Cooperation in the Culture of Death

Massive wars, like World Wars I and II, do not now occur. The killing at home continues, constituting the domestic slaughterhouse that Pope John Paul II, on the Solemnity of the Annunciation, March 25, 1995, in the encyclical Evangelium Vitae, stigmatized as “the culture of death.” ¹ That culture lives on cooperation. Before turning to my main theme, cooperation in the culture of death, let me pause to consider “culture” in distinction to “nature.” In his recent book, Dependent Rational Animals, Alasdair MacIntyre reminds us that in the classic definition of humans we are not only rational but we are animal. ² We are unities of spirit and animal, as David Braine has put it. ³ Evolution has determined much of our animal nature. Animals in the wild—uncultured animals—kill members of other species in order to survive. Some animals even kill members of their own species, especially the vulnerable and the isolated, in the struggle for existence. Male chimpanzees and male gorillas, our closest cousins in the evolution of life, even kill the very young of their own species, in order to drive out a rival male and secure a female mate. ⁴ The instinct and the capacity to kill, even within the species, are natural traits. But animals other than humans do not systematically destroy their own offspring in the womb or in infancy. Other animals do not make weapons they know will be used to destroy fellow animals. Other animals do not symbolically select members of their own species for execution. These require culture and cooperation.

“Down to Gehenna or up to the throne, He travels the fastest who travels alone.” ⁵ Whatever the truth of Kipling’s couplet, the solitary traveler is not likely to travel very far or very fast unless someone has supplied a car or a plane for the trip and someone else has fixed the road or the airfield. Our traveler does not travel, upwards or downwards, without help. My focus in this article is on the help. In Evangelium Vitae, John Paul II described the culture, in objective terms, as presenting “a conspiracy against life.” ⁶ Cooperation is the hallmark of a conspiracy. In confronting this culture, I propose, first, to look at what we can learn from the rich repertory of cases given us by the moral theologians who have studied the casuistry of cooperation. I then propose to turn to two modern activities in which a chain of cooperators cooperate in the intentional infliction of death.

Go back four centuries and suppose you were Miguel Cervantes, who fought for the Christian cause at the battle of Lepanto, but ended later as a captive of the Turks. How far, according to the moral theologians, could you morally go under compulsion in aiding further Turkish military preparations against the Christians? If you were put in a Turkish galley and ordered to row against the Christian fleet in a naval battle, would you sin if you served? European theologians debated and divided over such dilemmas. After 200 years of argument, the master casuist, Alfonso Liguori, came down on the side of cooperation being sinless if you were subject to serious sanctions if you refused. But he added a caveat: if refusal to serve would bring victory to the Christians, you should refuse. To this caveat he added another qualification: he was speaking only of a merely serious sanction, not of death. If the Christian slave was faced with the choice of death or rowing, he could row. The duty not to help the infidel was trumped by the Christian morally preferring not to be killed for disobedience and so staying sinlessly at the oars. ⁷

Classic casuistry focuses on the intention of the cooperator. His cooperation is called “formal” because the form of his act is given by his evil intention. If the cooperator wants to achieve the objective of the person he is cooperating with, he shares that person’s guilt. The Christian galley slave who actually wants the Turkish fleet to win is a sinner, but such a state of mind is unlikely. Wanting the Christian fleet to win, the Christian cooperator with the enemy inflicting death on the Christian fleet does not share the enemy’s intention. In classic terminology, the Christian’s cooperation is not formal.

It is still cooperation, what, in many instances, in modern legal jargon we would call “but for” cooperation. But for the work of the galley slaves, the Turks could not cannonade the Christian fleet. The casuists call this kind of cooperation material cooperation. It is “material” because the cooperation offers “matter” which the formal sinner puts to his evil intention. ⁸ It may or may not be sinful, depending on a variety of factors such as the seriousness of the loss one will suffer by not cooperating, the closeness of the cooperating actions to the evil action, and the gravity of the evil inflicted by the actions cooperated in. As the instance of the captive oarsman illustrates, the moralists found that material cooperation in inflicting death could be justified by various levels of danger to oneself if one refused.

