Can the Church Ban Capital Punishment?

Today Crisis is offering a symposium on capital punishment. For Archbishop Charles Chaput’s view, see this essay. For news about recent Vatican statements on the issue, see this article.

This piece on capital punishment is a revision of the original, which first appeared in Latin Mass Magazine (Summer 2001). It is written from a “traditionalist” perspective, a traditionalist being simply a Catholic who affirms—as a Catholic must—that the Second Vatican Council changed nothing of what a Catholic must believe in order to be a member of the Church in good standing. As the First Vatican Council declared: “For the Holy Spirit was not promised to the Successors of Peter that by His revelation they might disclose new doctrine, but that by His help they might guard the revelation transmitted through the apostles and the deposit of faith, and might faithfully set it forth.” (Cf. Denzinger, §1836)

Of course, an authentic development of doctrine is always possible in the sense of a fuller explication of what the Church has always taught.  But neither a Pope nor a Council has an oracular function of providing the latest and most reliable Catholic teaching. The Catholic faith, unlike the statute books on which lawyers rely, does not involve periodic “pocket parts” containing amendments or repeals to be inserted into the back of the book.  If the “hermeneutic of continuity” means anything, it means that Catholic teaching on faith and morals is not subject to reversal. A reversible Magisterium would be no Magisterium at all, but rather a human agency bereft of the promises of Christ—like the Protestant sects which have abandoned doctrine after doctrine over the centuries since Luther began the process of abandonment.

The Traditional Teaching on Capital Punishment

And so it is with Catholic teaching on the morality of capital punishment. According to the constant teaching of the Church, God Himself has ordained that legitimate civil authority shall have the right and duty to punish deliberate murder  (and other grave crimes) with the penalty of death. Capital punishment honors the Fifth commandment, because it vindicates the sanctity of human life. Hence, in its teaching on the Fifth Commandment the Catechism of the Council of Trent declares:

Again, this prohibition does not apply to the civil magistrate, to whom is entrusted the power of life and death, by the legal and judicious exercise of which he punishes the guilty and protects the innocent. The use of the civil sword, when wielded by the hand of justice, far from involving the crime of murder, is an act of paramount obedience to this commandment which prohibits murder. The end of the commandment is the preservation and sanctity of human life, and to the attainment of this end, the punishments inflicted by the civil magistrate, who is the legitimate avenger of crime, naturally tend, giving security to life by repressing outrage and violence.

As the Tridentine Catechism teaches, the death penalty protects the sanctity of life through legitimate legal vengeance to repress outrage and violence in society. This involves just retribution and deterrence as legitimate aims of penal law.

The Catechism’s reference to the civil sword evokes St. Paul’s teaching on the divine right of civil authority to avenge wrongdoing by the sword: “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 doeth evil.” Rom. 13:4  Reflecting on this passage, St. Thomas teaches that capital punishment imitates divine justice; for after all, eternal damnation is the ultimate form of capital punishment: “According to the order of His wisdom God sometimes slays sinners forthwith in order to deliver the good, whereas he sometimes allows them time to repent, according as what is expedient to His elect. This also does human justice imitate according to its powers . . .” (ST II-II, Q. 64, Art. 2)

Thus the right of civil authority to punish evildoers by the sword in appropriate cases is a matter of revealed truth, not a changeable prudential judgment.  This is not to deny that civil authority can exercise prudential judgment in abstaining from the exercise of its right to impose capital punishment, or even abolish it entirely in keeping with historical circumstances.  For example, earlier this year the Governor of Illinois, Pat Quinn, signed an executive ban on the death penalty in his state given the appalling evidence of numerous executions of innocent persons in Illinois based on “forced confessions, unreliable witnesses, and incompetent legal representation.” As a lawyer, I am well familiar with the grave potential in any legal system for catastrophic miscarriages of justice which, in the case of capital punishment, cannot be rectified. The Church has never taught that civil authority must impose capital punishment for murder, but only that it has a divine sanction when it does so.

