"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

Saturday, March 21, 2015

LA Bishop An Expert Criminologist?

Los Angeles Archbishop Jose Gomez opines that "through advances in law enforcement and criminal justice, our society has many ways to punish violent offenders and to prevent them from committing further violence." Therefore, he says, while capital punishment is theoretically permissible according to Catholic teaching (oops!  it seems he's now a dissenter from Pope Francis' newly-announced teaching) it is not needed in the U.S.

I only wish in his article, the good bishop would have been so kind as to enlighten us as to just what these "advances" are which prevent criminals from committing further violence.

Can he point us to the studies which he's conducted that show that some particular technique or process that we have in this country has wondrously de-fanged the murderers who otherwise would have to be executed?

Can he at least point us to the study group or expert panel that the American bishops or that Vatican have established in order to illuminate and expound upon the marvelous innovations in criminal justice and penology that have obliterated violent recidivism?

I'd like to know, because it seems to me we're having a heck of a hard time rendering offenders harmless.

But what do I know?  I'm sure Apb. Gomez is a criminologist of the first order, or that he, or the US bishops, or the Vatican, or the Catholic Left, all of whom constantly refer to these amazing breakthroughs in penology and criminal justice, can point us to the studies, surveys, or research that support their view.

Commence cricket-chirping.

Friday, March 20, 2015

Another Pope John XXII?

This, if true, would mean the Pope as a private person adheres to a materially heretical view.
In a lengthy letter written in Spanish and addressed to the president of the International Commission against the death penalty, Pope Francis thanks those who work tirelessly for a universal moratorium, with the goal of abolishing the use of capital punishment in countries right across the globe.
Pope Francis makes clear that justice can never be done by killing another human being and he stresses there can be no humane way of carrying out a death sentence. For Christians, he says, all life is sacred because every one of us is created by God, who does not want to punish one murder with another, but rather wishes to see the murderer repent. Even murderers, he went on, do not lose their human dignity and God himself is the guarantor.
Capital punishment, Pope Francis says, is the opposite of divine mercy, which should be the model for our man-made legal systems. Death sentences, he insists, imply cruel and degrading treatment, as well as the torturous anguish of a lengthy waiting period before the execution, which often leads to sickness or insanity.
The Pope also condemns the use of the death penalty by “totalitarian regimes” or “fanatical groups” who seek to exterminate “political prisoners”, “minorities”, or anyone seen as a threat to political power and ambitions.
But he makes quite clear that the use of capital punishment signifies “a failure” on the part of any State. However serious the crime, he says, an execution “does not bring justice to the victims, but rather encourages revenge” and denies any hope of repentence or reparation for the crime that has been committed.
The view that the death penalty is never just under any conditions and that human dignity or the sacredness of life is violated by the state executing a criminal clearly contradicts Catholic teaching, including the current CCC and Pope St. John Paul II's Evangelium Vitae, both of which clearly reiterate that the state may justly execute offenders in certain cases.

A Pope professing private (e.g., not formally promulgated or taught in a formal way, such as by an encyclical) error is not unprecedented. It's not surprising to see a Pope from a country without the death penalty and imbued with European sensibilities, with their prejudice against the American justice system and use of the death penalty, express personal opposition to it.

He will never, however, attempt to promulgate his erroneous views in an authoritative way to the Church.  You can bet the ranch (and the Barque of Peter) on that.

Wednesday, March 18, 2015

A Passing

Bad news for Jay Anderson, who is a past Mayor of this little town-that-was, and who recently gave up active blogging at his excellent blog..

Populorum Progessio

Progress is slow, but we'll take it where it comes.

A disciple of Shea's pacifist errors about capital punishment asks for help from Sacred Scripture in supporting the reader's effort to convince a "Bible Protestant" that Scripture is against the death penalty... and Shea can't point the reader to any such Scriptural support.

Because there ain't any.

Monday, March 09, 2015

Part IV: America's Death Penalty Does Not Contradict Any Catholic Teaching

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-- surprise!-- still in conformity with that position.

The two "new" conditions under which the DP would seem to approved by the current teaching are:  1) the DP can only be resorted to when the "improvements" (the nature of which we're left guessing about) to the penal system are not sufficient to render offenders harmless;  and 2) given these "improvements" we expect to see that the DP is used only "rarely."

With this in mind, let's review the actual situation in the United States, and not the cartoon characterizations by some fevered bloggers.