The classic terminology, let us admit it, is creaky. In modern legal discourse, we use “material” to mean something of significance, and “immaterial” to mean what is of no importance. I propose we replace “formal” by “intentional” and that, at least in a number of cases, we replace “material” by “systemic.” Intentional cooperators, those who intend to accomplish the evil goal, are always sinners. Systemic cooperators may be divided into significant contributors, who have moral culpability, and those contributors who, in context, are justified, who are without moral guilt.

You may say, if all systemic contributors refused to cooperate with evil, it would be a much better world. No one should be a collaborator with tyrants. No one should stroke an oar for infidels firing on Christians. That is not the way the Christian casuists thought. They believed in the duty of self-preservation. They weighed heavily the duty to earn a living. They did not condemn systemic contributors easily as long as the intentions of the contributors did not coincide with the intentions of the evildoers.

The theological vision behind this approach to moral decisions is of a world God has made in which much sin occurs by the choice of free human agents and much cooperation in sin will occur by free human agents who abhor or at least do not intend the sin but help to make it possible. The theological vision is not optimistic. The theological vision does not ask Christians to be martyrs in order to prevent the bad actions of others or in order to achieve systemic reform. The theological vision accepts the world pretty much as it is, and encourages the individual Christian to make his or her way through it without actually agreeing to the evil to which he or she contributes. Is this vision a distortion of the world? As far as I know, every political-economic system that has existed has generated injustices. There is no reason to believe that this characteristic of systems will change. To participate in the existing system—as an official, a taxpayer, a voter—will therefore always involve systemic contribution to some injustice. Try to withdraw completely, become a hermit or a monk of the desert, and you will probably still contribute, to some degree, in the system that organizes the world you live in. Seek to reform or overthrow it, and you will participate in forming a new system not free from systemic injustice. At least if you live as an adult in a responsible position, you will live as a systemic contributor.

Accompanying this realistic vision and making it bearable is a postulate as to moral responsibility: to foresee evil is not to intend it. The captive oarsman, for example, foresees with certainty that if the Turkish galleys are propelled forward, they will fire on the Christian ships, grapple with them, and board them, taking human life. It has been objected that foresight of certain evil that your actions will help bring about should entail moral culpability. In our legal system, knowledge of the consequences of what one is about to do sometimes entails civil or criminal liability. But the distinction between intending something and knowing that something will occur is one which is often reasonably accepted without objection. For example, everyone who drives a car knows that, collectively, car owners will kill about 50,000 persons in the next twelve months. No car owner accuses himself of being a cooperator in these deaths. A judge who sentences a defendant foresees that the punishment will also injure the defendant’s spouse and children. The judge does not plead morally guilty to having harmed these foreseeable innocent victims. The world in which evil is foreseeably brought about by actions innocent in their intended effect is the world which Christians navigate.

One danger of the distinction between the intended and the foreseen is the moral complacency, if not moral blindness, it may generate. Thus, for example, the ecclesiastical judges who turned a relapsed heretic over to the secular authorities foresaw that these authorities would kill him, but the judges did not view themselves as intentional cooperators in his death. ⁹ The distinction, to put the matter generally and bluntly, does little to help those who are the victims of foreseeable killing. Solidarity with such victims of violence can lead us to question the classic approach.

It may be argued that the casuists’ approach not only does not give enough weight to the victims of the sin that the cooperator facilitates, their approach also does not do enough for the character of the cooperators. Instead of bracing them to withstand the blandishments and subtle pressures of the world to conform, the approach encourages the cooperators to get by, to strike a minimal level of spiritual development, even to engage in evasions which a careful person would reject as dodges. Spiritual mediocrity, it appears, is promoted by the casuists.

