Why “Pro-Life” May Mean Being “Pro-Death Penalty”

by Ryan Mulvey

Should a pro-life activist be equally concerned with ending capital punishment as he is with prohibiting abortion?  Ultimately, one who cares to protect the fundamental right to life can consistently support the death penalty. In fact, respect for life may demand a retributive theory of justice that permits execution.

On January 22, pro-life activists across the country will mark the fortieth anniversary of Roe v. Wade.  In the time since that decision, one may estimate that 55 million unborn American children have been aborted.  Understandably, many view these numbers as representative of modern day genocide and have undertaken a decades-long crusade—a veritable culture war—to challenge the practice.

Less attention has been given, however, to the number of executions that have taken place in this country since Gregg v. Georgia—the 1976 Supreme Court decision that reaffirmed the constitutionality of the death penalty. As of December 2012, 1,320 individuals have been sentenced to death across the United States.

Given the disparity of numbers—the number of babies aborted in this country versus the number of serious criminal offenders whose capital punishment has been carried out—the skewed attention given to the abortion issue is unsurprising.  But we should not be so quick to dismiss the concerns—philosophical and practical—of those who are opposed to the death penalty.  If capital punishment is wrong, then it is wrong for reasons intrinsic to the act itself, and not merely because it has resulted in the death of so many or so few criminals.

Last week, my friend and colleague, Kathleen Hunker, suggested that capital punishment, premised on a theory of retributive justice, is mistaken.  Discussing the matter in the context of James Holmes—the Aurora movie theater gunman—Kathleen argued that to execute Holmes would be to “perpetuate the conditions that lead men to value pain over human life,” effectively giving in to America’s “culture of violence.”  It would sentence the inalienable right to life to an unacceptable conditionality premised on “social mores.”

I disagree.  I believe that the concept of capital punishment is defensible.  Moreover, I believe it to be consistent with the “pro-life” position, and perhaps even a necessary part of it.

Abortion and the punishment of a culpable criminal of sound mind are not analogous.  While the unborn child is an innocent—indeed, he lacks moral agency and, therefore, the capacity for being blameworthy—the hardened criminal deserves his just rewards.  His punishment must fit his crime, or at least be no more severe; this could even mean the loss of his life.

Frequently, those who identify as “pro-life,” yet who insist that the demands of human dignity militate against the death penalty—among other things—fail to adequately justify what amounts to a philosophical claim.  It is insufficient, in my opinion, to simply say that “life is life,” and therefore deserving of similar treatment in all cases.  Biologically-speaking, of course, the life of an unborn human and a criminal are substantially the same.  But in a moral sense, this is not the case.  And respect for human dignity demands that we attend to the differences in moral status between a fetus and, say, a murderer.

On a retributive theory of justice, punishment—as described by Pope Pius XII to the Sixth International Congress of Penal Law—serves as the “counter-blow” necessary for the “restoration and reestablishment of the [status quo] which has been disturbed” by criminal activity.  It is not a matter of channeling societal “hatred” towards culpable offenders, or inflicting pain upon guilty parties.  Retribution it is not about revenge.

True retributive punishment acknowledges the human liberty and inherent dignity of the victim that has been usurped by the criminal, who has willed to illegitimately advance his own wrongful goals.  A murder, for example, commits an intrinsically evil act by killing without justification, but also uniquely infringes upon the right to life of his innocent victim, and forfeits his own in so doing.  The murderer must suffer the same deprivation, the same loss, experienced by his victim.  In a real sense, then, retributive punishment becomes a matter of fairness and equality.  If we care to protect the right to life, and the inherent dignity of the individual, then transgressions against that right and that dignity must be met accordingly.

Yet, the innocent—the unborn among them—are easily distinguishable from the criminally culpable.  They have not upset the moral order; they have not committed harm against another person.  The purposeful death of an innocent is therefore distinct from the execution of a deserving criminal.  As I previously suggested, abortion and execution are not analogous.  Certainly, both implicate concepts of personal dignity and individual worth, but we cannot deal with such terms—insofar as we attempt to determine the most ethical course of action—without first contextualizing them.

I admit that we live in a time when gratuitous violence is commonplace.  America suffers a culture of death, and this is reflected in many aspects of our society: from television to video games, from abortion to the disregard that so many show towards the elderly and the infirm.  But we must carefully distinguish between an attitude of indifference towards the beauty of life, and a desire to see those who trample upon that beauty rightfully punished.  Should Holmes be sentenced to death, his execution would not glorify violence so much as it would be a testament to our moral conviction that Holmes’ actions were violative of life’s inherent value.

I grant one point to critics of capital punishment, and it is a major one.  We live in a world of epistemic uncertainty, and history has shown that wrongful convictions are more commonplace than might be expected, let alone desired.  And the government institutions that administer the criminal law are far from innocent, both in their evidentiary and prosecutorial capacities.  It is an affront to human dignity and the inalienable right to life that innocent people are sentenced to death.  But we should be clear about the import of this reality.

On the theoretical level, capital punishment is justifiable.  And I maintain that it is even necessary, if we are serious about defending the dignity of the individual and satisfying the demands of justice.

Pragmatically, though, we should never jump to implement such punishment.  The death penalty ought to be used sparingly, prudently, and only in instances of the most egregious criminal offenses.  Moreover, the criteria for its use ought to be exceedingly stringent and intensely scrutinized.  But when those criteria have been met, and the State’s justice system has been shown to have acted legitimately and fairly, and we are as certain as is humanly possible that guilt has been demonstrated, then I fail to see any convincing moral or philosophical impediment to carrying out an execution.  More importantly, I am convinced that there is no contradiction with this stance and the “pro-life” position on other issues, abortion and euthanasia among them.

Ryan P. Mulvey is a graduate student at Boston University where he is pursuing a dual-degree in Law and Philosophy (JD/MA).  He is expected to graduate in 2013, and may be contacted at rpmulvey@bu.edu.