Touchstone: A Journal of Mere Christianity
“The Crime of Punishment” first appeared in the September 2002 issue of Touchstone.
The Crime of Punishment
Capital Punishment & Cultural Change in American Life
by James Hitchcock
The campaign against capital punishment in the United States is ostensibly inspired by a heightened respect for human life, a growing realization that the taking of life by the state is itself an injustice. It is, however, at best problematic to claim that Americans, especially the liberal middle class, are more sensitive to human life than they were forty years ago. The phenomena of abortion, euthanasia, assisted suicide, cloning, even selective infanticide, obviously belie this and require that an explanation be sought elsewhere.
To some extent the campaign against the death penalty follows a trajectory familiar in American reformist movements since the early twentieth century—the public identification of a “problem,” intense discussion in the media to “inform” the public, the marshalling of forces to correct the abuse. While many such issues—the place of women in society, the conservation of the environment, sexual behavior—may have seemed unproblematic to most people only a short time before, once “discovered,” they quickly generate new orthodoxies, with “enlightened” opinion thereafter measuring itself on the basis of how quickly and completely it absorbs the new viewpoint.
One leading Catholic opponent of the death penalty, Antoinette Bosco, carries moral authority in that her own son and daughter-in-law were brutally and gratuitously murdered, and Mrs. Bosco suffered great anguish searching for a way of coping with that catastrophe. But her ultimate response to the murders seems also to have been dictated by an outlook on life already fully formed—she was an anti-war activist, a feminist, an environmentalist, a liberal journalist, a critic of capitalism—positions that could scarcely sustain a “hard” attitude towards crime. (Her murdered son was also a liberal activist, who among other things campaigned for election to a school board by advocating permissive child-rearing.)1
The liberal approach to crime was an outgrowth of the general reformist impulse of the earlier twentieth century, an impulse that often denigrated the ability of ordinary citizens to make competent judgments about public issues and that proportionately exalted the wisdom of trained experts whose theories were thought to be appropriate for shaping public policy. It was a view of reality badly tarnished by the failed “war on poverty” of the 1960s, but it still persists. Essential to such a view is the assumption that only certified experts see reality in all its complexity, perhaps most keenly when their opinions seem to go contrary to common sense. Thus, the noted psychiatrist Karl Menninger, although his views about crime were expressed quite emotionally, insisted that he was merely being “scientific,” something which, he asserted, ordinary people would have difficulty understanding.
Some European countries abolished capital punishment in the nineteenth century, as did some of the United States, but the major campaign began only around 1960. Thus, for some American abolitionists the chief argument against capital punishment is simply that the practice places the United States “behind” other countries and is a source of international embarrassment. The late Chief Justice Earl Warren once argued against the death penalty merely on the grounds that it violated “evolving standards,”2 while another critic of the practice faults it simply for not being “modern.”3 But for many traditionalists, modernity itself is suspect, as are the impulses that they see driving the campaign against capital punishment.
The harbinger of the modern American campaign was perhaps the Leopold-Loeb murder case in Chicago in 1924, when the famous criminal lawyer Clarence Darrow for the first time put psychologists on the stand, not to argue that his clients were insane but that they should be spared the electric chair because of certain vaguely defined psychological deficiencies (“diminished responsibility”). It was a difficult argument to make, given that both murderers were highly intelligent and had been raised in luxury, but Darrow succeeded in reducing even the judge to tears of sympathy for the “misunderstood” defendants.4 For perhaps the first time in a major American criminal case, there was a deliberate “transvaluation of values,” in which the criminals were successfully presented as victims, at least to the extent of persuading the judge that they did not deserve the death penalty for a premeditated, cold-blooded murder.
