"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"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."
--Pope Benedict XVI, June 2004

Wednesday, November 22, 2006

Reconciling the Old and the New

Even if one takes for granted that the "modified" or "updated" or "developed" position of Evangelium Vitae and the Catechism (#2267) with regard to the death penalty is absolute, true, correct, and binding always and everywhere as the only moral justification for the death penalty, the death penalty in this country is still in conformity with that position. This first of two posts will examine the new position of the Church on the death penalty; in a subsequent post I will show how this new position, correctly understood, does not conflict with American capital punishment jurisprudence and practice.

To recap the new, "modified" position as summed up by Pope John Paul II in EV:
It is clear that, for these purposes [defending public order and ensuring safety] 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.
And the Catechism:
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 to the dignity of the human person.
Note that the famous statement that death cases should be "rare" or "non-existent" is a statement that rests on the premise that "improvements" in the penal system, or "non-lethal means" have the ability to protect the public from the offender. Now what's interesting about this observation of both EV and the Catechism is that the limitation placed on the death penalty is not a philosophical or theoretical one, but a practical one. While the Catechism refers to a non-death sentence as "more" in conformity with the dignity of the human person, it does not state that use of the death penalty is not compatible with human dignity.

The rationale in both texts for restrictive use of capital punishment is the assertion of actual social conditions as the authors believe them to be. The statement that certain unspecified "improvements" in the penal system render the death penalty largely unjustified is entirely different than a proposition such as "human dignity demands that executions be rare or non-existent." It would be a problematic and theologically difficult and delicate matter to question a presumptively magisterial assertion that there is an intrinsic component of morality rooted in the nature of man that renders the death penalty unjust. Neither text, however, makes that statement.

The strongest theoretical claim occurs when the Catechism enjoins refraining from the death penalty when it can be done without endangering society, and that this refraining is "more" in conformity with human dignity. This leaves the possibility that use of the death penalty is still "in conformity with human dignity" but only less so, when it simply the right and just course to vindicate the common good even if the offender could be otherwise rendered harmless.

Returning to the justifications posited by both texts for restricting the death penalty, what of the assertion that some characteristic of a specific existing social institution ("the penal system") renders recourse to a particular penalty more or less justified? Do the texts enjoy any special protection from error about such detailed judgments of concrete social conditions? What studies or surveys did the authors rely upon to come to the conclusions they rely upon? Are their observations to be taken as universally valid? Has the penal system of Iraq or of Afghanistan evolved or "improved" so as to mirror that of France or Italy or other Western European nations?

What if the two documents are simply wrong as a matter of social science about the perceived level of improvements rendering the chance of harm "non-existent" or "rare?" It would not seem to constitute an attack of a magisterial statement to assess the continuing validity of the sociological, not philosophical or theological claims that "improvements" have rendered the death penalty obsolete.

Interestingly, where EV affirmatively claims that these "improvements" have rendered the death penalty mostly unjustified, the Catechism uses conditional language: "if non-lethal means are sufficient...". Thus, the Catechism seems to avoid the more categorical language of EV and leaves the judgment of when or if non-lethal means should suffice to the competent authorities, i.e., the public prosecutor (and of course, ultimately the jury and the sentencing judge).

Seen in this light, perhaps the harmonizing of the prior teaching and the current one rests on an understanding that the current position is predicated in large measure upon the purely contingent social conditions of "the" penal system (of course, there is no "the" penal system; there are hundreds of individual penal systems, all possessing differing capacities to render offenders harmless), and that what is contingent may change. Indeed, contingent circumstances of social institutions are subject to myriad reasonable yet differing conclusions. While the teaching authority of the Church is absolute in Faith and Morals, in sociological questions such as the efficacy of the penal system, the contentions of the Church's representatives are subject to reasonable debate and disagreement.

The new "teaching" if it can be called that, is then, not so much the positing of a new moral position as it is a reference to concrete circumstances coupled with an observation that the death penalty should optimally only be used to protect society, not to protect the larger concept traditionally referred to as the "common good."

