Getting it Wrong About the Death Penalty

The ongoing debates about the authentic Catholic position on the death penalty have grown particularly exasperating. Perhaps the worst thing of all is that we’re wasting time arguing over teaching that is incredibly well-established throughout the majority of Church history. The Church’s stance on capital punishment has always been more than merely permissive; the idea that “rendering harmless” those criminals deserving of capital punishment is sufficient to eradicate the need for such a sentence is simply not consistent with the teachings of Holy Scripture, the understanding of popes, doctors of the Church, and various apostolic pronouncements.

Adding fuel to the fire, today we have a report from the Vatican’s own news service indicating that Pope Francis has attempted to proclaim that there is no circumstance whatsoever in which the death penalty is warranted:

Capital punishment is cruel, inhuman and an offense to the dignity of human life. There is no crime in the world that deserves the death penalty. That was Pope Francis’ unequivocal message to members of the International Commission against the death penalty who met with him on Friday morning in the Vatican.

In a lengthy letter written in Spanish and addressed to the president of the International Commission against the death penalty, Pope Francis thanks those who work tirelessly for a universal moratorium, with the goal of abolishing the use of capital punishment in countries right across the globe.

Pope Francis makes clear that justice can never be done by killing another human being and he stresses there can be no humane way of carrying out a death sentence. For Christians, he says, all life is sacred because every one of us is created by God, who does not want to punish one murder with another, but rather wishes to see the murderer repent. Even murderers, he went on, do not lose their human dignity and God himself is the guarantor.

Capital punishment, Pope Francis says, is the opposite of divine mercy, which should be the model for our man-made legal systems. Death sentences, he insists, imply cruel and degrading treatment, as well as the torturous anguish of a lengthy waiting period before the execution, which often leads to sickness or insanity.

This is why I use the word “attempted” in describing the pope’s desire to eradicate capital punishment: because he lacks the authority to make such a change. Shocking, I know, but I said it before and I’ll repeat it again: the teaching on this matter is settled. In order to advance this position, Pope Francis would have to declare several of his predecessors as well as St. Augustine, St. Thomas Aquinas, St. Thomas More (who prosecuted heretics in an England where that was a capital offense), a papal decree, an apostolic constitution, and also St. Paul’s own divinely-inspired writing in the New Testament to be in error.

Don’t believe me? Read for yourself. We’ll start with the New Testament:

  • “If then I am a wrongdoer, and have committed anything for which I deserve to die, I do not seek to escape death.” (Acts 25:11)
  • “Let every soul be subject to higher powers. For there is no power but from God: and those that are ordained of God. Therefore, he that resisteth the power resisteth the ordinance of God. And they that resist purchase to themselves damnation. For princes are not a terror to the good work, but to the evil. Wilt thou then not be afraid of the power? Do that which is good: and thou shalt have praise from the same. For he is God’s minister to thee, for good. But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is God’s minister: an avenger to execute wrath upon him that doth evil” (Romans 13:1-4).

We may also examine papal and magisterial pronouncements:

