In 1981, on the campus of Cornell University, Michael Ross murdered a young woman named Dzung Ngoc Tu. Over the next year, he raped and killed Tammy Williams, Paula Perrera, and Debra Smith Taylor. In 1983, he added Robin Stavinsky. On Easter Sunday in 1984, he abducted, sexually assaulted, and strangled Leslie Shelley and April Brunais, both just fourteen years old, after he caught them walking along a Connecticut road. Two months later, he raped and killed another Connecticut girl, the seventeen-year-old Wendy Baribeault, leaving her body behind a stone fence along the highway.
The man was a monster, and he got at least a small portion of his deserts, long delayed but nonetheless real, over twenty years later, when, on May 13, 2005, executioners in a Connecticut prison injected poison into his veins while the families of his victims watched. He gasped and shuddered, one witness reported, as the needle went home and the poison began to work. Then the color drained from his face, and he was dead: executed at last, and justly, for the destruction of his innocent, undeserving prey.
Considered as a story--but who can stop to consider this simply as a story, standing back from the sheer, bloody reality of those slaughtered girls and the brutality they suffered before their deaths? This isn't a novel, a stray bit of horror fiction, but the horrifying thing itself, the raw stuff that fiction only models, and its victims are not mere characters but genuine, living beings whose lives were broken and destroyed. Do not forget them. Dzung Ngoc Tu, Tammy Williams, Paula Perrera, Debra Smith Taylor, Robin Stavinsky, little Leslie Shelley and April Brunais, Wendy Baribeault: They were here with us, and now forever they are not, and the reason is that a man named Michael Ross found a brief pleasure in abusing their bodies and ending their young lives.
And yet, even true stories are still stories, the kind of things we know by telling them. Dzung Ngoc Tu, Tammy Williams, Paula Perrera, Debra Smith Taylor, Robin Stavinsky, Leslie Shelley, April Brunais, Wendy Baribeault--the litany I hear over and over, the syllables that whisper in my mind every time I try to think about the moment this spring when the State of Connecticut carried out its first execution in more than forty years: even that repetition of the victim's names, in the end, appears on a page only as a storyteller's promise that this particular story really happened.
It is real, unbearably real, in other words, but also a story, with a purpose in the way the story goes. And taken that way, the execution of Michael Ross works more or less as we demand from such stories. It has a completeness, a satisfaction, a narrative arc. It gives the feeling of rightness and a sort of balance restored to a universe gone wrong with the taking of innocent life. It aims, as satisfying stories must, at what we used to call poetic justice: the killer killed, the blood-debt repaid with blood, death satisfied with death.
Unfortunately, it is also, in its essence, a pagan story, and Jesus--well, yes, Jesus turned all our stories inside out. Especially the old, old ones about blood and blood's repayment.
One hears so many bad, thoughtless, and even dangerous objections to the death penalty in the United States. That it is unconstitutionally "cruel and unusual," for instance, though the Constitution itself mentions capital crimes. Or that the large number of prisoners removed from death row in recent years by commutation and technical legal appeal somehow prove that hundreds of innocent convicts are on the edge of state-sanctioned death. Or that opponents of abortion are hypocrites if they don't simultaneously reject the execution of criminals. Why, I always wonder, does this never seem to cut in the opposite direction: If the issues are genuinely linked, then what about the people who oppose capital punishment while supporting legalized abortion? Aren't they equally hypocritical, and for exactly the same reason?
At the same time, one regularly hears another set of bad arguments for the death penalty. That it is required to teach human beings the wrongness of killing, for instance, though countries that have abolished capital punishment show no mass conversion to murder. Or that the cost of executing prisoners is significantly less than the cost of imprisoning them, though the expense of actually carrying out a death sentence in today's legal climate is enormous.
But the worst of these, for a Christian, is the argument from justice--the argument made implicitly every time we tell the story of an executed murderer. One could quarrel here about Christian pacifism and its relation to the death penalty, the hard-edged claim that the task of a believer is to stand as a sheep among the wolves or the softly sentimental notion that mercy is somehow nicer than strict justice. The question I have in mind, however, is about the status of justice in political theory.
Christians may decline to accept responsibility for government, but governing must still go on. And that governing will inevitably find itself caught in the clash between justice and mercy. Christ's teaching forgives the sinner even while it condemns the sin, and human justice and human mercy may perhaps find a unity in us as individuals if we turn the other cheek as we are taught. But at the level of any actual government--at the level of positive law, with its officers and magistrates--justice and mercy are necessarily in conflict. If judges show mercy, in any meaningful sense of the word, they do so at the explicit cost of justice; they are being unjust by failing to exact the penalty that justice requires.
So what kind of justice--high, low, divine, poetic--can a Christian expect in a modern nation-state? More to the point, what kind of justice can a Christian allow modern democracies to claim for themselves?