Beyond the complaint of leaving victims unhelped and cooperators with their eyes closed, the casuists’ work is too abstract—too abstract although it purports to deal with cases. It skeletonizes the situations it confronts, robbing them of the rich detail needed for full moral judgments. It is armchair speculation by men safe in some seminary, not coping with the rough waters on which Christians in the world sail. What do these distant dilettantes know of the dilemmas a galley slave of the Turks may face? How dare they prescribe from Salamanca what he should or should not do at sea at his oar? What does Mayor Sancho say in Graham Greene’s retelling of Cervantes’s story? After a comic account of the attempted application of the teaching of the Capuchin casuist, Heribert Jone, Sancho says to Monsignor Quixote: “Oh, you can’t beat these moral theologians. They get the better of you every time with their quibbles. It’s better not to listen to them at all. I would like for your sake to clear your shelves of all those old books.” ¹⁰

The key terms in this peremptory dismissal are “old” and “quibbles.” The casuistic tradition does go back to a different era, a different culture. The solutions often depend on exasperatingly fine lines. Coming from Sancho, the criticism suggests that the writings of the casuists are as idle as the books of chivalry with which Don Quixote created an illusory world.

Monsignor Quixote does not take this earthy advice. Nor should we. The casuists have three notable accomplishments to their credit, outweighing their deficiencies. First, they paid attention to human beings whom they saw as dependent and vulnerable. Not by accident have I chosen to illustrate their methods with the case of the Christian oarsman for the Turks. The casuists thought of the pressure that might be put on slaves by masters, on servants by lascivious employers, on taxpayers by tyrants, on women by macho husbands. Alasdair MacIntyre has forcefully pointed out that moral philosophers from Plato on have ignored the vulnerability and dependence of the human animal. ¹¹ They have focused on the free individual, unconstrained by personal weakness or social context—the individual who could, by himself or herself, lead an upright life. The casuists considered a range of enfeebled humanity.

Second, the casuists tended to lessen rather than increase the moral load on human shoulders. In this respect, they were the opposite of the Pharisees rebuked by Jesus for laying additional burdens on those they taught. The principal consumers of the casuists were confessors. Instructed as much by the casuists’ methods and attitude as by their actual solutions offered, the confessors were encouraged not to be rigorists in their own interactions with penitents. The confessors took it, as the casuists took it, that Christians, imperfect though they be, want to follow Jesus. If a moralist wants to restrain liberty, the burden is on the moralist to establish the obligation.

Third, the casuists did not divide the world of human actors into two sharp categories of evil and good. They did nothing to encourage a Manichean cosmology. They did suppose that there would be sinners. The cooperators in sin were men and women wanting to act rightly but, nonetheless, in postures providing aid to sin. Neither devils nor saints, the cooperators needed guidance as they trod a narrow line.

It is a lesson, I suggest, that we need to keep in mind as we address “the culture of death.” The culture of death is an ideology, a set of interlocking propositions that foster human unhappiness. It is not identical with any person or persons. Frustrated as we may become in battling the evils of our society associated with this ideology, we must avoid violence as an impatient response. We are not at war with evil people. We are trying to change the minds of people who seek the good as we do. The patience, the carefulness, the solicitude for souls on the part of the casuists is exemplary in this task.

Gradualism is a term scorned by those closely engaged in a social conflict. Yet desegregation of the schools was won slowly, painfully, gradually, and might not have been achieved in any other way. Gradualism is the path that must be followed by those who do not want violent social eruptions. As the poet reminds us:

If hopes were dupes, fears may be liars.

It may be, in yon smoke concealed

Your comrades chase e’en now the fliers

And, but for you, possess the field. ¹²

Gradualism and some degree of systemic cooperation are inseparable.

Against the background of acceptance and critique of our casuistic tradition, I propose to address two very different kinds of intentional killing in which systemic cooperation is essential. In the first, there is no dispute as to the evil: a large number of innocent lives are intentionally taken. There is debate about the guilt of the cooperators. In the second, there is argument over the evil: only a very few lives are taken, and they are not innocent lives. There is substantial participation by some cooperators who will be culpable if the killings are not defensible.