While the Catechism does refer to human dignity, it does so only to state that prescinding from execution is more in conformity with human dignity when public safety is secured by other means than death; it does not claim that other uses of the death penalty are not in conformity with human dignity; the negative implication of the Catechism is that the traditional use of the death penalty would simply be less in conformity with human dignity, not that it would be unjust or immoral per se.

In this light, the two positions, old and new, can be reasonably seen as not in contradiction: where the former position did not particularly emphasize under what circumstances the death penalty optimally should be used, so long as it was at least justified by the common good; the new position stresses that the highest or best use of this punishment is where public safety alone demands it, while in other situations it would be still a morally permissible but less-than-perfect option.

Needless to say, the headline-driven, case-by-case abolitionist hard-line espoused not only by Pope John Paul II, but by Cdl. Martino and numerous American and European bishops is purely dicta as lawyers would say, and detracts nothing from the actual teaching of the Church.

In sum, the principles I deduce from the forgoing as guiding Catholics (and all Christians) in when the death penalty would be justifiably used, are:
1) Recourse to the death penalty is moral generally speaking;
2) The death penaly should be avoided when "non-lethal" means can protect
society; and
3) Recourse to the death penalty even where "non-lethal" means suffice to protect society is moral, but less in conformity with human dignity and would be justified only where exceptional circumstances render it necessary and never for reasons less than those included in the traditional ends of punishment (the "common good").
The next posting will examine whether, broadly considered, the death penalty in this country conforms with these principles.

2 comments:

Stephen Braunlich said...

I would like to invite you to join the Virginia Catholic Alliance, a network of Catholic bloggers in Virginia. We work to promote one another's blogs, bring to light news that may have snuck past one another's views, and use the web to reach out with a Catholic message.

For the time being, the network consists primarily of a common blog roll. That said, we are gearing up to do other projects. In a little over two weeks Shaun Kenney will be hosting a live blog with Jeff Caruso of the Virginia Catholic Conference. As the Alliance progresses, we'll arrange other live blogs with leading Catholic figures for members of the VA Catholic Alliance.

If this is something that interests you, please let me know and we can progress to adding you to the blog roll.

Best wishes and Merry Christmas,
Stephen Braunlich
vacatholicalliance@yahoo.com
Founder, Virginia Catholic Alliance

Dudley Sharp said...

Pope John Paul II: a pro-death penalty essay
by Dudley Sharp, Justice Matters
(contact info, below)
October 1997, with subsequent updates thru 8/06
 
SEE ADDITIONAL REFERENCES AT THE END OF THIS DOCUMENT
 
In 1997, the Roman Catholic Church decided to amend the 1992 Universal Catechism to reflect Pope John Paul II's comments within his 1995 encyclical, The Gospel of Life (Evangelium Vitae). Therein, the Pope finds that the only time executions can be justified is when they are required "to defend society" and that "as a result of steady improvements . . . in the penal system that such cases are very rare if not practically non existent."
 
This is, simply, not true.  Murderers, tragically, harm and murder, again, way too often.
 
Three issues, inexplicably, escaped the Pope's consideration.
 
First, in the Pope's context, "to defend society" means that the execution of the murderer must save future lives or, otherwise, prevent future harm.  
 
When looking at the history of  criminal justice practices in probations, paroles and incarcerations, we observe countless examples of when judgements and procedures failed and, because of that, murderers harmed and/or murdered, again. History details that murderers murder and otherwise harm again, time and time again -- in prison, after escape, after improper release, and, of course, after we fail to capture or incarcerate them. 
 
Reason dictates that living murderers are infinitely more likely to harm and/or murder again than are executed murderers. 
 
Therefore,  the Pope could err, by calling for a reduction or end to execution, and thus sacrifice more innocents, or he could "err" on the side of protecting more innocents by calling for an expansion of executions.
 
History, reason and the facts support an increase in executions based upon a defending society foundation. 
 
Secondly, if social science concludes that executions provide enhanced deterrence for murders, then the Pope's position should call for increased executions. 
 
If  we decide that the deterrent effect of executions does not exist and we, therefore, choose not to execute, and we are wrong, this will sacrifice innocent lives and also give those murderers the opportunity to harm and murder again. 
 
