Justice, an Elusive Goal

“They call it the Dementor’s Kiss,” said Lupin, with a slightly twisted smile.  “It’s what dementors do to those they wish to destroy utterly.  I suppose there must be some kind of mouth under there, because they clamp their jaws upon the mouth of the victim and -- and suck out his soul.”

Harry accidentally spat out a bit of butterbeer.

“What -- they kill -- ?”

“Oh no,” said Lupin.  “Much worse than that.  You can exist without your soul, you know, as long as your brain and heart are still working.  But you’ll have no sense of self anymore, no memory, no . . . anything.  There’s no chance at all of recovery.  You’ll just -- exist.  As an empty shell.  And your soul is gone forever . . . lost.”

Harry sat stunned for a moment at the idea of someone having their soul sucked out through their mouth.  But then he thought --

“Some people deserve it,” he said suddenly.

“You think so?” said Lupin lightly.  “Do you really think anyone deserves that?”

“Yes,” said Harry defiantly.  “For . . . for some things . . .”  [J. K. Rowling, Harry Potter and the Prisoner of Azkaban (1999), pp. 246-47, edited]

Harry, of course, is Harry Potter.  This is a short passage from Harry Potter and the Prisoner of Azkaban, in which Harry and Professor Lupin discuss punishment.

*     *      *

Let’s see what we have here.  First, Martin Luther King.  For me, King is a 20th century prophet and moral hero and, sadly, a martyr -- King appears to be endorsing an optimistic determinism, with his utopia, his promised land set in the indefinite future, where it remains our inspiration, but will it ever become our reality?  “The arc of the moral universe is long, but it bends towards justice.” 

You might think of the arc of the moral universe quote as a generalization of something by Thomas Jefferson.  Of slavery in the United States, Jefferson wrote: “I tremble for my country, when I reflect that God is just; that his justice cannot sleep forever.” [Thomas Jefferson, Notes on the State of Virginia, quoted in Charles B. Sanford, The Religious Life of Thomas Jefferson (Charlottesville: University Press of Virginia, 1984), p. 71]

Jefferson, likewise, had a prophetic voice.  You might consider him a tragic hero.  He recognizes the evil, the injustice, of slavery.  But he cannot divorce himself from the institution.  He’s too dependent on it.

The quotations from Jefferson and King remind me of a line from the Archbishop Tutu reading I shared with you earlier: “This is a moral universe -- the upholders of apartheid have already lost.”  [Desmond Tutu, No Future Without Forgiveness (New York: Doubleday, 1999), pp. 86-87]

What basis did King and Jefferson and Tutu have for claiming that justice would ultimately prevail, that ours is a moral universe?  I’ll return to this question.

Then, in our Bible story, secondly, we have God sponsoring and promoting ethnic cleansing: “and when the LORD your God gives them over to you and you defeat them, then you must utterly destroy them. Make no covenant with them and show them no mercy.”  God may or may not exist, but He’s supposed to be perfect.  “God is love,” “no one is good but God,” after all, to quote the familiar New Testament words. [1 John 4:8, 16; Mark 10:18, Luke 18:19]  A warrior god is, I trust, quite foreign to us.

Third, we have Harry Potter.  He may be a fictional character, but he has become quite real for many of us, and he’s clearly on the side of good, in the epic struggle between good and evil.  And Harry Potter is advocating the use -- the selective use, of course, but still the use -- of a punishment worse than capital punishment.

*     *      *

My topic this morning is justice -- an “elusive goal” I call it.  Justice is a big topic, and I want to chew on just a small corner of it this morning.  Institutions, structures, rules, practices, expectations -- that’s what justice is mostly about.  But that’s not what I want to talk about.

I want to consider a still undomesticated, untamed issue of justice.  I want to consider extreme injustice, and how we can deal with it.  Thus we’ll take a look at injustice on a massive scale, injustice that’s beyond the scope of law and legal remedy -- the wiping out the inhabitants of the Promised Land, to go back to Deuteronomy, chapter 7, that’s the kind of thing I have in mind. 

And we’ll also take a look at capital punishment, the punishment thought of, by many, as most fitting for extreme cases of injustice.

Examples of massive injustice are not that hard to find.  I’ll mention four: the European invasion of the Americas and subjugation of the native peoples, slavery in America, the Holocaust -- the killing by Germany of millions of Jews -- and Apartheid in South Africa.  You can think of others.  How can humanity respond to such monstrous crimes?

