Against Capital Punishment
by Paul J. Griffiths December 2017
The Death Penalty, Volume I
by jacques derrida
translated by peggy kamuf
university of chicago, 312 pages, $38
The Death Penalty, Volume II
translated by elizabeth rottenberg
Courting Death:
The Supreme Court and Capital Punishment
by carol s. steiker and jordan m. steiker
belknap, 400 pages, $29.95
By Man Shall His Blood Be Shed:
A Catholic Defense of Capital Punishment
by edward feser and joseph m. bessette
ignatius, 424 pages, $24.95
Essay on Catholicism, Liberalism, and Socialism:
Considered in Their Fundamental Principles
by juan donoso cortés
preserving christian publications, 336 pages, $16
Sovereign states, all of them, kill people. That is, they authorize their agents and representatives to kill, sometimes judicially and sometimes by extralegal command, sometimes at home and sometimes abroad. Abroad, they do it most often and with the highest body count in war or warlike conditions, where soldiers are the principal agents. They also, sometimes, outside the condition of war, assassinate foreign nationals and their own citizens. At home, sovereign states kill by the use of police power. States also permit citizens to kill (self-defense, abortion, euthanasia) without directly licensing or requiring them to do so. And lastly, some sovereign states kill at home by judicially deliberated execution, in which courts find a citizen guilty of an offense to which the penalty of death is attached, prescribe that penalty, and depute agents to carry it out.
Judicial execution (or, as it is sometimes called, the death penalty or capital punishment), in every sovereign state that practices it, produces many fewer corpses than does any other kind of state killing. That's certainly true in the U.S., where the mean annual number of judicial executions from 1997 to 2016 is roughly fifty-four. Worldwide, 1,032 judicial executions were recorded in 2016, in twenty-three countries. The real number is much higher because that number doesn't include executions performed by China, which refuses to provide figures. But still, the number is unlikely to exceed three or four thousand for the year. These numbers, compared to deaths caused by police killings, military actions, or abortions, are vanishingly small. In the U.S., the yearly mean number of judicial executions over the last few decades tracks closely with the yearly mean number of deaths from lightning strikes.
The attention given to judicial execution, however, is altogether disproportionate to the body count. Every year, at every level of culture, there's a flood of words about it, from abstruse, high-theoretical juridical and philosophical arguments to close-to-the-ground rants and breast-beatings. There are protests and vigils and marches on every side. Why this mismatch? The fundamental reason is that judicial execution, unlike any other state action, unlike even other kinds of state killing, dramatizes, always with theatricality, the question of sovereignty. The sovereign state, even the constitutional democracy that's supposed to recognize and strive to support the inalienable rights of its citizens, nonetheless holds the power to kill its citizens with direct intent and thereby to alienate from them an essential right, which is to continue living. Judicial execution shows this state of affairs dramatically, and so it focuses political interest and concern as nothing else can. Should the sovereign state be able to do this to its citizens? If it should, why? How, if it may be done, should it be done? What effects, other than the killing in which it consists, does judicial execution have, and how may they be assessed? And so on. These questions are themselves politically theatrical and are about political theater: What you think about them serves as a marker of your place on the political stage. Whence the flood of words, to which I'm here adding.
Of late, and especially in the United States, the word-flood has been in considerable part prompted by deep reductions in the frequency with which judicial executions are performed at home and abroad; and by concomitant changes in public opinion about the defensibility of performing them. Fewer judicial executions are happening, and fewer people think them a good idea. Retentionists—defenders of judicial execution—feel themselves under threat; abolitionists—those who'd like it gone—feel themselves on the brink of victory. In both cases, they write about it.
