Thursday, June 10, 2010

Thinking out loud

I'm thinking out loud in this post, so please bear with me.

Yesterday I started to think about the similarities and differences between parental punishment of children and the State's legitimate punishment of offenders. While there are, of course, important differences, some of the principles are the same: parents may not be cruel or abusive, the punishment, to be effective, ought to be suitable to the offense, and the punishment should have a twofold purpose: to restore order, and to provide the opportunity for the child to repent and be "rehabilitated" from his infraction.

To look at an example, suppose a child is playing with several other children and begins behaving badly (snatching toys away, pushing, yelling etc.). The mother enters the room, and conducts a sort of "mini trial," in which the infraction is investigated, blame assigned, and the guilty party identified. She then "sentences" the naughty child to sit on a chair by himself in another room for a specific period of time. He does not wish to do this--but he complies, knowing that the punishment will be worse if he does not. When his time of "incarceration" is over he returns to the game, and now the choice is his: to play by the rules and behave himself, or to act up again and risk further punishment.

Now, while the arrest and imprisonment of a grown man or woman is different in many ways, you still have a just authority, a trial to determine the truth, a sentence pronounced, and, usually, a prison sentence or other punishment determined. Again, the punishment is geared toward both justice and mercy, toward both removing the offender from society, the way the child was isolated from his peers, and toward giving the offender the opportunity to repent and be rehabilitated, and thus return to and remain in society.

How does the death penalty fit into this? The way I see it presently (though I'm open to correction), the death penalty is to be used when the State determines that only thus can society really be protected from the offender--that the offender has been an aggressor against innocent life, and has lost all his "chances" of the kind of rehabilitation that will allow him to return to society or even to continue his life among the society of the prison. I may be wrong, but I think it is possible that the death penalty's claim to consider the prisoner and be merciful to him lies in the notion that the final and severest mercy one can have toward the truly incorrigible aggressor is to force him to face his mortality in the light of his crimes and sins. This is not the reason the state may execute; the reason remains only to protect everyone else from this incorrigible aggressor who will not stop attacking and threatening his fellow men. But the Church would not, I think, condone a use of the death penalty which cut off the prisoner from spiritual guidance, from the Sacraments (if he is Catholic), or from similar exhortations to repent before repentance is forever impossible--which, to me, means that mercy to the prisoner is still, if somewhat paradoxically, intended.

But this sentence from CCC 2267 is important, too: "If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person."

From this I get that the Church sees non-lethal means as "...more in conformity to the dignity of the human person..." which implies that the death penalty is necessarily less in conformity to that dignity. Far from being some kind of perfect means of punishment which ought to serve as the standard by which we measure all other means of punishment, the death penalty is a sorrowful necessity caused by our fallen nature, and by the possibility of incorrigible depravity and viciousness that lurks in the human soul.

How does this relate to torture?

I think that some people argue this way:

a) the Church permits the death penalty, to protect society.
b) there are times when torture (or something not-torture that would be torture if it were not justly necessary) would also protect society.
c) Torture (or the not-torture which is exactly like torture) is less extreme than putting someone to death.
d) Therefore, if the extreme of putting someone to death may be used to protect society, it follows that torture (or not-torture) must be permissible if it is being used in limited situations to protect society.

But the way the Church writes about the death penalty, she makes it clear that non-lethal means are "...
more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person..." than the death penalty is. Like I said, then, the death penalty isn't the "model" of how we ought to punish the guilty--it is something sadly necessary because of our fallenness, but not something to be used indiscriminately, celebrated, or elevated as the standard of Christian punishment.

What should be the standard, to me, are those punishments that are more visibly ordered toward both justice and mercy, toward the protection of society and, simultaneously, toward the possibility of the repentance and rehabilitation of the prisoner.

And this means that so far from seeing a sort of "If the Church permits the death penalty, then the Church must permit torture..." framework, we could instead see it as "Though the Church must permit the death penalty in rare circumstances, we should remain mindful that the ordinary purpose of punishment, formed by considerations of justice and mercy, is to protect society from the aggressor while offering to the prisoner the opportunity for repentance and rehabilitation."

Thoughts? Clarifications?


13 comments:

  1. a) the Church permits the death penalty, to protect society.
    b) there are times when torture (or something not-torture that would be torture if it were not justly necessary) would also protect society.


    If I were less lazy, I would figure out which fallacy this is. That the death penalty is justified because it protects society does not imply that torture is justified if it protects society. Something else is required for the justification of the death penalty than merely its end - namely that God has, by revelation, given the State the power of killing the guilty under some circumstances. No such revealed authorisation is given for torture.

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  2. That's just it, John--obviously not everything that can protect our society is morally valid. Preemptive firebombing of our enemies' population centers is not morally valid, etc. But somehow the "if the death penalty is justified, then torture must be justified" argument crops up an awful lot.

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  3. Modern people have a mindset which tends to place all of these proposed acts on a "worse to better" number line, if you will, where if one kind of act falls in a "less bad" part of the number line it can't be "less permissible" than something which falls on a "more bad" part of the number line. The shorthand term for this is "transitivity". Human acts don't work anything like that though: human acts are not morally transitive. It is a tough prejudice to get past, because people do not recognize the pattern in their own thinking nor do they understand criticism of it, especially if they have reason to not want to understand.

    (BTW this particular argument applied to waterboarding - i.e. that waterboarding is justifiable not-torture when it is necessary to protect the innocent because the death penalty is sometimes licit - is argument #2. It is also closely related to argument #34).