The vogue of sympathy for violent criminals then periodically revived, as in the Caryl Chessman case of the 1950s, when liberal opinion strenuously lobbied against the execution of a serial rapist and murderer, partly on the grounds that Chessman possessed literary ability. More recently the novelist Norman Mailer championed the cause of Jack Henry Abbott, a murderer whom Mailer thought showed talent as a writer and who, soon after his release from prison, committed another murder.5 Mailer had a similar attitude towards Gary Gilmore, a murderer executed in Utah in 1979.6
In the 1988 presidential campaign a convicted criminal named Willie Horton became a symbol for both Republicans and Democrats, the former pointing out that he had committed a brutal crime while on furlough from prison in an experimental program, the latter portraying him as a scapegoat for white racist politicians. The Horton case followed the familiar pattern wherein liberals find mitigation in the poverty and discrimination of the criminal’s personal history. But, as in the Leopold-Loeb and Chessman cases, some criminals are granted extenuation even if they cannot plausibly be presented as victims of deprivation.
The Crime of Punishment
Common sense assumes that, if capital punishment were abolished, it should be replaced by long prison sentences, often by life terms without possibility of parole, and some abolitionists do indeed advocate that. But a closer scrutiny of the arguments against capital punishment—that it fails to respect human dignity, that it treats the criminal in a demeaningly “objective” way—shows that they can also be used against life imprisonment, or indeed against any kind of punishment at all, and crusaders against the death penalty not uncommonly become severe critics of prisons as well, agitating against the entire penal system and accepting at face value the claims of imprisoned criminals that they are being mistreated.
The “enlightened” attitude on the subject was crystallized by Menninger in a book with the deliberately provocative title The Crime of Punishment.7 Although he also wrote a book asking Whatever Happened to Sin?,8 morality entered his understanding of crime only in terms of the immorality of punishment, criminal activities themselves being approached from an exclusively therapeutic standpoint. With Menninger there again occurred a transvaluation of values, in which the urge to punish was treated as itself reprehensible, even as criminal actions were regarded as the emanations of wounded psyches in need of sympathetic help.
A recent critic of criminal justice takes this position farther still, regarding the urge to punish as a perversion of authentic Christianity and at the same time a manifestation of the inhumanity of Western culture. The critic, a professor in a divinity school, claims to find, in various non-Western cultures, approaches to crime that are non-punitive and hence, paradoxically, more authentically Christian than the practices of ostensibly Christian societies.9
What has changed in American life, over a period of almost forty years, are basic attitudes towards crime and punishment themselves, the debate over the death penalty being merely an aspect of those larger issues.
The familiar division within penal theory is between “retribution” and “rehabilitation”—those who think the penal system should simply punish transgressors, versus those who think it is possible, and therefore imperative, that the transgressor be reformed. However, those familiar categories do not entirely explain the ultimate issues behind capital punishment. By now, even some advocates of the theory of rehabilitation concede that it has not been effective in most cases, but, as with other panaceas, they conclude not that the theory itself is flawed but that it has not been adequately tried. The failure of rehabilitation is finally blamed on those who direct the penal system, as well as on “society” at large, since otherwise it would be necessary to acknowledge that some criminals may indeed be incorrigible.
In intellectual circles it became almost an axiom during the 1960s that punishment was to be understood, realistically, as a means of “social control” by which the privileged and powerful keep the lower or dangerous classes in their place. This view asserted what was virtually a tautology—that laws are made and enforced by people who are powerful—and thereby prescinded almost entirely from questions of guilt or innocence, since the criminal justice system was defined in advance as an instrument of political repression. Although it is usually not stated so bluntly, the theory implies that even those who actually commit crimes do not deserve punishment, since the system overall has nothing to do with justice.
As with every other aspect of Western culture, attitudes towards crime underwent a revolutionary change during that period of recent history somewhat imprecisely called “the Sixties.” But, in common with other revolutionary ideas of that age, avant-garde ideas about crime, while increasingly accepted in self-consciously “progressive” circles, continued also to provoke a corresponding popular reaction.
One gulf separating those commonly defined as “conservatives” and “liberals” has been identified as, respectively, “constrained” and “unconstrained” visions of reality. Thus, conservatives have a somewhat pessimistic (or “realistic”) view of human nature and its capacities and believe that people need the restraint and support of laws and institutions, while liberals tend to see human nature as capable of almost endless improvement and therefore endorse most forms of personal expression.10
These competing visions have obvious relevance to criminality, in that conservatives think that many criminals can only be dealt with through punishment, while liberals are by conviction reluctant to admit that some people may be so wicked as to resist all attempts at rehabilitation, or to concede that some criminal acts may be purely malicious and not capable of mitigating explanations. Thus, precisely because cases like Leopold-Loeb present the strongest challenges to those beliefs, liberals must confront them in order to find ways of minimizing imputations of ultimate guilt.
