Avery Cardinal Dulles carefully lays out the Catholic Church’s traditional teaching on capital punishment ("Catholicism and Capital Punishment," April), but unfortunately neglects any serious engagement with the text of the Church’s most authoritative articulation to date on the subject, viz., no. 2267 of the 1997 edition of the Catechism of the Catholic Church. The text there indicates that something fundamentally new is happening in the Church’s response to this thorny issue. Two novel points should be noted.
First, the Catechism’s analysis strictly ties the death penalty to a model of self-defense. Whereas the Catechism’s predecessor, the 1566 Roman Catechism, treats capital punishment under a subsection headed "exceptions" to the Fifth Commandment, and most systematic treatises, at least since Trent, follow Aquinas and treat it under the heading, "whether it is lawful to kill malefactors," no. 2267 places its treatment within a subsection entitled "legitimate defense" (defensio legitima). When Aquinas uses the related term "blameless defense" (inculpata tutela)—he never to my knowledge uses the term defensio legitima—he is not referring to a blameless act of capital punishment, but rather a blameless act of self-defense; and this self-defending act, if it results in the harm or death of the aggressor, must include neither as its end nor means the death or injury of the assailant. When the 1917 and 1983 Codes of Canon Law use the related term "legitimate defense" (legitima tutela), they, like Aquinas, are referring to legitimate killing in private acts of self-defense, implying the same limitations on intent. No. 2267 is clear as to the nature of a case falling under the designation "legitimate defense," namely, "cases in which the execution of the offender is an absolute necessity." But when the concept of "necessary defense" is found in theological literature prior to Vatican II in relation to questions of legitimate homicide, it is used almost exclusively to refer to the killing of aggressors by private persons in self-defense.
Finally, should there remain any doubt as to the text’s meaning, no. 2267 refers to those who are rightly killed as "aggressors," not "criminals," "the condemned," "prisoners," and the like. An "aggressor" is one who attacks. To defend against an aggressor is to defend against one who is or soon will be "attacking." And the kind of defense no. 2267 refers to entails "rendering [the aggressor] . . . incapable of doing harm." This language is a red flag to anyone familiar with the Church’s tradition of justifiable homicide. "Rendering aggressors incapable of causing harm" is classical terminology used to refer to the lawful killing of aggressors by private persons in self-defense.
Second, capital punishment, as well as all acts of "legitimate" killing, are subsumed under a model of "double-effect." No. 2263, the first in the subsection, introduces double-effect reasoning to show that not all actions which result in killing are intentional killing and forbidden by the Commandment; indeed, the teaching that controls the whole of the subsection is that what the Commandment excludes as murder is intentional killing. The subsection briefly departs from this motif in no. 2266 to introduce punishment’s "primary purpose," i.e., redressing the disorder introduced by deliberate crime (i.e., retribution), but then implicitly returns to it in 2267, where a legitimate act of capital punishment (so called in the text) is defined, not in terms of "punishment" as specified in 2266, but rather in terms of "self-defense" as defined in sections 2263-2265.
The text insists that recourse to killing is legitimate if and only if the need to defend people’s lives and safety against the attacks of an unjust aggressor can be met by no other means. According to the Catechism’s own definition of punishment, the act defined as poena mortis ("capital punishment") in no. 2267 is not in fact an act of punishment, but rather an act of collective self-defense on the community’s behalf by the state. Perhaps the clearest indication of this is seen when we compare the treatment of the 1992 edition of the Catechism with the revised text of the 1997 edition. In 1992 the Catechism taught that the Church "has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty" (no. 2266, emphasis added).
The gravity of the crime, we see, can be a legitimate basis for the infliction of the death penalty, that is, some crimes can be deserving of the death penalty, whether or not the criminal still poses an aggressor’s threat. What is remarkable is that in the 1997 definitive edition the clause that reads "not excluding, in cases of extreme gravity, the death penalty," is suppressed.
Cardinal Dulles fails to contend with the fact that implicit in the Catechism’s text is an understanding of the death penalty which limits its lawful infliction to conditions traditionally circumscribing legitimate killing in private self-defense. The new framework leads me to conclude that the Catechism is laying a theoretical foundation for a change (not "development" precisely understood) in the Church’s teaching on the death penalty that would at minimum state that the exigencies of retribution (i.e., of the need to redress the disorder introduced by a criminal’s crime) are never a sufficient condition for the inflicting of capital punishment. That is to say, death as a punishment is never legitimate.
E. Christian Brugger
Department of Religious Studies
Loyola University of New Orleans
When Pope Paul VI issued Humanae Vitae in 1968, many liberal Catholics rejected the encyclical and even the Church itself. The teaching of John Paul II on the death penalty may be the Humanae Vitae of some politically conservative, orthodox Catholics. Avery Cardinal Dulles’ systematic analysis will be helpful to such persons. Addressing this subject "as a theologian," he shows the reasonableness of the Pope’s position in the civil as well as the religious context.
