stage, condemn innocent persons to death. At the same time he sympathises with Bob and other families who have been victims of violent crime.

After eight days of parliamentary debate, James must cast his vote in response to the Capital Punishment Bill. Knowing that, whatever the outcome, there will be hurt, anger and anguish, James casts his vote. Which way?

The following scenario allows you to explore the viewpoints of a range of different people.

Finding The Facts

The death penalty is the most controversial penal practice in the modern world. Imprisonment and fines are regarded as acceptable ways of controlling and punishing crime but governments are polarised on the issue of capital punishment. Often a person’s position on the issue of capital punishment is not determined by evaluation of the arguments for and against the death penalty, but is a subjective reaction based upon opinion or emotional response. James will try to avoid this and simply investigate and assess the arguments on both sides; arguments that include deterrence, rehabilitation, cost, retribution, incapacitation, human rights and the possibility of making a mistake, as rationally as possible.

Thoughts on the Death Penalty’ by Richard Clark is a summary statement of the arguments on both sides. It examines the arguments about the death penalty and places the issue in an historical and legal context.

James will discover that capital punishment is a divisive issue because at its core is the question of whether society has the right to take the life of another person or not. To many, capital punishment is the ultimate denial of human rights because it violates the right to life, one of the premises of civilised society, explicitly specified in the Universal Declaration of Human Rights Part III Art.6.

On the other hand, deterrence is a persuasive argument for the retention of capital punishment. The difficulty is that statistics can be quoted both to show that the death penalty does have a definite deterrent effect and that it does not.

The material on the Amnesty International Website argues that no matter what reason a government gives for executing prisoners, and no matter how ‘humane’ the method of execution, the death penalty cannot be separated from the issue of human rights.

James is keen to explore the issue in an Australian context. Perhaps the best source is an essay written by Ivan Potas and John Walker entitled Trends and Issues in Crime and Criminal Justice: Capital Punishment’ for the Australian Institute of Criminology. Despite the abolition of the death penalty in Australia, the Institute recognises the public interest in the issue and therefore produces material that encourages informed debate.

The Voice of the Victims

In evaluating the arguments supporting capital punishment, James recognises the legitimacy of the pleas for justice made by ‘Victims Rights Groups’. They voice the pain and anguish and anger felt by those who have had someone dear to them murdered. Often the rights of victims and their families seem overshadowed by opponents of the death penalty. James could gain an insight into how governments try to meet the needs of victims’ families by browsing the Charter of Victims’ Rights from NSW.

A common theme that emerges from some victims’ rights groups is the moral indignation with which violent crimes and those who perpetrate them are viewed. A site entitle Debate contains several expressions of the views of people who feel that the death penalty is the only just response to those who have themselves taken a life.

On the other hand, perhaps the most convincing arguments against the death penalty come from families of victims, who, if anyone, have the right to seek vengeance. Marie Deans, founder of Murder Victim Families for Reconciliation in the US is an example of someone who had reason to feel revenge but instead devoted much time and effort to opposing the death penalty.

On Death Row

Finally, as a means of gaining an understanding of the situation of those condemned to death, James could visit the website, Deadman Talkin’, which is a site set up by a condemned man in San Quentin in the US.

Consider Having viewed the sites recommended above, list arguments for and against the death penalty. Then, using information you have gained so far, annotate your list, indicating factual evidence which either supports or challenges this argument.

After visiting the Amnesty site respond to the following questions:

  • How prevalent is the use of the death penalty in the world today?
  • What is the deterrent effect of capital punishment?

After visiting the Trends and Issues page mentioned above, respond to the following questions

  • What does the ‘before’ and ‘after’ data in Table 4 suggest about the effect of capital punishment?
  • What do the statistics in relation to capital punishment in the US suggest about its effectiveness?
  • What is the nature of most capital crimes?
  • In what way does this paper imply that capital punishment illogical?

Read the Charter of Victims’ Rights. List ways in which the government meets the needs of a victim’s family. What more could/should be done?

Broadening Perspectives

What are the fundamental questions underlying the issue of capital punishment?  ‘Is the death penalty ethically acceptable?’ What schools of thought underlie opinions and convictions about this particular issue?

James will discover that the ethics of capital punishment involve determining whether the execution of criminals is ever justified, and, if so, under what circumstances it is permissible. The defence of capital punishment is usually based on the notion of corrective justice, which is underpinned by two theories: utilitarian justice and retributive justice.

