Capital Punishment: Drawing the Line Between Doctrine and Opinion

By Dr. Jeff Mirus ( bio - articles - email ) | Jun 07, 2004

Abortion has been the defining pro-life issue and, for this reason, those who find themselves on the anti-life side of the abortion debate have been very eager to turn the tables by elevating capital punishment to the same status. Thus, when a particular candidate is praised for his pro-life record, someone may remark that, no, this candidate is not pro-life, because he supports the death penalty.

Something Happened in 1995

Before 1995, most pro-lifers were able to respond easily and clearly by pointing out that Christian tradition in general, and the Magisterium of the Catholic Church in particular, upheld the right of the State to inflict the death penalty for grave crimes. Therefore, it was incorrect to use one’s position on the death penalty as a litmus test for being pro-life.

However, something extraordinary happened in 1995 which has left Catholic pro-lifers deeply confused about the Church’s teaching. In that year, Pope John Paul II argued against the death penalty in his landmark encyclical Evangelium Vitae, the same encyclical which formally condemned abortion and euthanasia while brilliantly reaffirming the Catholic culture of life.

Understanding Changes to the Catechism

To see the magnitude of the impact of Evangelium Vitae, one need look no farther than the Catechism of the Catholic Church. The Catechism was developed over a period of years and issued in various languages before the definitive Latin text was complete. Thus, the text was first published in English in 1994, but the definitive Latin was not promulgated until 1997, at which time all the various earlier vernacular language editions were revised to match it.

Article 5 of the Catechism deals with the fifth commandment (“You shall not kill”). Numbers 2263 – 2267 cover legitimate defense, including the right of the State to defend itself— even to the point of inflicting death—against both hostile nations and criminals. Hence the death penalty is treated in this section. In the 1994 text, the traditional teaching is set forth in number 2266: “…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.” The next section (2267) goes on to recommend that “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….”

But Evangelium Vitae was promulgated the next year, and the offical Latin text of the Catechism was revised in the light of its teaching. The material covered in paragraphs 2266 and 2267 was reorganized somewhat so that 2267 alone deals with the death penalty. The revised and final English translation of 2267 is worth quoting in full:

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, 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 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 non-existent."

Evangelium Vitae's Impact

All of the ideas in the second half of this paragraph, including the quotation, come from Evangelium Vitae. Some of the phraseology is drawn from EV 27, but the core is taken from two points made by the Pope in EV 56:

Point 1. “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.”

Point 2: “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.”

In the next paragraph, the Pope reaffirms Point 1 by quoting the original text of the Catechism itself: “In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: ‘If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person’.”

Traditional Doctrine Affirmed . . .

The first step in properly interpreting these developments is to note again that the Church’s traditional teaching on the death penalty has been upheld. It is unnecessary to reiterate the applicable texts of the Old and New Testaments, the Fathers, prior Popes and Councils, because the Catechism still begins its discussion by upholding this teaching. In fact, in EV 55, just before making the two points cited above, the Pope reaffirmed and explained the traditional doctrine:

Moreover, “legitimate defence 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".⁴⁴ 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.⁴⁵

. . . and Developed

The second step is to recognize that the Pope has genuinely developed the Church’s teaching on capital punishment. The Church had always taught that punishment must be proportionate to the crime, and that the death penalty must necessarily be reserved for grave matters. But in Evangelium Vitae, the Pope stresses an additional condition. He teaches that the death penalty must be reserved for cases of “absolute necessity”, and he defines absolute necessity as meaning “when it would not be possible otherwise to defend society.”

In his affirmation of the original Catechism’s text on this same point, note that the verb “should” has (in the English) been changed to “must”. It is no longer a recommendation but a requirement to use bloodless means when they are sufficient to the purpose. The final official text of the Catechism took the entire encyclical into account and revised a good deal of the wording of this section, without further altering the meaning. The English translation now uses the equally strong verb “will”. In connection with these textual changes, it is important to note that, like all true doctrinal developments, this one both conserves and refines the traditional teaching; it does not contradict it.

The Critical Third Step: Where Many Go Wrong

The third and final step is to address properly the Pope’s second point about modern penal systems. The key here is to understand that, in his first point, the Pope had already gone as far as the Church can go toward bridging the gap between moral teaching—over which the Church has complete authority—and prudential judgement—over which it has no authority. Point 2 is purely prudential.