If we choose to execute, believing in the deterrent effect, and we are wrong, we are executing our worst human rights violators and preventing such murderers from ever harming or murdering again - again, saving more innocent lives.
 
No responsible social scientist has or will say that the death penalty deters no one.  Quite a few studies, including 8 recent ones,  find that executions do deter. 
 
As all prospects for negative consequence deter some,  it is a mystery why the Pope chose the option which spares murderers and sacrifices more innocent lives. 
 
If the Pope's defending society position has merit, then the Church must actively support executions, as it offers an enhanced defense of society and greater protection for innocent life.
 
Thirdly, we know that some criminals don't murder because of their fear of execution.  This is known as the individual deterrent effect.  Unquestionably, the incapacitation effect (execution) and the individual deterrent effect both exist and they both defend society by protecting innocent life and offer enhanced protections over imprisonment. Furthermore, individual deterrence assures us that general deterrence must exist, because individual deterrence could not exist without it.  Executions save lives. 
 
Therefore, the Pope's defending society standard should be a call for increasing executions. Instead, the Pope and other Church leadership has chosen a position that spares the lives of known murderers, resulting in more innocents put at risk and more innocents harmed and murdered --  a position which, quite clearly, contradicts the Pope's, and other's, emphasis on defending society.
 
Contrary to the Church's belief, that the Pope's opinion represents a tougher stance against the death penalty, the opposite is true. When properly evaluated, the defending society position supports more executions.
 
Had these issues been properly assessed, the Catechism would never have been amended  --  unless the Church endorses a position knowing that it would spare the lives of guilty murderers, at the cost of sacrificing more innocent victims. 
 
When the choice is 1) sparing murderers, resulting in more harmed and murdered innocents, who suffer through endless moments of incredible horror, with no additional time to prepare for their salvation, or 2) executing murderers, who have on average, an additional 10 years on death row to prepare for their salvation, and saving more innocents from being murdered,  the Pope and the Catholic Church have an obligation to spare the innocent, as Church tradition, the Doctors of the Church and many Saints have concluded. (see reference, below)
 
Pope John Paul II's death penalty stance is his own, personal prudential judgement and does not bind any other Catholic to share his position. Any Catholic can choose to support more executions, based upon their own prudential judgement, and remain a Catholic in good standing.
 
Furthermore, prudential judgement requires a foundation of reasoned and thorough review. The Pope either improperly evaluated the risk to innocents or he did not evaluate it at all.
 
A defending society position supports more executions, not less. Therefore, his prudential judgement was in error on this important point of fact.
 
Furthermore, defending society is an outcome of the death penalty, but is secondary to the foundation of justice and biblical instruction.
 
Even though Romans and additional writings do reveal a "defending society" consideration, such references pale in comparison to the mandate that execution is the proper punishment for murder, regardless of any consideration "to defend society."  Both the Noahic covenant, in Genesis 9:6 ("Whoever sheds the blood of man, by man shall his blood be shed."), and the Mosaic covenant, throughout the Pentateuch (Ex.: "He that smiteth a man so that he may die, shall be surely put to death."  Exodus 21:12), provide execution as the punishment for unjustifiable/intentional homicide, otherwise known as murder.
 
These texts, and others, offer specific rebuttal to the Pope's position that if "bloodless means" for punishment are available then such should be used, to the exclusion of execution. The Pope's prudential judgement does not trump biblical instruction.
 
Most telling is the fact that Roman Catholic tradition instructs four elements to be considered  with criminal sanction.
1.  Defense of society against the criminal.
2.  Rehabilitation of the criminal (including spiritual rehabilitation).
3.  Retribution, which is the reparation of the disorder caused by the criminal's transgression.
4.   Deterrence
 
It is a mystery why and how the Pope could have excluded three of these important elements. In doing so, though, we can confirm that his review was very incomplete and, thus, improper. 
 
At least two Saints, Paul and Dismas, faced execution and stated that it was appropriate. They were both executed.
 
