Viewing the Criminal Sanction through Latter-Day Saint Thought

I. INTRODUCTION In this article, I consider possible perspectives on criminal law linked to thought and doctrine of the Church of Jesus Christ of Latter-day Saints (hereinafter the "Church"). I address this topic by focusing on substantive criminal law, specifically on "the distinguishing feature" of criminal law: the institution of punishment.1 I examine whether the Church's restored gospel has anything to say about whether we, as a secular community, are justified in imposing the criminal sanction and, if so, why? The concern for justification arises because the criminal sanction entails the purposeful infliction of suffering upon offenders2 and thus on its face appears at odds with the demands of ordinary morality to do our all to relieve suffering. Justificatory theories are generally categorized as utilitarian, retributive, or a mixture of the two.3 I hope to show that Latter-day Saint doctrine relating to agency and the premortal existence supports, and is very much consistent with, some varieties of retributive theories of punishment. In this sense, I suggest that Church doctrine provides a unique foundation for the view that punishment is required in order that justice be done.4 I proceed in Part II by sketching a retributive theory of punishment developed by several prominent legal philosophers. Part III considers the few statements regarding criminal punishment espoused by Latter-day Saint scriptures and Latter-day Saint church leaders. Part III.C then examines the principles of agency within the context of the restored gospel, suggesting that these principles supply a doctrinal basis for a Latter-day Saint justification of the criminal sanction. In Part IV, I consider capital punishment in light of the ideas expressed in Parts II and III and argue that my proposed Latter-day Saint perspective on punishment in general does not necessarily commit Church members to advocate the death penalty as a particular form of punishment. II. "JUST DESERTS" RETRIBUTIVISM While a number of retributive theories exist,5 I would like to focus on the variety that regards the punishment of culpable violators of criminal rules as a demand of justice. Under this view, punishment is justified, indeed required, simply because it is just. In contrast to utilitarian theories that justify punishment as effectuating such beneficial consequences as deterring crime or incapacitating crime-prone offenders, just deserts theory considers punishing offenders as intrinsically good, independent of any beneficial consequences. Indeed, some desert theorists might advocate punishing offenders even if the results of such were socially detrimental. Contemporary just deserts theory echoes the classic retributive views of Immanuel Kant. The following provides a summary of Kant's views: Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else . . . . His innate personality [that is, his right as a person] protects him against such treatment. . . . The law concerning punishment is a categorical imperative, and woe to him who rummages around in the winding paths of a theory of happiness looking for some advantage to be gained by releasing the criminal from punishment or by reducing the amount of it-in keeping with the Pharisaic motto: "It is better that one man should die than that the whole people should perish." If legal justice perishes, then it is no longer worthwhile for men to remain alive on this earth.6 Kant goes on to posit a principle for assessing the degree of deserved punishment: the principle of equality, the Mosaic lex talonis. Kant explains that "any undeserved evil . . . you inflict on [another] you do to yourself. If you vilify him, you vilify yourself; if you steal from him, you steal from yourself; if you kill him, you kill yourself. …