In one respect, I suggest that Cardinal Dulles’ analysis would have been stronger if it had been more explicit. He accurately describes the purposes of punishment as "rehabilitation, defense against the criminal, deterrence, and retribution." Evangelium Vitae, no. 56, and the Catechism of the Catholic Church, no. 2266, agree that "the primary aim" of punishment is the retributive one of "redressing the disorder introduced by the offense." A reading of the 1992 and the final 1997 versions of no. 2267 of the Catechism, however, leads to the conclusion that retributive and general deterrent reasons are no longer sufficient to justify use of the death penalty.
The 1992 version of no. 2267 said that "public authority should limit itself" to "bloodless means" if they "are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons." The final version, however, allows use of the death penalty only "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. . . . Today . . . 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 definitively 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."
This final text omits the generalized 1992 reference to the protection of "public order and the safety of persons." Those broad objectives could include protection of the "safety of persons" by deterrence of others in addition to the offender and by a generalized promotion of "public order" by "redressing the disorder introduced by the offense." The final version substitutes, as the indispensable criterion, "effectively defending human lives against the unjust aggressor." It focuses only on protection of others from this criminal. "Redressing the disorder" is still the primary aim of punishment. But neither it nor anything else by itself justifies the death penalty apart from the definitive criterion that it must be "the only possible way of effectively defending" other lives from this convicted criminal. Thus, in his 1999 exhortation Ecclesia in America, John Paul quoted no. 2267 of the Catechism in criticizing "the unnecessary recourse to the death penalty when other ‘bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons.’"
The reason for this focus on the protection of other lives from this convicted criminal is the importance of his conversion. Evangelium Vitae is "a pressing appeal addressed to each and every person, in the name of God: respect, protect, love and serve life, every human life!" God put a mark on Cain, not to make him a target, but to protect him: "Not even a murderer loses his personal dignity, and God himself pledges to guarantee this. . . . God, who preferred the correction rather than the death of a sinner, did not desire that a homicide be punished by the exaction of another act of homicide."
St. Thomas Aquinas said that "if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since ‘a little leaven corrupteth the whole lump’ (1 Corinthians 5:6)" (ST II-II q. 64, art. 2). But he affirmed separately that the conversion of one sinner is a greater good than the creation of the material universe: "The justification of the ungodly . . . is greater than the creation of heaven and earth. . . . Hence, Augustine [says] that ‘for a just man to be made from a sinner is greater than to create heaven and earth . . . for heaven and earth shall pass away, but the justification of the ungodly shall endure’" (ST I-II, q. 113, art. 9). If Aquinas were around today, it is fair to speculate as to whether he might support John Paul’s position, first because he is the Pope, and second, because of our ability today to keep criminals from being "dangerous and infectious to the community" without cutting off their chance for conversion.
Nor can it be objected that John Paul’s position is merely his own personal opinion. He did put it into the Catechism. Even under that teaching, however, one could still argue for the death penalty in limited cases. If a life inmate murders another inmate or a guard, what do you do? Give him another life sentence? Or would it be consistent with his dignity to confine him permanently in a cell, with a slot to transmit food and waste, and with no direct contact ever with another human being? Even with the life inmate who murders, however, the issue is debatable. Similarly with an unstable situation in which the state is unable to confine inmates securely. What is clear, however, is that if a Catholic is to be consistent with the teaching of his Church, he can no longer argue for the death penalty on the general bases of retribution, deterrence of other potential criminals, or any of the other familiar conservative or neoconservative arguments, unless that penalty is "the only possible way of effectively defending" other lives from this criminal.
Before Evangelium Vitae, I and others argued for the use of the death penalty on the ground that, for some crimes, it was the only penalty that would fit the crime and restore the balance of justice. It promoted respect for innocent life by stigmatizing murder as the crime of crimes, with a punishment qualitatively different from the punishment, say, for larceny. John Paul has made that and similar arguments obsolete. He challenges the claim of the modern secular state to be the arbiter of the ending as well as the beginning of life. He insists that the power of the state is subject to the law of the Lord of life. He seeks the protection of society and of innocent life, not through homicidal acts of the state, but through a "cultural transformation" building a "new culture of life." "The first and fundamental step towards this cultural transformation consists in forming consciences with regard to the incomparable and inviolable worth of every human life" (EV, no. 95). Cardinal Dulles is right on the money in this regard when he notes that "in our day the state is generally viewed simply as an instrument of the will of the governed. In this modern perspective, the death penalty expresses not the divine judgment on objective evil but rather the collective anger of the group. The retributive goal of punishment is misconstrued as a self-assertive act of vengeance."
