Death?

From the New York Times:

The defendant, Steven J. Hayes, sat motionless at the defense table as a court clerk read, again and again, the jurors’ findings that Mr. Hayes should die for joining in the July 2007 home invasion that led to a night and morning of unimaginable terrors, of sexual abuse, baseball-bat beatings and flames, in the bucolic suburban town. Only one person has been executed in the state since 1960.

The crime was savage–beyond savage; evil–and Hayes’s guilt was never in doubt.

Has the jury done right? I’d be particularly interested to learn what my friends Richard Epstein, John Yoo and Bill McGurn have to say. Legal scholars, Richard and John will have given a lot of thought to Supreme Court cases on the death penalty over the years, as also to the practical aspects of the penalty. (Hayes’s appeals will take years, costing Connecticut taxpayers millions.) Bill McGurn? He’s a learned Catholic, no doubt aware that Bishop William Lori, in whose diocese (if I’m not mistaken about the boundaries) the murder took place, represents one of the Church’s–and the nation’s–leading advocates for abolishing the death penalty outright.

Richard? John? Bill?

  1. Richard Epstein
    C

    The details of this case are so horrifying that if there is an instance for which the death penalty should be allowed this one is it. And what is on the other side? The concern of false convictions, for which there should be real diligence. No death executions without DNA tests in cases of doubt for example. But apart from that, there is the sense that it is impossible for juries to distinguish cases on matters of degree. I fully agree that some cases of this sort do exist. But this only counsels for caution not abolition. And then there is the real problem with race-motivated convictions. Not present with Steven Hayes to say the least. My bottom line on the principle is that use caution, but do not abolish, even if they do so elsewhere as in Europe. And as to the law, I had an earlier post in which I explained why the prohibition cruel and unusual punishment did not rule out the death penalty which was explicitly contemplated in other provisions of the bill of rights: namely those dealing with due process, grand jury indictments, an double jeopardy.

    Hayes is not a man who should be spared popular wrath.

  2. Bill McGurn
    C

    I agree entirely with Richard. Of course, I always agree entirely with Richard on almost anything, so that’s not news. I note, by the way, that there is a new book by Charles Lane called “Stay of Execution” that advances what I take to be much the same argument Richard does: There are some real issues with capital punishment (race-based convictions etc) but argues for addressing those and retaining death penalty.

    I believe that capital punishment should be just that: the top punishment of a justice system that has punishments up and down the line according to circumstance. As a Catholic, let me say there has been a lot of mischief on the Catholic side of equating the death penalty with abortion. Cardinal Dulles ought to have cleared that up years ago: while abortion and euthanasia are deemed “intrinsic” evils – i.e., always and everywhere wrong, in other words, never justified by any circumstance – the aptness of capital punishment is circumstance based. I believe that John Paul II’s teaching was that in today’s world, the circumstances that justified it are “practically non-existent.” That, however, is a judgment call, what Catholics call a “prudential judgment,” in which the pope or any clergyman has no particular expertise. Doesn’t justify a blanket absolution for capital punishment, but it does not exclude the possibility of an execution done in a moral way by a moral society.

  3. EJHill

    Inject. Hang. Shoot. Fry. Embalm. Cremate. Bury. Take no chances.

  4. Bill McGurn
    C

    Also, I have never looked into this aspect. I have, however, always had a feeling that there are two arguments for the death penalty. One is strictly utilitarian, so if you kill someone society just takes you out to protect itself. Second, at least for Christians, where the killer’s life is thought to have worth, it does give the killer something that the victim never had: the chance to make himself right with God. In a secular society that is an argument people laugh at. But it’s not something that we who believe in the eternal soul and the ever-present possibility of redemption do.

  5. Bill McGurn
    C

    P.S. It’s been a big story in the NYPost, and I have to say the crime has been so heinous I can’t even read the stories. If I had been the dad I would have wished I didn’t survive.

  6. John Yoo
    C

    I’m not a vote against the death penalty — surprise. On the legal level, the Constitution pretty clearly allows the death penalty. The Fifth Amendment says that someone cannot “be twice put in jeopardy of life or limb,” which of course assumes that it is OK for the government to try someone once for death. The Fifth and Fourteenth Amendments also say that neither the federal or state governments can deprive someone of “life, liberty, or property without due process of law.” That recognizes that the state can deprive someone of their life if it accords the defendant due process. As I understand Richard, and I agree with him on this, is that there are important measures that our society should take to make sure that due process occurs before the death penalty is imposed (use DNA evidence, make sure there is no racial bias in the trial, and so on). But I think that opponents of the death penalty who claim it is flatly unconstitutional in all cases cannot overcome the constitutional text.

  7. EJHill
    Bill McGurn: If I had been the dad I would have wished I didn’t survive.

    Bill, how about handing killers over to their victim’s families?

  8. John Yoo
    C

    That doesn’t tell us whether, as voters, we should approve the death penalty or not as a policy even if the Constitution says it is permissible. For me, I would only approve it if it provides some deterrent effect. If the death penalty does nothing to reduce murder rates or their violence, then I would dispense with it. My latest reading of the academic work, controversial though the subject is, is that the possibility of the death penalty does have a deterrent effect. It is often said that operating the death penalty costs more money than imprisoning someone for life, but I think that is due to the endless delays produced by legal appeals by the death row inmate himself. I think part of the fairness required is also to rationalize the appeals process so that it does not take decades.

  9. Pseudodionysius

    Bill’s given an excellent summary to which I can add nothing.

  10. John Yoo
    C

    I am not sure whether McGurn’s view on the death penalty is more based on retribution or restoration or another theory of justice. To me, these are not as compelling as the instrumental goals for the criminal justice system, but they are undeniably some of the reasons that people support the death penalty. I am no expert on Catholic thought, but my recollection was that St. Augustine and St. Thomas Aquinas approved of the death penalty — correct me if I am wrong; I am curious what they said.