  • “It must be remembered that power was granted by God [to the magistrates], and to avenge crime by the sword was permitted. He who carries out this vengeance is God’s minister (Rm 13:1-4). Why should we condemn a practice that all hold to be permitted by God? We uphold, therefore, what has been observed until now, in order not to alter the discipline and so that we may not appear to act contrary to God’s authority.” (Pope Innocent 1, Epist. 6, C. 3. 8, ad Exsuperium, Episcopum Tolosanum, 20 February 405, PL 20,495)
  • Condemned as an error: “That heretics be burned is against the will of the Spirit.” – Pope Leo X, Exsurge Domine (1520)
  • “The power of life and death is permitted to certain civil magistrates because theirs is the responsibility under law to punish the guilty and protect the innocent. Far from being guilty of breaking this commandment [Thy shall not kill], such an execution of justice is precisely an act of obedience to it. For the purpose of the law is to protect and foster human life. This purpose is fulfilled when the legitimate authority of the State is exercised by taking the guilty lives of those who have taken innocent lives. In the Psalms we find a vindication of this right: “Morning by morning I will destroy all the wicked in the land, cutting off all evildoers from the city of the Lord” (Ps. 101:8). (Roman Catechism of the Council of Trent, 1566, Part III, 5, n. 4)
  • “Even in the case of the death penalty the State does not dispose of the individual’s right to life. Rather public authority limits itself to depriving the offender of the good of life in expiation for his guilt, after he, through his crime, deprived himself of his own right to life.” (Pope Pius XII, Address to the First International Congress of Histopathology of the Nervous System, 14 September 1952, XIV, 328)
And finally, some teachings from the doctors of the Church:
  • “The same divine authority that forbids the killing of a human being establishes certain exceptions, as when God authorizes killing by a general law or when He gives an explicit commission to an individual for a limited time. The agent who executes the killing does not commit homicide; he is an instrument as is the sword with which he cuts. Therefore, it is in no way contrary to the commandment, ‘Thou shalt not kill’ to wage war at God’s bidding, or for the representatives of public authority to put criminals to death, according to the law, that is, the will of the most just reason.” – (St. Augustine, The City of God, Book 1, chapter 21)
  • It is written: “Wizards thou shalt not suffer to live” (Ex. 22:18); and: “In the morning I put to death all the wicked of the land” (Ps. 100:8). …Every part is directed to the whole, as imperfect to perfect, wherefore every part exists naturally for the sake of the whole. For this reason we see that if the health of the whole human body demands the excision of a member, because it became putrid or infectious to the other members, it would be both praiseworthy and healthful to have it cut away. Now every individual person is related to the entire society as a part to the whole. Therefore if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and healthful that he be killed in order to safeguard the common good, since “a little leaven corrupteth the whole lump” (1 Cor. 5:6). – (St. Thomas, Summa Theologiae, II, II, q. 64, art. 2)
  • In Iota Unum, Romano Amerio cites St. Thomas on the expiatory nature of accepting a death sentence:

    “Even death inflicted as a punishment for crimes takes away the whole punishment for those crimes in the next life, or at least part of that punishment, according to the quantities of guilt, resignation, and contrition; but a natural death does not.” (Cf. Romano Amerio Iota Unum, 435)

In his apostolic constitution, Horrendum illud scelus, Pope St. Pius V even decreed that actively homosexual clerics were to be stripped of their office and handed over to the civil authorities, who at that time held sodomy as a capital offense. He wrote: “We determine that clerics guilty of this execrable crime are to be quite gravely punished, so that whoever does not abhor the ruination of the soul, the avenging secular sword of civil laws will certainly deter.”

These are, to borrow words from the New Testament, “hard sayings.” But as Catholics, we are obligated to wrestle with these teachings – especially the ones we don’t understand or find ourselves interiorly opposed to. Taking it upon ourselves to condemn what we disagree with is to challenge the authority and doctrinal orthodoxy of those who proclaimed them true in the first place. The burden is on us to prove, if we really believe it, why some prior teaching was wrong – and how to reconcile that with infallibility and authentic doctrinal development.

The above citations alone should be sufficient to prove that the death penalty was traditionally viewed by the Church as more than just morally permissible in certain circumstances. It seems clear that the traditional view was that, when carried out justly, the execution of criminals deserving of such penalties by the legitimate authority of the state actually served the common good and even had the power to expiate temporal punishment on the part of the guilty. This is something that more recent papal statements — like those found in Evangelium Vitae — fail to address. (More on that in a minute.)

No less contemporary an ecclesiastical authority than Cardinal Ratzinger, later to become Pope Benedict, admitted at the very least that Catholics had room to disagree on this issue. He stated, as pertains to the question of capital punishment and the worthiness of an individual who supports it to receive Holy Communion:

Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.

