Twenty-eight-year-old Mark Chicano cried out in agony. He had just been sentenced by a panel of Connecticut judges to 260 years in jail—effectively a life sentence—for the murder of three persons. In February of 1987, Chicano had listened outside his girlfriend’s bedroom window as she made love with another man. Chicano then broke into her house, and after waiting 40 minutes, he attacked the couple and killed them. When his girlfriend’s 11-year-old stepson appeared at the bedroom door, Chicano killed him also.
Chicano lunged at the judges and cried out when the sentence was pronounced, not because of its severity, but because of its leniency. “I must be killed,” he shouted, “I must be punished for what I did.” Chicano said repeatedly. “I am deeply, deeply sorry. You got to kill me.” And then he added an ominous threat: “If you don’t put me to death, I will, one way or another.” Chicano had to be wrestled to the ground by seven sheriffs before he could be taken out of the courtroom.
The anguish of this man, and his brutal remorse, called to mind Immanuel Kant’s famous discussion of capital punishment. Kant argued that life imprisonment was necessarily too mild or too severe a punishment for murder, depending upon the state of mind of the guilty person. If the guilty man is unrepentant Kant said, then life imprisonment is too mild, since the murderer might enjoy many years of life without any pangs of regret, whereas, if the convict is remorseful, then life imprisonment is too severe, since he is then compelled to live with his sorrow. Kant observed that, by contrast, the death sentence seems adapted to provide the most appropriate punishment in each of the two cases. The repentant convict recognizes that he deserves to die for what he has done, and so the death penalty matches his own judgment; and the unrepentant convict is punished by being deprived of his own life, which he has esteemed even more than doing what is right.
Perhaps Mark Chicano was emotionally disturbed in a manner that partially exculpated him for his crimes, and his outburst at sentencing was a sign of continuing imbalance. Or perhaps Chicano’s self-condemnation is sound, and, because no one else will recognize this, he has been driven to a wild frustration. In any case, it is easy to imagine perfectly sane murderers who, like the “man of honor” Kant speaks of, think it fitting that they be put to death for their crimes.
There are Catholics who believe, as was said in a recent editorial on the “seamless garment” in my diocesan newspaper, that “no crime deserves the death penalty.” If, for example, they were friends of a guilty criminal on death row, their task, they think, would be to present appeals and press for a commuted sentence, insisting up to the last moment that the death penalty was unjustified, or barbaric, or cruel. They would probably take it for granted that other Catholics should join with them in trying to block the execution. And probably the last thing they would expect, or want, is that their friend should join with those who hold out for the death penalty and say, “Stop what you are doing; I deserve to die for what I did.”
Yet this attitude—”I deserve to die for my sin”—is a profoundly Christian one. It would seem to be a necessary part of true repentance for having committed any serious sin. After Nathan rebuked David for his adultery and murder of Uriah, David exclaimed, “I have sinned against the Lord,” to which Nathan replied, “The Lord also has taken away your sin; you shall not die.” Nathan implied that David, in recognizing his sin, recognized also that he deserved the punishment of death. Indeed, if “no crime deserves the death penalty,” then it is hard to see why it was fitting that Christ be put to death for our sins and crucified among thieves. Aquinas quotes a gloss of St. Jerome on Matthew 27:33: “as Christ became accursed of the cross for us, for our salvation He was crucified as a guilty one among the guilty.” That Christ be put to death as a guilty person, in place of guilty persons, presupposes that death is a fitting punishment for those who are guilty.
The Church’s teaching on capital punishment is sometimes presented in this way: “The state has the right to put those who commit serious crimes to death for the sake of the common good.” This is an adequate
Coming Soon but misleading statement, insofar as it seems to attribute some special and indeed fearful power to the state—that of putting persons to death. Yet this power no more belongs to the state in itself than the power to legislate belongs to the state in itself. Just as the state’s authority to legislate is grounded in the natural law, so the state’s power to punish is grounded in the fact that transgressions of the natural law in themselves merit proportionate punishments.