Evidence of change in frequency and opinion is easy to come by. In 2016, among the (roughly) two hundred countries in the world, 104 were de jure abolitionist (no capital crimes on the books, no one on death row) and thirty-seven more de facto abolitionist (capital crimes on the books, and sometimes people on death row, but no executions performed for a good while). Twenty years earlier, only sixty countries were de jure abolitionist. The picture is similar in the United States. Since the reconfiguration of law and practice surrounding judicial execution at the state level forced by the Supreme Court's 1972 ruling in Furman v. Georgia and its overturning in 1976 by Gregg v. Georgia, the trajectory has been broadly toward abolition: Eighteen states are now strictly abolitionist, and around another eleven (there are some definitional difficulties) are de facto so. Among the rest, only half a dozen now perform judicial executions with any frequency: The twenty executions of 2016 happened in only five states (Florida, Alabama, Texas, Georgia, and Missouri). Changes in public opinion are still more striking. The Pew Research Center found in August 2016 that 49 percent of those surveyed responded affirmatively to a question about whether they support the death penalty for murder, and 42 percent negatively. Figures from two decades earlier are 80 percent for and 16 percent against. The trajectory toward abolition isn't, however, without hiccups: Nebraska, for instance, abolished judicial executions legislatively in 2015, only to have that abolition overturned by referendum in 2016. The state remains, however, de facto abolitionist.
Carol and Jordan Steiker's excellent book, Courting Death, is a lucid and definitive account of the legislative and judicial history of judicial execution in the U.S. While they hedge their predictions with due modesty, they think it likely that within a generation, the Supreme Court will have made judicial execution unconstitutional, thus bringing the U.S. into line with all other Western democracies and an increasing number of nondemocratic sovereign states—including, for instance, the Russian Federation. The Steikers think the current situation with respect to judicial execution in the U.S. unsustainable for many reasons, not least because already, in most of the country, execution is de facto impossible even when de jure present. That's due to the regulation of its performance by the courts, inconsistent though that regulation has turned out to be. The outcome is an incoherent, unjust, and expensive situation: Among other things, there are now large death row populations (almost entirely male and disproportionately African-American and Latino) for whom there is no exit except by death from natural causes, and for whom the ordinary processes of parole review are effectively impossible. And there's no legislative remedy: Congress lacks power, constitutionally, to stipulate how the states should handle the matter, and the southern and western states are, now and for the foreseeable future, largely politically retentionist, which means that they won't empty their death rows and yet also, because of constitutional regulation, can't perform executions, or can do so only rarely.
And so we Americans are in a parlous situation. More and more of us don't think judicial execution a good idea, and we are in an increasingly small minority of sovereign states that permit it. Because of increasing judicial regulation of how executions may be performed and upon whom, even though we have laws permitting and sometimes requiring judicial execution, we're rarely able to undertake the capital sentences we've imposed. Yet the laws remain on the books in thirty-two states, and on those of the federal government (which last executed a prisoner in 2003, but which continues to place people on death row, most recently Dzhokhar Tsarnaev in 2015 and Dylann Roof in 2016), and our death rows contain close to three thousand people, the vast majority of whom will never be executed. If we were to execute them at the 2016 rate, it would take a century and a half.
What then to do? There are two radical judicial solutions. The first, canvassed and judged eventually likely by the Steikers, is that judicial executions be ruled unconstitutional by the Supreme Court. That would empty our death rows; it would recapitulate what happened in 1972, but this time (perhaps) permanently. That would do the trick. The second is that the courts, and especially the Supreme Court, renounce attempts to regulate the performance of judicial executions, thus freeing the states that would like to perform them to do so. That, too, would move our death rows toward empty, even though new inhabitants would enter. It would, in a different way, also do the trick, though the body count would be high. Time will tell which, if either, will happen.
A characteristically American solution in matters of judicial and legislative difficulty, especially those that involve killing people, is to allow, and in some perverse way to delight in, a tension approaching incoherence between what the law allows and what it's possible to do. Judicial executions are constitutionally permissible but almost impossible to do. Perhaps that's what we must learn to live with in these difficult cases: constitutional interpretation that permits or requires some action, and the removal of that action from possibility by a thousand regulative cuts.
I very much hope that we do not learn to live with these solutions, in either case. Compromise is, without doubt, a political good, but to learn to live with compromises such as these would be to accept a bleeding wound in the body politic, one that might eventually be fatal. It's only legislators and judges who can apply tourniquets to wounds like these. But the people can encourage them in the right direction, and those among the people with the proclivity and talent can do so by offering arguments. There aren't any new arguments in the matter of judicial executions: It has been extensively and obsessively discussed on every side for more than two millennia, and with a special obsessiveness since 1789 (Robespierre's post-revolution transition from abolitionism to retentionism is emblematic, as, in a different way, is his own subsequent execution). But the arguments seem to need frequent re-presentation and remapping. A good map can affect those who can do something about the territory: redraw its borders, govern what goes on in it.