For example, one Christian critic of the death penalty faults other Christians for not understanding that
Ironically, liberal concern for the freedom and dignity of the criminal necessarily turns into a denial that the criminal in fact even possesses such freedom and thereby invalidates any objection to depriving him of a freedom that he does not actually possess. Thus, standard liberal penology seems logically to dictate that criminals be treated no differently than the state treats lunatics, imbeciles, and others deemed to be incompetent.
Menninger substituted the idea of “penalty” for that of “punishment,” since punishment is designed for the deliberate inflicting of pain, motivated by a desire for vengeance. Although somewhat vague about what would constitute effective penalties, he suggested that in cases of theft, for example, the thief would merely be required to compensate the victim for the loss of the stolen goods, along with an additional payment as a kind of surcharge.12
Snyder advocates procedures that he claims are followed among American Indians and certain African groups, procedures that seem to involve endless “discussions” by all involved parties, until they reach a consensus as to how the offender is to be “reintegrated” into the community. He also makes the familiar claim that crime will be abolished only when there is economic equality among all peoples, a claim that rests on the obviously false assumption that all crime is economically motivated.13
C. S. Lewis pointed out that the therapeutic approach to criminality, although allegedly more humane than outright punishment, embodies a dangerous potential for something worse, since it allows the therapist in effect to take control even of the criminal’s inner life, in the name of the criminal’s own good.14
Nathan Leopold and Richard Loeb had no recognizable motive for murder; they simply wanted to commit an entirely gratuitous act, one that would demonstrate that they were “beyond good and evil.” Mass slayings perpetrated by children from prosperous suburban families, such as those at Columbine High School in Colorado, completely baffle human understanding; there are no comprehensible reasons why the murders should have been committed at all. The murderer of Antoinette Bosco’s children was the son of a deeply religious family and was a student at a Quaker college where he was taught the virtues of peaceful existence. Thus, Mrs. Bosco was forced to conclude merely that he was a mysteriously “disturbed” person, a formula that in the end simply admits the failure of understanding.15
Criminals, even murderers, often seem to have no sense of the viciousness of their own deeds but do have a correspondingly strong sense of themselves as victims, illusions that liberal penology reinforces. Thus, Shadow Clark, the murderer of Antoinette Bosco’s children, reacted to his crimes in a totally self-justifying way:
In Missouri an armed robber several times escaped from prison, each time killing or injuring innocent people. When caught, he wrote a letter to a newspaper proclaiming himself to be a gentle person consistently misunderstood by society.17 Violent criminals like Jack Abbott and Caryl Chessman developed second careers as self-righteous critics of the penal system, endlessly protesting the oppressions to which they were subjected.18 (Although usually hurled at respectable “pillars of society,” the epithet “self-righteous” is most apt when applied to certain criminals, who appear to possess impregnable defenses against any imputation of personal guilt.)
A crucial moment in the moral history of modern America was reached sometime in the mid-1960s, when liberal support of civil disobedience, on behalf of what were deemed to be just causes, suddenly metamorphosed into a willingness to “understand,” even to approve, acts of violence, depending on the identity of the perpetrators, and a new eagerness to see such acts as themselves legitimate forms of social protest.
Thus, for example, a “protestor” at the University of Wisconsin blew up a laboratory, killing a graduate student who was a husband and father. The perpetrator fled to Canada, and when he was eventually caught complained to the media that he was treated as a common criminal rather than as the idealist that he truly was. The Catholic radical Philip Berrigan, ostensibly a pacifist, was a character witness at the terrorist’s trial and denounced his being sent to prison.19
Liberal ambivalence was especially noticeable where black violence was concerned. By the mid-1960s white liberals were accepting the rebuke that they had no right to judge the actions of black people, and blacks who advocated, or practiced, violent “solutions” to injustice were given the same moral authority as the apostles of non-violence, even though only a short time before the philosophy of non-violence had been exalted to the status of a moral absolute. Liberals now tended to indulge in euphemistic evasions, as certain blacks openly flaunted their commitment to violence.
