Buddhists believe in the infinite value of every sentient life. Human beings, while not blessed with divine authority over other living creatures, are uniquely equipped to attain enlightenment and achieve the fullest sense of happiness and freedom for themselves and others. Yet there exist crimes of such gross magnitude that they seem to call our very sense of decency into question. We are forced to confront how deeds of “inhumanity” are often all too human, things that only human beings are capable of. We seek justice as a natural response to these crimes. But these events, dark as they are, challenge us to reflect on how we can apply right intention to the application of justice itself.
Take the case of a recently smashed pedophile ring, whose seven convicted members hid their criminality behind respectable careers and families across Britain. The details of the crimes are too vile and repugnant to share here. Suffice to say that Graham Gardner, deputy director of investigations at the National Crime Agency, told the press: “This is serious organized crime at its worst. . . . The depravity of these men . . . is without doubt as vile as we have seen.” In a similar vein, Zen master Thich Nhat Hanh wrote a poem called Please Call Me by My True Names in response to the letter of a 12-year-old girl who was raped at sea by a pirate and subsequently drowned herself. He famously commented how although we would immediately sympathize with the girl, we would naturally despise the pirate.
Pedophiles and rapists are surely people that have at some point elicited our deep, primal urge for retributive justice. In many countries, crimes of such severity, alongside murder, could warrant the ultimate manifestation of retributive justice: the taking of the criminal’s life. There are immensely complex socio-political and cultural reasons why many countries, some of them dominated by the Buddhist religion, retain the death penalty. It is also true that a single ideology, theory, or philosophy cannot resolve the diverse conditions that sustain the death penalty as the law of the land in many regions.
But the content of Buddhism is not simply a philosophy, a body of theories, or even a complex psychological and ethical system. It is the transmitted embodiment of the Buddha’s message and of the Buddha himself. There are no secular systems, even those of the mighty state, that can compromise, co-opt, or invert the message of interconnectedness, wisdom, and compassion that the Buddha revealed in his sacred texts (of all traditions—Theravada, Mahayana, and Vajrayana). These insights allow his disciples some understanding as to why Buddhism would oppose the death penalty.
Buddhist exegetes, activists, and philosophers have come a long way in addressing modern concerns like human rights, social and economic justice, and theories driving international debate about human societies. Indonesia’s execution of eight of the “Bali Nine” (a troupe of outbound heroin smugglers arrested in 2005) on 29 April and the furious debate about rehabilitation, drugs, and leniency that is taking place in Australia provide further reasons to urgently reflect on Buddhist theories of criminal justice. When we consider the “dichotomy” between retributive and restorative justice, we find why the Buddhadharma is, at least doctrinally, uncomfortable with a retributive vision of justice when it comes to the death penalty.
Retributive justice sees crime as “a violation of the state and is defined by law breaking and guilt” (Zehr 1990, 181). According to this concept, the justice system must determine blame and mete out suffering in a contest between the offender and the state based on a system of rules. It aims to balance the harm done to the victim by inflicting punitive harm on the wrongdoer. This is an “adversarial” concept of relations between perceived entities, such as the individual versus the state or the offender versus the victim. In the most serious of offences, the state cannot suffer the individual to exist and therefore passes on the death sentence.
At the basic doctrinal level, the death penalty creates horrific karma for the unenlightened person administering the lethal injection or operating the electric chair. Only an advanced bodhisattva with clairvoyance can claim to end someone’s life with pure and compassionate intention. Foretelling a would-be murderer’s rampage and slaying him was how the Buddha, in a former life as a ship captain, prevented the deaths of his ship’s crew and prevented that would-be killer’s eons-long torment in hell. Yet this scenario effectively does not exist as we know of few advanced bodhisattvas in the world. The act of killing also deprives the offender of the chance the Buddha once gave the mass-murderer Angulimala: to make the most of his remaining life as a repentant disciple of peace.
Retributive justice emphasizes individual responsibility. Buddhism certainly agrees that moral determinism is false and fatal. However, retributive justice does not take into account the innumerable karmic conditions, often from distant past lives, that have played a part in conditioning a person’s unskillful and destructive actions in their present life. In Please Call Me by My True Names, Thich Nhat Hanh explored how a crime cannot be isolated from its wider context of alienation, hardship, violence, and unskillful thoughts. Samsara is a state of suffering. Thus wrote the Zen master: “I am the mayfly metamorphosing on the surface of the river, and I am the bird which, when spring comes, arrives in time to eat the mayfly. . . . Please call me by my true names, so I can hear all my cries and laughs at once, so I can see that my joy and pain are one.”
In the relatively new concept of restorative justice, crime is framed as a violation of people and relationships. It “creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance” (Zehr 1990, 181). Restorative justice focuses not just on the harm done to the offended party, but also on how the offender can transform and be freed from both inner and outer negative influences. It is mindful of how wrongdoers themselves were wounded by childhood abuse, poverty, racism, and other ills, and seeks to “balance the healing of the wounds in the wrongdoer with insistence upon accountability, which is a necessary element in that healing” (King 2005, 238). The offender is not excused from penance. Restorative justice prioritizes healing the harm to the victim, and that means compensation and repentance on the part of the offender. Restorative justice is therefore closely enmeshed with the principles and strategies of victims’ rights movements (King 2005, 239).
This vision of justice ameliorates the prominence of both the self and the adversarial state of the various relationships seen in retributive justice. It is perhaps more in line with the Buddhist teachings of interconnectedness and interrelationship. If Buddhist visions of justice do indeed lean toward restorative preferences, then it becomes clear how the death penalty seems doubly unproductive and immoral.
Engaged Buddhists of all stripes, from Thich Nhat Hanh to Maha Ghosananda, have proved that criminal justice and the death penalty need a comprehensive framework of hermeneutics and exegesis so that a more sophisticated level of thought can be applied to the problem of retribution versus restoration.
For more information, see:
King, Sallie B. 2005. Being Benevolence: The Social Ethics of Engaged Buddhism. Honolulu: University of Hawai‘i Press.
Zehr, Howard. 1990. Changing Lenses: A New Focus for Crime and Justice. Scottsdale, Pennsylvania, and Waterloo, Ontario: Herald Press.