One map is Jacques Derrida's study of the death penalty, as he prefers to call it (la peine de mort). From 1964 until 2003, a year before his death, Derrida gave annual seminars on a wide variety of topics. These would meet a dozen times or so during the course of an academic year, and he'd typically prepare a written text (in French) for each session, which he'd read verbatim. These texts are gradually being edited and published in French, and, still more gradually, translated into other languages. In 1999–2000 and 2000–2001, the seminars' topic was the death penalty, and the English publication of those texts has just been completed by the University of Chicago Press, in two volumes. Derrida didn't publish much on the topic while he lived—though in 1996 he did write an interesting and deeply felt preface to Mumia Abu-Jamal's En direct du couloir de la mort. In these lectures, then, written and delivered almost twenty years ago, we have the mature Derrida's thought on a topic of late interest to him. He's concerned as much with the American scene and situation as with the European and global one, in part because versions of the lectures were given in the U.S. following their delivery in Paris, and because he was, by that stage in his life, very much at home in the United States and attuned, as only an alien enthusiast can be, to its peculiarities and particularities.
Derrida sees that most discussion of judicial execution is utilitarian in tone and form, or, as he likes to put it, a matter of insurance. I'd prefer to put this by saying that most of it is consequentialist. That is, both abolitionists and retentionists mostly address judicial execution not in terms of what it is—the species or kind of act it is—but in terms of its effects, what it does to the bodies politic in which it's performed. Perhaps such executions deter potential offenders, or comfort the bereaved, or protect the innocent, or express the state's values and sovereignty, or establish justice in the world, or move those about to be executed toward repentance . . . and so on. Derrida explores at length debates of this kind. Consequentialist retentionists and consequentialist abolitionists might agree about the desirability of one or another of these effects, but disagree about whether judicial executions bring them about. Or they might disagree about the desirability of the effects. Such discussions yield, or can yield, differences about whether judicial execution is locally, or ever, desirable. But they don't address the radical question, which is whether the nature of the act requires it, permits it, or makes it indefensible. Those who do address this question are radical abolitionists or radical retentionists; their conclusions are about the act.
It's the radical thinkers, whether abolitionist or retentionist, who interest Derrida, and me, and Edward Feser and Joseph Bessette in By Man Shall His Blood Be Shed, their recent tract in defense of judicial executions. If radical conclusions can be reached, then the consequences are irrelevant. If, to put the matter in terms natural to Catholic moral theology, judicial execution is malum in se, then whether it deters, or comforts, or what have you doesn't matter. It isn't to be done. Or if you're a radical retentionist, as Feser and Bessette try but fail to be, then it must be done no matter what its consequences.
Derrida is a radical abolitionist. So am I. He, however, doesn't have, or think he needs, arguments to establish that judicial executions ought never be performed. Rather, he thinks it sufficient to depict them as intolerable. The guillotine's cool kiss (Derrida has a virtuoso treatment of Guillotin's apologia for the efficacy of his instrument for execution, from which this phrase is taken) is not one to which necks ought ever be exposed. First, judicial execution takes a particular human life, which is to extinguish a world, the world that was the human person executed. Second, it is a decision to do this at a time—to date the death, and to bring it about on that date, theatrically. And third, it is a performance of the state's sovereign ability to state and mark an exception to its ordinary affirmation of inalienable rights, such as the right not to be killed. These three decisions are implicated in any judicial execution; they, as Derrida sees it, prompt the gasp of intolerability: "Not this"; "This is a horror"; "This is not to be done"; "This cannot be put up with." To avoid a close look at the act by utilitarian considerations is, for Derrida, not to take la peine de mort seriously—not to look it in the eye as the head rolls into the gutter following the guillotine's cool kiss.
Derrida sees that this kind of radical abolitionism won't be enough for radical retentionists. They think they have arguments that require assent to the necessity or permissibility of judicial execution, and appeals to intolerability won't, therefore, move them. Derrida treats, at length, two instances: Kant and the Kantians, and the Christian (usually Catholic) natural law theorists of whom his paradigm is Juan Donoso Cortés, a nineteenth-century (1809–1853) Spanish Catholic political theorist, treated respectfully and at some length by Carl Schmitt in his Political Theology (1922).