Nor was it possible, for very long, to distinguish “political” from “criminal” violence, since the apologists for the former themselves soon came to deny the validity of any such distinction. In this view what were usually defined as acts of common criminality, including murder, were actually “political” in nature, directed against a systemically unjust society and intentionally subversive of that society.20
There is a modernist tradition, dating to the nineteenth century, of treating fear of crime as a “bourgeois” obsession, along with an accompanying modernist habit of portraying the bourgeoisie themselves as repressed, frightened, and insecure. In this mythology, if the criminal is not exactly excused, his victims are treated as people who in a sense deserve little sympathy, because of their constricted lives. (In his celebrated book about the annihilation of a farm family in Kansas, the novelist Truman Capote was at best condescending, even to the point of contempt, towards the victims, who were brutally slain by a former employee whom they had treated kindly.21) This attitude ignores an unrecognized inner contradiction, which is that, if criminal behavior, even of the most horrifying kind, can be “understood” in terms of the criminal’s wounded psyche, the same consideration must be given to those who thirst for vengeance, their “crimes” at least as understandable as legally defined crimes.
But ultimately the liberal attitude towards crime requires turning the moral tables, so that the criminal’s culpability is reduced even as the victims are discovered to be themselves culpable, because of their vindictiveness. Unavoidable in such an approach, given the stubborn refusal of most citizens to see its wisdom, is the insistence that respectable opinion is itself almost pathological, insofar as it remains unabashedly punitive. Thus, Menninger complained that “we cannot expect the public to be objective either in judging the criminal or in judging us psychiatrists. . . . It is a part of the common folk ways, standard value judgment.”22 For another reformer, the citizens’ “urge to punish” is an understandable but ultimately immoral aberration, based on “propositions distorted by fear and by prejudice, for religious dogma, ethical concepts, social outlook, and economic interests are likely to be deeply involved.”23
Although most people sense that the desire for vengeance is perhaps a healthy human urge, even if it must be finally purged, some liberals see it as a kind of pathology (“frustration-aggression symbiosis.”)24 Not uncommonly, opponents of the death penalty are prepared to be infinitely “understanding” of criminals but reserve harsh words for those who support capital punishment.25 In the Loeb-Leopold case Darrow condemned the prosecutor as a monster and a sadist and attempted to place the “sufferings” of the defendants on the same moral level as that of their innocent victim, a fourteen-year-old boy.26
Thus, supporters of the death penalty are accused of being “judgmental,” an epithet now routinely hurled at anyone who affirms moral absolutes, who continues to insist on the binding nature of moral laws. To a certain kind of modern mind, every kind of transgressive behavior, including violence, can be tolerated. What cannot be tolerated is that anyone should still claim to be able to pass judgment on such behavior. Thus, the idea of punishment itself becomes offensive. Liberal penal theory ultimately cannot deal coherently with punishment because all punishment (even community service) is, by its very nature, something imposed on an unwilling subject, who is thereby constrained and stigmatized, publicly proclaimed as having behaved improperly.
The Rejection of Judgment
Menninger’s proposal for “penalties” would further trivialize the moral import of crimes. A thief, for example, might reasonably think it worthwhile to steal, given the fact that, if caught, he would at worst be required to pay a fine, something that might be thought of as simply part of the cost of doing business, another chapter in the continuing game between the criminal and the law. Advocates of such an approach recall that it was the common method of punishment in the earliest human law codes, but the practice of reducing crime to a system of calibrated payments appears literally barbaric in its seemingly callous attitude towards murder.
