The estimable Fr. Dwight Longenecker has written a short summary of C.S. Lewis' essay The Humanitarian Theory of Punishment, by way of a preface to arguing in favour of a recent, rather jejune joint editorial from four "national Catholic journals" calling for an end to the death penalty (Longenecker's piece here). I'd say this is not one of Fr. Longenecker's finer performances, whether as an exponent of Catholicism, or simply as a thinker. Let's analyze:
Longecker's case against the Humanitarian Theory of Punishment
Lewis' essay, which Longenecker aims to summarize, treats of three reasons offered by contemporary 'humanitarians' justifying punishment: deterrence, protection, and rehabilitation. Longenecker rejects these reasons. Let's analyze his arguments:
Regarding deterrence, Longenecker writes:
if deterrence is the reason for punishment, then the sentence should be as severe as possible to scare others from committing the crime.
Longenecker is being sloppy here: the premise here simply won't get you to that conclusion. The premise would instead need to be: "If deterrence is the only reason for punishment, and deterrence is an objective that trumps all others, then..." But at the very least, the humanitarian at least believes in rehabilitation and protection, as well as deterrence, so the humanitarian will want to find a balance with those other objectives, he has no reason to absolutize deterrence, and Longenecker's argument here clearly doesn't work. (His argument against deterrence as one of the reasons grounding the application of a particular punishment for a particular crime is also decidedly un-Catholic, that is, opposed to the clear Catholic tradition, as Stephen Long has pointed out here.)
Regarding rehabilitation, Longenecker writes:
Likewise, if rehabilitation is the reason for punishment it can end in injustice and cruelty. If a person is to be imprisoned or punished in some other way until he is reformed and changes his mind he might stay in prison for a very long time and therefore suffer a great injustice.
Well, indeed: I suppose he might. But it seems obvious that the humanitarian could reply that the person might also be reformed and change his mind and therefore obtain a great benefit - and indeed, this is what the humanitarian hopes and/or expects, so it isn't fair to simply ignore that. And the same kind of analysis would apply to Longenecker's next argument:
Conversely, he may feign rehabilitation in order to attain early release and that too would be unjust.
Well, yes, that might be unjust, and certainly, the humanitarian would agree, it would be undesirable, but that is a practical matter, not one of principle. This is no argument against an emphasis on rehabilitation as such. Longenecker continues:
If the person is imprisoned for an ideological crime he may never recant because to do so, for him, would be to sell his soul. Let’s imagine that a pro life demonstrator was jailed and told that he would only be released if he agreed that abortion was okay. In resisting such “rehabilitation” he would have to be imprisoned forever because he will never recant.
Here the humanitarian could surely object that he no more wants to forceably rehabilitate merely 'ideological criminals' than Longenecker would want to (justly) punish them. Longenecker concludes:
Rehabilitation, therefore, as a motive for punishment leads to injustice.
One problem here is that Longenecker's formulation, "rehabilitation as a motive for punishment," tends to basically misrepresent the humanitarian position. While punishment might still serve as a tool for rehabilitating someone, what the humanitarian fundamentally wants is to replace punishment with rehabilitation, to replace the 'Criminal Justice System' with 'Correctional Services.' He at least wants to thoroughly subordinate punishment - which is a response to past crimes - to his humanitarian goals - which are resolutely future-oriented. Rather than 'punishment' properly speaking, with its connotations of justice, rehabilitation is strictly about 'efficacious conditioning.' In any case, while admitting that abuse of rehabilitative processes might lead to injustice, this doesn't seem like a real reason to reject rehabilitative measures as such, or a reason to retain justice as a more fundamental public objective than rehabilitation.
Thirdly, Longenecker offers his argument against protection:
Likewise if protection of the public is the reason for punishment great injustice may occur. A person who has committed a minor but dangerous crime might be locked up forever if the judge deemed him to be irreformable and a constant danger to the public. If protection of the public is the reason for punishment most anyone could be locked up if the authorities deemed them dangerous.
Here it's not clear how a 'minor' crime could be so dangerous as to justify locking someone up forever. It may be true that an irreformably dangerous person could get locked up forever, but the humanitarian will want to know why that is a bad thing, why it is a "great injustice."
Longenecker then offers his own preferred theory: retribution should be the basis for punishment:
The judge has a list of crimes and he puts that next to the list of punishments and the criminal gets what’s coming to him. No more and no less. The judge then has authority to lengthen or shorten the sentence according to extenuating circumstances and motivation.
Here the humanitarian will likely wonder how this list of crimes and punishments has been constructed. What makes this (or that) list a fitting instrument of fundamental justice? He might cite historical examples that would suggest that such lists may in fact allow "great injustice" to occur, and wonder why it is that when - and only when - expounding his own theory, Longenecker simply ignores the "possibility of great injustice" problem.