Kant subsumes the law of punishment (Strafgesetz) under the categorical imperative. This means, among other things, that consequentialist justifications or criticisms of judicial execution are beside the point. The act of judicial execution is one of respect toward persons; it honors the fact that they can do things worthy of punishment by execution. For Kant, punishment is ideally indexed to crime, and murder requires judicial execution because it is what murderers have made themselves worthy of. Executing them is the right thing to do, and the right-thinking among murderers will see this, and will prefer execution to any other punishment (as, indeed, some of them do). Kant doesn't draw back from the difficult conclusions this leads him to: Not to execute a murderer is to fail the murderer, and no pragmatic prudential patterns of reasoning can defeat this conclusion. If a murderer and his executioner are the last two left alive in a disaster-devastated world, the executioner ought still execute.
Juan Donoso Cortés and Feser and Bessette have a structurally similar view: The natural law demands that crimes be punished and that punishments be proportional to crimes. There is a fact of the matter about which punishments fit which crimes, and we can know, at least in broad outline, what these facts are. But Feser and Bessette, unlike Cortés, draw back from Kant's rigor. Kant thinks that there are no conditions under which a proportional punishment should be withheld: The sovereign fails when judicial execution is withheld from those who've done things that make them deserve it. Cortés thinks the same, though for different reasons: Desert is given by God; sovereigns are God's delegates; their task, then, is to apply the punishments that desert requires, and these punishments include the bloody sacrifice of judicial execution. Judicial executions, on this view, are not only legitimate, as Feser and Bessette think, but also necessary, as Kant thinks. For Cortés and Kant, abolishing judicial executions, whether by removing them from the books or by refusing to perform them when the penalty of death has been imposed—the current American solution, recall—is to abolish all law by eviscerating the idea of punishment of its power. Cortés is strong, and Derrida in expounding him stronger, on the connection between abolishing judicial executions and political chaos. You do the one, you'll get the other.
Feser and Bessette ought to think the same, but don't. They provide no rationale for their view that the sovereign may refuse to inflict punishments, up to and including execution. That sovereigns may, and sometimes should, remit penalties is of course required by Catholic doctrine, and that's why Feser and Bessette assert it. But that sovereigns may do this sits ill with their natural law position, and that lack of fit should have led them to reconsider the position rather than reassert it, like Englishmen abroad speaking English more loudly in the hope that increased volume will make it comprehensible to the locals.
Feser and Bessette's book has other problems. The authors do not properly acknowledge the difference between the order of being and the order of knowing. Suppose there is just desert; that's a fact in the order of being. What has it to do with our capacity to know what just desert is, whether in general or in particular cases? Nothing, necessarily. We might be deeply incapable without special training (and usually even then) of discerning what the order-of-being truth is. Feser and Bessette give no reason for thinking otherwise, and their own repudiation of some among the more savage forms of execution common in the past, which were often, perhaps typically, defended on just-desert grounds, supports the view that we're not very accomplished in this arena. Feser and Bessette also provide a flat-footed reading of Catholic magisterial teaching on these matters (I suggest a better reading below), and an even more flat-footed one of Scripture (which there's no space to address here).
There is an especially repellent feature of Feser and Bessette's book that deserves comment. Its third chapter is largely a catalogue of horrors in the form of a detailed presentation of some of the more unpleasant crimes committed in the U.S. in recent years. They provide this, they say, in the service of a dispassionate consideration of what those who do such things deserve. That claim is disingenuous. Describing rapes and murders in grisly detail elevates passions; that's its intent and its effect. And, indeed, those who've been bereaved by such acts often say that an antiseptic judicial execution isn't enough of a punishment for those who do them; something more violent and painful is required. Why do they think that? Because their passions have been inflamed by what they've suffered, just as the passions of Feser and Bessette's readers are likely to be, which is altogether inappropriate for a book claiming to be a work of judicial philosophy and Catholic thought. I've no doubt that terrible things are done all the time by humans to one another; that isn't in question. What's in question is whether we should judicially execute those who do such things. Cataloguing horrors makes no contribution to that question.