A classic statement concerning criminal justice was made by Pope Pius XII in an address to jurists in 1954. While recognizing that personal and social factors might be relevant considerations in the lives of particular criminals, the pope also proclaimed that, since all political authority comes from God, all crime is itself a direct assault on God and his law. Crimes deserve punishment, the purpose of which is to return the criminal to “the order of duty” that he violated. However, even when the criminal has been restored to this order, he still remains in “an enduring state of guilt and punishment.” The concept of vindictive punishment, the pope insisted, could not be rejected entirely, since it might in some cases help restore the criminal to his dutiful place in society. Liberation from guilt can be achieved only to the degree that there is a restoration of the order that was disrupted by the criminal act.27
It has been suggested that revulsion against the death penalty may be parallel to, possibly a result of, the revulsion against the doctrine of hell prevalent among modern Christians.28 It is finality above all that the modern mind cannot tolerate, since finality precisely deprives the individual of his endless opportunities for “choice,” which is modern man’s preferred definition of freedom. Supreme Court Justice Antonin Scalia points out that the strongest rejection of the death penalty is in countries that can be called “post-Christian,” and that, even when the argument is cast in theological terms, it derives mainly from modern secular ideas.29 As Cardinal Avery Dulles has said,
At heart, modern liberalism simply cannot bring itself to believe in the reality of evil, since modern liberalism’s entire enterprise rests on a sometimes unspoken belief in progress, by which proper education and wise social arrangements can eliminate all pathologies. While orthodox Christianity does not require the death penalty, opposition to capital punishment often implies a denial of certain classical Christian moral beliefs, as set forth by Pius XII among many others. As C. S. Lewis pointed out, the death penalty, and indeed every kind of punishment, rests on the assumption that human beings in particular situations deserve certain kinds of treatment, whereas “humanitarian” theory, a term Lewis considered a serious misnomer, seeks always to minimize any concept of moral desert, hence does not treat criminals as properly moral and free beings.31 Whereas Pius XII still envisioned an objective moral order, modern culture tends to lose sight of actual criminal deeds in its endless probing of the subjective factors in each person’s life.
The ultimate evil then becomes judgmentalism, the effrontery of one human being’s sitting in judgment over another. One critic of the penal system insists that the system is inherently illegitimate because only God can know guilt or innocence,32 a belief that would logically require the abolition of all law and public authority.
Liberation & Violence
Justice Scalia argues that moral opposition to the death penalty owes little to authentic Christianity—since, among other things, Christianity over the centuries has usually supported capital punishment—but has much to do with a distorted concept of democracy.33 Cardinal Dulles points out that opposition to the death penalty has, over the centuries, most often been a position espoused by sectarian Christian groups marginal to the main body of believers.34
Although there have been critics of capital punishment for a long time, only fairly recently has it been argued that it is a violation of individual rights, a chapter in the expanding “rights revolution” of the past forty years. The death penalty has essentially disappeared in those Western nations that view themselves as on the cutting edge of new and benign forms of international cooperation, including an International Criminal Court, and where new rights, such as that of abortion, are quickly recognized and protected by law.
The dominant spirit of the Sixties can be identified as a kind of antinomianism, the sense that all constraints were being removed, that human beings were now free to “advance” to levels of existence previously closed to them. The disparate manifestations of this spirit were not unrelated, so that, for example, among those involved in penal reform was the psychologist Timothy Leary, who exulted that the use of psychedelic drugs, and the concomitant encouragement to expand their sense experiences exponentially, transformed the lives of imprisoned criminals.35
The cultural revolution of the Sixties was aptly dubbed, almost as soon as it began, the “triumph of the therapeutic,”36 defined as the pursuit of an entirely “free” existence unhampered by constraints, the “systematic hunting down of all settled convictions.” Although the counterculture took as its slogan “make love, not war,” in fact the proclaimed separation of love and sex from violence was always illusory—the breaking of taboos inevitably led to violence as well as to erotic liberation. Joined to the political uses of violence that were being exalted during the same period, personal violence was readily justified as “necessary” to the individual’s struggle for liberation from both internal and external constraints.
The counterculture sought to release the inhibitions that the culture had placed on individual psyches, but the effects of this release of impulses could scarcely be controlled or predicted. Thus, in a sense, criminals like Jack Henry Abbott were genuine heroes of liberty. While few people openly celebrate criminality, the criminal has long been the object of both fascination and a certain sympathy, as in the legends of Robin Hood or Jesse James. In some ways, gratuitous violence remains the last taboo, and for that reason holds a powerful fascination for self-consciously “liberated” people, who rarely bring themselves to the point of endorsing it but often skirt around its edges.
