"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, January 10, 2007

Hunting Mites

I suppose I shouldn't be surprised to see Mark Shea call me a "death penalty maximalist." I guess he intends it as a typical (for him) ad hominem slur, a quick and dirty substitute for argument. But I may well be guilty of the charge, if by it is meant that I do believe that every person who commits a crime that can only be adequately redressed-- in terms of justice, deterrence, protecting safety, and punishment-- by death, should in fact be executed.

In other words, every criminal who should be executed, should be executed. The common good, which is concerned with justice (i.e., a "congruent satisfaction" for the crime), deterrence (whether general or specific to the defendant himself), and punishment is not adequately served by rendering to an offender less than his crime warrants.

In fact, it would be immoral in my view to allow an offender who merits capital punishment, to escape it for some reason unrelated to the specifics of his case. Why? Because every death sentence represents a considered judgment by a jury and a judge who consider the facts, both mitigating and aggravating, that the offender merits death because he is a threat to others or his crime was unusually heinous and aggravated, or a combination of the two. To allow such an offender to escape a carefully considered punishment meted out by those who actually hear and weigh the evidence on both sides, would be to usurp the role of the jury and the sentencing judge in protecting society and vindicating the common good. Allowing the offender to escape the consequences of his crime because of some philosophical objection unrelated to his specific case is to endanger society and upset the common good.

Nevertheless, despite my passing resemblance to a "maximalist," according to Shea's definition, I am also a minimalist! Quoth he: "A death penalty minimalist says, 'Unless they constitute an ongoing menace to the common good, spare them.'"

Since, as I have shown already, the death penalty in this country is imposed very rarely, a fact I don't have much problem with, I do believe that we should and do "spare" most of them and execute only those who threaten the common good. Of course, by "common good" one must understand that the Church views the "common good" as more than mere "public order" or safety. The common good in Catholic thought comprises a whole panoply of concerns such as (among other things) justice, deterrence, and punishment.

Moreover, even if public order were the sole criterion, as I have shown before, there really are no conditions in this country that I am aware of that definitively remove the threat to the public order and safety posed by convicted capital murderers. Unless or until some such improvement arises, these offenders cannot reliably be neutralized by any means presently available.

The Catechism's restriction on the death penalty is, after all, a purely conditional, contingent one:
"If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor,"
only then is the death penalty is restricted.

Crime against fellow inmates and prison personnel, parole, pardons, executive clemency, and legal/political agitation against life without parole, all render it very uncertain that any capital offender can be truly deemed no further threat against society. Thus, when we decide to execute that .03% of murderers, we indeed are executing very rarely those offenders who a jury and a judge have carefully considered to be so violent or so depraved that they are likely to offend again.

So while Shea bloviates about why "minimalism" (the term is a Sheaism, not found in Catholic teaching) is the current rule, he seems unable or unwilling to admit that in fact, our legal system is a "minimalist" system.

And while he excoriates the mythical maximalist (who, it is alleged, "pushes for the largest number of executions possible"), he ignores the much larger problem: the abolitionists who think the death penalty may never be licitly used. While he would have a hard time finding many (if any) Catholics who advocate for "the largest number of executions possible," he can find abolitionists by the bushel among the clergy, including bishops, and among the Catholic chattering classes (the academy, the press, and most of the blogoshphere). Many of these abolitionists actually defy Church teaching by holding that the death penalty is intrinsically immoral (for instance, Card. Martino, a curial cardinal, who publicly professes the death penalty to be "a crime."). The worst "offense," on the other hand, that I have seen on the other side of the issue is the (entirely factual) observation offered that the Church formerly proposed a much broader moral justification for recourse to the death penalty than mere public safety. The abolitionist, however, would have us believe that the Church has been and is wrong when it teaches that the death penalty is moral and just under the right circumstances.

But oddly, instead of hunting the abolitionist elephant, Shea zealously hunts for the mythical maximalist mite. It's much easier hunting, apparently.


faithmy said...

Mark Shea is a nitwit and an offense to civilized society. You should ignore him and his ilk.

Steve Golay said...

Maybe not (ignore him).

Mark does provide good foil to considered thought; not much different than the Church's Councils did their best and urgent work defining doctrine against the backdrop of heresy.

Anonymous said...


The distinction between being a death-penalty "minimalist" and an "abolitionist," as far as Shea applies those terms, doesn't really exist. Like Martino, Shea went on record on his own blog as saying that he opposed Saddam's execution. If a barbarian like Saddam is the test example for distinguishing between a "minimalist" and an "abolitionist," then it serves only as an example of rendering words meaningless by playing with them.

Shea tried to have it both ways when he made the following statement on Jan. 2:

I don't think the execution met with present Church teaching. Nor do I think it a wise move. But what's done is done. Saddam has received justice.

Well, Mark, if Saddam "received justice," then not only was his execution wise but it met with Church teaching (since Church teaching doesn't countermand justice, at least theorhetically speaking). If his execution didn't meet "with present Church teaching" then it wasn't just.

If Saddam's execution was just and wise, and the Church opposes it, then something is seriously wrong with the Church's moral compass.

Which is it, big guy?

It's these kind of arguments that people like me who support executing murderers cannot take seriously.

It's these kind of arguments, however, that will destroy the Church's moral credibility if Catholics take them seriously.

Dudley Sharp said...

Pope John Paul II made significant errors within his Evangelium Vitae, with regard to the death penalty and, as a result, those teachings should not have been enterred into the Catechism. Please review.

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
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
(2)  "Capital Punishment: A Catholic Perspective" at
(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
copyright 1997-2007 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)yesdeathpenalty.com/deathpenalty_contents.htm  (Sweden)

faithmy said...

Brevity is the soul of wit.

Vir Speluncae Catholicus said...

There you go again, Tom.... using common sense!

Anonymous said...

Brevity may be the soul of wit, but it is not the necessarily the basis of clarity and understanding. I saved the post so I can read it later when I have more time. I appreciate the effort.