Conflict and confusion over capital punishment

“Catholics,” wrote Chesterton in his 1929 book The Thing, “know the two or three transcendental truths on which they agree; and take rather a pleasure in disagreeing on everything else.” Has the number of transcendental truths increased? I ask in light of the little furor sparked by the publication of an editorial, “Capital punishment must end”, jointly issued forth by four publications: America, National Catholic Register, National Catholic Reporter, and Our Sunday Visitor. 

Three things stand out to me on reading the editorial. First, the use of “must end,” rather than “should end.” There is an obvious sense of moral absoluteness in the headline, and it is carried further in the text, which says of capital punishment: “The practice is abhorrent and unnecessary.” Those adjectives are dubious, to put it mildly. The use of “abhorrent” is especially strange considering the word conjures up a clear sense of objective evil, even though capital punishment, when administered lawfully, prudentially, and proportionally, is nothing of the sort.

Secondly, the arguments presented are essentially utilitarian or emotional in nature, and no mention is made of the reasons, based in the Church’s social teaching, that have traditionally (and consistently) been given in support of capital punishment. Dr. Steven Long, professor of theology at Ave Maria University, brings attention to this fact in a post at Thomistica.net:

Are the editors of the journals involved–or the bishops who so commonly describe the death penalty as contrary to human dignity as though it were a malum in se–familiar with the work of the late Eminence Cardinal Avery Dulles on this question?  Or the teaching of the Fathers and Doctors of the Church?  Hundreds of years of Catholic teaching in conformity with the teaching of the Fathers and Doctors has acknowledged that implementing the penalty is a prudential matter and that the penalty is essentially valid.  Pope Piux XII taught that the penalty is valid across cultures.  The wisdom of applying this penalty is essentially a prudential matter.  But as prudential there is no such thing as “de facto abolition” since circumstances change, and–again, contrary to the journals and the new enthusiasm–deterrence is a necessary and essential part of criminal justice.

Third, and directly related, is the necessity of understanding Church teaching about capital punishment in light of her teaching about the nature of justice. This is vital, in part, because far too many arguments against the death penalty present the execution of a criminal as a merely an act of “revenge” that is rooted in emotional need (for closure) and expression (anger). This anti-capital punishment approach is evident, for instance, in a piece, “Patheos Catholic Joins Joint Call to End Capital Punishment”, posted by Elizabeth Scalia, which states in part:

We are Catholic. We seek not vengeance but the redemption of souls — even the “bad” souls, and the “corrupted” souls, and the souls that seem to us, in our limited understanding, to be wholly infected with evil.

Well, I’m also a Catholic, and I also believe that seeking the death penalty out of anger or a need for emotional closure is wrong. In my 2012 essay, “Catholics and Capital Punishment”, I wrote:

Justice is traditionally defined as giving to each his proper due. In the Catholic moral tradition there are three basic forms of justice, each addressing a basic relationship within society. These are commutative justice, distributive justice, and communal, or legal, justice. Commutative justice, the Catechism explains, “regulates exchanges between persons and between institutions in accordance with a strict respect for their rights.” This has to do primarily the relationship between individuals. Distributive justice “regulates what the community owes its citizens in proportion to their contributions and needs.” This has to do with how the social whole relates to individuals. And the third, communal justice, “concerns what the citizen owes in fairness to the community,” that is, what is due to the social whole on the part of each person (pars. 2411-12).

A grave crime, such as murder, is a direct violation of communal, or legal, justice. Such an act requires a response—an act of retributive justice—on the part of society. Moral theologian Dr. Mark Lowery, in his book, Living the Good Life: What Every Catholic Needs to Know About Moral Issues (Servant, 2003), writes, “First, the State has the duty to exercise retributive justice. Most people today confuse retributive justice with vengeance.” He observes that while vengeance is the passion that desires revenge—“to get back” at another person—retributive justice is an objective “balancing of the scales” of justice (p. 194). Guilt requires punishment in proportion to the seriousness of the offense. Traditionally, Christianity (and other religions) has regarded death as the proportionate punishment for the willful taking of innocent life.