In Freudian terms, the superego is now pitted against itself, no longer imposing repression on the psyche but instead imposing an obligation on the psyche to liberate itself from such repressions. He who does this successfully becomes a new kind of moral hero, even if not all his actions can be openly condoned.
Contemporary Western culture tolerates, even promotes, violence in a variety of forms and is seriously disturbed by criminal violence only when that violence comes close to home. Thus, it is often not the killing itself that makes the death penalty hateful but its moral purpose. It is the claim of the state, acting on behalf of the citizens, to make final judgments concerning human behavior that is most offensive, the legal imposition of punishment being judgmentalism in its purest and starkest form.
But punishment may be necessary to inculcate a sense of guilt in the transgressor, to impress on him the awareness that what he has done is wicked and is regarded as such by society. Conversely, the failure to punish tends to convey the message that transgressive deeds are finally excusable, a message that helps maintain the criminal in his state of moral immaturity.
It is not crucial to the future of civilization that the death penalty remain in force, and there are serious arguments to be made against it, the most serious the fact that innocent men are sometimes put to death. But to a great extent the modes in which the abolitionist argument has so far been put, even by religious people, have had the effect of trivializing and sentimentalizing society’s general moral understanding.
Not uncommonly, opponents of capital punishment and opponents of abortion are also in opposition to each other and are therefore accused of being insensitive or hypocritical, of failing to espouse a “consistent ethic of life.” But most people do not think of themselves as inconsistent, as having missed a logical connection that they should have noticed, as being unaccountably blind to serious evil. As with other moral questions, most people probably approach these issues as part of a nexus of positions embodying a coherent moral vision, which for the sake of convenience might be called “traditionalist” and “reformist” respectively.
Traditionalists believe in an objective, perennially valid moral and social order, which is in need of defense. They assume the reality of human freedom and therefore believe that people should be held individually accountable for their actions. They believe strongly in “family values” and are therefore particularly outraged by acts of aggression against people whom they consider virtuous, law-abiding citizens.
The traditionalist viewpoint sharply distinguishes guilt from innocence, something that is directly relevant to the controversy over abortion, since such people are likely to regard criminals as guilty people who have thereby forfeited their basic rights, while the unborn child is wholly innocent.
Reformers, on the other hand, essentially accept the modernist claim that there is ultimately no absolute and fully objective morality, nor is there any social order that transcends whatever order human beings have been able to create. As children of the Sixties, reformers regard the family as simply another component of a society that must be held in suspicion, as inherently oppressive and as embodying serious inequalities.
Taking an antinomian concept of freedom as their fundamental creed, these reformers have a large stake in finding that freedom is seldom abused. Hence they struggle continually to “understand” transgressive behavior rather than punishing it.
For reformers it is axiomatic that moral issues are always more subtle and complex than traditionalists realize. Thus, brutal criminals are never as guilty as traditionalists think, nor are unborn children wholly innocent, in that they seriously infringe upon their mothers’ freedom. Capital punishment is hateful because it is punitive and claims to be justified by moral judgments. Abortion is tolerable because it is not imposed punitively but merely for the sake of enlarging the “freedom” of the mother.
Thus, the “seamless garment of life issues” now often urged by Catholic leaders has had little practical effect in American life, satisfying neither side of this traditionalist-reformist dichotomy. John Paul II, in Evangelium Vitae and elsewhere, has attempted to elevate the issues to a higher plane, one that transcends the dichotomy by affirming the sacredness of human life in all situations. Thus far, it is a position that has had only very limited influence and, except in certain Catholic circles, does not drive the campaign against capital punishment.
1. Antoinette Bosco, Choosing Mercy: A Mother of Murder Victims Pleads to End the Death Penalty (Maryknoll, New York, 2001), 13–35.
2. Franklin E. Zimring, Capital Punishment and the American Agenda (New York, 1986), 51.
3. Giles Playfair, The Offenders: The Case against Legal Vengeance (New York, 1957), 273.
4. The best account of the case is Hal Higdon, The Crime of the Century (New York, 1975). See also Hitchcock, “Murder and the Modern Conscience,” Touchstone, 10:3 (Summer 1997), 22–25.
5. Mailer wrote a highly laudatory introduction to Abbott’s book, In the Belly of the Beast: Letters from Prison (New York, 1981).
