. . . [Divine] Mercy is found even in the damnation of the condemned, for, while not completely loosening the punishment, It nonetheless lessens it short of what is entirely deserved. (Summa Theologiae Ia.21.4 ad 1).
I would like to address J. Daryl Charles’s argument published here at Public Discourse yesterday that the death penalty is a mandatory punishment for premeditated murder, necessary to achieve justice, and necessary to respect the image of God in the offender by holding him responsible for his acts. I cannot address everything that Charles argues in his essay. I will do only three things. First, I will argue that Charles has not and cannot successfully press the case that the use of the death penalty is mandatory in the exercise of punitive justice. Second, I will argue that it should be abolished in the United States, against the background of Thomas Aquinas’s argument (that Charles himself cites) that taking a criminal’s life is lawful in order to protect the common good. Third, I will conclude by reflecting on the implications of the image of God within us for justice and mercy.
The Early Church and Capital Punishment
On the first point, consider only the early Church figures that Charles cites. By and large, they do indeed recognize the legitimate authority of a political community to take the life of an offender. However, they also recognize something that Charles does not: it is within the state’s authority to refrain from this punishment and to instead extend mercy. (In this section, I summarize, paraphrase, and later quote the excellent article by Phillip M. Thompson, “Augustine and the Death Penalty,” in Augustinian Studies, January 2009, pp. 188–203.)
For example, Lactantius in one work forbids anyone in authority charged with the administration of justice from charging anyone for a capital crime, but in another acknowledges the state’s authority to put someone to death. Tertullian recognizes the authority of the state to impose death, and yet forbids any Christian from doing so. So also, the Christian author Athenagoras, whom Charles does not cite, forbids Christians from participating in it. This is not yet a point about mercy. However, it suggests a certain abhorrence on the part of the early Church for the death penalty as inconsistent with the life of a Christian. The secular or pagan state may be permitted to impose death as a punishment, but the authors suggest Christians ought to play no part in exercising that power.
Augustine, however, is particularly important when it comes to mercy. He recognizes the authority of the state to impose death as a penalty, particularly to protect the common good from a threat to its safety. And he does not forbid Christians from participating in it, as others had. But he also pleads for mercy on the part of governing authority. In one case pleading for mercy he writes, “[W]e do not in any way approve the faults which we wish to see corrected, nor do we wish wrong-doing to go unpunished because we take pleasure in it. … [However,] it is easy and simple to hate evil men because they are evil, but uncommon and dutiful to love them because they are men.” Even if one does not agree with Augustine that one should love the offender because he is a man, as it seems Christ commanded us to do, Augustine gives evidence in the Christian community of the recognition that not only justice is the task of the state, but also that mercy is within the authority of the state, as much within its authority as is the authority to execute the offender.
However, the importance of mercy amid justice is no sectarian Christian virtue. The responsibility of governing authority to show mercy is a fact recognized by Seneca, no Christian, in his letter to Nero, De Clementia, where he argues that mercy in a ruler is essential to governing. As a stoic, however, his argument for mercy is significantly different from Augustine’s, focusing not on loving the offender as a fellow human being, but on the need to rein in both leaders’ and society’s passions of cruelty and savagery, passions that often accompany the just desire to punish. He goes on to argue that the power of the emperor to extend mercy is even greater and more manifest than is his power to condemn, “for anyone can take a life, but few can give it.” That power in a ruler is in fact godlike, according to Seneca. Aquinas agrees when he writes that among all of God’s attributes, it is in mercy that God’s omnipotence is most clearly shown. (“Unde et misereri ponitur proprium Deo, et in hoc maxime dicitur eius omnipotentia manifestari” ST IIaIIae 30.4.)