I turn to the first: the manufacture of guns, some of which will foreseeably be employed by murderers. Guns are things that can be used for good or bad purposes. They may be used for the hunting of some animals; they may be used by the armed forces in defense of the country; they may be brandished by the police to restrain criminals and fired by them in case of necessity; and they may be used by private individuals to defend themselves or to give themselves a sense of security. The manufacturers of guns are furnishing objects that may be used morally or may be used immorally to commit crime or inflict death. The manufacturers can foresee with accuracy that a certain percentage of their product will be used to inflict death without justification. In the United States, for example, between 10,000 and 15,000 homicides are annually committed with firearms. ¹³ Like an epidemic, gunshots strike the healthy as well as the sickly, and children as well as adults. The gun manufacturers have reason to believe that the number killed will not radically diminish.

The gunmakers do not desire the deaths brought about by their product. They are not intentional cooperators. But for their guns, however, it is doubtful that the murders would occur or that at least so many murders would occur. They are systemic contributors to the murders. The quantity of the deaths is significant. In comparison, we can note that between 1992 and 2000, there were over one hundred deaths in accidents involving Ford Explorers equipped with Firestone tires, which led to the sharpest search for responsibility for those deaths. With guns, the annual toll is well over a hundred times greater. And the deaths, unsought though they are by the gunmakers, are not accidental.

Liguori treated of swords, not guns. In his culture, the sword was a kind of holy object, a guarantee of gentlemanly independence, as a gun may be for some person in our culture. And swords were then more apt than guns to be used in private killing. Liguori puts the case of a sword maker who thinks his customer will abusively use the sword he buys. Liguori holds that the sword maker does not sin by his sale. At the same time, Liguori holds anyone to be a culpable cooperator, unless threatened with death, if he hands over a sword to one who he knows intends to kill with it. ¹⁴

The analogy of the sword maker is a starting point but it is not decisive for the case of the gunmakers. We are not sure how the facts assumed by Liguori compare to the facts about the making and distribution of guns today. We do not know enough about the number of makers of swords, their system of distribution, the number of swords in existence, and the number of homicides by sword. These facts, which are relevant, if we were to judge the sword makers collectively, were not relevant to Liguori, who looked only at the individual maker.

It is just at this point that we could challenge Liguori’s approach. Looking at the individual alone, he takes into account only the harm that will flow from the individual’s sword making. He overlooks a significant feature of this kind of systemic contribution. Because all the sword makers together function as part of a system, the collective contribution to death is many times that of any individual. The same is true of the gunmakers, taken as a group. Sin is individual. The harm, however, that is caused by a systemic act may be measured collectively in determining the gravity of the act. If the collective harm is great, it may be right to conclude that the systemic contribution is significant enough to make systemic cooperation sinful.

If we look at the system as a whole, we know that handguns are the most usual choice in homicide by firearm. We can identify with some confidence the ten manufacturers of handguns most commonly used in crime. ¹⁵ We may ask if these manufacturers are not certain that a definite percentage of what they make will be used to murder someone. If that is the situation, should the handgun makers not be analogized to the person who hands a weapon to one he knows will kill with it? Why should the gunmakers be allowed to be collectively blind to the harm they collectively facilitate?

It might be answered, first, that, given the number of guns already in circulation, any new manufacturing will not make much difference. But the flow of new guns perpetuates the situation in which murder by gun is facilitated.