Longenecker's case against Capital Punishment
Now for Fr. Dwight's case against capital punishment. He first frames his argument in relation to the three afore-analyzed 'humanitarian reasons.' First, deterrence:
Capital punishment as a deterrent has not been shown to be effective, but the main argument against it is that the deterrent factor should not be the motivation for capital punishment in the first place. If punishment is meted out for its deterrent factor then let us stop complaining about Muslims lop of thieve’s hands, stone adulterers and throw homosexuals from rooftops.
As we have seen, besides being un-Catholic, Longenecker's argument here doesn't work: the humanitarian obviously doesn't - and logically couldn't - absolutize deterrence in such a way that this analysis would make any sense. Deterrence can certainly be one motivation for meting out some particular, harsh punishment, without it being the only or the overriding motivation. Regarding Longenecker's examples, it's hardly clear that they show the wisdom of his own approach: unless it is in fact the case that Muslims, say, lop off thieves' hands strictly for 'humanitarian' reasons (in particular for the purpose of deterrence), then such examples are irrelevant; and if, as may well be the case, Muslims regard such punishment as compatible with Longenecker's "list of crimes-list of punishments" retributive approach, then the example would positively tell against Longenecker's theory of punishment.
Second, rehabilitation:
Capital punishment obviously has nothing to do with rehabilitation except that the imminence of the electric chair, the injection room or the firing squad may prompt repentance and remorse. However, even then it is not always the case as plenty of death row prisoners face their end either spitting with rage and rebellion or strutting in with false bravado and a defiant gesture.
Of course, Fr. Dwight's claims about what may be the case and what is not always the case are correct, but they don't establish anything about the general relative effectiveness (or ineffectiveness) of capital punishment vs. long-term imprisonment for purposes of 'rehabilitation' (i.e., repentance and remorse), and thus doesn't tell us anything about the case for or against capital punishment vis-a-vis the goal of 'rehabilitation.'
Third, protection:
It is arguable that capital punishment protects the public by removing a threat permanently, but incarceration accomplishes that without the killing.
This may be so for the most part; except that people who are incarcerated may well in fact continue to pose a threat, living lives of violent and sometimes murderous thuggery even while in prison. Longenecker simply ignores this fact/possibility.
Longenecker concludes with an assessment of capital punishment in light of his own, retributive theory of just punishment:
It remains then to ask whether the execution of a criminal fulfills the demands of retributive justice. Are there crimes so heinous that we must execute the criminal simply because that is what is just?
We should note at the outset that Longenecker has started by posing the fundamental question in a misleading way: The real question is not about whether we must execute certain criminals; the question is whether we may legitimately do so. In positively advocating for an end to the death penalty, for its abolishment, one must establish not only that capital punishment is not a must; one must establish that we must not have recourse to it, no matter how heinous the crime. In any case, let's look at Father's reasoning:
Some would say so. I used to believe so. I no longer do.
Here’s why: it is certainly arguable that one who cruelly and deliberately takes an innocent life should forfeit his own life in return. But a life in prison is also a way to lose one’s life. Perhaps those who are so in favor of the death penalty have never visited a prison or met a man serving a life sentence. I have, and I can tell you that a life sentence is a long, slow death.
This may well be; but then why should we think that a "long, slow death" is preferable to a quick one? Surely Fr. Longenecker needs to explain this.
The life prisoner has a lifetime to learn remorse. He has a lifetime to count the cost. He has a lifetime to make amends. He has a lifetime to give a life for the life he took.
This is true; but it is true regardless of how long the prisoners lifetime is, and regardless of whether that lifetime is cut short by execution or ended by natural death. There is no fundamental principle, I dare say, that the longer we take to learn remorse and to make amends, the better. So again: this is no real argument against the death penalty.
There is, therefore, no good argument for the death penalty.
And to this conclusion I would have to retort: There is, therefore, no good argument against the death penalty - at least none that Fr. Longenecker has offered.
Longenecker ends with the general statement, "This is why I support the editorial in our four Catholic publications today." It is worth noting that when one reads the editorial, this claim looks somewhat ironic, insofar as a number of the reasons given in the editorial are ones which Longenecker himself has just undertaken to refute in the course of offering his own views on the legitimate principles of just punishment. Cardinal O'Malley talks about 'protection'; there is talk of spending resources more efficiently so as to prevent crime in the first place (this would fit in the 'deterrence' portfolio); and there is mention of working for "restorative justice" (albeit only in the case of lesser criminals for some reason... - anyway, I guess, this would fit the 'rehabilitation' portfolio). As for Longenecker's 'just retribution,' I didn't notice any mention of that.
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