As to the first point, it is difficult to know just what "improvements" the churchmen who penned these documents are referring to.  We can assume they mean life without parole;  or perhaps they mean that we have high-security prisons.  Since we are left without clear direction on this point, it's hard to fathom how the authors of the current teaching expect the laity charged with implementing a criminal justice system to respond to their new teaching.

But assuming for the sake of argument that the "improvements" referred to are life imprisonment and secure prisons, in the United States at any rate these "improvements" have certainly not been effective in rendering offenders harmless.  I've pointed out at some length and without contradiction that despite life sentences and high security prisons, some offenders continue to be very real threats to the safety and lives of prison personnel and fellow inmates, and to the public when they escape or have their sentences reduced or commuted for some reason.  I won't repeat here the myriad concrete cases where mere imprisonment has utterly failed to restrain offenders.  Suffice to say, there are enough of these examples to reach a sound conclusion that "life imprisonment" or lengthy incarceration, cannot guarantee to a moral certainty that an offender will be rendered harmless.

All of which is to say, whatever "improvements" these authors imagined that would render offenders harmless have yet to exist in the U.S.  That some offenders might not kill or assault in prison is certainly true;  but to speak of a causal relation between some general "improvement" and the propensity of an offender to commit violence, is to evince a woeful lack of understanding of actual conditions in the criminal justice system.

Whether or not the "improvements" have been made and are successful, however, the good news (if one views it as such)  is that as to the second desire of the authors, that the DP should only be "rarely" resorted to, imposition of the death penalty continues to decline.

In 2013, the last year available for murder statistics, there were about 80 death sentences handed down nationally (source: Death Penalty Information Center, an abolition group which boasts that death sentences are near a historic low) for the 14,196 murders committed (source: Bureau of Justice Statisticsa rate of 0.56%, which is a rate consistent with recent years.

So whatever view one takes of the current Catholic teaching, the simple fact is, the death penalty is imposed very rarely in the US, in less than one percent of murder cases.  This is easily explained as the result of death--eligible cases (usually aggravated forms of murder) being relatively rare; prosecutor caution in seeking the most serious of sentences, considering the cost and trauma to the state and the victims' families during long and contentious appellate procedures that go far beyond those experienced in non-death cases; and of course, jury caution in imposing this type of punishment.

Thus, for all the sturm und drang of the Catholic Left, and overblown rhetoric about blood lust, the death penalty is a very rare occurrence in relation to the number of murders in this country.

Would that these tender souls reserve some of their tears for all the forgotten victims of murder (the 14,000-plus), instead of for the very small number (80, and only 72 in 2014) of the worst offenders who receive a death sentence.

Alas, dead victims do not make good fodder for ostentatious moral preening by the living Left.

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).  

Part II: A Quick Primer on Catholic Tradition Regarding Capital Punishment

In the last post, we looked at a brief overview of the Scriptural sources supporting the Church's perennial teaching on the morality of the death penalty.  In this post, I'll review, in un-exhaustive summary fashion, what some sources of the Church's Tradition teach about the death penalty.  I'm unaware of any contrary authoritative sources which would contradict my thesis that the Church has always, as part of its ordinary magisterium, taught the moral permissibility of the death penalty.  Again, I will not defend here why these sources are significant, but would direct the reader here for a good overview of how these sources of Tradition relate to Scripture and constitute evidence of the Church's fundamental teachings on issues of Faith and morals.

St. Augustine is representative of the views of the Church Fathers on the question, and he states that:
The same divine law which forbids the killing of a human being allows certain exceptions. Since the agent of authority is but a sword in the hand, and is not responsible for the killing, it is in no way contrary to the commandment ‘Thou shalt not kill’, for the representative of the State’s authority to put criminals to death, according to the Law or the rule of rational justice.[1]
In another place, the great Father argues against the notion that the guilty should live in the hope of their conversion, stating that “inflicting capital punishment…protects those who are undergoing capital punishment from the harm they may suffer … through increased sinning which might continue if their life went on.”[2]