Lastly, the spectacle of the execution of Timothy McVeigh brings to mind Cardinal Dulles’ description of an objection to the death penalty which he thinks has "some probable force": "Another objection observes that the death penalty often has the effect of whetting an inordinate appetite for revenge rather than satisfying an authentic zeal for justice. By giving in to a perverse spirit of vindictiveness or a morbid attraction to the gruesome, the courts contribute to the degradation of the culture, replicating the worst features of the Roman Empire in its period of decline."
Charles E. Rice
Notre Dame Law School
South Bend, Indiana
The distinction between the right to exact capital punishment and the prudential decision to exercise that right provides the spine of Avery Cardinal Dulles’ crisp, clear, and cogent article. By way of comment, I want to say some things about a) an ambiguity in Evangelium Vitae, b) an unmentioned consequence of the current fuzziness about the nature of punishment, and c) how John Paul II’s campaign against the death penalty relates to his remarks about a culture of death.
The relevant paragraphs in the Catechism of the Catholic Church have been rewritten in light of Evangelium Vitae, but there remains an ambiguity that has led many to conclude that the Church has abandoned its long tradition on the licitness of the death penalty.
Three justifications for punishment are given: retribution redressing the disorder caused by the crime, protection of society, and punishment’s medicinal value. But then we read that modern developments in imprisonment enable society to protect itself by unbloody means and that the death penalty should become so rare as to be nonexistent. Since retribution is the primary justification of punishment, this seems to elevate a secondary into the primary justification of punishment. (And of course, protecting society against possible future crimes of the criminal leaves unaddressed the actual crime for which he is imprisoned.) Hence the surprising claim by some that retribution is no longer a feature of Church teaching on punishment. Despite this ambiguity, no one reading the Catechism can ignore the reminder that the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to exact even the death penalty in carefully defined situations. Some wrongly read this as the Church bidding adieu to that teaching of the Church rather than its reiteration.
Opposition to the death penalty tout court puts one in some strange company, rendering ambiguous the ascription of this opposition to a keener moral sense in our times. The secular Enlightenment attitude toward human action, responsibility, and ultimate destiny is antithetical to a sound philosophical and Christian view of crime and punishment. It is noteworthy that there are now campaigns against life imprisonment as well as capital punishment. The animus is against punishment as such rather than a species of it. Regarding punishment as revenge has consequences for Catholics that have not been taken sufficiently into account.
When I ask groups of students, prior to reading the relevant paragraphs of Evangelium Vitae, how many consider the death penalty justified, the answer is overwhelmingly negative. Eventually, as the discussion proceeds, it becomes clear that that view is based on the notion that no human person, being made in the image and likeness of God, can ever lose the right to life, no matter how serious his crime. When, against this background, I raise the question of eternal punishment, an uneasy silence falls. I take this to suggest a weakening of the view of the ultimate stakes of human life as laid out, for example, in Dante’s Divine Comedy. The literal meaning of the poem is the state of souls after death. But if the work is taken allegorically, its subject is man as justly meriting eternal punishment or reward by the exercise of his free will. Dr. Johnson’s famous remark about the prospect of hanging concentrating the mind can only be appreciated when we understand what he thought the mind should be concentrating on.
Finally, there is the matter of the relationship between the Pope’s opposition to capital punishment and his conception of the culture of death. The traditional justification for the death penalty sees the state as the instrument of the common good. But modern states, most notably in the matter of abortion, have farmed out to some members of society the right to take innocent human life. Is the Holy Father suggesting that such states no longer meet the conditions of the traditional justification for the death penalty? If that be the case, the opposition to the death penalty has far deeper implications than appear on the surface.
University of Notre Dame
South Bend, Indiana
I was glad to see Avery Cardinal Dulles tackle the death penalty issue. He begins with the neutral observation that "among the nations of the Western world the United States is singular in having the death penalty," a welcome change from the more tendentious way this fact is often presented by Catholic clergy. For example, Father Joseph Fahy, C.P., wrote in the Georgia Bulletin (January 4, 2001) that "many nations look with dismay at the death penalty in the United States."
Such statements overlook the sentiments of the people of those countries. In Canada, where capital punishment for civilians was abolished in the mid-seventies and military executions were banned in 1998, polls consistently show that between 60 percent and 70 percent of Canadians want it reinstated. The poll question "Do you support the death penalty for aggravated murder?" gets a positive answer from between two-thirds and three-quarters of the population in Britain. In Italy about 50 percent of the people want it restored. An article in the UNESCO Courier referring to France noted that "action by courageous political leaders has been needed to overcome local public opinion that has remained mostly in favor of the death penalty." The abolition of the death penalty was accomplished in Europe not through democratic means nor in response to public opinion, but rather through politicians imposing their ideology on the people.
Cardinal Dulles seems to want to make the legitimacy of the administration of the penalty dependent in some way upon the self-understanding of society. Once the penalty has been reduced to this symbolic function, he argues that the symbolism is only "authentic" if the society believes in "a transcendent order of justice." This criterion is hardly consonant, as William F. Buckley, Jr. has suggested, with the classical tradition. There is no reason to think that, at the time that St. Paul wrote to the Romans, belief in "a transcendent order of justice" generally informed the civil authority. This authority, which permitted infanticide, slavery, and blood sports, was, according to the Apostle, "the servant of God to execute His wrath," not because of what the society believed but because God had instituted this authority.
