This February, Liturgical Press will publish Where Justice and Mercy Meet (2013) edited by Vicki Schieber (Catholic Mobilizing Network), Trudy D. Conway (Mount St. Mary’s University), and David Matzko McCarthy (Mount St. Mary’s University). The publisher’s description follows.
Where Justice and Mercy Meet: Catholic Opposition to the Death Penalty comprehensively explores the Catholic stance against capital punishment in new and important ways. The broad perspective of this book has been shaped in conversation with the Catholic Mobilizing Network to End the Use of the Death Penalty, as well as through the witness of family members of murder victims and the spiritual advisors of condemned inmates.
The book offers the reader new insight into the debates about capital punishment; provides revealing, and sometimes surprising, information about methods of execution; and explores national and international trends and movements related to the death penalty. It also addresses how the death penalty has been intertwined with racism, the high percentage of the mentally disabled on death row, and how the death penalty disproportionately affects the poor.
The foundation for the church’s position on the death penalty is illuminated by discussion of the life and death of Jesus, Scripture, the Mass, the Catechism of the Catholic Church, and the teachings of Pope John Paul II. Written for concerned Catholics and other interested readers, the book contains contemporary stories and examples, as well as discussion questions to engage groups in exploring complex issues.
I have a new paper, which is a chapter contribution for what will be a conceptual history of several foundational writings in criminal law and punishment. It’s called, The Punishment Jurist, and deals with the thought of Sir James Fitzjames Stephen, a judge of the Victorian period. The essay is more about criminal punishment than about law and religion, but there is a good bit about the latter as well.
In his major work of scholarship — the History of the Criminal Law of England (1883) — Stephen discusses (at the end of Volume II) the issue of “offenses against religion.” And one of the matters he takes up is the crime of witchcraft. I discuss his views of witchcraft and other offenses against religion to rebut the oft-heard and erroneous claim that Stephen believed the realms of morality and criminality to be co-extensive (notwithstanding his belief in the important connections between the two, and in turn between morality and religion), and the claim that Stephen is a punishment consequentialist full stop.
Comments are welcome.
This December, University of Toronto Press, Scholarly Publishing Division will publish Punishment and Penance: Two Phases in the History of the Bishop’s Tribunal of Novara by Thomas B. Deutscher (St Thomas More College, University of Saskatchewan). The publisher’s description follows.
Punishment and Penance provides the first comprehensive study of an Italian bishop’s tribunal in criminal matters, such as violence, forbidden sexual activity, and offenses against the faith. Through numerous case studies, Thomas B. Deutscher investigates the scope and effectiveness of the early modern ecclesiastical legal system.
Deutscher examines the records of the bishop’s tribunal of the northern Italian diocese of Novara during two distinct periods: the ambitious decades following the Council of Trent (1563–1615), and the half-century leading up to the French invasions of 1790s. As the state’s power continued to rise during this second time span, the Church was often humbled and the tribunal’s activity was much reduced.
Enriched by stories drawn from the files, which often allowed the accused to speak in their own voices, Punishment and Penance provides a window into the workings of a tribunal in this period.
Prompted by an inquiry from Rick Garnett, I took a look again at Jeffrie Murphy’s wonderful book, Getting Even: Forgiveness and Its Limits (2003), about which I’ve written a little before. Chapter Nine, entitled “Christianity and Criminal Punishment,” contains the following interesting passage about the relationship of Christianity and retribution. But I think it also says something useful about rehabilitation.
But what about retribution? Is it a legitimate objective on a Christian view of punishment? . . . . This depends, I think, on just what one means by “retribution.” In the philosophical literature on punishment, retributive punishment is usually understood as giving the criminal what he, in justice, deserves. There are, however, at least six different accounts of what might be meant by “desert” and thus at least six different versions of retributivism: desert as legal guilt; desert as involving mens rea (e.g., intention, knowledge); desert as involving responsibility (capacity to conform one’s conduct to the rules); desert as a debt owed to annul wrongful gains from unfair free riding (a view developed by Herbert Morris); desert as what the wrongdoer owes to vindicate the social worth of the victim (a view developed by Jean Hampton); and, finally, desert as involving ultimate character — evil or wickedness in some deep sense (a view that Kant calls “inner viciousness”) . . . .