Just as one would be hard pressed to find a culture with a governing authority, biblical or otherwise, that had not at some point asserted and exercised the right to put capital offenders to death for heinous crimes, one would be equally hard pressed to find one that did not claim the authority to exercise mercy and punish short of death. Good government in the administration of criminal punishment will establish a range of possible punishments for a crime, acknowledging the need for both mercy and equity in judging which punishment is best in the circumstances. Again, this is a point recognized by the pagan Seneca, who argued that mercy does not come after the judgment of just punishment, to limit justice as it were, but enters into the determination of what justice is in a particular case.
Aquinas on Capital Punishment
Aquinas argues that this governing authority to establish the character of punishment and its application to cases is rooted in the natural law. But in the end, positive human law determines the actual force and scope of punishment. Any such “determination” of the actual punishment appropriate for a crime has only the force of human law, not the force of the natural law itself (ST IaIIae 95.2). We decide how crimes will be punished as a matter of human positive law, not by deriving them from natural law. This determination is part of our dignity as images of God: we participate in divine providence by being provident over ourselves. We use our reason both to recognize the natural law within us and to establish human law over diverse political communities and common goods (ST IaIIae 91).
In addition, like Seneca before him, Aquinas recognizes that it is also the task of judicial authority to exercise equity (epikeia) when determining punishment under human law. The judicial authority does this by taking into account circumstances not anticipated by the legislature when it crafted the law. In other words, judicial authority sets aside “the letter of the law,” lest one sin against the common good by application of the “letter of the law” (ST IIaIIae 120.1).
If we acknowledge Aquinas as an authority on these matters, as Charles seems to do in citing him, these points make it clear that it is well within the governing authority of a community to refrain from the use of the death penalty to punish crime. Political leaders can even refrain from legislating that capital punishment will be among the range of punishment for serious crimes, including premeditated murder. This decision ultimately requires reflection about how to preserve and promote the common good of a particular community in a particular place and time.
A Case for Abolition
Now I would like to argue that the death penalty should be abolished, at least in the United States and many other nations as well. Of course, Aquinas’s argument about the lawfulness of a community’s taking the life of an offender is often cited by proponents of the death penalty in the way Charles cites it—as if permissibility requires the exercise of the death penalty in certain cases, that is, makes it “mandatory.” However, Aquinas’s argument is merely that it is lawful to take the life of an offender to protect the common good from threat. He does not come anywhere close to arguing that it is required or mandatory for certain crimes.
It is very important to notice about Aquinas’s argument that it is not based on principles of restitution, that is, not based on the need to redress the harm done to the one who has been wronged. Nothing can be done to redress the wrong done to the one who has been killed. Nothing can undo that, no recompense given, no restitution made. This is a point that Charles himself recognizes in the case of murder. In addition, though it might sound harsh, it is not the task of governing authority to criminally punish offenders in order to assuage the anguish of the family and friends of the murdered. Those left behind or affected by a murder may derive a certain amount of psychological catharsis in seeing the responsible parties punished, but it is probably not lasting. What’s more, in terms of restitution, nothing can undo what they have lost. That is in part the horror of the crimes done—that nothing can be done to restore to the one abused or to family and friends what has been taken from them. At best, punishment can be merely symbolic with respect to restitution in these cases.
Criminal law punishes not on behalf of the individuals who have been harmed by a crime, but on behalf of society’s common good, which has been harmed by a crime. It punishes to restore the order and peace of society that has been disturbed by the crime, and to further protect it from threat. But even here in the case of capital crimes, society cannot have restored to it what the crime has taken; society cannot have restored to it the human being killed. No punishment will return the order of tranquility and innocence lost to a society by the abuse of children, or to women and men by various forms of violence. However, a certain amount of peace and tranquility can be restored in protecting society from further threat of such things.
Close attention to Aquinas’s argument suggests that a malefactor loses, in a way proportionate to the gravity of the crime, the protections afforded by society to the innocent and thus becomes subject to the punishment of the law. This is its retributive aspect, that formally the gravity of the punishment is directed to the will of the offender in a way proportionate to the gravity of the crime willed by the offender. But, as we’ve seen above, the idea of “proportion” here is not a conclusion drawn from the natural law, but a “determination” of human law in light of the common good that punishment serves to protect. The offender becomes subject to the loss of property or the loss of freedom of movement, for example. Also, in some cases he becomes subject to the loss of life.
