Copyright (c) 1998 First Things 82 (April 1998): 8-9.
You get to a certain age and you know—or ought to know—what you think about important issues. Open-mindedness, when understood as a willingness to change one’s mind if presented with new information or deeper insight, is a considerable virtue. But open-mindedness understood as perpetual indecision, a principled refusal to make up one’s mind in the first place, is no virtue at all. It is evidence rather of intellectual and moral slack.
I have never had much trouble deciding what I think about things, or in being willing to share with others the views I hold. (Ask my wife and children.) But sometimes I waffle—and on no question more than capital punishment. I have come, after a lifetime of wrestling with the issue, to favor the death penalty. But I do so with unwonted uncertainty and uneasiness. The execution of Karla Faye Tucker in a Texas prison last February 3 brought out all my ambivalence.
There was a time when I felt no ambivalence on capital punishment at all. I was firmly opposed. As editor of my college newspaper, I wrote an impassioned editorial condemning the execution of Caryl Chessman, a multiple murderer whose case roused national attention before his death in the San Quentin gas chamber in the spring of 1960. The death penalty, I argued, was a barbarism that no civilized society can countenance. Christians in particular, I added, should oppose capital punishment as a refusal to recognize life as God’s sacred gift.
It was only over a long period of time that I came to change my mind. To be sure, many of the arguments against the death penalty have never impressed me. The suggestion, for example, that it is unconstitutional, a violation of the Eighth Amendment’s prohibition of "cruel and unusual punishments," collapses in light of the fact that capital punishment is explicitly provided for elsewhere in the Constitution. Justice William Brennan’s argument that "evolving moral standards" have changed the death penalty’s constitutional standing was as blatant an expression of judicial imperialism as one could imagine: given the overwhelming approval of capital punishment by the American people and their elected representatives, Brennan could only mean that the robed guardians of the Court are sovereign arbiters not just of the constitutional text but of the moral principles that inform it. Acting in that sovereign capacity, they need be inhibited neither by the plain meaning of the text nor by the expressed will of the American people.
Other, more direct, arguments against the death penalty seem little more persuasive than the constitutional one. I have never quite understood, for instance, what people mean when they condemn capital punishment as an act of "vengeance." My dictionary defines "vengeance" as "punishment inflicted in retaliation for an injury or offense." In that sense, any form of punitive action against crime constitutes vengeance. Those who uphold the death penalty see it as an act of justice, not of revenge ("an act or instance of retaliating in order to get even").
There is among experts a good deal of debate as to whether the death penalty acts as a deterrent to prospective murderers. My dabbling in the technical literature leads me to the conclusion that the issue is unresolved (and perhaps, given the number and complexity of the variables involved, unresolvable). But even if it could be conclusively demonstrated that capital punishment has no deterrent effect, that would not clinch the case against it. Protection of society is one potential argument for executing murderers, but it is hardly the only, or even necessarily the decisive, one. Again, for most defenders of capital punishment, the primary issue is justice.
Some Christians, in the Catholic Church especially, have argued against the death penalty as part of a "consistent ethic of life." They include capital punishment in a package with such other issues as abortion and war. But that, it seems to me, muddies the moral waters. Christians should unequivocally oppose abortion because it takes innocent life. The difference with the death penalty, on this point at least, hardly requires argument. As to issues of war and peace, there is a venerable but by no means monolithic Christian tradition of pacifism. Most Christians—myself among them—think a more fruitful approach to the legitimacy of military action is to be found under the rubric of "just war." (Even most pacifists concede that World War II is a hard case for their position.) In any case, it would seem difficult to argue that opposition to war is morally of a piece, either in the Christian tradition or in Christian ethical analysis, with opposition to the death penalty.
But that is not to say there is no good case, Christian or otherwise, to be made against capital punishment. Moral philosophers have suggested that one test of the validity of the ethical positions we establish is their compatibility with our considered moral intuitions. For a great many people today, there are few if any such intuitions more compelling than the presumption, in all relevant situations, against the taking of life. (Thus the appeal to a "consistent ethic of life.") It is precisely that presumption that lies behind the argument I made as an undergraduate that the death penalty is inherently uncivilized, a moral atavism that diminishes respect for life and coarsens our moral sensibilities. Witness, in support of that argument, the unlovely spectacle of the drunken, cheering crowds that regularly materialize as an execution draws near. (Most defenders of the death penalty, of course, are as appalled by such spectacles as are those who oppose it.)
The dilemma for people like me is that in capital punishment we are confronted with competing moral intuitions. We acknowledge the presumption against the taking of life, but we also are possessed of a deep conviction that in certain circumstances the requirements of justice are most adequately met by imposition of the death sentence. Those who coldly and brutally take innocent life, we argue, may justly have their own lives taken in return. In so acting, society not only expresses its moral abhorrence of certain heinous crimes but also—paradoxically, but not, we think, contradictorily—indicates its reverence for innocent life.
It may well be that the case of Karla Faye Tucker confuses rather than clarifies the general argument about capital punishment. Hers was a special set of circumstances, which is why it attracted so much attention and brought to her side a number of people who normally favor the death penalty. I confess that, quite reflexively, I hoped her sentence would be commuted—although I’m not sure I could construct a rationally persuasive argument as to why, given the brutal double murder she participated in, hers should have been a case for leniency.
Perhaps it was simply that, in the almost fourteen years between her conviction and her execution, she had so transformed herself. Unlike most inhabitants of death row, she was attractive, winsome, and not given to self-pity or self-justification. She had undergone a manifestly genuine conversion to Christianity, and she faced the possibility of death with admirable courage and affecting faith. (Skeptics stressed the fact that she was white, but I saw no evidence that racial feelings played a significant role in garnering support for her.) None of that, of course, changed the fact of what she had done, and perhaps those who refused to lift her sentence were concerned most of all with the precedent they would thereby set. Hard cases, as they say, make bad law.
Still, my uncertainty about her execution remains, and though it does not change my mind on the death penalty in general, it reminds me that none of us who hold that position should ever feel entirely at ease with it or forget for a moment that we might be quite terribly wrong. And if we are wrong, the judgment for error on this life or death issue will weigh on us more severely than it will on those who, if it turns out that way, erred in the gentler direction.