Second, each gunmaker may say there is no certainty that it will be its new gun rather than a competitor’s which will be used to kill. But this objection attempts to evade the analysis which insists that the gunmakers as a group have responsibility for the foreseeable lethal use of their product. Even collectively, the gunmakers may say, we can only foresee a statistical likelihood of intentional deaths coming from our product. To foresee is not to intend, as is admitted when the collective use of automobiles is considered and the resulting 50,000 deaths per year is not considered to be culpable. But this answer fails to attend to a significant moral difference in the case of automobiles: only a tiny number of deaths inflicted by cars are known to be intentional; the great majority of deaths are by accident, so the drivers are not committing murder. The number of deaths by intentional gunshots is large enough that those who make the deaths possible should be held to be systemic contributors who are morally culpable for their contributions.

Finally, the gunmakers as a collectivity may plead justification: our guns not only kill the innocent but protect the innocent. No statistics are kept on the number of times a handgun prevents an assault or a robbery or a murder. Why do decent people buy handguns if they do not believe they need protection? Systemic contributors to the intentional infliction of death as they are, the gunmakers have an argument that cannot be dismissed without more evidence being taken and considered. It might be found that the need to protect oneself by having a gun at hand is not an established need. It may be that a gun is sought mistakenly as a sign of independence. Under our way of government, it is for the legislature to amass the evidence and determine the validity of the argument. I do not know enough to offer a confident judgment.

When systemic collaboration in the intentional taking of human life is being considered by a legislature, must partisan politics give way to the legislators’ grave obligation to legislate in protection of life? No party loyalty, no allegiance to a campaign contributor, it may be argued, should outweigh the duty to discern what measures will most effectively curb the epidemic of gunshot deaths. If a gun culture is a murder culture, it is the legislator’s responsibility to change the culture. The legislator who shirks this responsibility becomes a systemic cooperator in the culture of death.

On the other hand, it might be argued that the legislator’s political life is at stake if he ignores his party or his contributors or his constituents. If material cooperation is permitted in order to save one’s physical life, should not it analogously be permitted to save one’s political skin? That the legislator is guilty only of material cooperation is plain: he does not want murder by handgun. The difficult question of whether material cooperation is justified by the peril of political extinction must, I think, be left to the conscience of each legislator. A legislator need not settle for the moral minimum. Heroic action is always praiseworthy.

I turn to the second concrete case I propose to examine: capital punishment. I acknowledge at once two positions other than the one regarding it as wrong. First, there are those who do not concede that there is now a virtually complete prohibition of capital punishment by the Catholic Church; ¹⁶ and second, there are persons of good faith who have concluded that even with the virtually complete prohibition in place, they have met instances where a rare exception applied. I do not challenge the good faith of the latter, nor do I maintain that the former are without any arguments, but the following passage in Evangelium Vitae, quoting the Catechism of the Catholic Church, may be treated as decisive:

If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, let public authority use such means, because they better correspond to the concrete conditions of the common good and are more in conformity with the dignity of the human person. ¹⁷

Evangelium Vitae, it is true, acknowledges that the primary purpose of punishment is “to redress the disorder caused by the offense”—a line of thought often followed in the past by holding that only the taking of the offender’s life could redress the disorder caused by a murder. “An Angelo for a Claudio,” cries the Duke in Shakespeare’s Measure for Measure, decreeing that Angelo must die because he has executed Claudio. ¹⁸ The Duke’s cry is ironic, mocking the morality of an eye for an eye, a life for a life. In a Christian world, where one seeks to receive the measure one measures with, forgiveness is the response to murder, and forgiveness is matched to mercy.

Does the pope hanker after the old, pre-Christian measure of life for life? No, that line of thought is repudiated in the very text in Evangelium Vitae which speaks of adequate punishment. That punishment, the pope states, should be such that the offender may “regain the exercise of his freedom.” ¹⁹ Death is not a way for the offender to regain his freedom.

In practice today, the encyclical teaches, “given the improvement of the penal system,” the cases where there is “an absolute pressing necessity” to defend society by executing a criminal are “very rare if indeed they now in fact occur at all.” ²⁰ Absent the justification of absolute pressing necessity, the killing by the state is not permissible.