As a student of Church history, it’s no surprise that Ratzinger clarified this. We see why in an article published by Dr. Steven Long, professor of theology at Ave Maria University, on the website Thomistica (run by the Aquinas Center of Ave Maria). In the piece — which specifically addresses the recent joint statement in favor of abolition of the death penalty by four ostensibly Catholic journals — Long demonstrates that acceptance of the right of the state to levy this penalty was a requirement for the restoration of the heretical Waldensians to full communion:

Wholly unobserved is the high theological note characterizing the profession required of the Waldensians in 1210 in order to re-establish ecclesial communion.  The Waldensians were required to acknowledge among other things the essential justice of the death penalty for grave crime.  Cf. Denzinger, #425—“Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.”  Clearly to require this oath for the re-establishment of ecclesial communion at one moment, and then to imply the absolute necessity of the opposite—where what is at stake is not prudential application and limit but the principled possibility of just penalty of death—would constitute not a development of doctrine, but rather a mutation.  Note, again, that the oath required of the Waldensians directly refers to the death penalty in principle and that it indicates that as such it cannot be a malum in se. Nor is it listed as such in Evangelium Vitae, which provides a list of such intrinsic evils from which the death penalty is omitted.

Are the editors of the journals involved–or the bishops who so commonly describe the death penalty as contrary to human dignity as though it were amalum in se–familiar with the work of the late Eminence Cardinal Avery Dulles on this question?  Or the teaching of the Fathers and Doctors of the Church?  Hundreds of years of Catholic teaching in conformity with the teaching of the Fathers and Doctors has acknowledged that implementing the penalty is a prudential matter and that the penalty is essentially valid.  Pope Piux XII taught that the penalty is valid across cultures.  The wisdom of applying this penalty is essentially a prudential matter.  But as prudential there is no such thing as “de facto abolition” since circumstances change, and–again, contrary to the journals and the new enthusiasm–deterrence is a necessary and essential part of criminal justice.  The reason for this last is that we are not free to impose penalties in this life without considering the common good, and an essential part of this consideration is (contrary to Kant who thought that the justice of the death penalty made its application to be absolutely necessary) the issue of deterrence.  The same place at different times may require different penalties; and different places at the same time may require different penalties.  Many penalties might be essentially just that in particular circumstances do not conduce to the common good and so ought not be applied. Thus it is altogether fitting that–given the overriding circumstance of the rejection of higher law and the widespread determining circumstance of the culture of death–there be a prudential reservation in applying this penalty.  But this is an entirely different thing from the joint editorial’s barely concealed anathematization of the penalty, which itself proceeds from a failure to understand, and a lack of due theological regard for, the transcendence of the common good.

The editorializing journals fail to understand that Evangelium Vitae does not reduce penalty to defense, but adverts to defense largely because of the failure of states to subject themselves to higher law and to acknowledge their subjection to the common good,  In the presence of the widespread circumstance of the failure of the penalty to manifest a transcendent norm of justice owing to the omnipresent culture of death, the other medicinal aspects of penalty–in particular deterrence (which includes keeping the particular criminal from killing again)–become even more important inasmuch as the major medicinal purpose of punishment (manifesting a transcendent norm of justice) is impeded. Yet the journals fail to acknowledge that deterrence is essential to criminal justice, a remarkable view simply contrary to Catholic tradition. But we are not free to impose penalty without care for the common good, and the consideration of deterrence is part of such care. Enthusiasm suppresses such distinctions.

The journals use the language of “violence” to describe the penalty.  But just penalty does not “violate” the rights of the guilty.  And there is no absolute “right” of the guilty to immunity from justice for grave crime.  It may be better not to impose some penalties, and this is largely true of the death penalty today.  But contrary to the formulations of the journals in question it is precisely not a universal truth, nor is the penalty as such “abhorrent”.  That is the language of the Waldensians, language which they were required to renounce to re-establish ecclesial communion with the Roman Catholic Church.  Those who embrace such language should realize that they are crossing over from the Church’s prudential reservations regarding the penalty–which then-Cardinal Ratzinger as prefect of the CDF insisted that no Roman Catholic was obligated to share–toward assumption of the Waldensian view of the matter (prior to their return to the Church, that is).