Utilitarian

The utilitarian perspective is based on the view that there is a greater balance of happiness in society as a consequence of the deterrent effect of capital punishment and the certainty that the crime won’t be repeated (by that particular criminal anyway). Look at the classic utilitarian argument set out by English philosopher John Stuart Mill, in his Speech in Favour of Capital Punishment.

Retributive Justice

Retributive justice is the idea that as society has been thrown out of balance by a violent killing, justice requires that society determine guilt and then administer proportionate punishment. The important thing is not whether the death penalty is a deterrent or cheaper or makes people feel secure, (as the utilitarians argue), but whether it is just. Emmanuel Kant presents the classic argument for this position. Read about Kant on ‘Punishment’ for an outline of his thought and its implications.

Retributive justice should not be confused with vengeance or vindictiveness. (Some supporters of capital punishment are, of course, motivated by the concept of ‘revenge’, which they equate with justice.)

Cesare Beccaria

Mill and Kant, for differing philosophical reasons, support capital punishment. There are also philosophers who oppose it. Cesare Beccaria, an Italian thinker, is often considered the first to argue for the abolition of the death penalty, asserting that it violates our duty to treat people with dignity and humanity. A similar present day view is expressed in the article A Non-Pacifist Argument against Capital Punishment.

Ronald Ryan

No better example of the way in which the death penalty issue can become politicised is found than in the case of Ronald Ryan, the last person to be executed in Australia.  Julian Burnside gives an account of how Ryan’s execution, which polarised the Australian nation, became, in his opinion, a political execution which however ‘achieved a far greater good than (was) ever intended or dreamed of’.

Laurence Hinman

Finally Laurence Hinman’s Ethics Update page, ‘The Ethics of Punishment summarise the philosophical arguments that underpin the death penalty debate. Even though Hinman’s discussion draws heavily on the American experience, it might help James sum up some of the positions he has been examining.

Consider

  • List (or draw cartoons to characterise) the different points of view of John Stuart Mill, Emmanuel Kant and Cesare Beccaria on capital punishment. How does each of these thinkers give you a different perspective on this issue from the arguments, facts and opinions you looked at in the previous stage?
  • View the PowerPoint presentation on the Ethics of Punishment (above) together. Take it in turns to speak about each screen, explaining its concepts to each other.
  • Debate the view ‘Capital punishment ought to be reinstated because it is just’.
  • Is it inevitable that decisions about the death penalty will be influenced by politics and political expediency? Reflect on Victoria in 1967 as well as current situations in America, China and Iran.

Exploring Sacred Texts

What do the Scriptures have to say in relation to the death penalty? 

James is aware that those who support the use of the death penalty will often quote a verse from the Old Testament ‘a life for life…eye for eye…tooth for tooth’ Exodus 21:23–24 as their ethical and moral justification to have the death penalty available.

Old Testament

Death penalty codes were written into Mosaic Law Leviticus 20:9–13,15,16 and 27,Numbers 15:32–36 and Deuteronomy

 17:1–719:16–21.

Collectively, these concepts established codified laws of punishment in Hebrew society. At the time, methods of execution included death by stoning, burning and hanging for some eighteen offences, including sorcery, adultery and a variety of sexual misdemeanours, and the killing of another person (Ex 21:12).

New Testament

While the Old Testament allowed capital punishment for a variety of offences, the New Testament does not specifically mention it but for the greater part conveys a message of forgiveness, mercy and compassion. Those who oppose the death penalty frequently quote Jn 8:7, in which Christ challenges onlookers to cast stones at a guilty person only if they themselves are free of sin.

Kenneth Overberg SJ

However, not all contemporary biblical commentators are in agreement that the teachings of Christ necessarily repudiate the use of the death penalty. Kenneth Overberg SJ in ‘Respect Life: The Bible and the Death Penalty Todayreminds us that ‘culture and setting influenced the biblical texts, and some biblical passages reflect an earlier moral perspective no longer acceptable’. Overberg’s provides people on both sides of the death penalty debate, with an insight into how the scriptures influenced centuries of Judeo-Christian thought, and how they are relevant and meaningful today.

Back to the Scenario

In reading the New Testament, James will notice that many of the practices of Mosaic Law are commented upon by Christ, who claimed that he had come ‘not to abolish the Law, but to fulfil it’. An excellent example of this fulfilment is exemplified in Mt 5: 38–39, in which we are called to be forgiving. The Gospel of Matthew (Mt 6:15) explores further the notion of forgiveness as well as warning us not to be judgemental of others (Mt 7:1). St. Paul in his letter to the Romans (Rm 12: 14–19) specifically warns against the motive of revenge.