What Aquinas does not argue, however, is that having become subject to punishment, even possibly the loss of life, a criminal’s loss of life is required or mandatory. It is not the so-called lex talionis—an eye for an eye, a tooth for a tooth, and a life for a life—that allows for the lawfulness of killing another human being. The lawfulness of ending an offender’s life is based on the need to protect society from the threat by the one who has lost the protection of society. So, one cannot claim that according to Aquinas the killing of a human being is lawful in order to pursue retribution or restitution for the wrong done. It is lawful to protect from harm, which is forward-looking, not backward-looking.
Thus, Aquinas’s argument is not that killing an offender is always lawful, much less that it is mandatory. It is lawful upon a condition, namely, that it is necessary to protect the common good from a threat. Absent that condition, Aquinas does not argue or even suggest that killing a malefactor, including one who has committed murder, is lawful. Indeed, in his discussion of clementia as mercy extended to those who are subject to punishment (ST IIaIIae 157.3 ad 1), he suggests that the desire to harm through punishment should be avoided and mitigated, even when someone deserves punishment. He also says that it is better when the one doing the punishing decides the wrongdoer has had enough, rather than pursue the full extent of punishment possible.
One can ask under what conditions governing powers should exercise mercy. The exercise of mercy ought also to take into account the common good. Aquinas’s argument that it is lawful to take the life of a malefactor to protect society from threat also suggests that mercy is legitimately exercised when no threat to the common good is posed by the offender. This would be the case when, for example, the offender can be rendered harmless to the common good by means other than killing. This point concerning the death penalty is made explicitly by Pope St. John Paul II in his encyclical Evangelium Vitae.
In the thirteenth century when Aquinas made his argument, it might not have been possible in general to render a murderous malefactor harmless short of killing him. However, it is now possible in the United States and many other modern nations to protect the common good from the threat of those who have committed murder and other heinous crimes. That being the case, we have no reason to think that it is lawful for those nations to kill human beings who in other times and places might pose a threat to the common good. Given the imperative to act with mercy as much as with justice, the death penalty ought thus to be abolished in the United States and other such countries.
Mercy and Justice
To conclude, Charles makes much of the idea that the image of God in human beings is not taken seriously if we do not hold offenders responsible for their crimes, particularly those who have killed with premeditation. I agree with that proposition. What Charles and other defenders of the death penalty do not take seriously enough is the thought that being made to the image and likeness of God is not a static fact of human nature, but a responsibility. Nothing can erase from the nature of a human being the image created within him or her by God, no sin or crime however heinous. We acknowledge that fact when we hold our fellow human beings and ourselves responsible for our actions. However, being made to the image of God is a vocation, that is, a call to being godlike in all that we do. So, those of us who seek justice in the punishment of others must ask ourselves what our godlike responsibility is in the circumstances in which we live.
God is not simply a God of justice, but also a God of mercy. Mercy and justice are not set against one another. As Aquinas argues, they are manifest in every act of God’s (ST Ia 21.4). Even so, divine justice is founded upon divine mercy. Even the pagan Seneca recognized that mercy is as godlike as justice. In addition, mercy is not a poor second cousin to justice. Again, Aquinas argues that among human virtues, mercy is the greatest of all virtues, greater even than justice (ST IIaIIae 30.4). Mercy does not come in after justice to limit it. Mercy informs justice. Indeed, if we take Aquinas seriously, justice strives after mercy as its goal. “It is clear that mercy does not take away justice, but is in a certain way, the plenitude of it” (Ia 21.3 ad 2). Justice must always then be informed by mercy. After all, with the responsibility to live up to the image of God within us, it is worth pondering the fact that not even the damned in Hell are punished by God as much as justice alone might allow that they deserve. How much more, then, should punishment be loosened for those among us who have not yet been damned?