The death penalty for murder is the command of God. Additionally, it serves the law’s appropriate pedagogical function, teaching that human life is sacred. God’s intention to establish strict justice in response to murder is meant to protect the truth of the sacred nature of human life. It is precisely because human beings are made in the image of God that murderers are to be put to death. Ignore this principle, and the value assigned to human life in society’s collective consciousness deteriorates, and hence we see the rise of abortion, euthanasia, etc. The fatuous, unhistorical rhetoric that associates abortion and other features of the "culture of death" with the application of the death penalty cannot be anything other than a radical departure from the received tradition.
God knew that human sentiment might shrink from the exercise of this duty. That is why he repeatedly warns the Israelites that they must not pity the man who is to be executed (Deuteronomy 19:13,21). No where do the Scriptures warn against someone feeling vengeful toward the person who is being executed; yet Cardinal Dulles seems to think that an execution lacks legitimacy if it is perceived as vengeance. This raises all sorts of problems.
There have probably been very few executions in history where someone did not experience feelings of vengeance toward the person being punished. Especially in the case of the family members and close friends of the victim, one would imagine that emotions often run high. Cardinal Dulles does not explain how many people in the society have to feel vengeful about any particular execution in order for it to be illegitimate, nor how we could even know.
Furthermore, there has been no "progress" in our ability to hold prisoners for life in literally millennia. The ancient Greeks and Romans certainly were capable of doing so. Every culture that retained slaves for life was capable of locking up criminals, for life, if necessary—actually more capable than we are because they were less squeamish about prison conditions. What were dungeons for, or the Tower of London? There has simply been no improvement in this ability.
Catholic clergy will continue to nibble away at the energy, resources, manpower, and credibility of the pro-life movement as long as they continue making abortion/euthanasia just one-third of a "pro-life" tripod. To put it succinctly: the problem in this country is not that murderers are on death row. The problem is that abortionists are not on death row.
Any consideration of the death penalty that collapses the distinctions between guilt and innocence, between execution and murder, between an allowance and a duty, between retribution and revenge is wrong. Catholic thought is known for its richness, clarity, and logic, and most of all for its realism. We must reclaim that richness of thought in the context of discussion about this subject.
Avery Cardinal Dulles’ treatment of the death penalty risks grave misunderstanding over current Church teaching. Given the Cardinal’s deserved reputation for orthodoxy and integrity, one expects his work to serve up Church teaching neat, at least at discussion’s outset. Instead, he implicitly diverges from what the Holy See proclaims.
Cardinal Dulles identifies four purposes of punishment—rehabilitation, incapacitation, deterrence, and retribution—and asserts that the death penalty "is appropriate when it is necessary to achieve the purposes of punishment and when it does not have disproportionate evil effects. I say ‘necessary’ because I am of the opinion that killing should be avoided if the purposes of punishment can be obtained by bloodless means" (emphasis added).
The Church also recognizes the multiple ends of punishment. She, however, now holds that only one purpose of punishment—incapacitation—can justify resort to the death penalty. This principle emerges inescapably from Evangelium Vitae: We "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 to otherwise defend society."
The 1997 revision of the Catechism only made things clearer. An ambiguous reference to the acceptability of execution "in cases of extreme gravity" was removed. Reflecting the teachings of Evangelium Vitae, the revised Catechism stated that 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." But, "as a consequence of the possibilities which the state [today] has for effectively preventing crime by rendering one who has committed an offense incapable of doing harm . . . the cases in which the execution of the defender is an absolute necessity ‘are very rare, if not practically nonexistent.’"
Cardinal Dulles’ greater permissiveness may seem abstract, but it potentially carries lethal consequences. Common sense precludes any Catholic from prudentially concluding that a killer cannot be incapacitated through life without parole in a maximum security prison. However, many Catholics may prudentially (if imprudently) discern a deterrent value in execution, clinging to the notion that some would-be murderer somewhere, sometime suffered second thoughts, owing to the prospect of imminent death. Such Catholics see a world very different from one where "cases of absolute necessity" are "very rare if not practically nonexistent."
Cardinal Dulles’ concern is with maintaining continuity; he says as much with his reference to teaching on divorce, abortion, etc. It is not hard to understand this focus amidst the din of trendy Catholics who count our past as all albatross and no treasure. More, the rapid development of death penalty teaching has certainly been seized upon as evidence of magisterial reversibility. A few years ago I spoke on a capital punishment panel with another Jesuit of great intelligence and renown. He sounded as enthused about the fact that Church teaching once supported a broad death penalty as he was over current teaching against it. "Aha! You see, teaching is not immutable!" he seemed to crow.
