The Purposes of Punishment
"If the Pope were to deny that the death penalty could be an exercise of retributive justice, he would be overthrowing the tradition of two millennia of Catholic thought, denying the teaching of several previous popes, and contradicting the teaching of Scripture." Avery Cardinal Dulles
Catholic teaching on capital punishment is in a state of dangerous ambiguity. The discussion of the death penalty in the Catechism of the Catholic Church is so difficult to interpret that conscientious members of the faithful scarcely know what their Church obliges them to believe. Although the constant teaching of the Church has been that the state has a right to impose the death penalty, the Catechism declares that the actual circumstances in which capital punishment is legitimate are "practically nonexistent." Moreover, the Catechism weaves doctrine so tightly together with prudential and factual judgments that it is not at all clear how much of its discourse on capital punishment actually is being put forward as binding Catholic teaching.
Determining the minimum that a Catholic must believe can be a perilous course. Cardinal Newman was right to warn against "that uncatholic spirit, which starts with a grudging faith in the word of the Church, and determines to hold nothing but what it is, as if by demonstration, compelled to believe" [J.H. Newman, "Letter to the Duke of Norfolk" (1875)]. By the same token, the Second Vatican Council sought to overcome an attitude that conceived of morality as prescribing only the minimum standards of conduct for avoiding mortal sin. The Council called instead for a "perfecting" of moral theology that would help the faithful not only to avoid mortal sin, but also to pursue their "exalted vocation . . . in Christ" [Decree on Priestly Formation Optatam Totius, 16; cf. Veritatis splendor, 71.
However, even those Catholics who strive most conscientiously to cultivate what Newman called "a generous loyalty towards ecclesiastical authority" might well acknowledge that it nevertheless remains necessary sometimes to set out minimum standards with clarity. Nearly 40 years after the close of the Council, it is not unusual for the St. Joseph Foundation to receive questions on how much of the Mass one must attend to fulfill one's Sunday obligation. Similarly, each Lent we receive questions about precisely which foods are covered by the Church's requirement to abstain from meat on Fridays. Eggs? Broth? Snakes and lizards? (Yes, someone really asked this last one.)
One might wish that all of the faithful responded to the Church's laws with a desire to exceed the minimum requirements but, in a Church of one billion members, it would be naive to assume that all Catholics do so all of the time. As a general matter, therefore, it remains necessary to address such questions, even if this necessity is a less than inspiring reflection on human nature.
In the case of the death penalty, it is necessary to determine what is the minimum that a Catholic must hold, but this necessity arises not from an ungenerous or minimalist spirit on the part of those who ask the question, but rather from a number of more compelling considerations. First, what is at issue is not a desire simply to believe the minimum, but rather to determine what the mind of the Church really is. There are Catholic theologians of unquestioned orthodoxy on both sides of the capital punishment issue [T. Williams, "Capital Punishment and the Just Society," Catholic Dossier 4, no. 5 (1998), 28]. Second and more importantly, capital punishment is a question that interests not only theologians, but also "dentists, housewives, taxi drivers, accountants, and hairdressers" [ibid.]. In fact, the widespread concern with this issue is itself a response to the Council's call for all of the faithful to take a lively interest in earthly affairs [Constitution on the Church in the Modern World Gaudium et spes, 43, 75, 76]. Third, this question implicates the purity of the Church's own doctrine, given that prominent Catholics such as justice Antonin Scalia are questioning whether the recent statements of the Magisterium contradict previous Church teaching [National Catholic Register (17-23 Feb. 2002 & 24-31 Mar. 2002)].
The Case for the Legitimacy of Capital Punishment
The constant teaching of the Church has been that, in appropriate circumstances, the State has a right to inflict the death penalty on criminals. Space does not permit an exhaustive review of the Scriptural, theological and Magisterial authorities asserting the legitimacy of capital punishment, but interested readers may consult the article by Father Williams cited above and the celebrated speech by Cardinal Dulles on this subject [A. Dulles, "Catholicism and Capital Punishment," First Things 112 (2001)].