The second century Church Father Athenagoras assumed the morality of the death penalty:
If these charges are true [of atheism, cannibalism, and incest], spare no class: proceed at once against our crimes; destroy us root and branch, with our wives and children, if any Christian is found to live like the Brutes... For when they know that we [Christians] cannot endure even to see a man put to death, though justly, who of them can accuse us of murder or cannibalism?
Tertullian, in his De Spectaculis, ch. 19 and  De Anima, Ch. 56:
It is a good thing when the guilty are punished.  Who will deny this but the guilty?
But death that comes from the hands of justice, the avenger of violence, should not be accounted as violent.
This patristic theme is adopted by none other than St. Thomas Aquinas, who viewed attacks on capital punishment based on Scripture with scorn, holding that “the civil rulers execute, justly and sinlessly, pestiferous men in order to protect the peace of the state.”[3] Interestingly, St. Thomas expressly refutes one of the commonly stated reasons for opposition to the death penalty:[4]
The fact that the evil, as long as they live, can be corrected from their errors does not prohibit the fact that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement. They also have at that critical point of death the opportunity to be converted to God through repentance. And if they are so stubborn that even at the point of death their heart does not draw back from evil, it is possible to make a highly probable judgment that they would never come away from evil to the right use of their powers.[5]
Ironically, Sr. Helen Prejean’s (of "Dead Man Walking" fame) own involvement with the death
penalty demonstrates this relationship between the ultimate punishment and redemption. For if
Patrick Sonnier had not been sentenced to die for his crimes, he probably would not have met Sr. Prejean, and probably would never have come to take responsibility for his crimes and seek atonement. Shortly before his death he received the Blessed Sacrament and recited with Sr. Prejean Isaiah 43, “I have called you by your name, you are mine.” He did these things, and perhaps died in the state of grace because of receiving the death penalty and knowing, as much as any man may, the moment and hour of his death. In a way, he could be seen as proof of St. Augustine’s observation that repenting and dying in the state of grace is to be preferred to living only to lose one’s soul through increased sinning.

In any event, the Church for Her part continued to insist on the moral propriety and even the necessity of the death penalty. At the Council of Trent, a catechism was prepared, universal in scope, whose theological weight is greater than that of the recent Catechism of the Catholic Church, since the former was an act of a General Council of the Church. It still remains an important source of theology. The Tridentine catechism places consideration of capital punishment in its treatment of the Fifth Commandment:
Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, 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 security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord. (Emphasis added).
As if to underscore this teaching, the Council Fathers urge as a remedy against violating this Commandment a reflection upon the evil of homicide, which is surely vastly more relevant to our society than to theirs:
The enormity of this sin [of murder] is manifest from many and weighty passages of Holy Scripture. So much does God abominate homicide that He declares in Holy Writ that of the very beast of the field He will exact vengeance for the life of man, commanding the beast that injures man to be put to death. And if He commanded man to have a horror of blood, He did so for no other reason than to impress on his mind the obligation of entirely refraining, both in act and desire, from the enormity of homicide.

The murderer is the worst enemy of his species, and consequently of nature. To the utmost of his power he destroys the universal work of God by the destruction of man, since God declares that He created all things for man’s sake. Nay, as it is forbidden in Genesis to take human life, because God created man to his own image and likeness, he who makes away with God’s image offers great injury to God, and almost seems to lay violent hands on God Himself.
These strong words almost sound foreign to us, immersed in a culture of death turned lukewarm to the horror of murder. Yet the Fathers of Trent do not offer pragmatic reasons for the death penalty. They hold it to be a necessity based on obedience to the Fifth Commandment itself, inasmuch as capital punishment does not diminish but affirms the sanctity of life.

In our own times the Church has not modified this ancient and venerable teaching. Pope St. Pius X promulgated a catechism which also, following Trent’s arrangement, refers to capital punishment in discussing the Fifth Commandment:
Q. Are there cases in which it is lawful to kill?
A. It is lawful to kill when fighting in a just war; when carrying out by order of the Supreme Authority a sentence of death in punishment of a crime; and finally, in cases of necessary and lawful defense of one’s own life against an unjust aggressor.
Papal teaching was in accord with this view as late as the pontificate of Pope Pius XII, who stated in an address that “when it is a question of the execution of a man condemned to death 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 live.”[6]