It must not be forgotten that the death penalty, like any criminal penalty, serves as a form of expiation. That is why prisons were once called penitentiaries. As Saint Thomas observes in the Summa: “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). Further, in the case of capital punishment the expiatory penalty reflects the sin of one whose grave crime has caused him to lose the right to life.  Some 700 years after the Summa, Pope Pius XII repeated the constant teaching of the Church in this regard: “Even when it is a question of someone condemned to death, the state does not dispose of an individual’s right to life. It is then the task of public authority to deprive the condemned man of the good of life, in expiation of his fault, after he has already deprived himself of the right to life by his crime.” (AAS, 1952, pp. 779 et. seq)

Pius XII rejected what Romano Amerio calls “the canons of the new hermeneutic” when he insisted in a speech to Catholic jurists in 1955 that “the passage of St. Paul was of permanent and universal value, because it refers to the essential foundation of penal authority and to its inherent purpose.” Amerio rightly notes that the modern opponents of the death penalty “ignore the great truth that capital punishment is itself expiatory.”  But, he writes, “one cannot cancel out the decrees of the Old Testament regarding the death penalty, by a mere stroke of the pen. Nor can canon law, still less the teaching of the New Testament, be canceled out at a stroke.”  (Amerio, 432, 434).

The expiatory nature of the death penalty may be its most important aspect. Sacred Scripture itself provides the example of the good thief on the cross (Lk. 23-39-42), whose very recognition that “we receive the due reward of our deeds” is a sign of the working of God’s grace in a soul being moved to faith in Christ. The good thief’s expiation, through his acceptance of the condign penalty of death, is so complete as to merit his immediate entry into paradise. Indeed, the common experience of mankind is that nothing is more likely to provoke repentance in hardened sinners than imminent execution. The historic accounts of death row conversions could be set forth endlessly. Even the proudly defiant Timothy McVeigh apparently converted. McVeigh, “a self-described agnostic, received the Catholic sacrament of the Anointing of the Sick by an unidentified prison chaplain.” (CNN, June 11, 2001). We do not know if McVeigh was saved, but who can say that convicted killers languishing in prisons which are sinkholes of immorality are more likely than a condemned man to receive the grace of final penitence?

Whether they recognize it or not, Catholic death penalty opponents implicitly view the right to life from a worldly and bodily perspective, “as if it were inherent in man’s mere [biological] existence, when, in fact, it derives from his moral goal… his ordination to values that transcend temporal life, and this goal is built into his spirit inasmuch as it is an image of God.”  (Amerio 1996, 436).  The eternal destiny of man is precisely why, as the Tridentine Catechism teaches, capital punishment actually defends life in its full and supernatural sense.

A “Development” of Doctrine?

It is claimed there was a “development” of Catholic doctrine on the death penalty during the pontificate of John Paul II that precludes its application in “modern society.” Upon close examination of the relevant texts, however, one finds that the posited “development” is really an opinion bound up with a matter of fact: that current penal systems can render murderers “harmless,” so that the death penalty should be imposed only rarely, if at all. This opinion does not (and cannot) repeal the traditional teaching that just retribution, deterrence and expiation are also legitimate aims of the death penalty.

First of all, the 1992 version the Catechism of the Catholic Church (CCC)—issued before the definitive Latin text now in effect—preserved the traditional teaching intact:

2266:   Preserving the common good of society requires rendering the aggressor unable to inflict harm.  For this reason the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty . . . The primary effect of punishment is to redress the disorder caused by the offense.  When the punishment is voluntarily accepted by the offender, it takes on the value of expiation.  Moreover, punishment has the effect of preserving public order and the safety of persons. . . .

2267: If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should 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.

“Rendering the aggressor unable to inflict harm” is not positively presented as the sole criterion for imposition of the death penalty, but as only one element of  “preserving the common good of society,” which certainly includes more than restraining future violence by the same criminal. Paragraph 2266 also teaches that commensurate punishment, redressing the disorder caused by the offense and expiation are legitimate purposes of penal law.  Public authority—exercising the discretion I have already mentioned—“should” use bloodless means in place of capital punishment, but only if they would be sufficient to protect public order and the safety of persons, not simply the safety of persons. Thus, the 1992 CCC can be harmonized with the traditional teaching that the death penalty is a legitimate form of civil vengeance for grave crimes, not merely a form of societal self-defense.

Uncertainty arises, however, with the statement that penalties short of death “better correspond to the concrete conditions of the common good.” This is a sweeping factual claim outside the competence of the Magisterium. No explanation is offered as to which “concrete conditions” in which places suddenly make the death penalty inappropriate, even though Pius XII expressly approved it as recently as 1954.

