Welcoming the Catechism’s changes on the death penalty

By Dr. Jeff Mirus ( bio - articles - email ) | Aug 09, 2018

A number of bishops around the world, including the episcopal conferences of Latin America and the United States, have welcomed Pope Francis’ recent revision to the Catechism of the Catholic Church on the use of the death penalty. But as Phil Lawler pointed out in commentaries posted on August 2nd and August 3rd, the revised text manages to be confusing without actually changing Catholic doctrine.

The new text really makes a prudential argument, in light of both contemporary sensibilities and the modern ability to control criminals without executing them, that the death penalty should never be chosen as a punishment. Under the perceived conditions today, the Catechism states, it is “inadmissible”. In fairness to Pope Francis, we have Pope Saint John Paul II to thank for including a prudential judgment on this question in the Catechism. All Pope Francis has done is to increase the force of the argument John Paul advanced in Evangelium Vitae, namely that in light of today’s penal systems, recourse to the death penalty should be very rare (see especially no. 56). This was already in the Catechism.

Pope Francis has reflected on steadily shifting attitudes since that time and has concluded that, in our day, recourse to the death penalty should be not just rare but (under his perceived contemporary conditions) inadmissible.

Of course, one must also conclude that if the conditions Pope Francis cited do not obtain in this or that circumstance, then the death penalty would not be inadmissible. The Pope is not arguing that the death penalty is always and everywhere intrinsically immoral (which would squarely contradict previous Catholic teaching), but that in the current attitudinal climate and given the current range of options, use of the death penalty should not be considered. There is no guarantee that the Pope’s assessment of the current attitudinal climate or the current range of options is accurate, or that these things must necessarily remain unchanged over time. But for now, this represents a practical moral judgment to which he feels confident enough to commit the Church going forward

Hence after enumerating the changed circumstances, the Catechism concludes: “[T]he Church teaches, in the light of the Gospel, that ‘the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person’, and she works with determination for its abolition worldwide.” The quotation is taken from a prior address of the Holy Father which is not even close to being magisterial, but it is a strong pattern in secondary Church documents to incorporate papal quotes even from non-magisterial sources.

Relevant concerns

There are good reasons to welcome this new emphasis, as many bishops have done. I will come to them in a moment. But for those of us who believe doctrinal precision is as vital to the Catholic community as the skeleton is to the human body, the present formulation is deficient. The distinction between the doctrinal and the prudential is severely muted in the text itself, requiring (for example) the reader to recognize that the word “inadmissible” creates a very different sort of moral statement than we would have if the term “intrinsically immoral” had been used. Moreover, the primary purpose of a catechism is to include precise doctrinal and moral statements, not prudential judgments, which would ordinarily be included only to exemplify a point, without vouching for the circumstantial details.

In particular, the phrase “the Church teaches” strikes a false note, since the Church cannot really teach that a certain option, not in itself intrinsically wrong, must never be used, for prudential reasons, under any circumstances whatsoever. She can urge a particular approach as “highly desirable” or as “best”, and give reasons for this practical judgment. In fact, she commonly does exactly this in social encyclicals, where she attempts to guide all of us to choose methods of socio-economic and political practice which most reflect the dignity of the human person (recommendations which have at least sometimes proven ill-advised under the actual circumstances in which they would be implemented).

The problem with using the Catechism for all this, and using the word “teaches”, is that even popes often miss the mark when it comes to recommending the wisest policies to follow in human affairs. In the end prudential decisions in temporal governance, by the Church’s own formal and official teaching, must be left to the laity. Popes and bishops can teach moral principles and offer spiritual counsel. But it is up to the laity to discern, within the range of moral options, which policies will best serve the common good in the context of the circumstances “on the ground”.

Meanwhile, too many bishops and theologians have referred to “the development of doctrine” to explain the new text, forgetting the distinction between doctrinal truths and moral principles on the one hand and prudential judgments on the other, and also forgetting that one of the signs of authentic development is that it refines our understanding while corroborating what has been taught before. Thus it cannot be a legitimate development of doctrine to deny what the Church has previously taught. The word “inadmissible” can be misinterpreted to do exactly this, yet the text includes no actual doctrinal development whatsoever, being purely prudential in the context.

Again, we do have Pope Saint John Paul II to thank for this confusion. But John Paul did actually develop Catholic doctrine on capital punishment as follows: Reaffirming that its morality depends on the right of self-defense (as in just war), he refined the Church’s position on the death penalty by teaching, therefore, that it may be used morally only to punish grave crimes (which had long been taught) and only when necessary to protect the community (a legitimate development, making the Church’s teaching more precise).