So it is not surprising that even up to the very eve of the Second Vatican Council, Adolph Tanquerey could address the issue of the death penalty in his seminal moral theology text by first stating this principle:
The civil authority is able to punish with the ultimate punishment of death evildoers duly convicted of the most grave crimes, as often as the public good requires (quoties id requirit bonum publicum). (emphasis added).[7]
Father Tanquerey supports this principle by demonstrating that recourse to capital punishment is strongly rooted in both history and human psychology, and ends his discussion by emphasizing the ethical probity of the death penalty:
Justice demands that the offended moral order be repaired and restored by a congruent satisfaction; and therefore the duty devolves upon the leaders of the Republic to take care that grave crimes are punished by proportionate penalties; for otherwise the moral order is disturbed and endangered. Certainly there are crimes of such gravity committed which, in the general estimation, will only be able to be expiated by means of the death penalty; of such a kind especially is murder cruelly committed after mature deliberation; for crimes which are the greatest affront to the moral order, and encompass the greatest harm, require of their nature the greatest punishment, that is, capital punishment. And therefore this rule is established by common sense: ‘Whoso sheds the blood of man, shall by man have his blood shed.’[8]
Sacred Tradition, then, has consistently viewed capital punishment as a vindication of the sacredness of life. This is clearly shown by the way various Doctors, Popes, and Councils have firmly rooted their validation of the death penalty in discussing the Fifth Commandment; not only to explain why capital punishment does not offend against this Commandment, but also to underscore that by this punishment the sacred gift of life is vindicated. Clearly, the moral approval of capital punishment in the sources just examined is based, not on political expediency or practical concerns such as deterrence, but on obedience to the Fifth Commandment and in recognition of the sanctity of life.

Moreover, as a perennial teaching touching on a matter of morals, it is impossible to avoid the conclusion that the Church’s teaching on the death penalty belongs to the Ordinary Magisterium of the Church. It is a teaching to which the following statement of the Fathers of Vatican I applies:
[T]he Church would lose its immutability and dignity and it would cease being a life-giving society and a necessary means of salvation if it could wander from the safe path of truth in matters of faith and morals, and if, in preaching and explaining these matters, it could deceive or be deceived.[9]
The moral liceity of the death penalty thus belongs to the perennial moral teaching of the Church, and one would have to posit that the Church had erred and thus failed in its Divine mission, if one would affirm that the death penalty is in fact always and everywhere immoral. The Church would, for its entire history, have not taught the truth to society about morality, but rather affirmed the moral good of what is in fact a moral evil. But this is impossible for a Catholic to admit. The Church could no more have taught erroneously that capital punishment is not only licit but laudable than She could have erroneously taught that use of artificial contraception is always and everywhere contrary to the moral law. The Church is Divinely protected from leading men astray in its constant teachings concerning moral issues. She is the teacher and informer of consciences and would have failed in Her mission if She had suddenly been found to have erred for so long on such a fundamental issue of morality.

In the next post, we will see what has apparently changed and what has not, in Catholic teaching in recent years.

[1] City of God, Book I, chapter 21.
[2] On the Lord’s Sermon, 1.20.63-64.
[3] Summa Contra Gentiles, III, 146.
[4] See, e.g., Evangelium Vitae, no. 27.
[5] Summa Contra Gentiles, III, 146.
[6] Address, 9/14/52.
[7] Synopsis Theologiae Moralis, IV, 284. (Translated by author).
[8] Id., IV, 286 (Translated by author).
[9] Draft on the Dogmatic Constitution on the Church of Christ, Chapter 9.

Part I: A Quick Primer on Capital Punishment in Sacred Scripture

Since there is a renewed assault on Catholic teaching on the issue of Capital Punishment by some in the print media and the blogosphere, I think it would be useful to begin an examination of what, for Catholics, is the source of our beliefs: Sacred Scripture and Sacred Tradition. This will be a 4-post project.

This first post will simply lay out the more prominent Scriptural citations supporting the moral legitimacy of capital punishment, either explicitly or by inference. I won't attempt to argue Old vs. New Testament issues, as I generally deny the false dichotomy some posit between the moral law of the Old Covenant and that of the New. They are the same, even while many ritual requirements ("the Law") were indeed abrogated by the New Covenant. But moral teachings are always constant and unchanging, coming as they do from one and the same Lawgiver. Their applicability may change (e.g., we do not have to execute adulterers and other sexual sinners); but the principle of whether the state may justly execute offenders does not change. Here is a good summary of my views on these issues.

