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June 18, 2019

"Abolishing the death penalty requires morality"

The title of this post is the headline of this new commentary authored by Stephen Cooper, which is a response to a recent commentary by Austin Sarat (blogged here).  Here are excerpts:

In “How to Convince Americans to Abolish the Death Penalty,” Amherst College Professor Austin Sarat asserts “important lessons about how abolitionists can be successful around the country” can be learned from New Hampshire – which just last month became the twenty-first state to abolish capital punishment — including: “The moral argument doesn’t work.”...

Sarat’s regretful and regressive capitulation to the fallacious dogma of retribution is, therefore, in my opinion, as disturbing as it is disappointing.

In his book “The Ethics of Punishment,” Sir Walter Moberly sagely observed about retribution that “[t]he executioner pays the murderer the compliment of imitation,” and, more keenly: “Much demand for retribution certainly has a shady origin.  It springs from the crude animal impulse of the individual or group to retaliate, when hurt, by hurting the hurter. In itself such resentment is neither wise nor good and, in its extreme forms, it is generally condemned as vindictive.”...

The constitutional prohibition against cruel and unusual punishment bears no asterisk for crimes committed by “society’s most despised.”  Abolitionists should continue to proudly and affirmatively demand the Eighth Amendment’s guarantee of dignity for everyone, while continuing to make reasoned morality-and-dignity-based arguments to end the death penalty — when it makes sense to — notwithstanding whether or not this strategy was employed during the recent abolitionist success in New Hampshire.

Demanding dignity for society’s most despised is the lifeblood of our weakened, chronically underperforming Eighth Amendment.  And it is still at the heart of what it means to be an abolitionist.

Prior related posts:

June 18, 2019 at 11:52 PM | Permalink


Thank you, Professor Berman.

I really appreciate this blog—and this post.

Stephen A. Cooper, Esquire
Lawyer & Writer

Posted by: Stephen Cooper | Jun 19, 2019 12:00:02 AM

Using the death penalty requires morality.

Cooper's regretful and regressive capitulation to fallacious dogma is as disturbing as it is disappointing.

Sage Moberly equates execution and murder, just as he must incarceration and kidnapping, fines and theft, community service and slavery, meaning he has no concept of the differences between just and unjust, the guilty and the innocent, crime and sanction, victim and murderer.

It is moral perversion at it's worst, meaning no moral foundations, at all.

Cooper, similarly, equates just retribution with being vindictive, not understanding the obvious, moral, legal and rational differences.

Cooper speaks of the dignity of the murderers, yet mentions not, the innocent murdered.

Here we have the heart of what it means to be an abolitionist.

Posted by: Dudley Sharp | Jun 19, 2019 4:35:36 AM

Dudley - Justice is not represented by the doctrine of "an eye for an eye" in the modern world (certain Middle Eastern countries excepted). No doubt you will be familiar with these words:

"The conclusion is clear. It is that any civil law which deprives a man of the liberty of worshipping God according to the dictates of his conscience, which makes it physically
or morally impossible for him to obtain from the bounty of the earth at least what may be necessary to live the life of a human being-and this means certainly above the mere
subsistence level-which denies him the freedom to exercise his rational powers, to train them in educational processes as he thinks fit, and to express his ideas to others, which forbids him to marry and found a family,-in a word, which interferes with the order which Nature herself has set up, is not deserving of the name law at all, but of what Thomas
Aquinas called a vinculum iniquitatis. In all such instances we should have what I have called merely legal justice, that is, not only no justice at all, but positive injustice. Legal justice does not always therefore coincide with moral justice, but only when the laws of the State do not contradict the laws of nature or of Nature's God.
Charles C. Miltner, Ph. D.
University of Notre Dame, College of Arts and Letters. (1931)

Posted by: peter | Jun 19, 2019 6:17:14 AM


Thank you.

The purpose of the eye for an eye text was to transform criminal justice, to make sanctions proportionate to the crime, as opposed to the disproportionately harsh sanctions of the past, in effect, what we attempt with justice, today, and strive to maintain.

Legal justice does not always equal moral justice, which is why we have activist citizens, elective legislative bodies to address that and a constant stream of judicial considerations in criminal and civil law, as, fortunately, addressed at this blog, every day, as elsewhere.