In reality, then, the Church’s doctrinal teaching (a moral teaching, derived from the natural law) is now exactly as Pope Saint John Paul II left it—as I explained in an essay in 2004 reflecting on the Catechism text developed under his leadership: Capital Punishment: Drawing the Line Between Doctrine and Opinion. But note: It is a short step from the moral principle (that the death penalty is just only when necessary to protect the community) to the prudential moral conclusion that, if it is essentially self-evident that this necessity does not exist under contemporary circumstances, the death penalty is inadmissible.

In any case, for better or worse, catechisms have, in our time, rapidly become more comprehensive documents, incorporating not only the bare bones of doctrine but an effort to impart the broader spiritual and moral understanding that is helpful in forming readers for a proper Christian witness in the world. No catechism has ever been without gaps and flaws, of course, and just because something is in a catechism does not mean its formulations succeed in capturing the meaning of each doctrine in a manner both perfect and exhaustive—an accomplishment which is actually humanly impossible.

Pointing in the right direction?

In light of what appear to be the larger purposes of catechisms in our day, especially in a modern culture that is dominated by the affective rather than the intellectual, I can well understand why a great many serious Catholics welcome the new text. Doctrinal precision is both important and helpful, but it is not the only criterion for assessing the moral effectiveness of the Church, or of Catholics in general. In Western culture, there has certainly been a general development of caution about the use of capital punishment over the last several centuries, and this caution has steadily increased among Catholic thinkers over the last hundred years at least, with a further acceleration since Pope Saint John Paul II both developed the doctrine and made his own prudential observations.

While secular cultural influences cannot be discounted, the rising abhorrence of capital punishment among the bishops worldwide cannot be explained entirely by the popularity of the position in the larger society. Otherwise, the bishops would be overwhelmingly in favor of contraception and, despite the weaknesses of the Church in championing a vision of human sexuality which recognizes our God-given nature, this is decidedly not the case. A prudential moral consensus of the worldwide episcopate (which I suggest exists on the death penalty) is not to be discounted as vacuous.

Moreover, those of us who insist on proper distinctions and clear doctrinal and moral formulations are in a metaphorical sense forced to lead double lives. Most of us advocate the desired clarity while actually opposing the use of the death penalty by the nations in which we live. Many argue that lifelong incarceration is more in keeping with human dignity than execution. I am not sure how one would determine that, since human dignity is such a slippery concept, but it merits serious consideration, and it is one of the points in the new text. Similarly, the new text cites the benefit of providing the maximum opportunity for contrition and conversion, and this too merits serious consideration, even in the face of the (more cynical) counter-argument that nothing is more bracing than the death penalty for prompting “conversion”.

We must consider several very practical realities as well. First, though it is impossible to control all the variables, studies of the death penalty have found no evidence that it serves as a deterrent to the commission of capital crimes by others. It is difficult to argue, therefore, that execution of convicted criminals is necessary to protect the community from other potential criminals. Second, I do not think it is even possible to argue against the proposition that huge numbers of State executions over the centuries have been blatantly unjust. It is also, I believe, difficult to imagine a government today to which we would willingly accord the right to execute, confident that the power would be used in a consistently just way. Third, as has been proven repeatedly in the United States at least, the number of people who are incorrectly convicted of serious crimes is not insignificant. The death penalty leaves no room for correction of such injustices.

Conclusion

Most would argue that a culture of life is fostered by the refusal to execute anyone, and I suspect that is true as long as those guilty of grave crimes can be otherwise prevented from continuing to war against a culture of life. Going deeper metaphysically, surely all of us can profit from the reflection J. R. R. Tolkien offered in The Lord of the Rings on the lips of Gandalf, who warned that those who cannot give life should be very slow to take it away. There is, or ought to be, a strong preferential option for life in the Christian heart, in the Catholic heart.

All of these considerations rightly prompt us to offer a kind of welcome to the Catechism’s fresh opposition to the use of the death penalty, perhaps the same sort of welcome so many bishops have been willing to express, even some who share my own reservations. I prefer to see positive goals pursued in ways that do not muddle the principles by which we distinguish true and false, good and evil. Moreover, I believe that sloppy analysis is the bane of the Church as a whole in our time. Too many Catholics at all levels use their minds to validate their emotions, which are so frequently manipulated by the larger culture. But when all is said and done, I do not think the death penalty should be used today either, at least not in the situations with which I am familiar, or by the powers I know too well.