March 5, 2010 § 5 Comments
Suppose for the sake of argument that we can measure the proportionality of various criminal punishments (proportionality specifically in Thomistic terms of the extent to which the punishment opposes the will of the punished) in justice-units (JU).
Let’s further stipulate that the death penalty provides 95 JU in the case of a double-murderer, and that life imprisonment only provides 60 JU. Any punishment shy of 100 is just in itself, that is, the criminal deserves it. So there is nothing intrinsically wrong in carrying out the death penalty as long as we don’t exceed 100, that is, as long as our punishment doesn’t exceed what the criminal deserves. Once we exceed 100 the points count against us, not for us.
Furthermore, let’s suppose that it is a primary duty of the state, one among many, to (without punishing anyone more than he deserves) maximize average JU-per-crime as a factor in the common good.
Then along comes Evangelium Vitae. In it Pope John Paul II teaches, in addition to teaching that Catholics have a grave duty to protest the legal “right” to abortion, that while maximizing JU is indeed a duty of the state it is not the only duty of the state. Just punishment is not a goal of the state taken in itself, divorced from consideration of the common good more generally. The common good is more than merely meting out punishments which are deserved, full stop. This is consistent with the Tradition: St. Thomas Aquinas teaches that meting out the death penalty is only justified by reference to the common good, not as a thing in itself. Ultimate justice is for God, not the state. The state has responsibility for criminal justice – and therefore authority for carrying it out – only inasmuch as the state is steward of the common good.
In terms of the arithmetic analogy there is, say, some common good function CG in which the JU term is significant but is not the only term. The JU term is not valuable in itself from our standpoint as stewards of the common good, but rather is only valuable (and maximizing it is only justified) insofar as it doing so adds to the common good.
Suppose further that while the death penalty does have a positive effect on the JU term specifically, it also has negative effects on other terms. Systemically carrying out the death penalty is a mixed bag: properly done it does maximize JU, but it also necessarily subtracts from other important goods.
Therefore the state does not have a simplistic duty to maximize JU in itself, and cannot justify its actions based strictly on maximizing JU alone. The state has a duty to maximize CG, not JU, since JU is merely one factor in CG and its maximization is only justified to the extent doing so positively influences CG. In short, “he is getting what he deserves” is a necessary but not sufficient condition which must obtain in order for the state to have legitimate authority to carry out the death penalty. As in the case of a just war, other criteria in addition must be met.