Michael Ross' lethal injection is a story of high justice: the attempt to balance the cosmic books, to stabilize a shaken universe. Agreeing to his own execution (the only way it was at all likely to happen in a state such as Connecticut, which last carried out a death penalty in 1960), Ross spoke of offering his death to "ease the pain" of his victims' families and "bring them closure." One heard that peculiar narrative word "closure" dozens of times in the news reports after his death. "I thought I would feel closure," said Debbie Dupuis, the sister of Robin Stavinsky. "I hope that there is at least some measure of relief and closure for their families," Connecticut's governor intoned.
The execution involved some open moments of the kind of vengefulness that legal systems first emerged in the ancient world to halt. "Feeling some pain?" one of the watching family members asked sarcastically as the poison first entered Ross' veins. "It was too peaceful," complained another after Ross was pronounced dead. But the closure apparently sought by almost everyone, from the murderer all the way to the governor, is at least potentially distinct from revenge in some ancient blood feud. It is, instead, the denouement of an essentially meaningful story: The universe is disordered because blood cries out from the ground, and high justice demands blood to match that blood.
There's a reasonable question of why we would grant murderers the power to bring narrative order and meaning to their lives and deaths, when this is one of the things they wrenched away from their victims. And, even more, there is a question of what a modern secular government is doing in the business of enacting such high stories.
By the right of self-determination, a legitimate state has a strong duty to defend itself, and in certain extreme circumstances the state's very existence, the entire structure of law and civil society, may possibly require the death of criminals. Thus, executions for treason and desertion in battle remain exceptions in the law of most of the European countries that have otherwise abolished the death penalty.
Then, too, a state has a responsibility to enforce positive law and exact punishment. This is true even in the case of victimless crimes, and it is perhaps particularly true in the case of crimes with victims. All political theories note that ancient legal systems began with the outlawing of private revenge, but the state does not thereby become a sort of hired agent or substitute avenger. That is what a theory of civil harms is for, and such torts are addressed not in criminal but civil courts, where the plaintiff, not the government, collects the monetary damages. Genuine crimes, in a modern setting, are instead committed against society and its laws--just as, in medieval England, all crimes were crimes against the king. In strict legal theory, the victims are incidental; the entire body politic is injured by a crime, and the social disorder of that crime is what a government's criminal-justice system must address.
Sometimes this requires educating the public about the wrongness of the crime. Often it aims at rehabili tating the criminal. Always it must keep the central promise of rightly operating government: the pledge that law-breakers will prosper less than law-abiders. And, again, under certain extreme circumstances, these legitimate purposes of social justice could require the death of criminals.
In other words, both a government's right of self-defense and its duty to preserve the normal justice of the social order can potentially issue in executions. But neither of these gives the state a license to attempt either revenge or the high justice implied in the story of Michael Ross. Capital punishment may occasionally be necessary in a modern democracy, but it is never right, for the death penalty is not in a line with other punishments. A five-year sentence and a twenty-year sentence, even a life sentence, are related as more or less severe forms of imprisonment. Execution belongs to another order of punishment.
Indeed, most arguments for the essential justice of the death penalty admit this point--and even insist upon it. If murder is not like other crimes, if the spilling of innocent blood is uniquely horrifying, then the punishment of death, as the spilling of guilty blood, must also belong to a higher species of justice: not simply a more extreme version of other punishments that seek to correct social disorders, but an entirely different thing that aims at restoring the universe and matching a deadly crime with a similarly deadly punishment.
Under any Christian understanding of political theory, where does the legal system of a modern demo cracy gain authority to act on this high level? Cer tainly, many different kinds of governments over many centuries have claimed and exercised the power of life and death. But history is no explanation for why the State of Connecticut should continue to have, in this one case, a license to break free from the social aims of normal justice and pursue closure for a story of high, cosmic justice.
Another way to come at this same conclusion is by considering what exactly would grant genuine authority to complete the story of blood. If God directly commanded a death, for example: Surely that would suffice. Or if the magistrate had a covenantal mandate in a divinely ordained state like ancient Israel, with some kind of ongoing priestly warrant. "The same divine law that forbids the killing of a human being allows certain exceptions," St. Augustine noted in The City of God, "as when God authorizes killing by a general law or when he gives an explicit commission to an individual for a limited time."
Interestingly, among the classics of a defeated political theory--in Jacques-Benigne Bossuet's 1709 ac count of the divine right of kings, Politics Drawn from the Very Words of Holy Scripture, for instance--you can find hints of this point deployed to defend monarchies, for the legal system's power of life and death derives directly from the king's divine calling. A hundred years earlier, King James I of England wrote one of the most complete statements of divine right:
The state of monarchy is the supremest thing upon earth; for kings are not only God's lieutenants upon earth, and sit upon God's throne, but even by God himself are called gods....Kings are justly called gods, for that they exercise a manner or resemblance of divine power upon earth: for if you will consider the attributes to God, you shall see how they agree in the person of a king. God hath power to create or destroy, make or unmake, at his pleasure, to give life or send death, to judge all and to be judged nor accountable to none; to raise low things and to make high things low at his pleasure, and to God are both souls and body due. And the like power have kings: they make and unmake their subjects, they have power of raising and casting down, of life and of death, judges over all their subjects and in all causes.