I suggest to Feser and Bessette a couple of remedies for their confusion and bloodthirstiness. First, read Cortés for a serious exposition of the kind of view their book provides a less vigorous version of; that'll show them what they ought to think given the axioms they apparently accept. It might also show them the intolerability of the position they would hold, were they consistent. Second, and more important: Go to bed with a cold compress and J. H. Newman's Development of Christian Doctrine and Grammar of Assent; there spend a week reading those books closely, setting aside for the duration, if it's bearable, Thomas Aquinas. This will make them better Catholics and better philosophers.
As for Derrida, he's been reaping his reward since 2004, and I expect that it is good. He was a subtle thinker, an elegant writer, and an altogether splendid—rabbinically splendid—reader of texts. If you want to understand the grammar of Western thought, including Catholic thought, about judicial execution, set Feser and Bessette aside and read Derrida. He is often annoying, often too entertained by his own cleverness, and sometimes repetitive (these texts are verbatim records of seminars, after all); this is a man who can be impressed that Walter Benjamin wrote an essay on power-authority-force (Gewalt) whose title shares a syllable (walt) with its author's first name, and is happy to share his enthusiasm about that with you. I'd rather have had less of that sort of thing. Nevertheless, to read him is to be in the presence of a great reader and thinker, and the continued publication of the seminars of his last years is a considerable gift.
Recall that judicial execution is on the wane, worldwide and in the United States. Recall, too, that constitutional democracies are, by now, altogether beyond the view that the blood sacrifices of judicial executions are necessary for their flourishing, or that the categorical imperative requires them. Catholics, too, should no longer hold such views. Cortés and Kant are possibly consistent in their respective defenses of judicial execution and are very powerful thinkers, but they have no purchase on Americans in general, or American Catholics in particular. Can we—those of us who are radical abolitionists rather than the weak-kneed consequentialist kind—do any better than Derrida's gesture toward intolerability, powerful though it is? Perhaps. Here's a speculative sketch.
First, for Catholics: It's by now clear that doctrine on this matter is developing. Since John Paul II's encyclical Evangelium Vitae (1995) and the promulgation of the Latin typical edition of the Catechism of the Catholic Church in 1997, whether to have judicial executions, de jure or de facto, is a matter for the prudential decision. The rubric under which such executions are considered is that of legitimate defense. Under that rubric, the presumption against them is strong. They're to be performed only if no other way can be found of effectively defending the common good against aggressors. Nonlethal means of defense are definitively to be preferred when they're available, and, as John Paul II writes in Evangelium Vitae, "Today . . . as a result of steady improvements in the organization of the penal system, such cases [in which judicial execution is required] are very rare, if not practically nonexistent." That's an important development of social doctrine, because it subordinates (without removing) the grammar of desert and punishment to that of defense and the common good, whereas earlier (recall Cortés), the grammar of desert and punishment was dominant or even the sole principle. That's not a reversal; it's a development, but a significant one.
On October 11, in a speech to the Pontifical Council for the New Evangelization in Rome celebrating the twenty-fifth anniversary of the Catechism of the Catholic Church, Pope Francis said that "it is necessary to reiterate that, no matter how serious the crime committed, the death penalty is inadmissible because it is an attempt against the inviolability and dignity of the person." Francis has written similar things before, for example, in a 2015 letter to the president of the International Commission Against the Death Penalty; what's new in the October speech is that he advocates the provision of a "more adequate and coherent space" for the topic of judicial execution in the Catechism of the Catholic Church. If that happens, the development of doctrine will be solidified, and it will be correspondingly more difficult for Catholic defenders of the legitimacy of judicial execution to make their case.