Here then is a quick look at Scriptural sources supporting the morality of the death penalty:

“Whoso sheddeth man’s blood, by man shall his blood be shed,…”
--Gen. 9:6
"Whoever kills any man shall surely be put to death.... You shall have the same law for the [foreigner] and for one from your own country; for I am the Lord your God." 
--Lev. 24:17-22
"Defile not the land of your habitation, which is stained with the blood of the innocent: neither can it otherwise be expiated, but by his blood that hath shed the blood of another."
--Num. 35:33

"He that curseth his father, or mother, dying let him die: he hath cursed his father, and mother, let his blood be upon him. If any man commit adultery with the wife of another, and defile his neighbour's wife, let them be put to death, both the adulterer and the adulteress. If a man lie with his stepmother, and discover the nakedness of his father, let them both be put to death: their blood be upon them. If any man lie with his daughter in law, let both die, because they have done a heinous crime: their blood be upon them. If any one lie with a man as with a woman, both have committed an abomination, let them be put to death: their blood be upon them. If any man after marrying the daughter, marry her mother, he hath done a heinous crime: he shall be burnt alive with them: neither shall so great an abomination remain in the midst of you. He that shall copulate with any beast or cattle, dying let him die, the beast also ye shall kill. The woman that shall lie under any beast, shall be killed together with the same: their blood be upon them. If any man take his sister, the daughter of his father, or the daughter of his mother, and see her nakedness, and she behold her brother's shame: they have committed a crime: they shall be slain, in the sight of their people, because they have discovered one another's nakedness, and they shall bear their iniquity. If any man lie with a woman in her flowers, and uncover her nakedness, and she open the fountain of her blood, both shall be destroyed out of the midst of their people. Thou shalt not uncover the nakedness of thy aunt by thy mother, and of thy aunt by thy father: he that doth this, hath uncovered the shame of his own flesh, both shall bear their iniquity."
--Leviticus, 20: 9-20
"If any man strike with iron, and he die that was struck: he shall be guilty of murder, and he himself shall die.  If he throw a stone, and he that is struck die: he shall be punished in the same manner.  If he that is struck with wood die: he shall be revenged by the blood of him that struck him.  The kinsman of him that was slain, shall kill the murderer: as soon as he apprehendeth him, he shall kill him.  If through hatred any one push a man, or fling any thing at him with ill design: Or being his enemy, strike; him with his hand, and he die: the striker shall be guilty of murder: the kinsman of him that was slain as soon as he findeth him, shall kill him."
--Numbers 35: 16-21.
Therefore he that resisteth the power, resisteth the ordinance of God, and they that resist purchase to themselves eternal damnation. For rulers are not a terror to the good work, but to the evil. . . For he is the minister of God to thee for good. But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is the minister of God: and avenger to execute wrath upon him that doth evil.
--Rom. 13:2-4.

Thursday, March 05, 2015

Into the Catholic Weeds

So it seems that some Catholic papers that few people read, joined by a blog group that few people read, are taking a brave and bold stand for justice in favor of... convicted murderers, and urging abolition of the death penalty.

Where to begin with this crew?  The sanctimony and name-calling directed at those like myself who merely uphold what the Catholic Church has always and everywhere taught about capital punishment?  The shoddy reasoning that simultaneously claims to support the Catholic Catechism (which teaches that capital punishment is morally legitimate but should be used rarely) while claiming at the same time that the death penalty intrinsically violates human rights, and ought not just be used rarely, but abolished altogether?

Or perhaps to point out that when they say it's "three popes and the current magisterium" against St. Thomas Aquinas and the Church's traditional teaching on this matter, they are buying into the very "hermeneutic of rupture" between current Catholic teaching and traditional Catholic teaching which they routinely criticize some Traditionalists (scornfully called "Rad-Trads") for espousing, and which was condemned by Pope Benedict XVI as a faulty view of Vatican II and post conciliar teachings?

Or to remind them when they call us (without apparent irony) "lovers of death" that it was precisely one of those three Popes, the same Benedict, who stated, "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." 

But this crew is undeterred by facts, which they resolutely ignore as being inconvenient to their "America is Moloch" meme (such as: the death penalty is very rarely used in the US and only on offenders who could not reasonably be "rendered harmless" by incarceration).  It is undeterred by a religious teaching going back 6,000 years and utterly irreformable, and a principle of the Natural Law itself, that gives societies the right and even duty to protect themselves and to carry out justice by resort to the death penalty.  It is shameless in its lack of actual knowledge of the criminal justice system and penal systems, and what each can reasonably accomplish to "render offenders harmless".  But from their basement blogging outposts and neatly isolated cubicles in Madison, this questionable alliance of  dissenters, some "conservative" Catholics, some thoroughly liberal, such as those found in the pages of Catholic-in-name-only America and National Catholic Reporter, forge ahead, facts be damned, Church teaching be damned, public safety be damned.