This point was made emphatically by Pius XII: “When it is a question of the execution of a man condemned to death, the State does not dispose of the individual’s right to live. It is then reserved to the public power to deprive the condemned of the benefit of life, in expiation of his fault, when already, by his fault, he has dispossessed himself of the right to life” (my emphasis). There is a direct and necessary connection between a person’s transgressing the natural law and his meriting punishment for that transgression—this apart from any human convention or authority. A person who commits a murder “merits death,” he becomes “worthy of death”—which is to say (it is important to note) not that he must be put to death but rather that he is in a condition such that he would be treated appropriately were he to be put to death. If only two persons existed on earth, and one of them killed the other, it would be the case that the remaining person merited death for what he did. If the death penalty were abolished in all of the countries of the earth from now until the end of time, still we could truly say, of every murderer, that he is worthy of death for his crime.
There are Catholics who might admit that, in some abstract sense, a murderer deserves to die for his crime, but who would insist that the execution of that judgment belongs to God alone. To support their view, they might cite the fifth commandment, “Thou shalt not kill.” Aquinas, when he considers this argument in the Summa contra gentiles, calls it “frivolous,” pointing out that “in the law which says ‘Thou shalt not kill’ there is the later statement ‘Wrongdoers thou shalt not suffer to live’ (Exodus 22:18). From this we are given to understand,” Aquinas notes, “that the unjust execution of men is prohibited” (III, 146). The Law in fact prescribes capital punishment for murder, kidnapping, false witness in a capital charge, cursing one’s parents, sexual immorality, witchcraft or magic, idolatry, blasphemy, and sacrilege.
The magisterium of the Church has always recognized that the fifth commandment is not meant to rule out capital punishment. For example, Pius XII, in explaining the fifth commandment, stated: “So long as a man commits no crime, his life is intangible, and therefore every action which tends directly towards its destruction is illicit…. Only God is the Lord of the life of a man who is not guilty of a crime punishable with death.” Pius XI in Casti Connubii similarly wrote: “Public magistrates have no direct power over the bodies of their subjects; therefore, where no crime has taken place and there is no cause present for grave punishment, they can never directly harm, or tamper with the integrity of the body” (my emphases).
It is incorrect to view capital punishment in the Law as an “exception,” a falling off from the moral ideal of pacifism—akin to allowing divorce “because of the hardness of men’s hearts.” Rather, it is a recognition of the basic moral distinction between innocence and guilt. This distinction is preserved in the New Testament. We are told that in Christ here is “neither Jew nor Greek, slave nor freeman, male nor female” (Galatians 3:28), but not “neither murderer nor victim.” St. Peter teaches that it is one thing to suffer punishment unjustly, another justly: “What credit is there if, when you sin and are harshly treated, you endure it with patience? But if when you do what is right and suffer for it you patiently endure it, this finds favor with God” (1 Peter 2:20).
Because the state’s punishment of capital crimes is grounded in the natural law—because the state is merely applying a punishment already due to a person because he has transgressed that law—to affirm the state’s authority to use capital punishment is to affirm the natural law. It is also to affirm that the state’s authority is limited by natural law. Thus we can point to cases (like abortion or euthanasia) where persons are deprived of life under state authority and say: “There is no possible justification for what is being done—these persons are not guilty.”
Pius XII wrote that “only God is the Lord of the life of a man who is not guilty of a crime punishable with death”—implying, it seems, that the state somehow does have dominion over the life of a man who is guilty of such a crime. That the state’s authority to punish is a sharing in God’s authority is a difficult notion for a modern to understand, yet this is what is taught in the New Testament: “for the ruler is God’s servant,” St. Paul wrote, “to work for your good. Only if you do wrong ought you to be afraid. It is not without purpose that the ruler carries the sword; he is God’s servant, to inflict his avenging wrath upon the wrongdoer” (Romans 13:4-5). Likewise St. Peter says that God commissions rulers “for the punishment of criminals and the recognition of the upright” (1 Peter 2:14). Pius XII, commenting on these passages, stated that this teaching is not culturally conditioned and hence inapplicable today because it concerns “the very foundation of penal power and of its intrinsic finality. This, in turn, is as little determined by circumstances of time and culture as the nature of man and the human society decreed by nature itself.”