It seems to me that there is no inconsistency between the essentials of Christianity and the first five forms of retribution noted. With respect to the sixth, however — what I will call “deep character retributivism” — there does seem to me to be an inconsistency . . . .
I enjoy looking through Patrick O’Donnell’s bibliographies on various subjects, and this post — with some thoughts (generally negative) about the relationship between capital punishment and certain religious ideas — as well as the link to an instructive list of references, is both interesting and useful.
The Ohio State Journal of Criminal Law has just published an issue on punishment theory and culpability, with special editor Mitch Berman at the helm for this issue. There are some exceptional contributions from the likes of Larry Alexander, Kim Ferzan (twice!), Doug Husak, Ken Simons, Peter Westen, and Gideon Yaffe. And there’s something by me, too.
The law and religion connection of my piece relates to Sir James Fitzjames Stephen’s special interest in religion as a source of social control — much more powerful, he believed, than law. I’ve got a little bit on this issue in my piece, though it deserves a full length treatment. At any event, I hope readers interested in these issues will enjoy the various articles.
Just a little note on a couple of talks I am giving next week, in case CLR Forum readers have a chance to stop by and say hello.
On Wednesday, April 18, I’ll be participating in a panel at Yale Law School run by the Yale Catholic Law Students’ Association dealing with the HHS Mandate and Religious Liberty. The discussion begins at 6:00. More details about the event here.
On Friday, April 20, I’ll be at the University of St. Thomas under the auspices of the Terence J. Murphy Institute’s Hot Topics: Cool Talk program run by the gracious Lisa Schiltz. The Honorable Richard Sullivan of the U.S. District Court for the Southern District of New York will be joining me. I’ll be talking about the state of punishment theory and will discuss (a little bit) some of the insights of Sir James Fitzjames Stephen and Thomas Aquinas with respect to the justification of punishment (I hope to give a cool talk, but the odds are not so good). Details here.
Sasha Volokh has been writing a series of deeply interesting and thoughtful articles on the phenomenon of the faith-based prison, focusing especially on the effectiveness of faith-based prisons in reducing recidivism and in other ways. Readers interested in the subject will find much to admire in Sasha’s careful and provocative work: see here and here. For criticism of Sasha’s views, see this short reply by Giovanna Shay.
For my own take on faith-based prisons — which focuses neither on empirical nor constitutional questions, but instead on the conceptual position, historical and contemporary, of (religious) penance in punishment theory — see this piece.
The following is a call for papers for an interesting looking conference at Oxford in September dealing with new approaches to thinking about punishment. I reproduce it here because one of the concepts it raises is religious and/or spiritual punishment. Interested parties should contact firstname.lastname@example.org.
The concept of punishment has a long history and diverse cultural, social and criminological meanings. Research and debate is often focused on the offender, the offence, the state and legal codification. In contrast, this project seeks to re-frame these debates in order to combine the insights they produce with broader cultural meanings, social representations and ritualistic or other activities. Therefore, the aim of the project is to develop different ways of understanding the penetration and complexity of shared understandings of punishment from a variety of perspectives, approaches and practitioner experiences. Reframing the debate might be done through papers aimed at the personal or social levels. We encourage unique approaches to punishment in terms of boundary control, whether it is control of evil, the politically subversive, the economically disruptive, or punishment in pursuit of system stability or marginalisation of liminality. Papers might also cover punishment issues relating to defining the contours of disgust, desire, dread, or the abject. They may even consider the operation and consequences of both wrongdoing and various forms of societal/social punishment. Accordingly the project welcomes papers, work-in-progress and pre-formed panels from diverse areas of study such as the humanities, social sciences, business, science, law schools and the arts, as well as practitioners.