Even more problematic is the statement that bloodless penalties are “more in conformity to the dignity of the human person.” If this is true, then why did the Church approve the death penalty for 1,992 years? The CCC does allow that the death penalty also conforms to human dignity, only less so than bloodless penalties.  But how is one to determine relative conformity to human dignity as between confinement for life in a hellish prison and an execution that may well be preceded by repentance?  Here the distinction between natural and supernatural dignity must be drawn. All created things have natural dignity, but only man has the supernatural dignity of an immortal soul. From the natural perspective, a prison sentence may appear more “dignified” than execution; but if imminent execution provokes final penitence, from the supernatural perspective a death freely accepted in expiation for sin is infinitely more in accord with human dignity.  Moreover, “modern” prisons are occasions of grave sin at every turn. That prisons are “more in conformity to human dignity” than capital punishment is dubious at best.  The Holy Ghost does not vouchsafe factually contingent assessments of prison conditions throughout the world. Such assessments are simply not matters of Catholic doctrine.

The question of the “development” of teaching came to the fore with promulgation of John Paul II’s Evangelium Vitae (EV) in 1995.  The following  passages are pertinent:

Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform.  (EV, 27)

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. (EV, 56)

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. (EV, 56)

EV moves closer toward the position that there is only one basis—societal self-defense—for imposition of the death penalty. Yet the phrases “defending public order,” “adequate punishment for the crime,” and “redress the disorder caused by the offence” would allow imposition of the death penalty even when the offender can supposedly be “rendered harmless” by other means.  EV does not strictly deny this, but rather proposes prudentially to limit application of the death penalty based on an assertion that is patently dependent upon the existence of particular facts: because “modern society in fact has the means of effectively suppressing crime by rendering criminals harmless,” cases in which the death penalty is warranted are “very rare, if not practically non-existent.”

In the first place, the phrase “very rare, if not practically non-existent” offers no real guidance. Who defines “very rare,” and what is meant by “practically” non-existent?  The words suggest a prohibition of the death penalty without actually imposing one—because, of course, the Magisterium cannot now prohibit what it has always approved as a matter of revealed truth. Rather, the proposed new limitation on the death penalty is bottomed entirely on the claim that “Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless . . .”

But what are these “means” which modern society has? None other than prisons. Yet there have always been prisons. If it were merely a question of rendering criminals “harmless” by imprisonment, the Church would always have taught that life imprisonment is to be preferred to capital punishment. If anything, life imprisonment 500 years ago was far more likely to be life imprisonment than it is today. EV’s reference to “steady improvements in the organization of the penal system” is of no help. Which “steady improvements” in which “penal system” now make the death penalty unacceptable?  May only societies with laggardly penal systems continue to execute convicted murderers in ordinary course? How many “steady improvements” must prisons achieve before the death penalty becomes “very rare, if not practically non-existent”?

In short, the quality of prison systems seems a rather insubstantial moral criterion for deciding application of the death penalty. What about just retribution, expiation, deterrence, and aggravating factors such as the number or tender age of the victims? The Pope has no right to remove these criteria from civil authority’s prudential judgment, nor does EV actually do so.

All of this assumes it could be demonstrated that “modern” imprisonment really achieves even the minimalist penal goal of rendering murderers “harmless.”  Quite the contrary, convicted murderers routinely kill each other in prison, or kill guards, or are paroled to claim more victims among the general population.  For this reason alone, we are not bound to accept EV’s purely factual assertion that prisons render murderers harmless.  This is simply not true.  And what about the murderer who does kill again, either in prison or upon release?  How many people must a murderer murder before the death penalty becomes appropriate under the  nebulous “rare, if not practically non-existent” standard?

Amazingly, EV does not even call for life imprisonment without parole for cold-blooded killers, but rather states that “modern society” should allow even these “the chance to reform” and “be rehabilitated.” Neither the Catechism nor EV provides an answer to a grieving father’s recent lament that if a “rehabilitated” murderer-rapist on parole had been executed—in accordance with traditional Church teaching based on revealed truth—his daughter would be alive today.

