Thoughts on the Death Penalty and Selective Obedience

Four Catholic magazines/newspapers (two of which I consider orthodox) have issued a joint call for the end of the Death Penalty in America. In doing so, they are echoing the teaching of the Church, emphasized by Popes St. John Paul II, Benedict XVI and Francis. One example of this joint statement: "National Catholic Journals Unite: ‘Capital Punishment Must End’ | Daily News | NCRegister.com."

Unfortunately (but hardly surprising), for this day and age, a group of Super Catholics denounced this action as a politically liberal action, contrary to the teaching of the Church and more proof of the “wishy washy post Vatican II era." I find this to be rather bizarre, an example of their neither understanding the Catholic teaching of the past which they cite nor the modern teaching which they deride. 

The Modern Magisterial Teaching is Binding

The problem is, even when something can be licit in some circumstances, it doesn’t mean that those circumstances can be found in all times and places. It also ignores the fact that the Church, under the headship of the Pope can decide whether the circumstances apply in this time and this place. If the magisterium rejects the application in this time and place, the run of the mill Catholic cannot say the magisterium is wrong. Consider what Canon Law says:

can. 752† Although not an assent of faith, a religious submission of the intellect and will must be given to a doctrine which the Supreme Pontiff or the college of bishops declares concerning faith or morals when they exercise the authentic magisterium, even if they do not intend to proclaim it by definitive act; therefore, the Christian faithful are to take care to avoid those things which do not agree with it.

 

can. 753† Although the bishops who are in communion with the head and members of the college, whether individually or joined together in conferences of bishops or in particular councils, do not possess infallibility in teaching, they are authentic teachers and instructors of the faith for the Christian faithful entrusted to their care; the Christian faithful are bound to adhere with religious submission of mind to the authentic magisterium of their bishops.

 

can. 754† All the Christian faithful are obliged to observe the constitutions and decrees which the legitimate authority of the Church issues in order to propose doctrine and to proscribe erroneous opinions, particularly those which the Roman Pontiff or the college of bishops puts forth.

 

can. 755 §1.† It is above all for the entire college of bishops and the Apostolic See to foster and direct among Catholics the ecumenical movement whose purpose is the restoration among all Christians of the unity which the Church is bound to promote by the will of Christ.

 

§2.† It is likewise for the bishops and, according to the norm of law, the conferences of bishops to promote this same unity and to impart practical norms according to the various needs and opportunities of the circumstances; they are to be attentive to the prescripts issued by the supreme authority of the Church.

With that in mind, the Catechism of the Catholic Church makes clear that while there can still be recourse to the Death Penalty, it indicates that there is virtually no cases where it applies today:

2266 The efforts of the state to curb the spread of behavior harmful to people’s rights and to the basic rules of civil society correspond to the requirement of safeguarding the common good. Legitimate public authority has the right and the duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people’s safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party. (1897–1898; 2308)

2267 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. (2306)

If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with 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 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 non-existent.”

So, even if recourse to the Death Penalty is possible, the non-lethal means must be taken when they are sufficient. This is not an opinion. It requires religious submission of intellect and will. There may be legitimate disagreement over whether or not a specific case might justify the death penalty, but we cannot treat it as a norm.

St. John Paul II has spoken about this in formal teaching and in his homilies. He makes a good distinction on why the Death Penalty can and must be reduced:

Dear brothers and sisters, the time has come to banish once and for all from the continent every attack against life. No more violence, terrorism and drug-trafficking! No more torture or other forms of abuse! There must be an end to the unnecessary recourse to the death penalty! No more exploitation of the weak, racial discrimination or ghettoes of poverty! Never again! These are intolerable evils which cry out to heaven and call Christians to a different way of living, to a social commitment more in keeping with their faith. We must rouse the consciences of men and women with the Gospel, in order to highlight their sublime vocation as children of God. This will inspire them to build a better America. As a matter of urgency, we must stir up a new springtime of holiness on the continent so that action and contemplation will go hand in hand.

 

[John Paul II. (2014). Homilies of Pope John Paul II (English). Vatican City: Libreria Editrice Vaticana. Homily of Jan 23, 1999] (emphasis added)

“The unnecessary recourse to the death penalty,” is the crux of the issue. If a person is tried and found guilty, the first question is whether the Death Penalty is necessary, not whether the guilty party “deserves” it. If it is not necessary, it must not to be applied.

