The Demise of Capital Punishment in the Culture of Death and the Relationship between Pain and Punishment

By Fedoryka, Damian P. | Ave Maria Law Review, Spring 2009 | Go to article overview

The Demise of Capital Punishment in the Culture of Death and the Relationship between Pain and Punishment


Fedoryka, Damian P., Ave Maria Law Review


INTRODUCTION

The changes in the current Latin editio typica of the Catechism of the Catholic Church ("Catechism"), specifically in the articles dealing with capital punishment, (1) and some of the responses to those changes, are thought provoking. In this context is the notable appeal of Pope John Paul II to spare the life of Darrell Mease. (2) This appeal has been taken as evidence, as indeed it could, that the Pope was "against" capital punishment. (3) The general impression is that the Catechism is also "against" capital punishment unless it is an "absolute necessity," an eventuality that is "practically non-existent." (4) Thus, as Inside the Vatican puts it, "the Catholic Church comes closer than ever to calling for a ban on capital punishment," an outright ban that is called for by pressure groups opposed to capital punishment. (5)

If Pope John Paul II and the Catechism are "against" capital punishment, the following question must be asked: is the separation of body from soul, that is, an act causing death, also intrinsically evil? The rhetoric and emotion accompanying the call for a ban on capital punishment seem to imply that it is. And paragraph 2267 of the Catechism does speak of non-capital punishment as "more in conformity with the dignity of the human person." (6) This would seem to suggest that capital punishment is intrinsically wrong.

But this is a misreading of the Catechism. The Catechism neither implies nor should be taken to imply that capital punishment is intrinsically wrong, even though it assumes that the need for capital punishment is practically non-existent. In principle, capital punishment in itself remains justified even if the need for it as a practicable, effective way to defend human lives against the aggressor arguably no longer exists in certain countries. (7)

In order to understand why capital punishment is not intrinsically wrong, and why it is misunderstood in a consumer culture or "culture of death," (8) it is necessary to understand the nature and purpose of punishment. Part I of this Essay introduces a systematic distinction between two roles of punishment, namely, punishment as the restoration of the "just order" and punishment for the sake of deterrence or defense. It also discusses the relationship between guilt, punishment, and sanctions in the law. Part II outlines some fundamental presuppositions for establishing the primary meaning of the punishment of persons, the penal dimension of punishment, and why punishment should not be imposed purely for reasons of deterrence. These presuppositions are the notions of sovereignty understood as a kind of an ownership that is grounded in "the good," and the metaphysical meaning of death. Part III explores the notion of human dignity in modern consumer culture and its attitude toward pain. Part IV continues the task of examining the intrinsic connection between pain and the penal character of punishment by a systematic contrast between the pain of separation from "the good" on the part of the innocent and the pain accompanying a rejection of "the good" on the part of the guilty. Part V focuses on the public dimension of crime and the proper characteristics of punishment that "fit" the crime. Part VI applies the discussion of pain and punishment to capital punishment, considers the public nature of this punishment, and explains the role of public authority as grounded in a sovereignty that is over, but transcendent to, the human being.

I. THE ROLE OF PUNISHMENT

A. Punishment and Deterrence." Two Distinct Dimensions of Capital Punishment

There are two distinct themes or dimensions of capital punishment that are directly relevant to a discussion of the legitimacy of capital punishment. The first theme is the restoration of "just order," which I consider the proper or intrinsic meaning of punishment, as discussed below; the second is the deterrence or "defense" dimension of capital punishment, which is one of the functions of punishment in general. …

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