The Locus Classicus
St. Thomas Aquinas held that the fundamental moral precepts were to do good and not to do evil. Since punishment essentially involves inflicting an evil on someone, it then becomes a difficulty how this could ever be licitly done. It should be noted that this is a perfectly general problem, regarding all forms of punishment and all authority: it concerns the spanking a father might give to his children, as well as fines, imprisonments, or death sentences imposed by public authority. Again, the difficulty here is distinct from that of whether a person is worthy of punishment. A person may be worthy of punishment without it following that it is anyone’s responsibility to inflict that punishment. If my child does something wrong, he is worthy of punishment, and yet that does not mean that any stranger who happens to see the misdeed can administer a spanking. Similarly, private citizens have no right to execute murderers—a sin Aquinas calls “usurpation.”
Aquinas pointed out that punishments may be administered by those who have charge of the laws that are transgressed. Thus a father can punish transgressions of “domestic law,” whereas the sovereign political power can punish transgressions of public law. Aquinas then observed that such authorities, when they punish, refer their action to the common good. Hence, although they are bringing about an evil for someone when they punish (evil here refers to harm, not injustice, since the person is worthy of punishment), they are not intending an evil thing, since they view the punishment as contributing to the common good, which is their responsibility. This is why disciplining a child differs morally from smacking him out of anger, and why punishing a criminal differs morally from revenge or vindictiveness.
Note that there are three factors here, all of which must hold for the punishment to be licit: the punished person must be worthy of punishment; the one who punishes must have authority to do so; and the punishment must be administered for the sake of the common good. Both the theory that all punishment is therapy, and the utilitarian idea that only good consequences justify punishment, neglect the first factor and hence can serve as rationalizations for gross injustice. The theory that punishment must always be applied to the person worthy of it neglects the third factor.
Capital punishment is lawful if all three factors hold. In the case of anyone who has committed a serious crime, the first factor holds, since, as we have seen, such a person has made himself worthy of death. The second factor also holds, since the sovereign power, as we have seen, has the authority to administer punishments that are due to transgressions of the natural law. Thus the only factor that remains to be determined is: “Can the execution of this criminal reasonably be understood as contributing to the common good?” This is a question that citizens and politicians have full freedom to debate and consider, but it should never be suggested or implied that Catholics who argue in good faith that executions can contribute to the common good are departing from Church teaching or that they lack a Christian vision of society.
The Common Good
The common good is a complex thing, and we should resist all reductionist interpretations of it. For example, Aquinas lists as goods that could be aimed at in administering punishment: “that the sinner may amend, or at least that he may be restrained and others be not disturbed, that justice may be upheld, and God honored” (II-II, 108, 1, c). Only the second sort of reason typically turns up in modern discussions: it is urged, against the death penalty, that life imprisonment equally protects society. Of course life imprisonment protects neither the other prisoners nor prison guards, who are sometimes killed by imprisoned murderers. (The notorious New York State convict Willie Bosket tries to kill a guard every chance he gets.) Besides, few murderers are imprisoned for life, since society’s resolve to punish a crime weakens over time: recently Holland even released from jail Nazi war criminals who had been given life sentences.
The other reasons Aquinas mentions seem to signify much of what defenders of capital punishment are concerned about. That a murderer repent is a good all of us can agree upon. Ted Bundy’s last act was to call his mother and tell her that he was sorry for his evil deeds and felt reconciled to God. His mother’s final words to him were: “You will always be my precious son.” Is it not the case that, precisely because Bundy was brought face-to-face with the evil he dealt out to others and recognized publicly that he had done wrong—is it not the case that we can now, as a result of this, share in his mother’s regard for him? Something occurred there, something was taught, from which we can all benefit.