6. Mailer, The Executioner’s Song (Boston, 1979).
7. (New York, 1968).
8. (New York, 1973).
9. T. Richard Snyder, The Protestant Ethic and the Spirit of Punishment (Grand Rapids, Michigan, 2001).
10. Thomas Sowell, A Conflict of Visions (New York, 1987) and The Vision of the Anointed (New York, 1995).
11. Mark Totten, in First Things, 115 (August-September 2001), 12.
12. Menninger, Crime, 209.
13. Snyder, Protestant Ethic, 74–100. Apart from the question whether such procedures are suitable to a complex modern society, there are reasons for thinking that Snyder simply follows the familiar habit whereby discontented Western intellectuals “find” in non-Western cultures things that are not really there but that serve as a basis for criticizing Western culture itself.
14. Lewis, “The Humanitarian Theory of Punishment,” in Contemporary Punishment, 197.
15. Bosco, Choosing, 31–34.
16. Ibid., 28.
17. For a discussion of this and similar cases see Hitchcock, “American Culture and the Reverence for Human Life,” Linking the Human Life Issues, ed. Russell Hittinger (Chicago, 1986), 40–47.
18. Besides In the Belly of the Beast, Abbott wrote How Do Prisons Affect Criminals? (St. Paul, 1985) and My Return (Buffalo, 1987). Among other works, Chessman wrote Cell 2455, Death Row (New York, 1956), The Face of Justice (Englewood Cliffs, New Jersey, 1957), and Trial by Ordeal (Englewood Cliffs, New Jersey, 1955).
19. For a discussion of this and similar cases see Hitchcock, “American Culture,” 40–47.
20. Thus a book by Eldridge Cleaver, Soul on Ice (New York, 1968), was for a time one of the bibles of white liberals, despite Cleaver’s open defense of criminal behavior, including (at the dawn of a resurgent feminism) rape. See also for example Daniel J. Wideman and Ralph B. Preston (eds.), Soulfires: Young Black Men on Love and Violence (New York, 1996).
21. Capote, In Cold Blood (New York, 1966).
22. Menninger, Crime, 204.
23. Henry Weihofen, “The Urge to Punish,” Perspectives on Correction, 62–97.
24. Zimring, Capital Punishment, 42.
25. For example, see the comments of Bosco, Choosing, 64–65, 67, 72, 124–125, 148. There is a similar disparity in the judgments of the Catholic crusader against the death penalty, Sister Helen Prejean, in her book Dead Man Walking (New York, 1993).
26. Hitchcock, “Murder,” 22–23.
27. “Crime and Punishment,” in Gerber and McAnany, Contemporary Punishment, 59–72.
28. Ralph McInerny, “Opposition to the Death Penalty,” Catholic Dossier, IV:5 (September-October 1998), 5.
29. Scalia, “God’s Justice and Ours,” First Things, 123 (May 2002), 19.
30. Dulles, “Catholicism and Capital Punishment,” First Things, 113 (April 2001), 32.
31. Lewis, “Humanitarian Theory,” 194. For a similar argument from a secular point of view, see Walter Berns, For Capital Punishment (New York, 1979).
32. Playfair, Offenders, 258.
33. Scalia, “God’s Justice,” 17–21.
34. Dulles, “Catholicism and Capital Punishment,” 32.
35. Leary, “And the Prisoners Will Become Priests: The Convicts Break Out,” Perspectives on Correction, 126–154.
36. What follows draws heavily on the work of the man who, better than anyone else, diagnosed the nature of the moral revolution of the Sixties—Philip Rieff, in The Triumph of the Therapeutic (New York, 1966) and Fellow Teachers (New York, 1968).
This paper was originally given at a conference sponsored by the Faith and Reason Institute and supported by the Pew Charitable Trust.
James Hitchcock is Professor of History at St. Louis University in St. Louis. He and his wife Helen have four daughters. His most recent book is the two-volume work, The Supreme Court and Religion in American Life (Princeton University Press, 2004). He is a senior editor of Touchstone.
“The Crime of Punishment” first appeared in the September 2002 issue of Touchstone. If you enjoyed this article, you'll find more of the same in every issue.
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