It is this which has confused not only many ordinary Catholics, but also careless theologians and even bishops. For, from the standpoint of Catholic doctrine, too few seem to understand that the discussion is closed by the conservation and development of the Church’s teaching outlined above. Anyone who forms his judgements within these parameters has satisfied the demands of the Magisterium. However, from the standpoint of prudential judgement, there is considerably more to be said.

The Place of Prudential Judgement

In matters governing social stability and public safety, prudential judgement is inevitable. Moreover, the authority for judgement in this sphere is not given to the Church. It is the province of the “secular arm”—the legitimately constituted civil authority—to decide what is and is not sufficient to protect public safety.

Now, since the Church teaches that non-lethal means of punishment must be used whenever they are sufficient, no Catholic politician or ruler worthy of the name will attempt to impose the death penalty in cases where he does not believe it necessary to protect the public safety. But politicians, rulers, States and, indeed, the man in the street, may reasonably differ over whether capital punishment is necessary to protect the public safety in our time and under our circumstances.

In Evangelium Vitae 27, the Pope states that “modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform.” And, as we have seen in Point 2 cited above, in EV 56 he argues specifically that the improvement in modern penal systems renders the death penalty unnecessary for the protection of public safety.

It is, I think, unfortunate that this prudential judgement was added to the Catechism. No matter how valuable it may be, the protection of the Holy Spirit does not apply to it, nor can such judgements ever be part of the Church’s Magisterium. The Church has no special gift for discerning the capabilities of the modern age in comparison with past ages, the quality of the world’s penitentiaries, or —to return to the main point—what is necessary for the protection of the public safety. For this reason, her opinions on this subject do not properly belong in catechisms.

The Eternal and the Provisional

Happily enough, the particular judgement about penal systems did not make it into the final Catechism text. But the larger judgement of modern capabilities did. The Pope himself acknowledges, I think, the provisional nature of such judgements. In the critical prescriptive passage (EV 56), immediately after making his comment on penal systems, he continues into the next and definitive paragraph with the transitional words “in any event”. John Paul II seems to be saying that regardless of the merits of his opinion about contemporary conditions, the key point is that bloodless means must be used when they are sufficient. As indeed it is.

But within these parameters, the debate quite legitimately rages on. Is anything more than restraint of the guilty required for public safety? Is deterrence necessary? Is capital punishment a deterrent? Is a recognizable balancing of the demands of justice required for a culture to avoid imploding into lawlessness? Does that recognizable balance require execution? Does incarceration of murderers put other prisoners at risk? Can guilt be sufficiently well-established to justify execution? Is the death penalty typically reserved for the poor and marginalized, while the rich and popular avoid it? Is reprieve a form of mercy which is often reformative?

Unavoidable Decisions and Continued Debate

It is worth noting that the ecclesiastical chorus against capital punishment did not start with John Paul II. As early as 1980, a majority of the United States Bishops issued a statement which, while upholding the right of the State to inflict the death penalty, offered a number of arguments against using it. Many other bishops and theologians around the world have argued against the practice under contemporary circumstances.

In addition, the current Pope’s aversion to the death penalty did not begin or end with Evangelium Vitae. In fact, the Pope’s principal argument seems to be that, given our current culture of death, the affirmation of the importance of preserving the life even of those convicted of grave crimes, while not strictly necessary, may serve as another candle against the darkness.

All of this is more grist for the layman’s mill, but it is not the stream of water which turns the grindstone. To the laity belong such judgements. We cannot escape them. Still, if our current great pope has taught us anything at all, he has taught us to be both serious and cautious in how we decide. He has given us the task to consider carefully whether we do in fact have the means to suppress crime without denying criminals the chance to reform.

Further information on capital punishment at CatholicCulture.org:

• John Paul II, Evangelium Vitae (On the Value and Inviolability of Human Life) (1995)

• List of Catechism Changes (1997)

• Cardinal Avery Dulles, Catholicism and Capital Punishment (2001)

• Avery Dulles and His Critics: An Exchange on Capital Punishment (2001)

• John A. Hardon, SJ, Capital Punishment (Source unknown, but clearly before 1994)

• Arbp. Renato R. Martino, Death Penalty is Cruel and Unnecessary (2001)