Cardinal Dulles rightly attends to the past. We should, for instance, note Pius XII’s plea for the Rosenbergs and Paul VI’s 1975 intervention on behalf of Spanish terrorists sentenced to death. We should ask whether developments under John Paul II have really been so steep and sudden. We should, likewise, hear in the Holy Father’s present emphasis on potential redemption and human dignity the echo of a rabbinical carpenter rescuing a condemned adulteress two thousand years ago.
Draw on the past; try to square with the past. But let us not imagine dovetailing with the past where that is not the case. It is not even good strategy, if the aim is to shore up Church authority. A church that acknowledges necessary change may indeed spur dissenters who believe themselves the agents of future necessary change. But how much less stable is a church unable to express itself clearly, a church that must somehow be saying something about the death penalty different from what it said in the past? That church doesn’t have dissent or, for that matter, orthodoxy. It simply hosts a Rorschachian free-for-all.
A final point. Cardinal Dulles uses a right-to-life distinction to separate abortion from state execution, rather than a sanctity-of-life principle to link them in the spirit of Evangelium Vitae. This too evinces anything but the worldly cunning Our Lord commended to his disciples. Given the past century of genocides, the Catholic Church can hardly gain a prophetic hearing by emphasizing the state’s theoretical right to kill. Indeed, her brave, unyielding plea for the unborn will only suffer when her best theologian makes undue allowance for an obsolete convention that lists under the weight of its mistakes, oozes with racism, and reinforces a culture of death.
Kevin M. Doyle
New York, New York
Avery Cardinal Dulles’ article goes a long way in challenging the use of the death penalty today, but it leaves out an important consideration: in many cases, persons who commit heinous crimes subject to capital punishment do not have the kind of freedom over the moral persons they have become to legitimate the ultimate punishment of death. Under this consideration, the question of justice is not raised simply with regard to the person who has committed the crime; it is also raised against capital punishment itself with regard to the offender’s own history. Again and again, investigation into the lives of persons who have committed heinous crimes reveals a past where assessments of moral responsibility are muddied by child abuse, poverty, mental illness, and many other factors that in some way challenge the assumed account of moral freedom lying behind capital punishment. While some form of punishment may still be necessary (tragically necessary in some cases), the legitimacy of the ultimate punishment is brought into question.
For reasons not too hard to discover, Christian thought has often been reluctant to include this type of consideration. The moral life is thought to be fully in the self’s control. If only to account for repeated moral exhortation in Scripture, something seems right about thinking that nothing threatens the possibility of living in accordance with God’s moral law. On the other hand, doctrines of both grace and sin teach that something outside the self conditions the self, challenging any simple assumptions about our own powers.
New Haven, Connecticut
After a helpful summary of the Church’s view of the state’s responsibility to execute justice and preserve the social order, Avery Cardinal Dulles writes: "In light of all of this it seems safe to conclude that the death penalty is not in itself a violation of the right to life." The conclusion to his essay, however, seems to disavow any knowledge of the long history of the Church in its wrestling with this issue when it accords Catholic opposition to the death penalty in recent years a theological priority. Strangely, Cardinal Dulles’ personal position is a contradiction of the authority he adduces at the outset of his essay: "The Pope and the bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like our own, the death penalty ought not to be invoked, because, on balance, it does more harm than good." And sadly, this statement begs myriads of questions, going unsupported either by scriptural confirmation or tradition—the two authorities noted by Cardinal Dulles at the beginning of his essay.
Altogether missing from this position on the death penalty is any interaction with biblical revelation. Cardinal Dulles cites numerous Old and New Testament texts early on, then proceeds to ignore them as if new revelation through the Magisterium and the National Conference of Catholic Bishops somehow cancels out what is binding for all times and all cultures. Given the fact that the author is "here addressing the subject as a theologian," it is most disappointing that he fails to deal with key scriptural texts such as Genesis 9, Numbers 35, and Romans 13, since such texts have important theological implications for contemporary society.
It should be observed that as late as 1955 the Catholic Church defended the role of the state in upholding capital justice. In addressing Italian Catholic jurists, Pius XII reaffirmed the Church’s historic recognition of vindicatory as well as therapeutic penology, noting that this was "in conformity with what sources of revelation and traditional doctrine teach regarding the coercive power of legitimate human authority." The mandate of Romans 13:4, noted the pontiff, is "as little determined by time and culture as the nature of man and the human society by nature itself."
Catholic theology, as Cardinal Dulles failed to remind us directly, has traditionally defended the right of the state to impose capital punishment for certain heinous crimes. In the public debate over the death penalty, we are dealing with values of the highest order: respect for the sacredness of human life and its protection, the preservation of order in society, and the attainment of justice through law. The function of biblical sanctions against murder, as the Church until fairly recently has understood, is to discourage the wanton destruction of innocent life.