Second: All death, and therefore all deliberate killing, is matter for lament. You don't have to be a Christian or a Jew to think this, but it helps. For Catholic Christians, certainly, killing is a result of the Fall: Its archetype is Cain's murder of Abel, about which even the earth cries to the Lord. The proper first and last response to intentional killing, whether done by a small-time criminal or an executioner hired for the purpose by the state of Texas, is lament. Not to do this is fundamentally to fail, humanly and Christianly, in seeing what has been done. (There is no tincture of lament for judicial execution in Feser and Bessette.) Augustine likes to quote, as advice to Christian magistrates, Psalm 25:17, which reads, in the version known to him, "Deliver me from my necessities." By "necessities," he means results of the Fall, acts of bloody violence that can't be avoided. For him, these included slavery and torture, as well as judicial execution. We can now see that he was wrong to think of slavery and torture as necessities. We can do without those; at the very least, we can and do try to do without them. So also, I suggest, with judicial executions: They, too, are acts of bloody violence provoked by the Fall, and we can see, if we are prepared to look, that sovereign states can do their work without them. They aren't necessities; they are lamentable; and therefore we can, if we like, simply stop. Why do something lamentable if we don't have to?
Third, for Americans: The U.S. is a constitutional democracy, committed in theory to serve and protect the inalienable rights of its citizens, who are also its sovereigns. Those inalienable rights include the right not to be killed. A sovereign authority that permits or requires itself to alienate that right from any one of its citizens, for whatever reason, performs an incoherent act. It arrogates to itself the right to make exceptions to the universal economy of rights it theoretically serves, and thus makes itself sovereign over the economy of rights it is supposed to recognize, acknowledge, and serve. Dictatorships can coherently do this; constitutional democracies can't. This is the nub of Carl Schmitt's argument about sovereignty and against democracy. Must democracies do this—that is, incoherently bring into being states of exception? Perhaps; that's a large question. But they certainly don't need to do it by judicially executing some among their citizens. Speculation isn't needed for that conclusion: There are functioning democracies that don't judicially execute. They may be incoherent in other ways, but not in that way.
Fourth, on desert, the linchpin for all radical retentionists. I've already indicated that there are considerable difficulties in assessing what counts as desert, even if we are committed, as I am not, to the primacy of the grammar of desert in thinking about judicial execution. We shouldn't have much confidence in our judgments or our intuitions about what the desert—the due reward—of a particular act is. This is obvious from the depth and range of our past errors. Is judicial execution the desert of murder? Of rape? Of treasonous talk? Of theft? Of torture? Of sheep-stealing? Of poaching? All these have in the past been thought properly rewarded by judicial execution, as some are, still, in the present. The truth is that even if each of these crimes does have its desert, we have no clear knowledge of what it is. This should, by itself, lead to deep circumspection in advocating or performing judicial executions on the ground that they are the desert of particular crimes.
And there is a further point about desert. In English, the word carries a triple connotation: wasteland (as noun); due reward (as noun); and (as verb) the act of abandonment. There are, the lexicographers say, different etymologies for these different senses, and so they typically categorize these three deserts as homonyms. But for speakers and readers of the language, one sense can't be heard without also hearing the others. Homonyms always bleed at the edges. And so the place of due reward is also a wasteland, a place of abandonment, a trackless waste in which demons are found. If we all get what we deserve, we are all damned, most of us in prison, and many of us executed. The desert's paradigmatic instrument is the gibbet, and that instrument is always theatrically displayed in a wasteland, whether at the bleak moorland crossroads or in the white-tiled, glass-windowed, machine-laden execution chamber. The Catholic development of doctrine I've mentioned, subsuming, as it does, the desert into the common good, moves us away from the wilderness and toward the fruited plain.
Does all this yield radical abolitionism? Not quite. But it does properly locate and portray judicial execution: as an incoherent act of desertion by the sovereign state of what it's supposed to serve; as an intolerable and lamentable act of theatrical violence; and as an act for which there is no conceivable need in present circumstances. Steiker and Steiker are excellent guides to the peculiar history of this act in the U.S., as is Derrida to the broader history of its advocacy and critique; Kant and Cortés show in their distinctively bloody ways what a consistent retentionism looks like; and Feser and Bessette occupy an untenable middle ground. Sovereign states, all of them, kill people. But they mostly don't kill them by judicial execution, and we Americans, Catholic and otherwise, have no need to do so, and no justification for doing so. In the U.S. in the second decade of the twenty-first century, it's long past time to have put an end to judicial execution.
Paul J. Griffiths is Warren Professor of Catholic Theology at Duke Divinity School.
Follow the conversation on this article in the Letters section of our February 2018 issue.
Articles by Paul J. Griffiths