During the French Revolution, the Marquis de Sade carried this analysis to its logical extreme in "Yet One More Push, Frenchmen, If You Would Be True Republicans," the pamphlet a character reads aloud during a pause in the violent sex of Philosophy in the Boudoir. The argument is, essentially, that the divine right of kings is true, which means that by executing Louis XVI, the republic has decisively broken with God. Lacking the authority that once descended to legal courts from the king's divine right, French magistrates can no longer act as royal judges with godlike power over life and death.
The extent of Sade's irony is difficult to decide: Is he serious when he mocks the king's jury for the illogic of behaving like the king--for failing to be "true republicans"--in ordering the king to be executed? Philosophy in the Boudoir ends with a sex murder that is apparently approved by Sade on the aesthetic grounds that the victim was older and uglier than her murderers, on the psychological grounds that sexual satisfaction is always good and the killers found pleasure in the murder, and on the theological grounds that God has been eliminated from France and thus all things are permitted.
But Sade's argument, turning upside down a point made by more reliable defenders of the divine right of kings, remains interesting. The death penalty requires some extraordinary authority, and if we reject the divine election of kings over us, as all Western nations have (Britain's Elizabeth II may be the last living European monarch to have been literally anointed in a Christian ceremony, during her coronation in 1953), then we have also rejected the justification for a legal system to claim to be enacting the highest story of earthly justice.
God's general providence informs history, and that providence may be revealed in the appearance of democracies in the modern world. Certain modern nations may even carry a particular providential burden: America, for instance, as an "almost-chosen people," to use Abraham Lincoln's curious phrase. But the one thing no modern state can claim is that it is anointed, and the things that require anointing it lacks authority to do: the imposition of a state religion, for example, and the exaction of the death penalty, for precisely the same reason. Christians would have to engage in a national idolatry to suppose that all the acts allowed in ancient Israel are permissible in Connecticut.
"There is a growing tendency, both in the Church and in civil society, to demand that the death penalty be applied in a very limited way or even that it be abolished completely," John Paul II wrote in his 1995 encyclical Evangelium Vitae. "The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God's plan for man and society. The primary purpose of the punishment which society inflicts is to redress the disorder caused by the offense." And the result of viewing the problem in this way is that the death penalty should be "very rare and practically non-existent."
In Romans 13, St. Paul insists that "the authorities that exist have been established by God," and these authorities "bear the sword," for "rulers hold no terror for those who do right, but for those who do wrong." This is the biblical text most commonly cited to allow or even require Christian support for the death penalty. But as one who had seen Roman tax-farming in operation and knew the Romans had carried out the execution of Jesus, Paul certainly had no illusions that the reigning authority of Rome was anointed or godly. The "sword" he mentions is a metaphor for police powers that does not necessarily imply approval of the death penalty. And we have a way to read Romans 13, as pertaining only to ordinary social justice, with John Paul II's insistence that "the primary purpose of the punishment which society inflicts is to redress the disorder caused by the offense."
Already in 1992 the Catechism suggested current Catholic thought on the death penalty was not what strong proponents of capital punishment wish it to be. Then in 1996 further changes were made to the Catechism to bring it in line with Evangelium Vitae. It was at a press conference announcing these changes that Cardinal Ratzinger, now Pope Benedict XVI, used the phrase "a development of doctrine" to describe how the death penalty was being perceived in Rome.
The "development" is less clear than it may seem. Through the Middle Ages, Christian philosophers and theologians developed a set of careful distinctions concerning courts and penalties, and one of their central aims was to limit the punishments that might be imposed by otherwise unconstrained rulers. But something odd happened during the Enlightenment. Voltaire came across the anti-death-penalty arguments of an Italian criminologist named Cesare Beccaria and promptly used them, with enormous success, as yet another weapon in his war against Christianity. The traditional Christian teachings, which had typically functioned to restrict the severity of criminal sentences, were suddenly declared to have been teachings in favor of torture and the death penalty.
So successful was the attack that many commentators today still accept Voltaire's terms. Whether they defend or reject the death penalty, they all seem to believe the patristic and medieval writers accepted capital punishment not merely as necessary at the time but as required by justice at all times. The current position of the Catechism thus appears a radical change from earlier positions--as it may be, from the positions of some theological figures, but not as many as the historical commentaries on capital punishment would lead us to suppose.