Moral evaluation of events in the past is problematical, I realize.  We rarely have enough facts; those involved do not have the advantage of hindsight, and they didn’t have all the facts either.  I don’t want to give in to moral relativism, but we do have to ask to what extent we are justified in imposing our moral values on those of a different era.  Thus, for example, my characterization of the European settlement of the Americas may strike you as unfair.  Nevertheless, would we hesitate to condemn such an activity if it were to occur today?

But what can we do about these large scale injustices, and others like them?  You can’t compensate the dead.  There’s nothing you can do for the victims, or for the surviving descendants of the victims, that can balance the scales.  Yet cannot just say, let’s have a fresh start, and leave the past behind.  Nor can you expect forgiveness.

*     *      *

What about capital punishment?  Can we still justify its use?  There’s no general agreement here, at least in this country.

As I explained in my Christmas Day letter in the Times-News, my first contact with capital punishment was more than 50 years ago, when my Aunt Lucia was murdered by her husband, Uncle John.  He was convicted for the crime and -- after the appellate review required by military justice -- he was quite promptly executed. 

Then, in 1965, while a law student, I spent the summer in Florida, Louisiana, and Mississippi, participating in a study conducted by the NAACP Legal Defense Fund of the use of capital punishment in rape cases.  This punishment for rape was restricted to southern states and appeared to be reserved for black men convicted of raping white women.  (I remember finding only one instance of the execution of a white man: this lost soul had raped a white boy.)

The moral evaluation of capital punishment is confused by issues of implementation -- mistakes, procedural injustices, and irregularities.  Let’s strip away the complexities.  Let’s assume that we’ve been able to eliminate racial bias; let’s assume that poor people are defended as thoroughly and skillfully as rich people; let’s assume that the threat of execution really does reduce the murder rate; let’s assume that the possibility that someone will be executed for a crime they didn’t commit approaches zero as its limit; let’s assume that execution is reserved for the most horrendous cases. 

I don’t believe that these conditions are met today, but let’s imagine that they are and ask, Is capital punishment morally acceptable?  Of course, if all those conditions were met, there might be so little actual use of capital punishment left, that maintaining the apparatus would not be worth the bother.

Some would say that capital punishment should be retained as an option in case another Hitler comes along. But, really, what’s the point?  What could possibly be the correct punishment for someone who kills millions?  Torture comes to mind, indeed, years of torture, but as a society we’ve quite properly rejected torture, haven’t we?

I’m still opposed to capital punishment, even under the idealized conditions I’ve described.  But I don’t know how to persuade someone who has a different view.  All I can do is to ask those who favor capital punishment to look at someone on death row, study him, get acquainted with him, and then try to explain to me how his death will help anything.  Tell me what another death will accomplish.  Clearly, the murder victim’s loved ones need our compassionate support, but I am at a loss to understand how another killing really could help them, or assuage their grief.  Indeed, isn’t it strange that our response to an act we disapprove of could be, as a society, to do that very same act ourselves? 

*     *      *

 More fundamentally, the death penalty strikes me as a punishment of a different order of magnitude from other punishments: it’s not on the same scale as fines of varying amounts or incarcerations of varying durations.  Rather, death is the ultimate, absolute penalty, and I’m tempted to say that we should leave ultimate, final justice to God. 

But here I’ve got a problem.  I don’t believe in the traditional God who keeps track of things on earth, who intervenes from time to time, and rewards some for their lifetime achievements, while punishing others.  This brings me to Todd Mechem’s letter to the editor, in the December 4, 2005, Cumberland Times-News.  Mr. Mechem writes, “I’ve responded to Mr. Hunter before, reminding him that God is a god of love, but equally a god of justice and the two cannot be separated.” 

So let’s imagine that we have a God of justice up there.  Let’s imagine that somehow we pass through death with our identity intact.  How would such a God respond to murderers and rapists?  How would such a God respond to those who enforced the Apartheid system in South Africa, to those who planned and implemented the Final Solution in Germany, to those who perpetuated slavery in the United States, to those who sought to wipe out the Indians?

I’m sure this is just too speculative and pointless to some of you.  I can understand that response.  But there are a lot of folks, even right here in Cumberland, for whom these are real issues, even burning issues.  So let’s look at the options.

God could punish the malefactors.  Keep them locked up, deprive them of the pleasures that the heavenly banquet provides.  But for how long?  Forever seems too long, even for Hitler. 