Readers of First Things await an articulation of the Church’s consensual wisdom regarding this issue that does justice both to Scripture and to ecclesiastical tradition.
J. Daryl Charles
Department of Religion and Philosophy
Capital punishment is so inherent in the notion of a state’s right to protect its citizens that up until modern times no one doubted the right of the state to do so. But since the right to inflict death is so close to the power of God, the moral conclusion is that it must be the last resort of the state after all other methods have been tried and exhausted.
Is therefore the Catholic Church abolitionist in the matter of capital punishment? Yes and no. No as a matter of right because the state must retain this power to protect its citizens in extreme cases (e.g., a breakdown of law and order). Yes from a practical point of view and given our modern penal system. The way capital punishment is administered today is the moral equivalent of legal murder because other, nonlethal means exist to protect citizens from murderers. In this sense the Catholic Church today is abolitionist for all practical purposes while still remaining non-abolitionist in theory. Cardinal Dulles is correct when he concludes that in present circumstances "the death penalty ought not to be invoked, because, on balance, it does more harm than good." I consider the matter morally closed.
Peter J. Riga
Avery Cardinal Dulles’ excellent review of the Catholic position clearly shows that the (infallible) teaching of the ordinary Magisterium is that the death penalty is morally legitimate. Hence, arguments against the death penalty are prudential, not moral. And they basically rest on this, as Pope John Paul II said in Evangelium Vitae: "As a result of steady improvement in the organization of the penal system," the need for capital punishment is now "very rare if not nonexistent" as the least severe sanction necessary to ensure obedience to the law. But just what are these improvements, and how is it that before they were made, imprisonment for life was not sufficient to ensure obedience?
I do not see how a rational case can be made on this point. Sanctions are threats of bad effects attached to laws to motivate obedience. But one can only so motivate reasonable people, people looking to their objective advantage. So if the death penalty was legitimate in the past, then it follows that at that time life imprisonment was not sufficient to motivate people not to commit capital crimes like terrorism, murder, or rape. But if it now is sufficient, this has to mean that prison conditions have become significantly worse than a century or more ago, so that now the prospect is as bad as death was then. But in reality, prison conditions have become much more humane than in previous centuries.
It will not do to argue that life in prison was "really" sufficient back then, and society just didn’t realize it and imposed the death penalty because it thought that death was the least sufficient deterrent. There is no difference between this and saying that the death penalty is always "really" wrong, which is contrary to Church teaching.
If the death penalty is the least sufficient deterrent, then to abolish it is to acquiesce in the murders, rapes, and acts of terrorism that would follow. I don’t see how all the arguments Cardinal Dulles lists against the death penalty overcome this one.
George A. Blair
Absent the death penalty, the most severe punishment that the state can impose is life imprisonment without hope of parole. If that is the maximum sentence to be imposed for the commission of the most heinous taking of innocent life, and if that penalty may also be imposed for the commission of other crimes, such as rape, vicious assault, repeated armed robbery, treason, etc., then the conclusion to be drawn is that those lesser crimes are the equivalent evil of murder—the unjustified taking of innocent life. That result would, in the long run, convey to society the idea that murder is no worse than such other crimes, and, hence, the value of innocent life destroyed would be demeaned and cheapened.
Accordingly, I suggest that the death penalty, imposed cautiously and in limited circumstances, is needed, among other reasons, to uphold the value of life—the life of the innocent victim of the crime.
Lawrence J. Franck
Avery Cardinal Dulles does not address the plight of the families of convicted criminals. Consider the wife of a man condemned to prison for the rest of his life. Either she gets a divorce, which we abhor, or she spends her life in unhappy limbo, not quite a wife nor yet a widow, an object of pity or contempt to everyone who knows her. In my judgment it would be more humane to render her a widow. After an appropriate period of mourning, she would be free to remarry or build whatever kind of new life she desired. Similarly, the child who can truthfully say "My father is dead" suffers less abuse from peers than one forced to confess "My father is in prison."
I do not believe capital punishment receives the careful thought the subject warrants. Either commentators are overcome by ripe sentimentality or, inflamed by reports of an especially egregious crime, they demand blood. Cardinal Dulles’ perceptive review of the subject is a welcome exception, for which I am grateful.
Marble Falls, Texas
Avery Cardinal Dulles states that "persons who specially represent the Church, such as clergy and religious, in view of their specific vocation, should abstain from pronouncing or executing the sentence of death." Who among us who professes faith in the risen Lord Jesus Christ should not try to "specifically represent the Church"? We who profess faith in Christ are all his representatives, in all times and under all circumstances. It is clear that we all fail to do this with constancy. The failure, however, does not negate the stated truth. And in no way does it excuse or allow us to act in loco parentis for He Who Is in rendering a final life-or-death decision against those who turn away from Him.