The two passages from Scripture cited most often in support of the legitimacy of capital punishment are the injunction to Noah, "Whoever sheds the blood of man, by man shall his blood be shed" (Gen. 9:6 RSV CE), and St. Paul's warning that the person in authority is God's servant and therefore "does not bear the sword in vain" (Rom. 13:1-4 RSV CE). Some of the early Church fathers argued against the death penalty, but the Church's two greatest theologians, St. Augustine and St. Thomas Aquinas, both wrote in favor of it [City of God 1.21; Summa theologica II-II, q. 64].
Pronouncements by the papal magisterium for centuries have affirmed the legitimacy of the death penalty. According to Williams, the first pope to teach in favor of capital punishment was Innocent I in 405. Citing the words of St. Paul, Innocent said, "It must be remembered that power was granted by God, and to avenge crime the sword was permitted; he who carries out this vengeance is God's minister." Williams cites an 866 letter by Pope Nicholas I to the opposite effect, but this letter seems to question the application of the death penalty rather than the principle itself.
Perhaps the most authoritative papal pronouncement in defense of capital punishment was the profession of faith that Pope Innocent III prescribed in 1208 for a group of Waldensians returning to the Church. This profession of faith included the following affirmation: "Concerning the secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly" [DS 795/425]. The 16th century Catechism of the Council of Trent taught that the civil authority is the "legitimate avenger of crime," and that, when it executes criminals, it acts not in defiance of the Fifth Commandment, but rather in obedience to it. More recently, Popes Leo XIII and Pius XII have affirmed the legitimacy of capital punishment.
The Case for the Almost Absolute Exclusion of the Death Penalty
Recent statements of the Magisterium manifest Pope John Paul II's strong aversion to the death penalty. The most recent pronouncements appear in the encyclical Evangelium vitae (1995) and in the official version (editio typica) of the Catechism of the Catholic Church (1997). In Evangelium vitae, the pope says that the state should not execute criminals "except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society" [EV 56]. Today, the pope says, as a result of improvements in the penal system, these cases of absolute necessity "are very rare, if not practically non-existent" [ibid.].
Evangelium vitae appeared after publication of the preliminary version of the Catechism in 1992 but before publication of the official version in 1997. The major change between the two versions was a revision of the passage on the death penalty to make the Catechism track the language of Evangelium vitae. The official version of the Catechism states 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" [CCC off. vers., 2267]. Further, the official version quotes Evangelium vitae to the effect that, as a result of the options that the state has for preventing crime today, "the cases in which the execution of the offender is an absolute necessity 'are very rare, if not practically non-existent'" [ibid.].
A Primer on Punishment
These recent pronouncements of the Magisterium Evangelium vitae and the Catechism affirm the Church's traditional teaching that, in appropriate circumstances, the State may have recourse to capital punishment. However, the same statements circumscribe very narrowly the ambit in which this recourse is legitimate. In the words of the director of the commission that prepared the Catechism, the official version "leaves the door to the death penalty theoretically open . . . , while closing it practically" [C. Schonborn, "Brief Note on the Revision," Catholic Dossier 4, no. 5 (1998), 10]. This unprecedented restriction on the imposition of the death penalty raises the question of the legitimate ends or purposes of punishment.
The key issue in the debate over the death penalty is whether the recent statements of the Magisterium contradict the Church's previous teaching on the purposes of punishment. The Catholic tradition has recognized three such purposes:
- defense of society against the criminal;
- rehabilitation of the criminal, and
- retribution or the reparation of the disorder caused by the transgression.
In addition, some authorities list deterrence as a fourth purpose of punishment [Dulles, "Catholicism and Capital Punishment"]. The most important question raised by the recent Magisterial pronouncements is whether retribution remains a legitimate purpose of punishment in the context of the death penalty [cf. Pope Pius XII, Address to Italian Catholic Jurists Resta ora (5 Feb. 1955) (affirming retribution as a legitimate end of punishment)].
The parts of the Catechism at issue are two consecutive passages: section 2266 on punishment in general and section 2267 on the death penalty. The section on punishment in general reaffirms the traditional formulation of the triple purpose of punishment, and it describes retribution as the first of these purposes.
Legitimate public authority has the right and 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 [CCC off. vers., 2266].