For punishments to make sense, for punishments to satisfy our intuitions and sensibilities with respect to fairness and justice, they have to be part of a system, part of a structure.  You have to be able to compare them -- a $50 fine for driving five miles an hour over the speed limit, a $100 fine for ten miles an hour.

But we don’t think of God as having a punishment code, that’s the kind of thing that we humans do.  And some crimes are just off the scale; no punishment code could do them justice, that’s why we appealed to God’s justice in the first place.

I seem to have reached a dead end here, trying to imagine how punishment by God might work.  Of course, you might respond, or Mr. Mechem might respond, the ways of God are beyond our understanding.  God’s justice is a mystery, but it is not to be doubted.  That doesn’t work for me.  It satisfies neither my training in law, nor my training in philosophy.

Let’s try, then, the opposite approach.  At the other extreme, God could immediately forgive them, Adolph Hitler and others of similar ilk.  God could forgive them and just invite them right in to heaven.  This would hardly satisfy Mr. Mechem, and the victims of injustice ‑‑ and the rest of us, too -- would feel outraged by such an outcome.

But I can imagine that God has a third option: transform the sinners, put them through a process that enables them to find wholeness, that enables them to understand their crimes, that enables them to adopt a new approach to life.  God presumably can pull this off.  As I put it in my Times-News letter, God’s justice might consist of so overwhelming a person with love that they are redeemed and restored to wholeness.

That third approach, the transformation option, seems like the best choice for God, and it seems like the best one for us, as well.  That’s my point.  Rather than execute the murderer, rather than lock him up and throw away the key, work instead to transform him, or better yet, provide him the tools so that he can transform himself.  Now, this doesn’t mean that once this transformation has been achieved, that we just let him out.  We still need the ordinary structures of the criminal law. 

You might argue that, compared to capital punishment, transformation lets the convicted criminal off the hook.  I’m not so sure of that.  It may be more harsh to enable the murderer to be transformed than simply to execute him.  The transformed murderer would have to live with the knowledge of the crime he has committed, would have to live with his guilt.  This does not strike me as an easy burden.  Let’s consider an example.

*     *      *

Apartheid in South Africa was a terrible system.  A small minority oppressed a large majority.  White rule was maintained with violence and threats of violence.  Proper education and decent jobs were reserved for the white minority, as was the best land and housing.  Black South Africans did not have the right to vote.  No mechanism was available within the system to bring about change.

Apartheid is now gone; you have to go to a museum to find it.  I’ve been to South Africa, and it is an amazing place.  But I should stop right here and acknowledge, and warn you, that they have not achieved the kingdom of God, they have not reached the Promised Land.  There is terrible poverty and inequality and AIDS and crime.  Whether South Africa will make it, whether they will avoid descent into chaos -- no one knows.

I extracted a reading this morning from the book by Archbishop Desmond Tutu, No Future Without Forgiveness.  Tutu, a black South African, became the archbishop of the church brought to South Africa by the British colonists.  After the fall of apartheid he became the Chairman of the Truth and Reconciliation Commission.  His book describes the work of the commission, and the philosophy behind it.

The leadership of South Africa realized that punishing all those using violence to maintain the apartheid system would be impossible -- there were too many to punish.  Trying to punish them would delay the creation of a multiracial society.  But to ignore the history of oppression was equally impossible. 

They chose instead the road of transformation.  They sought the truth of what had happened.  They insisted on the truth -- it was the way to avoid punishment.  The honest recognition of the past, of the terrible history, then became the foundation for reconciliation, and for forgiveness.  Clearly the wounds remain, and inequality persists, but they have made a start.

We have not used this approach in the United States.  There was no truth and reconciliation commission after the Civil War, to confront and expose the evils of American slavery, and to hold accountable those responsible for it. 

Likewise, there has been no truth and reconciliation commission in response to the European conquest of America and the Euro-American subjugation of the Native American peoples. 

Is it too late to create such commissions?

*     *      *

I’ll leave that as a question for others, or for another time.  In the next few minutes I want to return to two of the three items I began with, leaving Harry Potter to fend for himself.

First, Deuteronomy, chapter 7, on God as cheer leader for ethnic cleansing.  I’ll make two short points here.  First, the Book of Joshua describes the invasion and conquest of the Promised Land, the fulfillment of instructions provided in Deuteronomy.  But it didn’t really happen that way.  The Bible contains legendary history, which is not confirmed by the archeological record.

Second, the God presented in Deuteronomy, chapter 7, is, inevitably, a human creation.  God has learned a lot since then, indeed, a lot more than some people give God credit for.