"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

Friday, March 06, 2015

Part III: Reconciling the Old and the New

In earlier posts, we've seen that both Scripture and Sacred Tradition bear witness to the constant teaching of the Church that the death penalty is moral, not just because it is a tool of societal self defense, but because it is a positive vindication of the sanctity of human life.

In recent years, this teaching has come under challenge because of many comments from Popes since John Paul II, bishops and bishops' conferences, individual priests and theologians, and even in some formal settings such as an encyclical and a new catechism.

What then to make of it? The task of a Catholic theologian is not to assume a breach of teaching from an apparent new teaching and the old one (what Pope Benedict XVI would call a "hermeneutic of rupture"), but rather, to seek to reconcile the apparent break with the prior teaching, to see if they can be harmonized (Pope Benedict's "hermeneutic of continuity" and what we lawyers call "in pari materia"), and failing that, to point out the apparent break respectfully to the Church's pastors and seek a clarification.

We turn then to the new state of affairs with these thoughts in mind.

In 1992, the first version of the new Catechism of the Catholic Church appeared, written in French. In apparent departure from previous thinking, this Catechism placed consideration of the death penalty, not in the discussion of the Fifth Commandment generally, but more particularly in the section dealing with self-defense. In this section, self-defense is posited as a right and even a duty. (No. 2265). Society, in turn, possesses this right of self-defense and hence the right to inflict “the death penalty in cases of extreme gravity,” as “a penalty proportioned to the gravity of the crime” ( No. 2266).

The only restriction urged upon governments was the following:
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 these better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.
(No. 2267).  After this 1992 French version of the Catechism, Pope John Paul II promulgated the encyclical Evangelium Vitae in 1995. As the first encyclical to address specifically the death penalty, it has clearly resolved any doubt about the weight of the teaching concerning the morality of the death penalty. It is now indisputable that in fact this teaching is part of the Ordinary Magisterium.[1]

In No. 27 of that encyclical, the Holy Father continues to expound upon the prudential concerns governing the application of the death penalty in the modern state: “[a]mong the signs of hope … there is evidence of a growing public opposition to the death penalty …. Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform.” However, the Pope acknowledges that “such a penalty is seen as a kind of ‘legitimate defense’ on the part of society.”

Moreover, this discussion of the death penalty is couched among other general observations, such as the Holy Father’s approving acknowledgement that more people are opposed to war. Certainly, in noting that more people are opposed to war, the Holy Father is not nullifying the traditional teaching on a just war. He is simply expressing the hope that society is moving away from ready recourse to war. So with capital punishment, the Pope is not questioning the morality of it per se, but only expressing the same hope as he does in the case of war: that recourse to it may not be as necessary as in the past.

Then, in No. 56 of the encyclical, the Holy Father returns to the topic of capital punishment, in his discussion of self-defense. Pope John Paul first restates the moral situation involved in killing in self-defense:
legitimate defense can be not only a right but a grave duty for someone responsible for another's life, the common good of the family or of the State. Unfortunately it happens that the need to render the aggressor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor whose action brought it about, even though he may not be morally responsible because of a lack of the use of reason.
(citations omitted)(emphasis added). Again the Holy Father is stating the perennial moral teaching of the Church: that the state has a grave duty in certain cases to take life in defense of society. One cannot have a grave duty to do something that violates human dignity or the moral law.

Then, citing the requirements that society inflict a punishment adequate to address the crime, defend public order, protect peoples’ safety and allow for the possibility of rehabilitation of the criminal, the Holy Father concludes:
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.
The Holy Father thus again reaffirms the principle that the death penalty is morally licit when necessary “to defend society” when the unidentified improvements he refers to are inadequate to that purpose. The only addition to the traditional teaching on capital punishment is a reflection on issues surrounding the prudential, practical issue of which cases merit the penalty.

