Punishing Kermit Gosnell


justice scales statueThere may be some people who say that justice was not done when Kermit Gosnell, the infamous Philadelphia abortionist who was convicted in May for hundreds of crimes, including three counts of first-degree murder in the deaths of infants who survived late-term abortions, was sentenced to life in prison instead of the death penalty.  I would disagree.

I have somewhat reluctantly come to the conclusion that the death penalty does not carry out justice.  It depends for any legitimacy it has on something else, such as the safety of society.  Justice by itself does not support capital punishment, even for humans who commit monstrous acts.

Disclaimer: My thoughts do not necessarily reflect the view of any organization with which I am affiliated.

Punishment involves a combination of up to five separate aims:

(1) Restitution—restoration of something wrongfully taken from another person (Catechism of the Catholic Church [CCC], no. 2412).   The wrongful taking may consist of destruction of property rather than theft.  Restitution is impossible for Kermit Gosnell; he cannot restore the lives he took.

As an aside, we can note that monetary compensation in our legal system is often provided as a proxy for restitution in cases of personal injury or death, recognizing that no amount of money can actually restore what has been lost.  In the case of violent crimes, for many reasons, our law leaves the matter of monetary damages to the arena of separate civil lawsuits filed by the victims or their survivors.  Such damages are not part of criminal sentencing.  Moreover, monetary damages are beside the point when the question is whether Kermit Gosnell should have received life in prison or the death penalty.  Neither penalty will provide any money to the survivors.

(2) Correction—instilling in the wrongdoer a sense of what was wrong in what he or she did and a counter-tendency to do what is right in the future (CCC, no. 2266, last sentence).   This is why little children are punished even before the age of reason makes them morally responsible. Punishment is inflicted to train them to do the right thing instinctively or habitually.  St. Thomas Aquinas is quoted in the Catechism of the Catholic Church as follows: “Conversely, there exist carnal men under the New Covenant, still distanced from the perfection of the New Law; the fear of punishment and certain temporal promises have been necessary, even under the New Covenant, to incite them to virtuous works.”  (CCC, no. 1964.)

(3) Deterrence—making an example of one person to dissuade others from doing the same thing.   Public hangings were held to perform this purpose in yesteryear America, and in the 17th & 18th centuries, public whippings and putting people into the stocks.  It seems to me that deterrence does not represent justice for the offender, but rather a means by which society seeks to protect itself from further harm by deterring others from committing similar crimes.  Unfortunately, if it accomplishes this goal in the real world, social scientists have not yet documented it, and most criminologists believe it does not.  (Committee on Law and Justice, National Research Council of the National Academies, “Deterrence and the Death Penalty” (brief on full report, April, 2012), http://www.deathpenaltyinfo.org/documents/NatResCouncil-Deterr.pdf; J. Radelet & T. Lacock, “Do Executions Lower Homicide Rates?” 99 J. Crim Law & Criminology 489 (2009), http://www.deathpenaltyinfo.org/files/DeterrenceStudy2009.pdf.)

(4) Removing a wrongdoer from society—preventing further injury to others.  This is another way for society to defend itself.  The death penalty can be seen, of course, as the ultimate removal from society, but in our day, the Catholic Church is probably right to think it is no longer generally needed for that purpose (CCC, no. 2267).  Kermit Gosnell does not seem to present any special dangers of escape or of armed attacks by henchmen.  Jailing him for the rest of his life will serve the purpose of protecting society quite well.  No more women or babies will die at his hands in prison.

(5) Finally, retribution—strictly speaking, the “just deserts” for a person’s acts, whether reward or punishment (CCC, no. 1022).   In most people’s minds, retribution means punishment.   Father John Hardon, an exemplary Jesuit teacher, described retribution thus: “A penalty or reward that a person deserves for moral conduct.   Its basis is the divine justice that repays each person according to his works” (J. Hardon, “Retribution,” Modern Catholic Dictionary [Eternal Life: Bardstown, Ky., 2001], pp. 466-67).  Fr. Hardon also wrote, “Punishment is retributive because it pays back the offender for his crime and re-establishes the balance of justice, which has been outraged.  . . .  Christianity . . . believes that because human beings are free they are responsible for their misdeeds and therefore liable to punishment that gives them their just deserts.  It is therefore moral to punish the guilty even if there is no hope of correcting that person or deterring others from crime” (Id., “Punishment,” p. 451).