However, as Father Rutler notes, the very next section of the Catechism that is, the one on the death penalty ignores this very teaching on the ends of punishment [G. Rutler, "Scalia's Right: Catechism's Problematic," National Catholic Register (24-31 Mar. 2002)]. The Catechism seems to recognize only a single purpose of capital punishment the physical safety of persons. It seems not to recognize retribution as a legitimate purpose.
This appears more clearly if one compares the preliminary and official versions of the Catechism. The preliminary version of the Catechism said, "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 . . ." [CCC prelim. vers., 2267 (emphasis added)]. Thus, this passage described as justifications for capital punishment not only the safety of persons, but also the protection of public order. The ordinary meaning of public order is sufficiently broad to encompass the traditional purposes of punishment, namely retribution and deterrence.
However, in the revision of the Catechism, the reference to public order was deleted, so that a sole justification for the death penalty remained in the official version, namely physical safety. "If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means . . ." [CCC off. vers., 2267 (emphasis added)].
This circumstance caused Justice Scalia to declare that he is unable to accept the pronouncements of the recent Magisterium. Scalia believes that, to eliminate retribution as a legitimate purpose of capital punishment is to depart from "the (infallible) universal teaching of the past 2,000 years" [A. Scalia, "Letter to the Editor," National Catholic Register (24-31 Mar. 2002)].
As the quotation at the head of this article makes clear, Cardinal Dulles appears to have some sympathy with the Scalia position. That is, Dulles agrees that a denial of retribution as a legitimate purpose of capital punishment would be an overthrowing of traditional Catholic teaching [A. Dulles, "Seven Reasons America Shouldn't Execute," National Catholic Register (24-31 Mar. 2002)]. However, Dulles does not believe that this is what the Magisterium is teaching.
Rather, Dulles believes that the passages in question from Evangelium vitae and the Catechism constitute not Church teaching, but rather the "prudential judgment" of the pope that, in our day, bloodless means of punishment generally are adequate [ibid.]. Father Rutler agrees in substance, but is more critical of what he calls the "problematic" decision to place a prudential judgment in a catechetical text.
Dulles and Rutler draw a crucial distinction between actual Church teachings and the prudential judgments of the pope. Both Evangelium vitae and the Catechism rely heavily on an evaluation of contemporary penal systems. This evaluation might be correct as applied to some penal systems, but incorrect as applied to others. In addition, it might be correct today, but might become incorrect in the future as a result of a decline in penal systems. Finally, it is a matter about which people even orthodox Catholics legitimately might disagree.
Catholics are obliged to give "a religious submission of the intellect and will" to the ordinary Magisterium, but this duty attaches only to doctrines and teachings of the Church [cann. 212 §1, 752]. This same duty of submission does not attach to the mere prudential judgments of the Church's pastors. The conclusion that the circumstances justifying the death penalty are "practically non-existent" is based on a prudential judgment about the state of the penal system. As a result of the fact that a Catholic legitimately might disagree with this judgment, it follows that he legitimately might disagree as well with the conclusion that the circumstances justifying capital punishment are "practically non-existent."
A Development of Doctrine?
The insights of Dulles and Rutler offer assistance in resolving this apparent conflict. However, the distinction between teachings and prudential judgments is relevant primarily to the practical question of whether or not the circumstances justifying the death penalty are virtually non-existent. It is less clear that this distinction resolves the doctrinal issue of whether or not retribution remains a legitimate purpose of capital punishment.
The starting point for analysis of this issue must be the text of the Catechism itself. On the purpose or purposes of capital punishment, the official version says,
[T]he 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 are more in conformity to the dignity of the human person [CCC off. vers., 2267].
The thrust of this passage is that the defense of human lives is the only purpose that justifies the death penalty. By implication, retribution is excluded as a legitimate end or purpose of capital punishment.
The theological innovation in the recent Magisterial pronouncements is the analysis of the death penalty not in view of the Church's traditional teaching on punishment, but rather in view of Church teaching on legitimate defense [EV, 561. That is, Evangelium vitae and the Catechism treat the death penalty merely as one species of the genus of legitimate defense, whereas traditionally the Magisterium had treated capital punishment and legitimate defense as two separate genera or categories of circumstances in which the killing of a person did not violate the Fifth Commandment [G. Bradley, "The Teaching of the Gospel of Life," Catholic Dossier 4, no. 5 (1998), 43].