Based solely on EV 56, however, in 1997 the 1992 CCC was amended for the Latin definitive edition:

2267:  [T]he traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor. If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person. Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm—without definitely taking away from him the possibility of redeeming himself —the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically non-existent.’ [quoting EV, 56]

the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty

has been replaced by—

the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

Thus, societal self-defense now appears to be presented as the sole criterion for imposition of the death penalty under the “traditional teaching of the Church.”  And yet in the 1997 CCC we still find the following: “Legitimate public authority has the right and the duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation.” (¶ 2266)  Is not the death penalty a punishment proportionate to the offense of murder?  Does it not redress the disorder caused by the offense?  Does it not assume the value of expiation—indeed, the supreme expiation—if  willingly accepted?

The 1997 CCC addresses none of these questions, but simply repeats the Pope’s sweeping penological opinion in EV that cases requiring the death penalty are “rare, if not practically non-existent,” because of “the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm.” But who decides whether penological “possibilities” suffice to outweigh the need for capital punishment? As always, civil authority decides. EV does not bind civil authority to forego the death penalty.  EV does not forbid Catholics to advocate the death penalty or to vote for general death penalty legislation. Therefore, the posited “development” of doctrine is illusory.

Can a Pope Ban Capital Punishment?

The matter, however, does not end there. It is clear that John Paul II would have liked to go even further by declaring the death penalty immoral per se. In his homily at Saint Louis on January 27, 1999, which he did not impose upon the universal Church, the Pope said:

The new evangelization calls for followers of Christ who are unconditionally pro-life: who will proclaim, celebrate and serve the Gospel of life in every situation. A sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil. Modern society has the means of protecting itself, without definitively denying criminals the chance to reform (cf. Evangelium Vitae, 27). I renew the appeal I made most recently at Christmas for a consensus to end the death penalty, which is both cruel and unnecessary.

The conclusion is inescapable: Speaking as a private theologian, the John Paul II believed that to be “unconditionally pro-life” one must oppose the death penalty as intrinsically immoral, for what is “cruel” is by definition immoral. But this is nothing other than the late Cardinal Bernadin’s “seamless garment”—a liberal notion whose primary effect is to retard the pro-life movement by chaining the cause of the innocent unborn to the cause of sparing guilty murderers from a justly imposed penalty.

John Paul II apparently believed that no crime whatsoever, no matter how heinous, deserves capital punishment. Accordingly, the Pope sent a letter to the White House seeking clemency for McVeigh, who admitted to murdering 168 men, women and children in cold blood.  (“White House spokeswoman Claire Buchan said that a letter from John Paul requesting clemency was received this week. She would not reveal the details of the letter.” ABC News, April 27, 2001). Had the Pope’s plea for clemency been heeded, however, McVeigh might have died the agnostic he was instead of calling for the ministrations of a Catholic priest in his last moments on earth.

John Paul II’s personal campaign against the death penalty was joined by numerous bishops. Perhaps the most surprising example was Archbishop Chaput’s statement following the McVeigh execution: “[I]n executing Mr. McVeigh we’ve answered violence with violence and compromised our own human dignity … The same needle that kills the condemned murderer poisons us with the habit of violence. May God grant us the conversion to see that—for our own sake, and for the sake of our children.”  “Statement on the Execution of Timothy McVeigh, June 11, 2001.”

So, according to Archbishop Chaput, Catholics who believe that mass murderers deserve capital punishment are advocating “violence” and are in need of “conversion.” It is as if 2,000 years of Church teaching rooted in divine revelation had vanished overnight.  But neither the Archbishop nor the late Pope had any authority to declare immoral in all circumstances a form of punishment the Church has always declared not only morally licit, but divinely sanctioned as a just penalty.

Where, then, do we stand?  Clearly, the Church has no authority to abandon the radical moral distinction between capital punishment of the guilty and the killing of an innocent. To reject that distinction is to undermine belief in divine justice itself, which demands the supernatural death of unrepentant souls for all eternity. It is manifestly impossible for Catholic doctrine on the death penalty to “develop” from an approbation based on revealed truth to  a condemnation based on the teaching of the last Pope. And, if we are not discussing the immorality of capital punishment in itself, when all is said and done it is not a question of “development” of doctrine, but only the debatable application of a morally legitimate penalty. Here Catholics, and civil authorities, remain free to make their own prudential judgments.