Regardless, John Paul II's analysis in Evangelium Vitae points toward two key elements of the way a Christian might view contemporary political theory and the place of the death penalty.
The first is his emphasis upon the inherent dignity of the person, particularly in a modern world that seems intent on compromising this dignity. Circumstances alone dictate when capital punishment is necessary for a government's self-defense and preservation of the social order. But in a culture that seems to have embraced death with widespread abortion and euthanasia, the correct prudential judgment would be never to impose the death penalty.
Obviously the penal goal of rehabilitating the criminal is destroyed by capital punishment. But the other medicinal goals of social justice--educating the public and redressing the disorders caused by the crime--can be lost as well when the culture is in an especially disordered social situation. To make a show of the value of life with the death penalty, in a nation flirting with death, only teaches the public that yet more life is valueless and yet more life can be destroyed. This is the truth lurking behind the otherwise unfair complaint of hypocrisy in opposing abortion while allowing capital punishment. The distinction between the innocent killed by abortion and the guilty killed by execution is not likely to persuade many people in a culture that cannot bring itself to rescind its license of murder in the womb.
But John Paul II's deeper point is his second. Many of his encyclicals are meditations upon a single biblical text. And so, in one sense, Evangelium Vitae is nothing but a reading of the passages about Cain and Abel in the Book of Genesis, as seen through the lens of the New Testament revelation and applied to the modern world. "By his death," John Paul II writes, "Jesus sheds light on the meaning of life and the death of every human being." Life and death in the story of Cain and Abel, however, are curious things. Abel's blood cries out from the ground, but the Lord refuses to allow anyone to impose the penalty.
Political theory might read this to mean that only private vengeance is being prohibited: The murderer cannot be condemned, because until Cain builds the first city, there are no authorized public magistrates to judge and punish him. But Evangelium Vitae is after something else. The biblical story emphasizes the reality of the blood-debt and the universe thrown out of balance by murder--and nonetheless adds a prohibition against claiming repayment for that debt.
If Jesus Christ "sheds light on the meaning of life and the death of every human being," we can see in that light both how blood demands repayment and how Jesus has forever done the re paying with his death. In Evangelium Vitae, John Paul II holds to a delicate line. This is not necessarily a full-blown Anselmian theory of atonement, but it is at least a recognition that two elements in the Cain and Abel story are vital for Christians: the genuine truth that spilled blood calls for justice, and the refusal to demand that this blood-debt be paid with yet more blood.
To leave the argument against the death penalty in the hands of those who no longer much believe this Christian story is dangerous. The people who think there is no such thing as a blood-debt are always surprised to see crowds outside penitentiaries where executions are about to take place, chanting for the execution. But those crowds appear at executions in the United States for a reason--because blood really does cry out from the ground. "He didn't suffer as much" as his victims, one bereaved parent objected at Michael Ross' death. Without the Christian revelation to restrain it, the sense of a blood-debt that must be paid will only grow.
When the jury brought in a sentence of execution for the man in Texas who had dragged to death a black man tied to his truck with a chain, one spokesman for the local African-American community announced that he was normally against the death penalty, but in this case it was justified repayment in blood for two hundred years of lynching. Horrible as that crime was, this is a fright ening thing to hear. The distinction between torts and crimes, between harms done to individuals and evils done to society, is breaking down across America.
You can see it in the recent emergence of civil suits for damages from murders, and the congressional orders for changes in trial procedures to accommodate the victims' families during the Oklahoma City bombing trials, and the provisions of every new bill for victims' rights, and the kind of testimony increasingly allowed during sentencing hearings. You can see it, perhaps most of all, in the thought, expressed by nearly everyone at Michael Ross' execution, that the state's criminal-justice system was paying something back to the families of his victims. Even Michael Ross came to believe it--came, in fact, to demand it, fighting every attempt to save him--and it is a primitive and pre-Christian understanding of justice.
The divine right of kings was a short-lived political theory, swept under by rival theories in early modern times. A new understanding of the limited sovereignty of government emerged, and one of the primary causes was the gradually developing awareness that Christianity had thoroughly demythologized the state. But that is not, by itself, a stable condition. Without constant pressure from the New Testament's revelation of Christ's death and resurrection, the state always threatens to rise back up as an idol. And one sign of a government's overreaching is its claim of power to balance the books of the universe--to repay blood with blood.
Dzung Ngoc Tu, Tammy Williams, Paula Perrera, Debra Smith Taylor, Robin Stavinsky, Leslie Shelley, April Brunais, Wendy Baribeault: These were real people, girls and young women raped and killed, and their blood cries out from the ground. But high justice for their deaths--the story of the killer killed, the narrative we want to give us closure--is something we cannot permit the State of Connecticut to wield.
Joseph Bottum is Editor of First Things.
Copyright (c) 2005 First Things 154 (August/September 2005): 17-21.
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