THE LEGITIMACY AND PRUDENCE OF CAPITAL PUNISHMENT
by Charles E. Rice
Did the state of Illinois have the right to kill John Wayne Gacy? Would
not a truly prolife position require the rejection in principle of capital
punishment as well as abortion? It may be useful to set forth here some
reasons why a consistent pro-life position can recognize the authority of
the state to impose the death penalty and can support the use of that
penalty in some cases.
The state's moral authority to impose the death penalty, as with the moral
authority to kill in a just war, ultimately rests on the fact that the
state derives its authority from God who is the Lord of Life. St. Thomas
Aquinas argued that the common good requires that some "pestiferous men"
be removed from the community by execution:
"The life of certain pestiferous men is an impediment to the common good
which is the concord of human society. Therefore, certain men must be
removed by death from the society of men.... Therefore, the ruler of a
state executes pestiferous men justly and sinlessly in order that the
peace of the state may not be disrupted.... [However], the execution of
the wicked is forbidden wherever it cannot be done with out danger to the
good. Of course, this often happens when the wicked are not clearly
distinguished from the good by their sins, or when the danger of the evil
involving many good men in this ruin is feared" (,
Book III, ch. 146).
"If a man be dangerous and infectious to the community, on account of some
sin, it is praiseworthy and advantageous that he be killed in order to
safeguard the common good, since 'a little leaven corrupteth the whole
lump' (I Cor. 5:6)" (, II, II, q. 64, art. 2).
Significant statistical evidence would appear to support the conclusion of
common sense and experience that the death penalty probably deters at
least some premeditated homicides. That penalty would appear to have much
less effect with respect to crimes of passion and homicides by insane
persons. Since it probably does deter in some cases, the death penalty
probably saves the innocent lives of potential future victims who would be
killed but for the deterrent effect of that penalty. Nor is it unjust to
execute a murderer. When he comes at his victim, the victim can rightfully
kill him if necessary to save his own life since the murderer by his
aggression has forfeited his right to life. Having forfeited his right to
live for purposes of immediate self-defense, it is not unreasonable for
the murderer to be held to forfeit his life to save the lives of future
victims of other would-be murderers.
A more basic justification for capital punishment is retribution.
Retribution, however, should not be confused with blind vengeance. As a
sound principle of natural law and common sense, the punishment should fit
the crime. If someone were ever convicted of the assassination of
President Kennedy and the judge sentenced him to only five years in
prison, the nation would properly be outraged. For such a crime, as for
the murders committed by John Wayne Gacy, only the death penalty would
serve to correct the balance of justice. Retribution involves the rightful
use of that penalty to restore the balance and thereby to promote the
common good. Murder should be stigmatized as the crime of crimes. To
punish it by imprisonment, a penalty qualitatively no different from that
inflicted for embezzlement, is to devalue innocent life. Seen in this
light. the death penalty uniquely promotes respect for innocent life. The
Catholic Church affirms the authority of the state to inflict the death
penalty, but regards it as a prudential question whether that authority
should be exercised. Recent Popes have appealed for clemency for some
condemned murderers. While the bishops of the United States concede that
"the state has the right to take the life of a person guilty of a serious
crime," they have repeatedly insisted that "in the conditions of
contemporary American society, the legitimate purposes of punishment do
not justify the imposition of the death penalty." See the discussion on
this in "The Bishops on the Death Penalty" (editorial), , Dec.
20th, 1980, 400.
Prudential arguments against the death penalty include the claims that it
denies the opportunity for civil rehabilitation of the criminal; that it
involves the possibility of an irretrievable mistake; that its deterrent
effect is diminished by delays in execution due to lengthy appeals; that
the publicity generated by executions creates division and bitterness in
society; that a disproportionately large number of those on death row are
members of racial minorities; and that the death penalty bears most
heavily upon the poor and friendless who cannot afford a high-priced legal
Perhaps the strongest argument against the death penalty is that it
involves the risk of an irretrievable mistake through the execution of the
innocent. The risk of erroneous conviction is inherent in any criminal
case. The irrevocability of the death penalty, however, casts a heavier
burden of justification on its supporters. And it argues for enhanced
procedural safeguards in capital cases. But it is unsound to argue
categorically that the risk of convicting the innocent should
automatically rule out the death penalty. The abolition of that penalty
puts at risk the lives of other prison inmates who might be murdered by
prisoners who otherwise would have been executed. And abolition of the
death penalty would also put at risk innocent members of the general
populace who might be murdered by persons who should have been executed or
by murderers who would have been deterred by the prospect of the death
No law may ever validly tolerate the intentional killing of the innocent.
But the duty of the state to promote the common good can justify the
execution of a malefactor convicted of an offense such as murder. This
justification in principle properly leaves one free to oppose the
application of the death penalty in particular cases or even in a
particular society or era. Unfortunately, this critical distinction
between guilt and innocence tends to be obscured in the climate of
political correctness which prevails in universities and elsewhere.
Capital punishment is obviously a "right-to-life" issue. But it is often
misunderstood. One could legitimately argue against both abortion and, on
prudential grounds, capital punishment. But the two cases are not the same
since the unborn child is innocent and the convicted murderer is not. One
could therefore also legitimately argue against abortion and in favor of
capital punishment. The liberal chic position today, however, is to oppose
the killing of convicted criminals but to approve the killing of innocent
children in the womb. It is a symptom of debased humanism to protest a
murderer's deserved punishment while acquiescing in the killing of
innocents through abortion. The prudent use of the death penalty can
emphasize, as no other penalty can, that malefactors are responsible for
their own actions and that the deliberate, willful taking of innocent life
is the most abhorrent of all crimes precisely because the right to life is
the most precious of all rights. A forceful statement of a prudential
argument for capital punishment was made by former New York City Mayor
Edward I. Koch in his response to the killing of a female transit cop by a
"The life of a cop has been taken by a criminal. And how dreadful it is
that when that criminal is tried, if found guilty, he will not be subject
to the death penalty. Why should that be? It won't matter what his past
criminal record is or how many people he has assaulted, robbed, or killed.
He won't be subject to the death penalty because there is no death penalty
in New York state.
"How stupid we are. We had a situation recently where a criminal in jail
serving two life sentences for two prior murders killed a prison guard in
jail and was not subject to the death penalty, but only a third life
sentence. 'The law is an ass,' Charles Dickens wrote nearly 150 years ago.
No, it is not the law, it is the people who created the law who should be
so described" (, Sept. 29th 1984, p. 17).
This article was taken from the August 25, 1994 issue of "The Wanderer,"
201 Ohio Street, St. Paul, MN 55107, 612-224-5733. Subscription Price:
$35.00 per year; six months $20.00.