That the Holy Father leaves untouched the Magisterial teaching concerning the moral legitimacy of the death penalty is clear from No. 57, the section immediately following his discussion of the death penalty, where he states:
If such great care must be taken to respect every life, even that of criminals and unjust aggressors, the commandment "You shall not kill" has absolute value when it refers to the innocent person. And all the more so in the case of weak and defenseless human beings, who find their ultimate defense against the arrogance and caprice of others only in the absolute binding force of God's commandment.
(emphasis added). The Fifth Commandment, then, applies in an absolute sense, to forbid killings, not in the case of capital punishment rightly administered, but only as regards innocent life. The Holy Father, then, at least obliquely returns to the source of the traditional justification of the death penalty that we've seen in Part II: the command of God to respect and vindicate innocent life and redress its violation.

Following upon Evangelium Vitae, in 1997 the Holy Father promulgated the normative edition of the Catechism of the Catholic Church, in Latin. This version contained revisions to the original French edition, reflecting the Holy Father’s statements in EV. The most substantive revisions occurred in the sections dealing with capital punishment.[2]

In No. 2267, the Catechism states:
Assuming that the guilty party's identity and responsibility have been fully determined, 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.
If, however, nonlethal 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 are more in conformity to 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 nonexistent.
In light of Evangelium Vitae, the recognition in this section that death penalty is morally licit puts to rest any question about the moral legitimacy of capital punishment belonging to the Ordinary Magisterium of the Church. Again, the development, if it may be called that, is the pragmatic, prudential suggestions regarding the use of the death penalty in cases of necessity. Let's look at these "developments" in detail.

1.  The Issue of "Improvements" Rendering Recourse to the DP "Rare":

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 or pragmatic 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 “rare, if not practically non-existent” statement, is then, not one of dogmatic weight. It is purely a pragmatic judgment and is any event not self-defining.  Does this text 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 reach? Are their observations about concrete "improvements" 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 improvements specifically are being referred to? In which countries? And just what is “rarity” in this context? 

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 necessarily contingent, sociological, not philosophical or theological claims that unspecified "improvements" have rendered the death penalty effectively obsolete.

The answers to these questions are not readily apparent and are subject to honest interpretation by those charged with carrying out justice in particular cases. 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).

The rationale in both texts for restrictive use of capital punishment, then, 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 reconcile with prior teaching a presumptively magisterial assertion that there is an intrinsic component in the nature of man that renders the death penalty unjust. Neither text, however, makes that statement.  Thus, modern abolitionists who assert that the death penalty is immoral per se or violates human dignity, fall afoul of the Church's post-conciliar teaching.

2. Restrictive Use of DP "More" In Conformity With Human Dignity; Non-restrictive Use Therefore Only "Less" In Conformity With Human Dignity.

The strongest theoretical and therefore theological as opposed to merely contingent, practical, 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 is simply the right and just course to vindicate the virtue of justice and the common good even if the offender could be otherwise rendered harmless.

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 (again, 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 a given nation's 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 refraining 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 (e.g., death imposed for purely reasons of justice, not social protection) 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 perfect option.

In sum, the principles I deduce from the forgoing as guiding Catholics (and all Christians) about when resort to the death penalty would be justifiable are:
1) Recourse to the death penalty is moral per the Ordinary Magisterium;
2) As a practical matter, the death penalty 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.
The next posting will examine whether, broadly considered, the death penalty in this country conforms with these principles.

[1] See, Rev. Thomas Williams, L.C., “Capital Punishment and the Just Society” in Catholic Dossier, Vol. 4, No. 5 (Sept./Oct. 1998).  Curiously, Fr. Williams asserts that the moral legitimacy of capital punishment was an open question prior to Evangelium Vitae, which he nevertheless acknowledges has resolved the issue in favor of the morality of the death penalty.

[2] This is the opinion of Christopher Cardinal Schonborn, Cardinal Archbishop of Vienna, who, as a priest, led the commission responsible for producing the Catechism See, Catholic Dossier, Vol.4, No. 5 (1998).  


dudleysharp said...


I can't find your email.

I wrote a complete rebuttal to the four Catholic publications op/ed against the death penalty and sent to all editors at National Catholic Reporter

Caitlin Hendel, CEO/President, NCR, wrote me back, stating that she had forwarded it to the other three publications, which I had requested.

I would like to get you a copy.

Dudley Sharp

dudleysharp said...