Crime and Punishment

The American Catholic contribution to public discourse has been weakened by a number of things, not least the tendency of liberal Catholics simply to offer theological versions of essentially secular positions. Thus in their pastoral letter on the economy some years ago, the bishops seemed determined to show how "realistic" they were, by dealing with economic issues mainly in economic terms, while neglecting the spiritual dimensions of the question, such as the integrity of the family.

The same is true of capital punishment. It is only with great reluctance that Catholic liberals have temporarily abandoned the search for the "root causes" of crime and have acquiesced in the common-sensical recognition that crime should be dealt with primarily by vigorous prosecution. (Like most discredited liberal dogmas, this preoccupation with "root causes" is merely slumbering and will return at some future time when the political climate again seems propitious.)

There is perhaps only one argument against capital punishment which is not sentimental, and that is its finality. Not only does it permit the occasional termination of innocent life, it precludes even the possibility of eventual repentance. This finality indeed looms very large in all discussions of the issue, and its importance should never be minimized.

But many arguments against capital punishment are simply arguments against punishment itself. Thus the death penalty is said not to respect inherent human dignity and treats the criminal as an object. But the same can be said for imprisonment and even such things as fines and "community service." All punishment is inherently humiliating and restrictive of personal autonomy, in that it necessarily treats the transgressor as someone not wholly trustworthy, someone whose life is to some extent governed by the will of others. Thus according to a certain kind of "personalism" no punishment of any kind would ever be justified.

Most common is the therapeutic approach to crime, whereby criminal transgressions are understandable and even excusable, because of the criminal's own alleged victimization at the hands of society. This has always been a dubious claim, since certain types of crime (stock fraud) are committed only by privileged persons, and even the most heinous crimes, like murder, are sometimes committed by the rich and powerful.

In the nineteenth century the therapeutic approach to crime was an aspect of genuine moral progress, forcing society to be more compassionate because it was more aware of the realities of criminal behavior, distinguishing for example between a brutal thug and a starving young mother.

But this compassionate effort at understanding has become debased to the point where it is nothing less than a denial of human freedom and moral responsibility. Just as there are allegedly canon lawyers who believe that they can annul any marriage, there are therapists who seem capable of excusing the most atrocious behavior as merely symptomatic of the sufferings of the criminal himself.

Rarely admitted publicly, the therapeutic approach to criminality arises out of the transgressive spirit which is at the heart of modernism as a cultural movement. True modernists have a need to pit themselves against every kind of restraint external to themselves, and true freedom consists in the systematic destruction of all inhibitions on personal behavior. Thus, despite the obligatory concession that freedom should not be used to harm others, there is sneaking admiration for those who have dared to transgress society's ultimate taboos, including murder. Some resolutely modern-minded people feel an instinctive sympathy for accused criminals, and an instinctive antipathy towards their "respectable" victims.

The line was crossed historically in the Bobby Franks murder in Chicago in 1924, when two wealthy, well educated, privileged young men, Richard Loeb and Nathan Leopold, murdered a boy for no other reason than to prove that they could do it, to demonstrate that it was possible to rise above conscience. The famous attorney Clarence Darrow defended the murderers and was considered successful because they escaped the death penalty.

But the trial had much wider cultural significance. Darrow's argument against the death penalty was logically an argument against punishment of any kind. He effected a "transvaluation of values," in the words of Friedrich Nietzsche, whose philosophy his clients claimed to have followed, by in effect placing the prosecutor on trial and accusing him of bloodthirstiness. In his attitude, if not in his precise words, Darrow came close to saying that murder was not an evil but the desire for punishment was. He presented psychiatric witnesses who dismissed the brutal premeditated murder as merely the kind of "mistake" which "boys" are likely to make as they "struggle to grow up."

Outrageous though these arguments were, they seem to have influenced the judge, John Caverly, who wept as he sentenced the defendants to prison for life. Judge Caverly's tears also marked a significant cultural moment, since he was not consciously avant-garde but a devout Catholic. In the Loeb-Leopold case the modern amoral approach to crime triumphed over the ancient tradition of personal moral responsibility, a triumph presided over by a man who was a daily communicant. A new chapter in the history of morals had opened.

The Christian faith ought to preclude the therapeutic approach to crime except in extreme cases. The therapeutic approach involves a serious religious error because it permits the believer to avert his gaze from the mystery of evil. instead of wickedness occurring because of the unfathomable perversity of free human nature, evil is rationally, even mechanistically, explained through "root causes." Such a view manifests a preference for an amoral universe in which religious belief is irrelevant, even an obstacle to rational understanding. (Most professed Christians are now Pelagians, and the inability to acknowledge genuine evil is thus for them psychologically and theologically necessary.)

The "seamless garment of life issues" also manifests this inability to confront personal moral responsibility and the human capacity for evil. Death is there treated solely as a physical evil, so that the fact of death alone matters and has the same moral significance for both the convicted criminal and the unborn child.

The Catechism of the Catholic Church does not declare the death penalty to be immoral in principle but bases its severe reservations on the claim that in modern society, because of the extensive penal system, capital punishment is rarely if ever necessary to achieve the desired goal.

This gives orthodox Catholics a kind of loophole to continue advocating capital punishment, on the grounds that the Catechism's factual assumption has not yet been realized. However, precisely because some orthodox people may find their own sensibilities jarred, it would be a flawed orthodoxy which took refuge merely in such loopholes and failed to take seriously the Catechism's teaching.

The crucial truth to which the Church must witness concerning the reality of crime is not any particular form of punishment but a defense of the righteousness of punishment itself, based on a view of man as a free, moral being, as the self-proclaimed "humanitarian" rejection of the idea of punishment ends by demeaning the very humanity it supposedly respects.