He had also made use of the teaching authority of his office (which means, it requires our assent), saying in the encyclical Evangelium Vitae:

56. This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God’s plan for man and society. The primary purpose of the punishment which society inflicts is “to redress the disorder caused by the offence”. Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfils the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated.⁴⁷

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.

So it’s pretty clear that the magisterium has taught in a way that requires the assent of the faithful that the Death Penalty only be applied in cases of (practically non-existent) necessity.

The Classical Church Documents—and How they Don’t Contradict Modern Teaching

The Catholic theologians from earlier times have put more emphasis on the right of the state to employ the death penalty. However, they do not enshrine it in the way that its proponents would have us believe is being contradicted today. For example, St. Thomas Aquinas—who is constantly mentioned as a source to justify their view—expresses himself in this way:

Now every part is directed to the whole, as imperfect to perfect, wherefore every part is naturally for the sake of the whole. For this reason we observe that if the health of the whole body demands the excision of a member, through its being decayed or infectious to the other members, it will be both praiseworthy and advantageous to have it cut away. Now every individual person is compared to the whole community, as part to whole. Therefore 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 Cor. 5:6).

[Summa Theologica, II-II q.64 a.2 resp.a]

So, St. Thomas Aquinas equates capital punishment with amputation of a diseased body part, and indicates that it can be a justified remedy if there is danger of a spreading infection. But the problem of modern Catholics citing his work is that the Church today has not contradicted St. Thomas Aquinas. The modern magisterium (to use St. Thomas’ analogy) has merely said that in these times “amputation” is almost never needed as a treatment.

What gets overlooked when one relies on the older Church documents and ignores the modern ones is the fact that some things were impossible then that are possible now (for example, in the 13th century, one had to amputate a gangrenous wound, but today it is possible to save it). There were no “Super max” prisons in the 13th century. It was much easier then for a dangerous criminal to escape and cause more harm than it is now.

The Roman Catechism gives us another consideration:

Question IV

It is lawful to sentence Men to death, or to slay them, in Judgment

Another kind of slaying is also permitted, which applies to those civil magistrates, to whom is given the power of life and death, by the legal and judicial use of which they punish the guilty, and protect the innocent. Far from involving the crime of murder, the just exercise of this power is an act of paramount obedience to this divine law, which prohibits murder. For since the end of this commandment is the preservation and security of human life, to the attainment of this end the punishments inflicted by the civil magistrates, who are the legitimate avengers of crime, naturally tend, giving security to human life by repressing audacity and outrage with punishments. Hence these words of David: I will early destroy all the wicked of the land, that I might cut off all wicked doers from the city of the Lord. [The Catechism of the Council of Trent (p. 418). London: George Routledge and Co.]

This equates the use of Capital Punishment with the protection of citizens from crime (self defense). There is no difference between this and the Catechism of the Catholic Church. However, the Catholic Church does not and never did sanction the use of a greater punishment if a lesser punishment would be more just. Self Defense requires us to use the minimum force necessary. If I have the ability to defend myself or my family in a non-lethal way, I do evil by killing the foe anyway. Likewise, if the state does not need to use capital punishment to defend the law abiding citizens, the state cannot justify using it.

Conclusion

So, we can see that the teachings of the modern Popes and the Catechism do not contradict the earlier teachings. They merely demand a more rigorous standard before applying the Death Penalty—one that the magisterium teaches is practically non-existent today when it comes to the ability of the State to deal with criminals in non-lethal ways. Given that Jesus Himself gave us a teaching that held one to a higher standard than the Jewish Law did (see Matthew 5:21-48), we cannot object to the Church following His example.

It seems to me that the problem is that certain Catholics equate opposition to the Death Penalty with political liberalism. They think political liberalism is wrong (often correctly). Therefore they assume that the Church is “turning left,” instead of applying the teaching of the Church to the conditions of the modern age. The principle of the Church teaching still exists, uncontradicted, but sometimes the Church sees a need to decree specifically how the Church teaching must be applied in a certain place or time. The Church has the authority and the responsibility to do so for the salvation of souls.