  11. Tommy De Seno
    C

    As a Catholic lawyer myself, I think the Catholic view is that the death penalty is only OK if we can’t keep others safe from the killer. Considering the efficacy of modern jails, we probably can. Catholicism is consistent on the culture of life – respecting life whenever possible, even with a man like Hayes.

    Life in prison is favorable for a variety of reasons, many touched upon by Richard Epstein in the first comment.

    From a purely religious point of view, I note the infinite capacity of God to forgive and save should Hayes conduct the right contrition and penance, thus removing one reason for the death penalty (sending him to Hell).

    I imagine lifetime prison stays can result in a longing for death, so if you are into retribution, you may find more of it in a life sentence than the death penalty.

    Finally – I’d use the death penalty as a political trading card against abortion. Wouldn’t you make the trade to abolish the death penalty in all 50 states in exchange for outlawing abortion on demand nationwide?

    Culture of life. No one dies, the innocent live and the guilty stay in jail.

  12. Pseudodionysius
    John Yoo: I am not sure whether McGurn’s view on the death penalty is more based on retribution or restoration or another theory of justice. To me, these are not as compelling as the instrumental goals for the criminal justice system, but they are undeniably some of the reasons that people support the death penalty. I am no expert on Catholic thought, but my recollection was that St. Augustine and St. Thomas Aquinas approved of the death penalty — correct me if I am wrong; I am curious what they said. · Nov 9 at 2:10pm

    To be more accurate Thomistically, without quoting the Summa directly, Aquinas did not believe that the death penalty was evil in and of itself and therefore could be used, just as someone can kill in self defense without being convicted of murder.

  13. Bill McGurn
    C

    John,

    The argument was purely moral view of the person: whether one could justify an execution on moral grounds, in response to Peter’s particular question to me. I believe it can; others will argue that it does not. That is not to pose it against legal grounds. They are in separate and distinct but not necessarily hostile realms. I think it is false to suggest it is either/or.

    bill

  14. The Mugwump

    I’m neither a theologian nor a lawyer. However, we do have in Scripture a transcript of the trial of Jesus before Pilate. Nowhere in the proceedings does the Son of God make the claim that the state has no right to take his life. If such were the prerogative of God alone, I would expect the Son to so instruct his children, at least to set a precedent. Such an admonition is noticeably absent in Scripture.

  15. Tommy De Seno
    C

    Paules -

    Didn’t the Lord spare Cain from the death penalty for killing Abel? Didn’t He promise to punish 7-fold those who may use capital punishment on Cain? To wit:

    13Cain said to the LORD, “My punishment is too great to bear!

    14“Behold, You have (Q)driven me this day from the face of the ground; and from Your face I will be hidden, and (R)I will be a vagrant and a wanderer on the earth, and (S)whoever finds me will kill me.”

    15So the LORD said to him, “Therefore whoever kills Cain, vengeance will be taken on him (T)sevenfold ” And the LORD (U)appointed a sign for Cain, so that no one finding him would slay him.

  16. John Boyer

    As a graduate student actually studying Thomistic philosophy, I feel a duty to provide the text asked for above from St. Thomas (From Summa Theologiae I-II, q. 64, a 2, Co – http://www.newadvent.org/summa/3064.htm):

    As stated above, it is lawful to kill dumb animals, in so far as they are naturally directed to man’s use, as the imperfect is directed to the perfect. Now every part is directed to the whole, as imperfect to perfect, wherefore every part is naturally for the sake of the whole. For this reason we observe that if the health of the whole body demands the excision of a member, through its being decayed or infectious to the other members, it will be both praiseworthy and advantageous to have it cut away. Now every individual person is compared to the whole community, as part to whole. Therefore 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” (1 Corinthians 5:6).

  17. Franco

    In the case of heinous crimes like this, the family and friends of the victims (and really,all of us) should be able to rest assured that this man is rendered completely incapable of repeating these acts. In other words, dead.

    I am further radicalized by criminals who use the state system to avoid or delay their death sentence, expecting mercy from the state when they were incapable of doing the same to their victims.

    I find the religious argument weak, since the criminal could get his mercy from God in the afterlife if God and afterlife exist. If not the question is moot.

    It is sad that justice is so slow.

  18. Tommy De Seno
    C

    John Boyer that argument is the most slippery, crisco and grease laden slope ever constructed.

    Taken to it’s logical conclusion, the most pious man would be alone in the world, and the rest of us killed for not being him.

  19. John Boyer
    Tommy De Seno: As a Catholic lawyer myself, I think the Catholic view is that the death penalty is only OK if we can’t keep others safe from the killer. Considering the efficacy of modern jails, we probably can. Catholicism is consistent on the culture of life – respecting life whenever possible, even with a man like Hayes. I imagine lifetime prison stays can result in a longing for death, so if you are into retribution, you may find more of it in a life sentence than the death penalty.

    Culture of life. No one dies, the innocent live and the guilty stay in jail. · Nov 9 at 2:17pm

    I don’t think that effectiveness of keeping a murder off the streets through life in prison is enough reason to outlaw the death penalty. In fact, temporal punishment for murder, one of the sins crying out for vengeance, ought to be severe. It can be satisfied by the death penalty even if one could lock the perpetrator up for life. This is not to say every murder conviction needs be met with the death penalty, only that it is not wrong to use it in our modern day.

  20. Tommy De Seno
    C
    Franco: I find the religious argument weak, since the criminal could get his mercy from God in the afterlife if God and afterlife exist. If not the question is moot.

    I would not make the argument in a purely political discussion, but Peter asked (by my reading) for our answers to be infused with a Catholic view.

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