From St. Thomas Aquinas:

The fact that the evil ones, as long as they live, can be corrected from their errors does not prohibit that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement.

They also have at that critical point of death the opportunity to be converted to God through repentance. And if they are so obstinate that even at the point of death their heart does not draw back from malice, it is possible to make a quite probable judgment that they would never come away from evil.”

Summa contra gentiles, Book III, chapter 146

Posted by: Dudley Sharp | Jun 19, 2019 11:45:25 PM

Dudley: re Aquinas - "The fact that the evil ones, as long as they live, can be corrected from their errors does not prohibit that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement."

Since Aquinas was writing in the 13th century and the prison system we know today was in its infancy (to put it mildly) I think we can fairly argue a) that opportunities to influence reform, b) the modern means of containment where necessary and c) the known fallibilities of judicial prosecution and process, necessitate that we put his words into a modern context. Indeed, we have examples from death row of the extraordinary efforts and measures undertaken by inmates to act upon redemption for the benefit of society - yet they are still needlessly executed. I am confident that writing today, Aquinas would be happy to modify if not entirely retract the words you quote. Which is why the greater part of the Catholic Church, and others, campaign against and reject the death penalty today. It is incompatible with the morality that has been nurtured and developed both within the church and civil society, most especially but certainly not exclusively in the past century.

Posted by: peter | Jun 20, 2019 9:26:52 AM

I am but a humble citizen neither professor, student, prosecutor, or any sort of attorney. A software engineer by profession, a follower of legal issues and rights as a hobbyist.

What ultimate convinced me to move from a pro death penalty stance to a complete abolition of the death penalty, was finding out how many times our Criminal Justice System gets it wrong and convicts an innocent person and denies them on appeal. If you are going to have the death penalty, you are going to execute people that are innocent of murder. There is absolutely no way around that. You can reduced the percentage but never eliminate it because of human imperfection. I see absolutely nothing gained via the death penalty vs life in prison without parole by society other than it does not sate the blood lust of some and the desire for vengeance. That we willingly sacrifice innocent people's lives to obtain something of so little worth horrifies me of the heinous acts still being propagated in the name of justice, but in reality only create more injustice.

Posted by: Lloyd Bass | Jun 20, 2019 12:42:04 PM


You make the same errors that the Church has, recently.

These, specifically, rebut your position, in all respects.

Critical Dismay: The Catholic Church's Latest (2018)
Death Penalty Catechism Amendment

Catechism and State Protection

The Death Penalty: Mercy, Expiation, Redemption & Salvation

Posted by: Dudley Sharp | Jun 21, 2019 1:30:28 PM


Catholic theologian Steven Long is an Aquinas scholar.

Please review some of his writing on the topic of the death penalty, in addition, to what I presented, above.

Posted by: Dudley Sharp | Jun 21, 2019 1:54:07 PM

Dudley -

As Pope Francis has said, whilst we can acknowledge the historical contexts of past circumstances, practices and teachings, we should not and cannot ignore the development and progress of man and society:

"Speaking of the way the church’s teaching on the death penalty in presented, Francis declared that “this problem cannot be merely reduced to a mere memory of historical teaching without bringing to the fore not only the progress in the teaching by the work of the last pontiffs but also the changed awareness consciousness of the Christian people, that rejects an attitude which consents to a punishment that heavily harms human dignity.”

Aware that some will question this radical change in the light of what happened in the Papal States and church in the past, Francis explained that “in past centuries, when faced with a poverty of instruments of defense and social maturity had not yet reached a positive development, recourse to the death penalty appeared as the logical consequence of the application of justice which had to be adhered to.”

“Sadly, too,” he said, “also in the Papal State there was recourse to the extreme and inhuman remedy, ignoring the primacy of mercy over justice.” Speaking as the Successor of St. Peter, he said, “We assume responsibility for the past, and we recognize that those means were dictated more by a legalistic than a Christian mentality. The concern to fully preserve the powers and the material riches led to an overestimation of the value of the law, preventing a going in depth into the understanding of the Gospel.”

Turning to the present time, Francis said, “Today, however, to remain neutral [on this question] in the face of new demands for the reaffirmation of personal dignity, would render us guiltier.”"