The more I think about retribution, the more it seems to partake of revenge than justice.  I recognize that Christian writers distinguish it from revenge by describing the purpose of retribution as to “re-establish the balance of justice,” in Fr. Hardon’s words.  They have to acknowledge, however, that retribution necessarily involves infliction of some detriment that is felt to be uncomfortable or painful, emotionally if not physically.  Otherwise it is not retribution.  Professor of Law Joseph L. Falvey, Jr. published a well-written explanation of this principle in 2005 (J. Falvey, “Crime and Punishment: A Catholic Perspective,” 43 Catholic Lawyer 149 (2005), http://www.stjohns.edu/academics/graduate/law/journals_activities/recentissues/issues/43_1).

If the “balance of justice” means exacting pain or injury in the same degree as the wrongdoer inflicted pain or injury on the victims, then I cannot perceive it as other than revenge, renamed.??The question that exposes the weakness of the distinction to me is, just what is this “balance of justice” that is to be righted by inflicting some detriment upon a criminal?  Retribution will not bring back to life any of Kermit Gosnell’s deceased victims or erase the emotional toll that their deaths will continue to take on their survivors.  What can restoring the “balance of justice” actually mean when we cannot take back the evil actions that Fr. Hardon says have “outraged” that balance?

The only answer to this question that makes sense to me begins with recognizing that justice belongs to the moral universe, and the moral universe is one of persons.  Restoring a moral balance means returning a person to a right relationship with all other persons.  That would seem to require the offender at least to adopt the Golden Rule in dealing with other persons, if not more.  I cannot perceive any other way that the moral order can be restored, or a balance of justice re-achieved, than by a fundamental readjustment of an offender’s subjective convictions and attitudes toward others.  If the moral order is not the order of the relationships between the offender and others, then the concept of a moral order seems to have no content at all, and “restoring” a balance of justice seems to be an empty concept, if not an exercise in revenge.

Ultimately, then, true punishment in this world does not include retribution, but rather, correction.

I do not extend this principle either to the judgment that God renders upon a person’s death, when correction no longer has meaning, or to the Last Judgment to come.  Scripture warns us that He will mete out recompense according to our works (Deut. 32:35; Rom. 12:19; Heb. 10:30).  Of course, for those in a right relationship with Him, this is a promise of everlasting life, not a threat.

To recognize that retribution is not a component of earthly justice is not to be “soft” on criminals.  God extends mercy, but when His mercy requires correction of human beings , sometimes catastrophes involving much pain and suffering serve as His tools. Consider the Babylonian Exile: the Kingdom of Judah was violently destroyed; thousands of people died and the survivors were held in exile hundreds of miles from home for 70 years. After their return to Judah, however, the Jews had been purged of all their addictions to idols. No more did the Chosen People voluntary honor the false gods of other nations (Jer. 1:16).  The true God who loved them finally became the Chosen People’s true love in return.

“If you endure chastening, God deals with you as with sons; for what son is there whom a father does not chasten?” (Hebrews 12:7).  “My son, do not despise the chastening of the Lord, nor detest His correction; for whom the Lord loves He corrects, just as a father the son in whom he delights.”   (Proverbs 3:11-12)

For these reasons, I do not think that justice required Kermit Gosnell to receive the death penalty. God will extend to him God’s mercy, a mercy that can actually feel quite severe, a mercy that must be received with repentance and conversion to be effective.  If accepted, such mercy will lead to life, eternal life, for our brother Kermit.  We must not be as the older brother in the parable of the Prodigal Son.  Our wishes and prayers should be for Kermit Gosnell to adopt and live a life of repentance for whatever time in this world remains to him, so that he, too, may be saved.


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