This understanding of retribution and justice is expounded in the Catechism in a paragraph worth reading in its entirety:

“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.” (par. 2266)

The late Cardinal Avery Dulles wrote an important essay, “Catholicism & Capital Punishment” (First Things, April 2001), in which he stated—echoing the Catechism—“The purpose of punishment in secular courts is fourfold: the rehabilitation of the criminal, the protection of society from the criminal, the deterrence of other potential criminals, and retributive justice.” He then emphasized this key point: “Just retribution, which seeks to establish the right order of things, should not be confused with vindictiveness, which is reprehensible.”

Frankly, the failure to address the entire matter of retributive justice is beyond frustrating—it borders on irresponsible. I encourage readers to see Dr. Edward Feser’s post here, and then his 2012 post here, in which he provides some catechesis on justice, revenge, and retribution, concluding:

Meanwhile, Dr. Edward Peters has written a post, “Okay, what about Catholics and the death penalty?“, in which he shows that the supposed “development” of doctrine regarding the death penalty is not really as dramatic or obvious as is commonly assumed. Peters writes:

So argue, if one will, the prudence of the death penalty—there are some very good prudential arguments against it, as Häring noted fifty years ago—but do not read the Catechism as making any principled points against the death penalty beyond those that have long been part of the Church teaching on the death penalty, that is, for the last 20 centuries during which no Catholic thinker, let alone any Magisterial pronouncement, asserted the inherent immorality of the death penalty. To the contrary, as Long points out, acknowledgment of the moral liceity of the death penalty justly administered, is the Catholic tradition.

Interestingly enough, Pat Archbold, a longtime columnist for the Register, has voiced his displeasure about the joint editorial:

As a person who does not generally support the death penalty, you might think that I would be pleased with the joint editorial issued the National Catholic Reporter, America Magazine, Our Sunday Visitor, and this paper, the National Catholic Register.

I am not.

When it comes to abolishing the death penalty in the United States, the means matter. The above publications have made the choice that granting unconstitutional power to the Supreme Court to ban the death penalty is a legitimate means as long as the end is good.

Over at Crisis, Peter Wolfgang, who is executive director of Family Institute of Connecticut, proposes that those Catholics who wish to come together across partisan divides should focus on another issue:

But may I recommend that critics instead use this opportunity to call for a joint statement from Catholic publications on an issue that would not benefit the political Left?

I am talking about assisted suicide. It is the next great fight, barreling down the runway of cultural decline and both the conservative movement and the Catholic commentariat seem barely aware of it. Bills to legalize assisted suicide have been introduced in dozens of states; Canada’s Supreme Court has legalized it and opened the door for euthanasia; and in some European countries involuntary euthanasia is now a common practice. Recently in Connecticut our local ACLU tweeted its support for a Canadian case that, as Wesley Smith wrote, “sought to force a nursing home to starve an Alzheimer’s patient to death–even though she willingly took nourishment.” The case was dismissed but these are the sort of things we are now fighting.

Assisted suicide is not a Left vs. Right issue.

Finally, I want to point out that my 2012 article was not an argument for or against the death penalty, but rather a work outlining what the Church has taught and does teach about the topic. And yet I was criticized, in the comments, for being both too pro-capital punishment and too anti-capital punishment. Perhaps the problem is that for the majority of people this is an all-or-nothing topic, yet the Church’s tradition and teaching are not easily or rightly shoved into either extreme.

(And, to state what should be obvious, but might not be: the matter of the death penalty is distinctly different from the matters of abortion, assisted suicide, and other grave evils that are, by their very nature, immoral. The death penalty can be misused and abused, and there are substantial arguments that can and have been made for using it rarely or not at all, but it is not, in itself, immoral.)

I am, in fact, sympathetic to the call to abolish the death penalty, but I think there are good, cogent, and objective reasons to allow for it in certain situations and in certain places, in accordance with what the tradition and Catechism state. What I find bothersome, again, is the note of moral superiority taken by some who insist the death penalty must be abolished, a note that is decidedly strident and off-putting compared to the careful, rich, and even-handed teachings found in Catholic social doctrine.