Inconvenient Facts

Consider this case (because if you read about this criminal elsewhere, you won't hear about what she did or about her victim):
Gissendaner, a mother of three from Auburn, wanted her husband dead so she could profit from two $10,000 life insurance policies and the couple's $84,000 house.She dropped off Owen [her "lover"] at her Auburn house before going out with friends on Feb. 7, 1997. Owen surprised 30-year-old Doug Gissendaner and forced him at knifepoint to drive to a remote area in eastern Gwinnett near the Walton County line, then made him walk into the woods and kneel down. Owen beat Doug Gissendaner with a nightstick, he said, and stabbed him repeatedly in the neck and back.
Then, Owen said, he drove around in the victim's Chevrolet Caprice until Kelly Gissendaner paged him. She arrived with a Coke bottle filled with gasoline, Owen said, and he used it to burn the car.
 Evidence at trial showed that Gissendaner, prior to her arrest, drove angrily toward a witness while declaring, "I ought to run the bitch over." While in jail, she wrote a letter and drew a map of her house in an effort to locate a person willing to accept money to commit perjury and to rob and beat witnesses.
We conclude that the deliberate, even insistent, manner in which Gissendaner pursued her husband's death, the fact that the murder was the unprovoked and calculated killing of a close family member, the fact that she arranged the murder to obtain money, and the fact that she attempted to avoid responsibility for her conduct by suborning perjury and orchestrating violence against witnesses all weigh heavily against her claim that the death penalty in her case is disproportionate. Our review of the sentences imposed in similar cases in Georgia reveals that the death sentence imposed in Gissendaner's case, considering both the gravity of her crime and the apparent depravity of her character, is not disproportionate. The cases appearing in the Appendix support this conclusion in that each involved the careful devising of a plan to kill, killing for the purpose of receiving something of monetary value, kidnapping with bodily injury, or causing or directing another to kill.
 The evidence showed that she repeatedly raised the option of murder in conversations with her co-conspirator and that she planned the murder. She and not her co-conspirator stood primarily to gain financially from the murder. The murder was planned against her close family member. Unlike her co-conspirator, who cooperated with authorities and confessed his guilt, Gissendaner devised a plan to suborn perjury and to do violence against witnesses.  We also note that Gissendaner appealed to the jury's sense of justice by making the same argument of proportionality she makes to this Court and that the jury rejected the argument by its verdict. In light of all these circumstances, we conclude that Gissendaner's sentence was not impermissibly disproportionate.
Gissendaner v. State,  272 Ga. 704, 532 SE2d 677 (2000) (citations omitted).

Not surprisingly, this murderer now claims a death row religious conversion, and certain pro-criminal groups have urged this alleged conversion as a reason to ignore the jury and the courts' decisions that her sentence is appropriate and just.

Two things can happen: First, we can credit the "conversion" and commute the death sentence,  If we do this, as night follows day, every convicted murderer in the nation will undergo a wondrous conversion experience.  And unless we reconstitute the Inquisition to get to the truth of these conversions, we will have simply to credit them and empty every death row.  (and why stop with commutation from death to imprisonment?  If this is a renewed soul, and therefore it is not just to execute her, then how is it just to impose any penalty?)

The second alternative is that we can privately hope and pray that this person has genuinely converted, but recognize that her personal spiritual state is totally irrelevant to the question of her punishment for the crime she committed.  Justice is served, and the Fifth Commandment of the Decalogue vindicated (as St. Thomas and 2,000 years of Christian teaching says) when a murderer, who has arrogated to herself the very role of God by ending another's life, is executed.

It really boils down to whom do we trust to see that justice is served?--  the people of Georgia as embodied in the jury which actually heard the evidence and considered both sides before imposing a sentence, and the appellate courts which closely reviewed the case for any error, bias, or disproportionality of sentence;  or the blogger in his basement who while bizzarely and without apparent irony talking about "human sacrifice" can't even be bothered to mention the facts of the case
His name was Douglas Gissendaner
or name the victim in his rush to wring his hands over the State of Georgia following its just laws and executing this murderer for her vicious and hateful crime?

To ask the question is to answer it.