The Holy Ghost decided that execution was the proper punishment for two devoted, early Christians,  Ananias and his wife, Saphira,  for the crime/sin of lying. Neither was given a moment to consider their earthly punishment or to ask for forgiveness. The Holy Ghost struck them dead.
 
For those who erroneously contend that Jesus abandoned the Law of the Hebrew Testament, He states that He has come not "to abolish the law and the prophets . . . but to fulfill them."  Matthew 5:17-22.  While there is honest debate regarding the interpretation of Mosaic Law within a Christian context, there seems little dispute that the Noahic Covenant is still in effect and that Genesis 9:6 deals directly with the sanctity of life issue in its support of execution. (read "A Seamless Garment In a Sinful World" by John R. Connery, S. J., America, 7/14/84, p 5-8).
 
"In his debates with the Pharisees, Jesus cites with approval the apparently harsh commandment, He who speaks evil of father or mother, let him surely die (Mt 15:4; Mk 7:10, referring to Ex 21:17; cf. Lev 20:9). (Cardinal Avery Dulles, SJ, 10/7/2000)
 
Saint Pius V reaffirms this mandate, in the Roman Catechism of the Council of Trent (1566), stating that executions are acts of "paramount obedience to this [Fifth] Commandment."  ("Thou shalt not murder," sometimes improperly translated as "kill" instead of "murder").  And, not only do the teachings of Saints Thomas Aquinas and Augustine concur, but both saints also find that such punishment actually reflects charity and mercy by preventing the wrongdoer from sinning further.  The Saints position is that execution offers undeniable defense of society as well as defense of the wrongdoer.
 
Such prevention also expresses the fact that execution is an enhanced defense of society, over and above all other punishments.
 
The relevant question is "What biblical and theological teachings, developed from 1566 through 1997, provide that the standard for executions should evolve from 'paramount obedience' to God's eternal law to a civil standard reflecting 'steady improvements' . . . in the penal system?".  Such teachings hadn't changed.  The Pope's position is social, not biblical nor theological. 
 
If Saint Pius V was correct, that executions represent "paramount obedience to the [Fifth] Commandments, then is it not disobedient to reduce or stop executions?
 
The Church's position on the use of the death penalty has been consistent from 300 AD through 1995 AD.  The Church has always supported the use of executions, based upon biblical and theological principles.
 
Until 1995, says John Grabowski, associate professor of Moral Theology at Catholic University, " . . .  Church teachings were supportive of the death penalty.  You can find example after example of Pope's, of theologians and others, who have supported the right of the state to inflict capital punishment for certain crimes and certain cases." Grabowski continues: "What he (the Pope now) says, in fact, in his encyclical, is that given the fact that we now have the ability, you know, technology and facilities to lock up someone up for the rest of their lives so they pose no future threat to society -- given that question has been answered or removed, there is no longer justification for the death penalty."  (All Things Considered, NATIONAL PUBLIC RADIO, 9/9/97.)
 
The Pope's position is now based upon the state of the corrections system -- a position neither biblical nor theological in nature.  Furthermore, it is a position which conflicts with the history of prisons.  Long term incarceration of lawbreakers in Europe began in the 1500s.  Of course, long term incarceration of slaves had begun thousands of years before --  meaning that all were aware that criminal wrongdoers  could also be subject to bondage, if necessary - something that all historians and biblical scholars -- now and then and in between --  were and are well aware of. 
 
Since it's inception, the Church has issued numerous pronouncements, encyclicals and previous Universal Catechisms.  Had any biblical or theological principle called for a replacement of the death penalty by life imprisonment, it could have been revealed long before 1995. 
 
There is, finally, a disturbing reality regarding the Pope's new standard.  The Pope's defending society standard requires that the moral concept of justice becomes irrelevant.  The Pope's standard finds that capital punishment can be used only as a vehicle to prevent future crimes. Therefore, using the Pope's standard, the moral/biblical rational -- that capital punishment is the just or required punishment for murder -- is no longer relevant to the sin/crime of murder. 
 
If defending society is the new standard, the Pope has decided that the biblical standards of atonement, expiation, justice and required punishments have all, necessarily, been discarded, with regard to execution.
 
