Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Monday, January 10, 2005

A Death in Connecticut

On January 26, Connecticut will execute serial killer Michael Ross. It will be the state's first execution in almost half a century.

Ross, who murdered at eight women in the 1980s, has voluntarily abandoned all further appeals and has asked to be executed. (He lays out his reasons here.) His former lawyers are seeking to void his dropping the appeals on the grounds that Ross is mentally incompetent, but such efforts are expected to fail.

The Most Reverend Henry Mansell, Archbishop of Hartford, has drafted a pastoral letter calling on Catholics to work for the repeal of Connecticut's death penalty. If local news reports are to be believed, the letter has met with a mixed response among members of the archdiocese.

I think that Archbishop Mansell's heart is in the right place, and I agree that the state of Connecticut ought to spare the life of Michael Ross. (I'm not sure whether or not I'm in favor of abolishing the death penalty in CT; more on that later.) I'm not certain, however, that I agree with the contents of the letter. My chief concern is that the Archbishop allows good rhetoric to get in the way of clear thinking. Here are two passages from the letter:
[W]e are motivated by the consistent ethic of life. We wish to make clear that, in accord with the teaching of Pope John Paul II, respect for human life must be “profoundly consistent.”(Evangelium vitae, #87). Human life is a gift from God that must be respected from conception to natural death. Thus, we oppose capital punishment. ... Specifically in regard to capital punishment, we note increasing reliance on the death penalty, which diminishes each of us. The death penalty offers the tragic illusion that we can defend life only by taking life.
The nature and extent of the punishment ought not to go to the extreme of executing the offender, except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare if not practically nonexistent. (Evangelium vitae, #56).
The former is Archbishop Mansell; the latter is His Holiness John Paul II. Although, in this case, they lead to the same conclusion, they express what I take to be very different views about the morality of the death penalty, of which the latter is more analytically sound and more in harmony with the whole of Catholic teaching as represented by the Catechism.

The core of Archbishop Mansell's argument seems to me to be as follows: God, and God alone, is the master of human life, deciding when it begins and when it is to end. Any action that varies from that plan, that deliberately cuts short a human life, is wrong, even when that action has as its aim achieving some good end, even an end as high as defending life. Thus, the idea that we can defend life by taking it is a "tragic illusion", a devil's bargain no different from any other sin to which we are tempted out of our desire to do good. (cf. Catechism #1756: "One may not do evil so that good will result from it.")

And yet, there clearly are circumstances in which one can only defend life by taking life, as the Catechism recognizes. 2263-2265 acknowledges the right of self-defense, and indeed the duty for those entrusted with the defense of others to use lethal force if necessary. Furthermore, though war is to be avoided, it is permissible for a soldier to kill in battle, so long as they abide by jus in bello standards. This is, I assume, what the Holy Father speaks of when he refers to "absolute necessity": one may only impose the death penalty when there is no other way to protect society. Our respect for human life requires not that we never take it at all, that we take it only when there is no other way to defend life, and never otherwise.

As a practical matter, I think the Cardinal, the Holy Father and I (that sounds like the set-up for a joke, doesn't it? A cardinal, the Pope and a blogger walk into a bar...) would agree that the state of Connecticut oughtn't to be executing people. But, I think, we should be careful and precise as to our reasons for coming to that conclusion, lest we lay premises that will lead us to talk ourselves into error (that Christians must be pacifists, that Christian morality forbids the use of force even in self defense). In any philosophical system (and Christianity is a philosophy, though it's not principally one) the argument is as important as the conclusion.

As for whether Connecticut should take the step of abolishing the death penalty, I'm torn. This is attributable, I think, to the tensions between Catholic teaching on these kinds of issues and the demands of liberalism. That is: liberalism requires that laws (particularly criminal laws) be written down in advance and that the discretion of judges and jurors be circumscribed so that trials and judgments will be fair, regular and just. Catholic death-penalty teachings require that the death penalty only be imposed when absolutely necessary. It will be extremely difficult to lay down in advance what would constitute the "absolute necessity" required, certainly not in a manner that didn't afford juries and judges overwhelming discretion. So your choices are probably either a) tie the death penalty to specific elements of the crime, in which case the law will be overinclusive and lots of people will be executed when there's no absolute necessity, or 2) abolish the death penalty altogether, as Archbishop Mansell wants to do. Yet, I would think that, should a situation of genuine "absolute necessity" actually arise, we would not only want to, but be under a moral obligation to make use of the death penalty in order to protect the innocent. But of course, we wouldn't know that such a necessity was about to exist until the crime had already been committed, at which point it would be deeply illiberal to reinstate capital punishment ex post facto and impose it just on the cause of the genuine absolute necessity.

I honestly don't know what to do. One way to square the circle might be to retain the death penalty but to develop an understanding that the executive's power to pardon or commute sentences was to be used liberally. Yet that too vests an enormous amount of discretion in the executive, and would probably be impossible to work in practice. So I'm back to the drawing board. I'm bereft of ideas, and yet you can't simply punt on this issue. A society either has to have or not have a death penalty. Any advice would be welcomed.