Religious Society of Friends (Quaker)
Avery Cardinal Dulles replies:
All parties to the discussion seem to agree on two basic points: first, that the weight of Scripture and tradition strongly supports the right of the state to inflict capital punishment under some circumstances; and, second, that the Pope and bishops today disapprove of the use of capital punishment. The resulting problem is obvious. Was the teaching of Scripture and tradition wrong, as E. Christian Brugger, Kevin Doyle, and Charles Rice apparently believe? Or are the Pope and the bishops irresponsibly departing from the normative Christian sources, as J. Daryl Charles, George Blair, Lawrence Franck, and Mary Kochan seem prepared to argue?
Those who distance themselves from Scripture and tradition may claim to be loyal to the contemporary Magisterium, but in so doing they go beyond the Magisterium itself. The Pope and bishops, to the best of my knowledge, have not criticized Scripture, the fathers and doctors of the Church, or the previous utterances of the Magisterium. I share their ostensible solidarity with the great tradition. Until someone can show me what was wrong with the previous teaching I will continue to uphold it. Kevin Doyle, while rebuking my conservatism, concedes that it is all too easy to say that because teaching on the death penalty has changed, the Church’s current teaching on other issues is likewise subject to contestation. He mentions abortion and divorce, and he might have added other contentious issues such as contraception and the ordination of women. On all these matters the Church feels obliged to retain the doctrine handed down to her. Her primary concern is not to shore up her own authority but to be faithful to her divine Lord.
Professor Brugger presents one interpretation of the alleged doctrinal change. Whereas previously retribution was seen as justifying the death penalty, we now know, he says, that the death penalty ought never be used as punishment. It is justifiable only on the principle of double effect, as an indirect result of society’s action in defending itself. Prof. Brugger’s strategem fails, in my opinion, because the principle of double effect does not apply if the evil effect is intended (Catechism of the Catholic Church, 2263). In the case of capital punishment, the intended object of the act is precisely the death of the offender.
If the Pope and the bishops were abolitionists like Prof. Brugger, one could sympathize with Prof. Charles and the anti-revisionists, who support the biblical heritage as against the contemporary Magisterium. But as I understand it, the Magisterium is saying that although the biblical and traditional doctrine was sound in principle, there are special circumstances in our own day that make the application of the death penalty undesirable. Moderates such as Peter Riga and Ralph McInerny seem to agree with me in so interpreting the Pope and the bishops. But what are these special circumstances? Three possible answers have been proposed.
Mr. Riga, echoing the very language of John Paul II in Evangelium Vitae and the Catechism, says that improvements in the penal system make it possible for society to defend itself without executing offenders except in very rare cases. I do not personally follow this argument because it is subject to two objections that I have not been able to answer.
The first objection is that the proposal adverts to only one of the four ends of punishment, passing over the other three (retribution, deterrence, and rehabilitation) in silence. Why is only one of the four purposes discussed in connection with the death penalty? Here lurks an ambiguity that, as Prof. McInerny recognizes, needs to be cleared up.
Is the purpose of the death penalty reducible to the physical defense of society against the criminal or does it include the moral defense and cleansing achieved by administering due punishment? In Scripture and the classical tradition the death penalty was approved primarily on the ground that retribution was needed for the moral health of society. St. Thomas Aquinas gives primary emphasis to the retributive goal of capital punishment in the Summa Contra Gentiles, Book 3, chapters 142-146. In the Summa Theologiae he continues to teach that the death penalty is intended to manifest the order of divine justice, which demands that evils be punished according to their gravity (ST I-II, q. 87, art. 3, ad 1). This retributive function is quite compatible with the medicinal value of penalties administered in the present life (II-II, q. 108, art. 3, ad 2), since the death penalty serves the common good by expelling noxious elements from society (II-II, q. 64, art. 2c). In our day the Pope and the Catechism declare that the primary end of punishment is to redress the disorder introduced by the offense (EV 56; CCC 2266). This consideration should not be overlooked in discussions of the death penalty.
The other difficulty is that the ability of society to defend itself by the incarceration of dangerous criminals can hardly be called new. As Mary Kochan says, medieval dungeons and oubliettes were quite effective. In our day, improved means of communication and modern weapons may render it easier rather than more difficult for prisoners to murder their guards and fellow prisoners or to escape. Lifelong solitary confinement can probably eliminate these risks, but is subject to the charge of being "cruel and unusual punishment."
According to a second account, the undesirability of applying the death penalty in our day is connected with what the Pope calls the "culture of death." Some contend that if the state can execute criminals, it will be seen as having power over life and death, with the result that greater scope will be given to abortion, infanticide, euthanasia, and assisted suicide. Kevin Doyle seems to adopt this line, but to my mind the argument is not convincing. Daryl Charles and Lawrence Franck take the equally plausible view that the practice of capital punishment serves to protect the sacredness of human life. The failure to distinguish between the right to life of the innocent and of the guilty may actually be conducive to the culture of death. If the innocent have no more right to life than the guilty, the state can easily claim the right to dispose of burdensome human lives such as unwanted babies and incurably ill patients. Mary Kochan may be correct in saying that the equating of capital punishment with abortion and euthanasia diminishes the credibility of the pro-life movement.