John Paul II’s teaching on the ordinary lack of justification for capital punishment is buttressed in the encyclical by exegesis. The pope reads the narrative of Cain and Abel as a story where God punished Cain the murderer, but the pope quotes St. Ambrose that God “did not desire that a homicide be punished by the exaction of another act of homicide.” ²¹ Cain was not executed. Turning to the New Testament, the pope contrasts the existence of the death penalty in Mosaic legislation with the Sermon on the Mount and the teaching of Jesus on the commandment regarding the inviolability of life. ²² And in his own person, interceding in America for persons guilty of murder, the pope has underlined his conviction that the death penalty is not to be imposed. ²³

In what follows, I will assume that, if not in absolutely every case, in most cases the execution of a condemned criminal is a form of state-sponsored homicide. In terms of combatting the culture of death, the evil (except for the executed criminals) is symbolic. In 1998, the last year for which I have statistics, 66 persons were put to death; they had been under sentence of death for an average of 10 years and 10 months. ²⁴ The symbolic importance, however, is huge. The sovereign state in all its majesty, with the authorization of its legislature, by the judgment of its judges, through the arm of its executive, fulfills the godlike function of deciding who shall die. In the intentional infliction of death there are many cooperators with the executioner.

Intentional cooperators—in the old style, formal cooperators—are those who will that death be exacted. These are the prosecutor, the prosecutor’s deputies, the judge who imposes the sentence, and the members of the jury if it recommends the sentence. In the federal system, a Death Penalty Committee in the Justice Department now decides when, anywhere in the country, a federal prosecutor will ask for death. ²⁵ This committee, if it votes to authorize a capital prosecution, wills the death of the defendant. Its members are intentional cooperators. ²⁶

Are the legislators intentional cooperators? The legislator who votes for the death penalty or against its repeal may be understood to will its application, and therefore to cooperate in any execution under the authority of the law. Suppose the legislator were to say, “I vote for the law because, as you half-concede, the rare case requiring the death penalty may occur. The law should be ready. It’s not my fault if overzealous prosecutors misapply it.” To that the answer is that the law must be designed for the generality of cases. To enact a law for a rare situation is to invite its abusive extension.

Suppose the legislator were to say, “I mean it only as a deterrent, a weapon that need never be used but one which will keep some crimes from being committed and which, at the most, will strengthen the prosecutor’s hand at the plea-bargaining table, so that a guilty plea will be secured in return for the prosecutor’s agreement not to seek death.” A similar argument was constructed in favor of the United States deploying missiles of mass destruction as deterrents to preserve the peace. I have never been persuaded of the moral soundness of this approach. If one intends never to use such a weapon, it is not a real deterrent, and one’s successful use of the weapon depends on a form of bluffing indistinguishable from lying. If one does intend to use the weapon in some circumstances, one has already formed one’s will immorally. The legislator who votes for capital punishment is an intentional cooperator in infliction of the penalty.

An appeals court must pass on every case involving death. An appeals court is, therefore, a necessary part of the process of inflicting death. If the appeals court possesses any discretion to change the sentence, this court, like the trial judge, must be seen as intending to impose the supreme penalty when that penalty is left unchanged. Ordinarily, the appeals court has jurisdiction only to correct errors in procedure or substantive law. If the court finds no material errors and so affirms the conviction and sentence, it is arguably in a position different from the trial judge. The appellate judges may not want to inflict death but conclude that their function is exhausted when they have found no error. They then are not intentional cooperators in inflicting death; but they are systemic contributors to its infliction. Without their participation, the defendant would never be killed. Their cooperation can be justified by a better argument than that they need to participate in order to keep their jobs. If they did not perform their appellate review, the errors of the trial court would go uncorrected. On balance, I should suppose, this function permits their participation.

