The National Catholic Register has recently joined with three other Catholic publications in an editorial call to abolish the death penalty. The three are the National Catholic Reporter, the Jesuit publication “America” and our Sunday Visitor. The full editorial can be read at this link.
It is helpful to have some sense of the political slant that inspires these publications. The “Reporter” and “America” are reliably politically liberal. Of note while they are not explicitly pro-choice on abortion, their political choices often tend to support the pro-abortion cause. For example the Reporter virtually endorsed President Obama in spite of his vigorous and explicit support for abortion on demand. So NCR seems more exorcised about killing people like torture murders like Charles Ng, then the industrial scale slaughter of unborn children. Go figure… Ditto “America”. Our Sunday Visitor is mostly representative of the “happy clappy” Catholicism typical of the average Diocesan news paper, as now is the Register.
So what of the substance of the editorial?
I believe it is perfectly reasonable to oppose the death penalty on prudential grounds. One can make the case that the death penalty under current circumstances is unwise for any number of practical reasons. You might think , the risks of convicting the innocent are excessive in our current court system, or you might argue that the death penalty is not meted our fairly, perhaps disproportionately given to criminals who are poor or have less skilled legal counsel. There are of course a number of other practical objections.Still someone who does this in the context of Catholicism must engage with a couple of facts. The Church previously sanctioned this penalty for a very long time, and the penalty itself is not intrinsically wrong, it can be opposed but one actually needs to engage the arguments in favor of it, including the argument that it is sometimes required to enact appropriate retribution. The editorial does not do this adequately, indeed it hardly does it at all.
The point is that prudential reasons depend on certain facts to support them, such as the frequency which are courts make errors. Even the ostensible reason given by St. John Paul II for opposing the death penalty and one cited in the editorial, the assertion ..”it is now possible to protect society without recourse to the death penalty” is an empirical question. I would ask well…. what is the evidence that this is true. Specifically what is different about our world that makes the death penalty “unnecessary” while it was perfectly “necessary” when Pius XII justified the death penalty in 1952?
Specifically Pius XII said:
“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. (Pius XII, Address to the First International Congress of Histopathology of the Nervous System, 14 September 1952, XIV, 328)”
To be sure, it appears that Pius XII thinks capital punishment was justified not as self defense but as punishment, which served as “expiation” (reparation) for guilt. The current objection to capital punishment has without reason or justification dismissed this idea. We will come back to this later.
At this point let us pause to note then that it is rather difficult to make the case that the death penalty is wrong in itself, because of what it is. Adultery, murder, the specifically vile murder of the unborn entailed in abortion, theft, blasphemy and the like are all intrinsically wrong, because of the nature of what they are. There are no circumstances that justify them, and no good that can be achieved by them to make the acceptable or “necessary”. So if abortion of one unborn child would obtain special stem cells useful to cure some terrible disease and save thousands, it would not be morally acceptable because it was “necessary”. When we are talking about intrinsic evils “need” or lack thereof is irrelevant.
What about war? Isn’t that a necessary evil? The Answer is no. For a country to use force to defend its people from an aggression (either occurring or imminent) is not evil, it is actually good. What is evil is to fail to do this. In that case the government would be neglecting a duty to protect its citizens. It would be analogous to a man who allows an intruder to murder his wife and children while he hides in a closet.
Our moral language has become confused. The intrinsic evil is killing the innocent. Enemy soldiers are not innocent. War is a situation in which killing human beings can be justified, that is the killing is not murder. Whether or not the action is murder is determined by whether or not the war is “just”, and this question of “justness” is based on empirical facts. Are there plausible alternatives to war, is the war declared by legitimate authority? I will not go further into the details of the moral theology of just war, but merely make the point that it is analogous to the death penalty. Killing the innocent is intrinsically wrong and never justified. Killing the non- innocent may be justified and even required. Note by “innocent” I do not mean morally culpable, but those who are engaged in material evil, so for example, a soldier killing an enemy soldier in a just war is not killing someone who is innocent, because the enemy soldier is engaged in material evil, (that is by prosecuting the unjust aggression of the enemies leadership) Note that the enemy soldier may not be subjectively guilty of sin since he may believe (wrongly) his country is acting defensively and he is acting justly.
Capital punishment then is like war, you are not engaged in killing the innocent, so you are not engaged in something intrinsically wrong. Capital punishment however is a little bit different in that you are not purely engaged in defense, but rather the legitimate authority is engaged in punishment. This is clear from the comments of Pius XII above, but the teaching is very old and quite consistent. Let’s just cite a few other historical Catholic sources to demonstrate this point:
The Catechism of the Council of Trent:
“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)”
Or the words of Innocent III, which he required the Waldensian’ s (schismatic followers of Peter Waldo ) to accept were:
“The secular power can, without mortal sin, exercise judgment of blood, provided that it punishes with justice, not out of hatred, with prudence, not precipitation.”
Not to mention that any number of Catholic doctors and moral theologians supported the death penalty including St Augustine, St. Thomas Aquinas, and St. Alphonsus Ligori.
To quote St Alphonsus Ligori :
“It is lawful to put a man to death by public authority: it is even a duty of princes and of judges to condemn to death criminals who deserve it; and it is the duty of the officers of justice to execute the sentence; God himself wishes malefactors to be punished.”
And of course St. Thomas:
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 corrupted the whole lump” (1 Cor. 5:6). (Summa Theologiae, II, II, q. 64, art. 2)
I could go on but I trust I made the point. It seems incontrovertible that if the death penalty is “intrinsically evil” then the Catholic Church including Popes, and Doctors of the Church and catechisms endorsed this evil. So much for infallibility or the teaching authority of the magisterium.
All of this confusion springs from St. John Paul II’s comments in Evangelium Vitae, (an otherwise prophetic encyclical. In Evangelium Vitae he said:
“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 behavior 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. In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person”
Now The first point is this statement from the encyclical must be someone brought into sync with the obvious conflicting statements by prior Popes as pointed out above. One thing however I note, even this statement taken completely at face value implicitly acknowledges that the death penalty is not intrinsically wrong, rather the point is the state should refrain from using it, if other means can protect public order etc… It is not an obvious fact other means do protect public order. One could argue that complete abolition of the death penalty in fact disrupts public order by allowing some particularly vile criminals to escape a sufficiently serious punishment and thus ultimately devalues human life.
Still, the point of this post is not primarily to support the death penalty. My particular prudential judgment would be to limit if not circumscribe it all together, for several reasons, including the fact that there is some evidence that significant numbers of people are wrongly convicted ( see the work of the “Innocence project” here .
Also in a society in which the state has proven it is morally bankrupt and lacks any respect for the natural law, such as ours, (witness the support for abortion) then it is wise to limit the power of the state, and giving it the power to inflict the ultimate punishment without making it extremely onerous if not impossible to do so, is problematic.
These however are purely prudential judgments; they are based on my assessment of the facts as they exist now. The relevant facts may change, others may view things differently. The more important point is that opposition to the death penalty must be consistent with the previous teaching of the Church. The editorial writers of NCR and America, the Register and Our Sunday Visitor seem oblivious to the prior history of the Church in not only supporting the death penalty but using it. This is ultimately a disservice to the credibility and authority of the Church.
I conclude with the following, a much more serious reflection on a modern Catholic approach to the death penalty that does justice to the statement of John Paul II and the previous history of the Church was written by the Late Cardinal Avery Dulles. It can be read in its entirety here.
In the meantime let us ask St John Paul II for his prayers that his words in defense of human life be understood in the way that Our Lord wills…