Consider

  • Discuss the similarities and differences between the Old and the New Testaments in their perception and view of capital punishment.
  • Consider whether the teaching and example of Christ incline you either to accept or reject the notion of capital punishment?

Understanding the Catholic Tradition

Catechism of the Catholic Church

The Catechism of the Catholic Church in its dicussion of The Fifth Commandment: ‘You shall not Kill’affirms that ‘all human life is sacred’. Specifically addressing the issue of the death penalty, the Catechism of the Catholic Church makes it clear that ‘today….the cases in which the execution of the offender is an absolute necessity are very rare, if not practically non-existent’.

St Thomas Aquinas

However, opposition to the death penalty in Christian tradition, and more specifically by the Catholic Church, only emerged in the later half of the twentieth century. Prior to this there was a long period of acceptance of the death penalty on the basis that it deterred the wicked and protected the innocent. This was a notion accepted by both St Augustine and St Thomas Aquinas. In the Summa Theologiae, St Thomas Aquinas remarks that ‘Every individual person is, as it were, a part of the whole. Therefore if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good’ (ST, II – II 64).

Cardinal Avery Dulles

An examination of the development of Catholic doctrine regarding capital punishment is further explored in a paper titled ‘Catholicism and Capital Punishment by Cardinal Avery Dulles. It provides a clear insight into the way in which Catholic doctrine viewed capital punishment as having both biblical and philosophical justification.

Pope John Paul II

However, the response of the Catholic Church to the issue of capital punishment has changed its emphasis within recent years, particularly during the Pontificate of Pope John Paul II. This is clearly illustrated in Evangelium Vitae n. 56, which specifically deals with the issue of the death penalty. While the right of the state to impose the death sentence is not denied, the appropriateness of carrying it out is more and more questioned.

Catholic Bishops of the United States

Even before the release of this papal encyclical, there were signs of a change in the attitude of the Church towards the issue. One of the most significant statements came from the Catholic Bishops of the United States in 1980. At a time when opinion polls suggest that the majority of the public favour the use of capital punishment, Rev. Kenneth Overberg SJ provides a balanced, detailed overview of the Church’s position in his article ‘The Death Penalty: Why the Church Speaks a Counter-Cultural Message’.

Pope Francis

Pope Francis released an Address of Pope Francis to the Delegates of the International Association of Penal Law. In this document Pope Francis discusses criminal justice, primacy of life and the dignity of the human person and how certain forms of criminality gravely harm human dignity and the common good.

Australian Catholic Bishops Conference

Read the Statement from ACBC to the Human Rights Subcommittee on the Death Penalty.

Back to the Scenario

In considering the way in which he will vote, James meets regularly with Fr Mulrooney, who on one occasion presented him with an article written by Sr Helen Prejean which describes her experience with a convicted murderer on death row in the US. A film Dead Man Walking was made about this. A study guide to the film is available online.

Consider:

  • Discuss how Fr Mulrooney might reconcile the views of St Augustine and St Thomas Aquinas with current statments from Pope John Paul II.
  • On what basis does the Church teach that society has the right to enact the death penalty? On what basis does it then teach that this right should very rarely be exercised?
  • Dead Man Walking was both a critically acclaimed novel and a film based upon the work of Sr Helen Prejean. After reading ‘Walking through Fire’ by Sr Helen, explain how this article on capital punishment at first hand might lead to someone rethinking their position in relation to the death penalty.
  • How might Bob, and other advocates for the restoration of the death penalty, respond to the statement by Archbishop Flynn, Church Teaches that All Life is Valuable?

Current Catholic Context

The Bali Nine

Despite the many international calls for mercy, the Indonesian government executed eight people, including Bali Nine duo Andrew Chan and Myuran Sukumaran.  Below is a summary of the different Catholic perspectives that were expressed in the lead up to their deaths.

Andrew Hamilton SJ

Andrew Hamilton has written on the view held by Jesuit Social Services.  He    wrote ‘The Importance of each human life’ where he discusses how most  Australians   are shocked and saddened by the impending execution of Andrew  Chan, Myuran  Sukumuran and their companions in Indonesia.

Andrew Hamilton has written two articles for Eureka Street, Indonesia shows its ugly  side with regressive executions and A Wedding and an Execution.