 

So how did we get here? The problem seems to begin for us with the language of Evangelium Vitae itself:
Among the signs of hope we should also count the spread, at many levels of public opinion, of a new sensitivity ever more opposed to war as an instrument for the resolution of conflicts between peoples, and increasingly oriented to finding effective but “non-violent” means to counter the armed aggressor. In the same perspective there is evidence of a growing public opposition to the death penalty, even when such a penalty is seen as a kind of “legitimate defence” on the part of society. Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform.
[…]

This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God’s plan for man and society. The primary purpose of the punishment which society inflicts is “to redress the disorder caused by the offence”. Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfils the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated.

It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.

Aside from ignoring the Church’s previous views on capital punishment as serving a legitimate good and taking place through an exercise of God’s own authority and justice, one of the principle issues EV glosses over in its assertion that criminals are rendered “harmless” by “steady improvements in the…penal system” is the absolute epidemic of modern prison violence – assault, rape, and murder. It’s difficult to find exact statistics on prison homicides nationwide, since they are broken down by federal and state jurisdictions. I found 77 murders in Federal prisons over the course of a decade with five minutes of Googling; I was unable, on an initial search, to get accurate data on state facilities. Taking the focus away from the relatively more difficult to get away with crime of murder and onto prison rape, however, we see a vastly different and more horrifying picture. The Bureau of Justice Statistics estimates that somewhere between 86,000 and 200,000 cases of sexual assault happen in our prisons every year.

This is hardly evidence of the “steady improvements in the organization of the penal system” that Pope John Paul II spoke about when declaring the need for executions “practically non-existent.”
Another common argument flows from the admonition in EV about not “definitively denying them [criminals] the chance to reform.” This argument typically takes the form of a statement along these lines: “If criminals are executed, what chance do they have to repent and convert? The longer we keep them alive, the more opportunities there are for God’s grace to reach them.”
And yet, no less a moral theologian than St. Thomas Aquinas addressed this claim specifically. He wrote:

“The fact that the evil ones, as long as they live, can be corrected from their errors does not prohibit that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement.

They also have at that critical point of death the opportunity to be converted to God through repentance. And if they are so obstinate that even at the point of death their heart does not draw back from malice, it is possible to make a quite probable judgment that they would never come away from evil.” – (Summa Contra Gentiles, Book III, chapter 146)

There are unquestionably prudential aspects to the application of the death penalty that need to be worked out by competent civil and ecclesiastical authorities. Foremost among these, I think, is the question of whether (and which) governments in the modern world could be trusted with carrying it out justly. The Church certainly never demanded that the death penalty always be carried out in certain cases. It was always a decision relegated to a legitimate civil authority. This was affirmed by no less than our Divine Savior Himself, who said to Pontius Pilate — knowing full well he was about to be sentenced to an unjust death — “Thou shouldst not have any power against me, unless it were given thee from above.” (Jn. 19:11)

Christ didn’t say that what Pilate was doing was right in that given circumstance. But he did affirm that the authority rested with him to do it.

Catholics who advocate the Church’s moral teaching on this issue are not craven, bloodthirsty monsters. Neither are they rebels against Church teaching – they in fact are choosing, despite popular opposition from their fellow Catholics and now, even popes, to be submissive to it.

For my part, I personally find the idea of executing someone exceptionally distasteful. Even so, I’ve written about my personal run-in with the death penalty following the murder of my mother-in-law. That I experienced something like this doesn’t objectively make me any more or less of an authority on the matter. Emotional arguments for or against capital punishment aren’t worth the paper they’re printed on. But being in a position where my opinion on this issue (and how it impacted my wife) could have affected the outcome of sentencing in a murder trial — and thus, the lives of two killers — it absolutely did give me cause to consider it carefully under the weight of a more grave moral responsibility than most people will ever be burdened by.

We don’t always understand or even feel comfortable with why the Church did things differently in the past, but it doesn’t give us the right to simply discard those things. We need to look for continuity, for exercises of apostolic authority, for scriptural precedent, for consistency of teaching, etc.

Even the pope, despite the authority of his office, lacks the power to change teachings so well-established as this. He is the guarantor of doctrine, not the author of it. Rest assured, therefore, that despite the fervor of Pope Francis’s condemnation of capital punishment as never just, this is his personal opinion, and nothing more.

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