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  4. You said "But the Church would not, I think, condone a use of the death penalty which cut off the prisoner from spiritual guidance, from the Sacraments (if he is Catholic), or from similar exhortations to repent before repentance is forever impossible- "

    I just read in Robert Hughe's book about the deportation of convicts to Australia, that Protestant England did sentence people to hanging "without benefit of clergy." This shocked me. I wonder if any Catholic society would have done this. I tend to feel that the scenario with the priest on the scaffold giving the condemned a final absolution is far more humane than our current practices.
    There is a kind of nobility to the scene, a recognition that the person stands on the brink of facing God's judgment, and a sense that though by civil justice it is right that he should die, the Church still considers him one of Her own and is caring for him with concern for his eternal welfare.

    The Church used to justify the torture of heretics for the good of their immortal souls, and the burning of heretics for the good of society, to frighten others away from heresy. The latter did not work and I doubt whether the former did either. The rationale might have been acceptable if the premise were true, but it seems clear that the premise was false. Whatever you can make someone say or do through pain or fear, it isn't a genuine saving adherenced to the truth!

    However in the scaffold instance, the person's repentance out of fear of damnation (attrition) is sufficient; the lack of perfect contrition is supplied for by the grace of the sacrament. A great mercy.

    Susan Peterson

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  5. I have to say that I have difficulty being as much as an absolutist about the issues you address here as I am about abortion. I suppose this is because the hardest case scenarios for abortion I feel are no more than I could face myself. I personally could die in order not to kill my child.

    But I worry, when we talk of what cannot be done in a war, that no one who adhered to these limitations could be the head of state of a modern power, or run an intelligence agency. Could a state survive when attacked if it never bombed cities, for instance? Is there a conflict between the obligation of the head of state to defend his country, and the moral obligations of a Catholic?

    Susan Peterson

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  6. I think you have to be somewhat careful. If we argue that a person may repent at the prospect of death and this is good for the person, then inflicting pain to stop an attack may also be a good. Under the infliction of pain, a person may decide it is no longer useful to withhold information about future attacks or provide information about a terrorist organization. This is good for the person. And at least Kalid Sheikh Mohammed (sp?) reportedly did.

    On a more formal level, it seems only rehabilitation as a purpose of punishment actually considers the good of the punished. Retribution and death may have the good of the person result but only accidentally and not necessarily. So I don't see that the good of the person would enter into moral consideration of the act.

    Thoughts?

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  7. What about the following scenario (true story):

    Young children are at play around an unplugged horizontal deep freezer. Eventually the older cousin tells the younger one, "How about getting inside the freezer and we can hide out from our parents." The younger cousin complies, and gets into the freezer at which the older cousin shuts the freezer door and locks it.

    The older cousin, just having a little fun runs up stairs and to another room at which point he is confronted by one of their mothers. Sensing something is wrong (which mothers seem to be very good at), the boy begins to be interrogated. Now that boy knows that he is in a lot of trouble for many reasons. He becomes obstinate in not coming foward with the information assuming that he can avoid further punishment. Perhaps it is a defect in his nature to disregard authority (which incidentally has manifested itself in later years). Can the mother incrementally inflict up to proportionate pain upon the obstinate child in order to get the information needed to help the other child?

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  8. For example, can she spank the child?

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  9. For example, can she spank the child?

    #11.

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  10. Zippy, I am not talking about torture. I am talking about intentional infliction of pain for information in this regard. Is it acceptable in my scenario?

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  11. The verdict of tradition, history, and law is that spanking children for correction is sometimes acceptable. I have seen no compelling argument to the contrary.

    What do you think?

    I do think it is important not to let ever more ambiguous or difficult cases turn into a distraction though. Difficult and ambiguous cases will always be with us; that doesn't mean that the cases which are the focus of this blog are difficult or ambiguous though.

    Although the [Catholic moral tradition] did witness the development of a casuistry which tried to assess the best ways to achieve the good in certain concrete situations, it is nonetheless true that this casuistry concerned only cases in which the law was uncertain, and thus the absolute validity of negative moral precepts, which oblige without exception, was not called into question. The faithful are obliged to acknowledge and respect the specific moral precepts declared and taught by the Church in the name of God, the Creator and Lord. -- Veritatis Splendour

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  12. I doubt if it would work to spank the child.
    The child is now scared. The best thing to do is to say, " Now Bobby, please tell me what is going on. I don't see Tommy; where is he? I won't be mad at you if you tell me, but if you don't, and something bad happens to Tommy you will feel terrible, and Aunt Sally will cry and cry. Come on, taking child's hand, lets go to where you last saw Tommy." You might even resort to bribery; this is not the time to be scrupulous." After we find him, we'll all have some ice cream."
    If spanking the child would work I think it would be justified, but I just don't think it would work. I can imagine that if the child had been regularly disciplined by spanking and then was told he would be spanked if he didn't say where Tommy is right now, it MIGHT work, but if it didn't, you then have to waste time spanking him and then you have a sobbing kid and you still don't know where Tommy is.

    Not sure if this is exactly relevant to the adult enemy scenario.

    Susan Peterson

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  13. I think that focusing on the inflicting of pain as the determining moral factor is something of a red herring. What makes torture wrong is not that it inflicts pain; it is that it treats the human person as something other than a human person, or, in other words, it treats a person in a way unbefitting human dignity.

    Now, there are also lots of ways to treat people in undignified ways. Insults use words, discrimination uses legal or social stigmas, theft uses objects, and so on. But words, laws, and objects are not bad in themselves. It is our manner of using them that is good or bad.

    Likewise with punishment and torture. Inflicting pain is not, in and of itself, a moral evil. Doctors and parents and law officers do it in (ideally) a morally good way. However, torture uses pain to treat a person as less than a person, and so is intrinsically evil.

    Does this make sense? It's a line of thought I've been developing from reading Red's posts and the comments thereon, so I'm open to correction if I'm off base at all.

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