Dissatisfied with these two approaches, I have rather tentatively proposed a third rationale for concluding that the death penalty should rarely if ever be imposed today. The classical tradition took the view that the state stood somewhere between God and society. The rulers were authorized to wield quasi-divine power as God’s ministers. This is, I think, the view of the New Testament authors: not only Paul, but Peter and John as well.
The classical vision of the state has fallen on hard times, perhaps because of the outrageous abuses of governmental power by the Nazis, Stalinists, and Maoists of the past century. For better or for worse, the state in our secular democratic societies is seen as a creature and instrument of the people, bound only to carry out the will of the majority. In a society so governed, it becomes difficult to see the death sentence as representing the divine order of justice. Rather, it is seen as implementing the sovereign will of the people, whose appetite for vengeance grows with what it feeds on.
Moderates such as Charles Rice, Ralph McInery, and Leon Billig seem to find merit in my proposal, without perhaps endorsing everything I say. The reservations of William F. Buckley, Jr., to which Mary Kochan alludes, show the need to maintain key elements in the classical tradition. I stand with Buckley and Kochan in holding that the state has a moral responsibility to uphold the order of justice and that the law has a pedagogical function. I only question whether the execution of a criminal is perceived as representing divine justice in a society like our own.
Several of the letters refer to the deterrent value of the death penalty. Blair affirms this value; Doyle denies it. This is a question of fact that I find difficult to resolve. As I said in my article, it is doubtful that the death penalty as currently administered has much if any deterrent effect.
A number of the letters, while praising certain aspects of my article, think that I am too reluctant to see the death penalty applied today. Mary Kochan, whose observations on the popularity of the death penalty in Western Europe and Canada I have no wish to challenge, parts from me in her views on vengefulness. On this point I think the Scriptures support me. While the passages she cites warn against sentimental pity for executed criminals, texts such as Matthew 5:38 and Romans 12:19 indicate that capital punishment should not be a vendetta visited by victims or their families upon the criminal. On the basis of the Sermon on the Mount, Thomas Aquinas concludes that the Lord forbids killing that results from anger, but not killing that results from zeal for justice (SCG 3.146.9). Some of the recent clamor for the execution of Timothy McVeigh strikes me as barbaric and degrading.
Prof. Charles would like me to "interact" with the biblical and magisterial texts he cites. I see no need to do so, because I fully accept the doctrine of these texts, several of which I cited in my article. Recent magisterial statements have by no means canceled out these authoritative pronouncements, but have raised questions about their application. According to the classical tradition itself, punishment should not be inflicted when the infliction does more harm than good. Prof. Charles errs in stating that this prudential principle is "unsupported either by scriptural confirmation or tradition." Thomas Aquinas asserts that the execution of the wicked is forbidden when it cannot be done without danger to the good (SCG 146.9; cf. ST II-II, q. 43, art. 7, ad 1). As biblical warrant he refers to Matthew 13:29, and as traditional warrant he cites the teaching of Augustine in his Contra Epistulam Parmeniani.
Several other issues raised in the correspondence require at least some brief comment. Mark Totten calls attention to the fact that some offenders have very diminished responsibility for their misdeeds. I agree that the courts should take such factors into account. Leon Billig points out that the execution of the criminal may be more merciful to his family than a sentence of life imprisonment. He may be correct, but the legitimacy of the death penalty should not be made to turn on this secondary issue.
John Rich, finally, raises the question whether all Christians should not consider themselves as representing Christ and the Church. As a Quaker he embodies the Christian radicalism that the Catholic Church has sought to perpetuate in monasteries and in the consecrated life. Those who feel called to this Christian radicalism should, I think, be exempted from occupations that might require violence, as do the vocations of soldiers, police officers, judges, and executioners. But society has a right to expect that some Christians should pursue these vocations, since the order of justice may demand an occasional use of force against malefactors. Officers of justice reflect certain attributes of God, if only those which Luther included in "God’s left hand."
In my original article and in my answers to the criticisms I seek to maintain the reflective and critical posture of a theologian, not the urgency of an advocate or the stridency of a crusader. Activists on both sides may see my position as too nuanced. I insist on the moral and theological relevance of prudential considerations. Kevin Doyle fears that people who use their own prudence will be imprudent; but I would hold that they are morally accountable if they disregard the prudential judgment of the hierarchical leaders, who speak with authority even when they are not handing on the word of the Lord (cf. 1 Corinthians 7:25). Since prudence is a moral virtue, I cannot accept the dichotomy implied in George Blair’s statement, "Arguments against the death penalty are prudential, not moral." The decision whether and when to apply the death penalty cannot be properly made on the basis of abstract dogmatic considerations alone. Christian moral reasoning calls for a high degree of prudence.