The Pope's new position establishes that capital punishment no longer has any connection to the harm done or to the imbalance to be addressed.  Yet, such connection had always been, until now, the Church's historical, biblically based perspective on this sanction.  Under a defending society standard, the injury suffered by the murder victim is no longer relevant to their punishment.  Executions can be justified solely upon that punishments ability to prevent future harm by the murderer.
 
Therefore, when considering executions in regard to capital murder cases, a defending society standard renders justice irrelevant.  Yet, execution defends society to a degree unapproachable by any other punishment and, therefore, should have been fully supported by the Pope.
 
"Some enlightened people would like to banish all conception of retribution or desert from our theory of punishment and place its value wholly in the deterrence of others or the reform of the criminal himself.  They do not see that by doing so they render all punishment unjust. What can be more immoral than to inflict suffering on me for the sake of deterring others if I do not deserve it?" (quote attributed to the distinguished Christian writer C. S. Lewis)
 
Again, with regard to the Pope's prudential judgement, his neglect of justice was most imprudent.
 
Some Catholic scholars, properly, have questioned the appropriateness of including prudential judgement within a Catechism. Personal opinion does not belong within a Catechism and, likely, will never be allowed, again. I do not believe it had ever been allowed before.
 
In fact, neither the Church nor the Pope would accept a defending society standard for use of the death penalty, unless the Church and the Pope believed that such punishment was just and deserved, as well.  The Church has never questioned the authority of the government to execute in "cases of extreme gravity," nor does it do so with these recent changes. 
 
Certainly, the Church and the Pope John Paul II believe that the prevention of any and all violent crimes fulfills a defending society position.  And there is no doubt that executions defend society at a level higher than incarceration. Why has the Pope and many within Church leadership chosen a path that spares murderers at the cost of sacrificing more innocent lives, when they could have chosen a stronger defense of society which spares more innocents?
 
Properly, the Pope did not challenge the Catholic biblical and theological support for capital punishment.  The Pope has voiced his own, personal belief as to the appropriate application of that penalty. 
 
So why has the Pope come out against executions, when his own position -- a defense of society -- which, both rationally and factually, has a foundation supportive of more executions?
 
It is unfortunate that the Pope, along with some other leaders in the Church, have decided to, improperly, use a defending society position to speak against the death penalty.
 
The Pope's position against the death penalty condemns more innocents and neglects justice.
 
-------------------------------------------
 Please also refer to:


(1)  "Catholic and other Christian References: Support for the Death Penalty", at
homicidesurvivors(DOT)com/2006/10/12/catholic-and-other-christian-references-support-for-the-death-penalty.aspx
 
(2)  "Capital Punishment: A Catholic Perspective" at
www(DOT)sspx.org/against_the_sound_bites/capital_punishment.htm
 
(3) "The Purpose of Punishment (in the Catholic tradition)", by R. Michael Dunningan, J.D., J.C.L., CHRISTIFIDELIS, Vol.21,No.4, sept 14, 2003
www(dot)st-joseph-foundation.org/newsletter/lead.php?document=2003/21-4
 
(4) "MOST CATHOLICS OPPOSE CAPITAL PUNISHMENT?", KARL KEATING'S E-LETTER, Catholic Answers, March 2, 2004
www(dot)catholic.com/newsletters/kke_040302.asp
 
(5) "THOUGHTS ON THE BISHOPS' MEETING: NOWADAYS, VOTERS IGNORE BISHOPS" , KARL KEATING'S E-LETTER, Catholic Answers,, Nov. 22, 2005
www(dot)catholic.com/newsletters/kke_051122.asp
 
copyright 1997-2006 Dudley Sharp
 
Dudley Sharp, Justice Matters
e-mail sharp(at)aol.com, 713-622-5491,
Houston, Texas
 
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
 
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
 
Pro death penalty sites
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
www(dot)dpinfo.com
joshmarquis(dot)blogspot.com/
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)prodeathpenalty.org/
www(dot)yesdeathpenalty.com/deathpenalty_contents.htm  (Sweden)
www(dot)wesleylowe.com/cp.html