Justice is of course a common good, distinct from any of the particular benefits or burdens that constitute a just state of affairs. We recognize this—with our “social justice” committees—in the case of distributive justice, but besides distributive justice there is commutative justice, which includes retributive justice. The mere fact that retributive justice is upheld is a common good and can provide a reason for punishment.
There would seem to be crimes for which only capital punishment adequately upholds justice. Such would include the “crimes against humanity” perpetrated by the Nazis and also homicide which is “outrageously or wantonly vile, horrible or inhuman,” as a Georgia statute reads. These acts are offenses not only against a particular human being but also against humanity and human dignity itself. Those who commit them should be separated completely from human community, and their continued habilitation in a prison, it might be argued, would constitute toleration of and hence indirect complicity with their crimes.
Retributive justice is also a common good because it restores persons to equality and hence makes community among them possible. A law-abiding person views himself as equal to others and equally under the law. A law-breaker makes himself superior to others by indulging his own will at others’ expense. (Augustine remarked that, as a tyrant is a big robber, so a robber is a little king.) Punishing a criminal restores him to equality with his victims, since he now suffers, against his will, an evil proportionate to that suffered by his victims. The punished person has “served time” or “paid the price,” and it becomes possible now to befriend him without qualifications, as though the crime did not happen. At the same time the honor of the victim is restored, as Aquinas says (II-II, 67, 4, ad 3), for a crime in a certain sense places both criminal and victim outside of society.
Capital punishment is better suited to effecting this “reduction to equality,” in many or most cases, than is life imprisonment. It is common for relatives of murder victims to think that life imprisonment is not a fitting penalty, when others find no difficulty. This could be bias, or it could be that the relatives appreciate more profoundly the wrong that was inflicted. The sociologist W.J. Bowers discovered—mysteriously for him—that the death penalty is administered a higher percentage of the time in communities where murders are infrequent. Perhaps such communities, horrified if there is a murder once in a decade, feel that only the death penalty adequately effects equality. If this is so, then one might expect that, to the extent that communities hold human life in high regard, they regard the death penalty as appropriate. Here Genesis 9:6 seems relevant: “Whoever sheds man’s blood, by man his blood shall be shed, for in the image of God He made man.”
It is no objection that the death penalty cannot restore a criminal to community because it kills the criminal. Clearly the criminal’s death itself would restore community. We could say: “In dying he was restored to society.” Similarly, the death of a martyr, or of a war hero, is itself an act of community: “in dying he loved God,” or “in dying he served his country.”
Aquinas stated that punishment might be administered to “honor God.” Arguably in many cases the death penalty also does this better than life imprisonment. We have seen that the death penalty is an affirmation both of the natural law and of the fact that human political authority is based upon divine authority and hence limited and responsible. The death penalty teaches us, as well, that society is not merely an association for economic advantage—it would of course be absurd for a large corporation to put one of its members to death for causing a loss of profits. Furthermore, the death penalty is a testimony that political society exists, as Aristotle said, for “living rightly” and not “mere living.” A society that acknowledges the appropriateness of the death penalty acknowledges that it is better to die than to do evil.
Finally, the death penalty testifies that life is a gift. We can see that this is so if we compare Aquinas’ discussion of whether it is lawful to imprison a human being (II-II, 65, 3). The argument that it is not is that “man, having a free will, is undue matter for imprisonment which is inconsistent with free will.” Clearly a similar argument could be constructed about life: a man, because he is a rational, living being, is “undue matter” for the death penalty. Aquinas replies that “A man who abuses the power entrusted to him deserves to lose it, and therefore when a man by sinning abuses the free use of his members, he becomes fitting matter for imprisonment.” The corresponding reply regarding life is: a power which is entrusted to someone, as a gift, deserves to be lost if it is abused; in recognizing that the death penalty is sometimes appropriate, a society recognizes that life is a gift to be used well.