 

Australian Catholic Social Justice Council

John Ferguson from the Australian Catholic Social Justice Council issued their  response to the two Australians on death row in Bali’s Kerobokan Prison.  Read  Why the ACSJC opposed the death penalty.

 

Pope Francis

Pope Francis released an Address to the Delegates of the International Association of Penal Law. In this document Pope Francis discusses criminal justice, primacy of life and the dignity of the human person and how certain forms of criminality gravely harm human dignity and the common good.

Mercy Campaign

The ‘Mercy Campaign’ is a group that is made up of volunteers, including filmmakers, academics, students and volunteers, who promoted the case for clemency for Andrew and Myuran. Watch Professor Greg Craven, Vice-Chancellor of the Australian Catholic University, a spokesperson for the Mercy Campaign on the ABC’s 7.30 Report.  Also read the Sydney Catholic’s article Executions of Bali Nine Pair Unacceptable.

The Catholic Leader

Fr Nicholas Okafor discusses questions raised by the case for Andrew and Myran, is capital punishment worth being called a punishment?

Catholic Communications, Sydney Archdiocese

The Sydney Archdiocese reported that Indonesia Refuses Myuran Sukumaran & Andrew  Chan Their Own Spiritual Advisors in Final Hours.

Respecting Other World Views

As Australia is a multicultural, multifaith society, James needs to survey the attitudes and teaching of the other major faiths.

Hinduism and Buddhism

In both the Hindu and the Buddhist contexts, the taking of life cannot be condoned, and capital punishment is repugnant because punishment should be aimed at reform and restoring the proper social order, rather than being punitive and based upon revenge. This view on the sacredness of human life is illustrated by His Holiness Tenzin Gyatso, the Dalai Lama of Tibet. Religious arguments against capital punishment are based upon the nature of an ideal community in which love, forgiveness and the hope of redemption are guiding aims.

Islam

At the same time a number of religious traditions, particularly Islam, support the notion of capital punishment, asserting that its use is based on justice and the nature of a moral community, which requires that each person respect the life and liberty of others. An interview on the Radio National program Encounter reveals the range of responses of the major faith traditions to the death penalty. It includes an Islamic expressed by Professor of Middle Eastern Studies at the Australian National University, Amin Saikal. A range of Islamic opinion is reflected in an article entitled ‘Does Islam support the Death Penalty?’ reflecting a variety of interpretation of the Koran.

Judaism

Judaism is remarkably similar to Christianity in its view of capital punishment. The BBC Ethics summary of religious responses to the death penalty indicates Jewish distaste for capital punishment, although the Torah supports it in principle. Jewish communities around the world have felt that life imprisonment without parole serves the same purposes without the disadvantages and inhumanity of its actual practice. An article on the Reform Jewish site, the Death Penalty and Jewish Values, discusses the tension between scriptural allowance of the death penalty and historical Jewish distaste for it.

Consider

  • Use the Circle of Viewpoints thinking routine to explore the significantly different perceptions of capital punishment of the Western religious traditions (Judaism, Christianity and Islam) and the Eastern religious Traditions (principally Hinduism and Buddhism).
  • Discuss the possible reactions of migrants of other faiths to the proposed Bill that James must vote on, considering that many came to Australia after fleeing regimes that used capital punishment in an indiscriminate and arbitrary manner. Why would they be either for, or against it?

Examining Personal Experience

As a Catholic, James will examine the teachings of the Church in helping him to decide how he will vote. Given the nature of the issue, James is grateful that he will be able to vote according to his conscience. Although Scripture appears to be ambiguous about capital punishment, statements coming from the living tradition of the Church are not. They clearly proclaim the dignity and sanctity of all human life and warn against punishment which deprives offenders of their lives.

On the whole, Australia has had a reasonably good human rights record. James is aware of the way in which the international community would react to attempts to reintroduce capital punishment. He himself has a growing sense that capital punishment is a violation of human rights.

Although he has experienced ‘subtle political pressure’, he does not consider this a legitimate influence on his decision. James is not naive; he realises that the ‘proposed bill’ may be an example of political opportunism, capitalising on current public support. Although he is not swayed by political pressure, he does understand the arguments put forward by the victims and their families. He is aware that punishment must be just, adequate and enforceable.

Consider

After going through the same processes as James did in making up his mind about how to vote, identify and articulate your own response.

  • Find out the facts.
  • Establish an ethical approach.
  • Explore the sacred texts.
  • Understand the tradition.
  • Consider other world views.
  • Examine your personal experience.

Articulate your own response.