The next step in a death penalty case if the conviction has been affirmed in the state courts is often a petition for habeas corpus in a federal district court alleging that the process has, in some crucial aspect, violated the Constitution of the United States. The federal court is not asked to re-impose the death sentence or to approve it, but only to determine if constitutional error has occurred. In no way need the federal judge in the district court, or the three judges of a federal court of appeals, want to impose the death penalty. In an article some years ago, a colleague described himself as a “death penalty judge,” and set out what he thought as he fulfilled the functions of such an office. But at the time our court had not had a case in which it had to perform the work of death penalty judges. It had only the role of determining the existence of constitutional error. It had no more jurisdiction, no more power, to set aside a capital sentence imposed by the state of California because it objected to the penalty than it would have had to set aside a death sentence in China. None of its members had been death penalty judges, and none had needed to connect their wills with the will of the prosecutor seeking death. ²⁷

Suppose the sentencing judge should object, “You are letting the appellate judges off easy by saying that they have no jurisdiction to change the sentence and so do not will the sentence. I had no power but to impose the sentence. Why isn’t my absence of choice exactly like theirs?” The answer, I believe, is that there is a crucial difference in function. The trial judge imposes the sentence. That he must do so as a job he finds personally disagreeable is no excuse, nor is his lack of power to do otherwise if he is to do his job. The appellate judges do not impose the sentence. They perform no act in which they will the death of the defendant. They are only systemic cooperators, excused by the good they accomplish.

It may be asked whether the state appeals court judges and the federal judges in habeas proceedings do not generate a belief in the morality of executions when they find nothing unlawful in them and do not stop them. Public confusion may be caused in this way. But public confusion is not a reason for not doing one’s job, nor is causing confusion the same as giving scandal. Good lawyering for defendants accused of serious crimes may generate the impression that the lawyers approve of the crimes. Lawyers for the defendant in capital cases not only defend their clients but make the process possible because without them there would be no trial. Systemically contributing to the imposition of death, and in some degree misleading an ignorant part of the public, neither the defense lawyers nor the direct appeals court nor the habeas courts are morally guilty of imposing death even as they participate in its imposition.

Amendment of the Constitution or action by the Supreme Court could end capital punishment, and a gradualist strategy could reduce it. The Supreme Court almost ended it in 1972, and the Supreme Court has in its legal arsenal a constitutional provision by which it could still end it in the Eighth Amendment prohibiting cruel and unusual punishment. The death penalty is increasingly viewed as cruel, and it could be classed as unusual, if the Eighth Amendment were read as open to evolution. That the Eighth Amendment is open to evolution as standards of decency develop was decided long ago in Weems v. United States, an opinion by Joseph McKenna, a contribution to constitutional jurisprudence made by a Catholic justice not otherwise remarkable. ²⁸ When every other industrial nation has abolished the penalty, when over half of the fifty states find it unnecessary to use to preserve public order and safety, the question is raised as to whether the penalty is necessary to preserve order in the states in which it still exists.

The possibility of that constitutional development has blunted interest in an amendment abolishing the penalty. A gradualist strategy would not neglect that route. If, following Evangelium Vitae, we know that the death penalty in its regular operation is state-sponsored homicide, citizens as well as legislators have a moral obligation to work to alter the Constitution that allows the killing.

Conclusion

The culture of death exists by virtue of cooperation. Some of the cooperators want to inflict death and so share the moral status of the killers. Some of the cooperators do not intend to kill and are not to be blamed for their performance of roles necessary to the process, but justified by the good accomplished by the cooperative act. Some of the cooperators do not intend to kill but without justification make systemic contributions to foreseeable killings. These collaborators are complicit in the culture of death. Every person has an obligation not to contribute systemically and unjustifiably to the intentional infliction of death. The obligation extends to the legislature, charged with the protection of human life, and to the judiciary, charged with the provision of justice.

I do not doubt that the analysis of moral guilt in terms of cooperation is only a starting point for effective work against the culture of death. Example is better than analysis. Sister Helen Prejean is an exemplar whose teaching cannot be matched. ²⁹ What can overcome the bitterness of loved ones bereaved by murder other than their forgiveness of the murderer? And what should match their forgiveness but mercy?