The practical effect of analyzing the death penalty in terms of legitimate defense is to restrict the circumstances in which it properly may be imposed. In self-defense one may use only that level of force necessary to protect oneself. Similarly, the Catechism permits imposition of the death penalty only to the extent necessary to defend human lives. By contrast, when the death penalty is analyzed in terms of traditional teaching on punishment, legitimate justifications include not only physical safety, but also retribution and deterrence.
Professor Gerald Bradley has studied carefully the difficulties with the approach taken in recent Magisterial pronouncements. His conclusion is that analyzing capital punishment in terms of legitimate defense renders the recent teaching of the Magisterium obscure. As a result, Bradley believes that this teaching is in need of "authoritative clarification" [Bradley, 43-44]. Bradley is correct.
My opinion is that, to a certain extent, analyzing capital punishment in terms of legitimate defense is a proper development of doctrine, but that the Magisterium's recent pronouncements also contain some deficiencies that require correction or clarification. The recent Magisterium teaches that imposition of the death penalty is legitimate only when non-lethal means are insufficient to protect society's legitimate interests. The previous Magisterium did not make this requirement explicit in the way that the recent Magisterium has. The chief restriction that the previous Magisterium placed on capital punishment was that it could be imposed only by legitimate civil authority and not by private persons. However, there is no inconsistency between the teaching of the previous Magisterium and this new requirement that the death penalty be applied only when necessary. As a result, this new requirement appears to qualify as a legitimate development of doctrine [cf. J.H. Newman, An Essay on the Development of Christian Doctrine (1878), II.V].
However, there are limits to this analysis. There is no difficulty with declaring that capital punishment may be imposed only when necessary to vindicate legitimate societal interests, but the context of legitimate defense is insufficient to specify the full range of society's legitimate interests. Under the principles of legitimate defense, physical safety is the sole justification for the use of lethal force, but traditional teaching on punishment in general and capital punishment in particular recognizes other legitimate purposes such as retribution and deterrence.
When the Magisterium inserts itself into the prudential order, it is possible "that some Magisterial documents might not be free from all deficiencies" [Congregation for the Doctrine of the Faith, "Instruction on the Ecclesial Vocation of the Theologian" (24 May 1990), 24]. This may be the case when the Magisterium addresses new questions because such pronouncements can contain both "true assertions" as well as others which are "not sure" [ibid.].
I believe that these recent pronouncements contain a legitimate development of doctrine, namely that, to a certain extent, it is proper to analyze capital punishment in light of Church teaching on legitimate defense and that, in this light, it becomes clear that capital punishment is legitimate only when non-lethal means are insufficient to vindicate legitimate societal interests. However, my opinion also is that these pronouncements are "not free from all deficiencies." That is, they define too narrowly the interests that society legitimately may vindicate through imposition of the death penalty. These legitimate interests are not limited to the protection of physical safety, but, consistent with the Church's traditional teaching on the purposes of punishment, they also include retribution or the reparation of the disorder created by the crime.
Towards a Clarification
The precursor to the Catechism, which predated even the 1992 preliminary version, was the "Revised Project" of 1989. Like both the preliminary and official versions of the Catechism, the Revised Project expressed a predominantly negative judgment on capital punishment. However, unlike the Catechism, the Revised Project made clear that the nature of this judgment was prudential rather than doctrinal.
It would be fitting to set aside the death penalty exacted by society on those found guilty of crimes of extreme gravity. Although the punishment is legitimate, the Church hopes for a habitual recourse to clemency . . . [Revised Project (1989), 3541, quoted in Schonborn, 10].
The pastors of the Church would do well to return to this type of formulation. The Revised Project was consistent with the Church's constant teaching on the purposes of punishment, and it also would have been consistent with a doctrinal development to the effect that capital punishment should be imposed only when necessary. A revival of this formulation would allow the pastors to continue their advocacy against the death penalty, but it also would make clear that this advocacy springs primarily from a prudential judgment and an appeal to clemency rather than from a doctrine that all Catholics are required to believe or hold.
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