Not for the Sake of Punishment Alone: Comments on Viewing the Criminal Sanction Through Latter-day Saint Thought

. . . God himself atoneth for the sins of the world, to bring about the plan of mercy, to appease the demands of justice, that God might be a perfect, just God, and a merciful God also. In his article, Viewing the Criminal Sanction Through Latter-day Saint Thought, Professor Martin Gardner undertakes to examine whether the doctrines and teachings of the Church of Jesus Christ of Latter-day Saints (hereinafter the "Church") provide any insights on the use of the criminal sanction in secular society.2 Given, as Professor Gardner states, that "the criminal sanction entails the purposeful infliction of suffering upon offenders,"3 a periodic review of our society's use of that sanction is a necessary and important undertaking. Professor Gardner's choice to conduct that review through the lens of a particular religious dogma is both interesting and unique. I was asked to comment on Professor Gardner's article presented at the LDS Perspectives on Law Conference.4 This Comment will first provide a brief overview of the structure and content of Professor Gardner's article. Second, it will examine Professor Gardner's analysis of Latter-day Saint (LDS) philosophies and his application thereof as support for his ultimate conclusion, which is that LDS teachings require punishment for violations of secular laws "in order that justice be done."5 This section demonstrates that Professor Gardner has provided a thorough and engaging discussion of retributivism and has outlined apparent supports for retributivist justification of criminal punishment in LDS philosophy. However, because of his failure to consider the atonement of Jesus Christ in his analysis, Professor Gardner has misapprehended the LDS scriptures and teachings he used to support his conclusions. The final section of this Comment posits that the conspicuous absence of any discussion of the atonement of Jesus Christ and the concomitant effects thereof on his scriptural analysis leave Professor Gardner's arguments ultimately unconvincing. Finally, it will use LDS philosophies, with primary reliance on the doctrine of the atonement, to explain why the support for Professor Gardner's pure retributivist theory of punishment just is not there. I. A BRIEF OVERVIEW OF VIEWING THE CRIMINAL SANCTION THROUGHLDS THOUGHT The substance of Professor Gardner's analysis is presented in two sections: Section II, describing "just deserts" retributivism, and Section III, discussing secular punishment and LDS thought.6 Both of these sections will be addressed in turn. A. The Recife for 'Just Deserts" In Section II of his article, Professor Gardner provides an explanation of and the underlying rationale behind "just deserts" retributivism. This theory of retributivism, he writes, "considers punishing offenders as intrinsically good, independent of any beneficial consequences."7 Under this view, those who violate the law must be punished for that reason, and for that reason alone. For those who embrace this philosophy, it would be improper to impose punishment for any other reason-particularly utilitarian reasons involving the good of civil society or even some other benefit for the criminal himself.8 In fact, Professor Gardner states that "some desert theorists might advocate punishing offenders even if the results of such were socially detrimental."9 In this section of his article, Professor Gardner does a thorough job presenting authority for just deserts retributivism. Beginning with the writings of Immanuel Kant,10 working through those of Herbert Morris11 and C.S. Lewis,12 and concluding finally with the thoughts of Herbert L. Packer13 and Michael S. Moore,14 Professor Gardner establishes several salient aspects of the theory of just deserts retributivism that he later seeks to support through LDS philosophy. First, and most important, is the notion that every individual is a person with the right to choose evil over good.15 As will be discussed, infra, this first point is wholly consistent with mainstream LDS philosophy. …