It is commonly argued that the death penalty should be abolished because it is applied more frequently to minorities and hence is discriminatory. But this is at best an argument for reforming the application of the death penalty; it does not touch the question of whether there should be a death penalty at all. Moreover, the statistical arguments that the death penalty is not a deterrent are unpersuasive. All of the studies conclude only negatively, that there is no evidence that the death penalty is a deterrent. But surely the burden of proof lies the other way round: common sense dictates that it will be some sort of deterrent, and we are justified in acting on this conviction, until there is conclusive evidence to the contrary.
Furthermore, it is prudent to err on the side of using capital punishment. Consider the two mistakes that we could make: either we could use the death penalty as a deterrent, when in fact it is not a deterrent, or we could stop using the death penalty, when in fact it is a deterrent. The consequence of the first mistake is that guilty persons die—the criminals who are put to death. The consequence of the second mistake is that more innocent persons are murdered. Clearly we ought to err in the first way, not the second.
Similarly, in response to the argument that a few innocent persons will inevitably be put to death if capital punishment is used, it could be pointed out that, since murderers often murder again, innocent persons will also be killed if capital punishment is not used. However, since in the latter case the killings are intended and premeditated, they are greater evils, and so, again, it is better to make the former sort of mistake.
Recently in Catholic circles the waters have been muddied by two things: first, Catholics have not been adequately informed of the teaching of the magisterium on capital punishment; second, some prominent Catholics are claiming that the Church’s teaching is “developing,” so that capital punishment is “becoming” impermissible.
It is a great tragedy that the teaching of the magisterium has been neglected, since so many of the reasons for which Catholics oppose capital punishment today are inconsistent with this teaching; indeed, many of them, as “frivolous” as the ones Aquinas considered, entail the abolition of all punishment. For example, if the death penalty is “state murder,” then imprisonment is “state kidnapping” and “state slavery.” And if execution should be abolished “because of the example of barbarity it gives,” (an argument first advanced by the Enlightenment figure the Marquis de Becarria) then why shouldn’t imprisonment be abolished, because of the example of domination, coercion, confinement, and servitude that it gives?
The waters have been muddied in another way by those, like the renowned theologian Germain Grisez, who claim that we are witnessing a development of doctrine right before our eyes. In a 1979 paper Grisez called his view “dissent” from the Church’s teaching and stated that “despite the received teaching, I think it probable that capital punishment is morally unjustified”—that is, in itself and in all cases unjustified. Since that time, and adopting, it would appear, the strategy of many dissenters, Grisez has been suggesting that Church teaching is developing or will develop into his view. Without evident justification, Grisez states in the first volume of his Way of the Lord Jesus:
It seems that a development of Christian understanding concerning the morality of killing in capital punishment and in war is occurring, much like the development which Jesus carried out with respect to divorce and the development which the Church has carried out with respect to slavery.
If, as Grisez concedes, the latest ecumenical council of the Church did not declare capital punishment unjustifiable, it is hard to see where we are supposed to look to find this development. It is true that John Paul II believes that capital punishment should not be employed by the state, but he is always clear that the death penalty is not in itself unjustifiable. How is it that statements of the form “The state can administer the death penalty, but in my view it is inadvisable that it do so” constitute evidence for the notion that “The Church now teaches that the death penalty is unjustifiable”? How do pronouncements that explicitly affirm the validity of the traditional teaching serve as indications that that teaching may soon become invalid?
There are some who argue that society might, in an extraordinary and supererogatory way, display its respect for human dignity by refraining from capital punishment. This is the approach, I believe, that is taken by the pope. On this view, to administer the death penalty is good; to withhold it, knowing that one could administer it, is better.
Note, however, that a society may adopt this high ethical ideal only after it has understood and accepted the traditional teaching of the Church. This is a proposal to show mercy, which is possible only if the fittingness of punishment is first acknowledged. Only after someone realizes that he can lawfully inflict the death penalty can his choice to withhold it be a free act of generosity. But our society is in a very different condition; few persons understand the Church’s teaching, and few of those who press for the abolition of the death penalty accept it. For us, at the present time, the abolition of the death penalty would be regress, not progress.