No-one, I hope, would justify a return of the Inquisition, which obviously, at the time of its practice, was justified and defended by many Catholic extremists happily quoting the Old Testament. More respect should be given to the words and teachings of the current leaders of the Church who are charged with interpreting the teachings of God rather than the teachings of past academics and writings. Aquinas can be honoured and respected for his roll as a great thinker and teacher of his time. Many of his views and interpretations remain relevant today - but those on the death penalty are contextual to his times - and cannot trump those of recent Popes.

Posted by: peter | Jun 22, 2019 4:21:20 AM


All of that was, specifically, rebutted within Long's presentation, as well as that of others, as was detailed.

The Church teachings, within the moral order, have, always been recognized as eternal and unchangeable.

Francis also stated that the death penalty was contrary to biblical text which< no one can defend for the simple, obvious fact that there is 2000 years of well known, respected Church teachings that obliterate that false claim.

Posted by: Dudley Sharp | Jun 22, 2019 7:45:36 AM

Dudley -

The greatest moral COMMAND in the Bible is Thou Shalt Not Kill. The second is Thou shalt love thy neighbour as thyself, and third is one that Luke plainly records - Be merciful, just as your Father is merciful.

Those who break those commandments may be punished by man, in so far as they break the laws of man, but only God can exercise the ultimate punishment of taking a life, except in self-defence. We do not have the authority to usurp his overarching power to grant mercy for our sins. Nor should we be so arrogant as to claim the right to do so, whatever texts and stories you can point to in the Bible - which have been written not by God, but by man.

I am not a Catholic, nor a member of any Church, but I believe in those absolute moral truths and will give way to no man who challenges them.

Posted by: peter | Jun 22, 2019 9:39:17 AM


I recommend two books, at bottom.

It is well known that "Thous shalt not kill" is, more properly translated as either "Thou shalt not murder" or "thou shalt not commit an illicit killing" which is, of course, why the Catholic Church had solid pro death penalty teachings, for over 2000 years, knowing the commandment "Thou shalt not kill", in that context.

About half of the English biblical translations, which number about 40, use "thou shalt not murder", which is, the proper translation.

Then, there is what I already presented to you, which is:

Cardinal Avery Dulles states:

"In the Old Testament the Mosaic Law specifies no less than thirty-six capital offenses calling for execution . . . considered especially fitting as a punishment for murder since in his covenant with Noah God had laid down the principle, “Whoever sheds the blood of man, by man shall his blood be shed, for God made man in His own image” (Genesis 9:6). In many cases God is portrayed as deservedly punishing culprits with death, as happened to Korah, Dathan, and Abiram (Numbers 16). In other cases individuals such as Daniel and Mordecai are God’s agents in bringing a just death upon guilty persons." (4).


Catholic theologian Seven Long details God's specific biblical killings, here, whereas some say that God would not kill -

Long replies:

"This would come as a great surprise to Onan (Genesis 38:10), the firstborn of Egypt (Exodus 12:29), Pharaoh’s army (Exodus 14:28), Aaron’s sons (Leviticus 10:2), Korah (Numbers 16:32), David and Bathsheba’s baby (2 Samuel 12:14-15), Ahaziah (2 Kings 1:16-17), Jeroboam (2 Chronicles 13:20), Jehoram (2 Chronicles 21:14-15), Ezekiel’s wife (Ezekiel 24:16), Ananias and Sapphira (Acts 5:1-10), Herod (Acts 12:23), and the many, many others scripture tells us were killed by God." (3)

Recommended reading

By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment (2017), Edward Feser & Joseph Bessette,

Capital punishment: What the Bible Says, Methodist biblical Scholar Dr. Lloyd Bailey, 1987

Posted by: Dudley Sharp | Jun 22, 2019 11:08:36 AM

I have posted 5 replies to Lloyd Bass, only because all never show up.

What's going on?

Posted by: Dudley Sharp | Jun 22, 2019 11:09:55 AM

Not sure the issue, Dudley, as other comments are obviously showing up...

Posted by: Doug B | Jun 22, 2019 6:54:51 PM


Please review:

Death Row, "Exonerations" & Intentional Fraud

Posted by: Dudley Sharp | Jun 25, 2019 10:16:35 AM

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