Some questions for defenders of capital punishment

As I write these words, it is August 9, the anniversary of the bombing of Nagasaki, one of the most dramatic acts of violence in human history but only one horrible moment in the last century. It is ironic, to say the least, that the most technically advanced, wealthy, and educated population in history should have produced a century or more of horrendous assaults on human dignity, from war and genocide to abortion, euthanasia, and pornography. No wonder that Pope St. John Paul called it a century scarred and in need of purification, evangelization, and conversion. Indeed, on his view it was the very violence of this most modern of centuries that prompted renewed attention to the question of human dignity, the defense of which he made a theme of his papacy.

From the time of the Second Vatican Council, the challenges posed to human dignity by war, and later abortion, were the principal focus of the Church’s attention. In 1995, in his encyclical Evangelium vitae, John Paul offered a sweeping review of the contemporary situation as he contrasted the “Culture of Death” with the “Gospel of Life.” In this context he gave some attention to the issue of capital punishment, arguing that respect for human life, even the life of a criminal, required limiting execution to those instances in which there was no other way to protect society. He stopped short of saying that execution was immoral, but his analysis implicitly denied that execution was ever a just punishment. Two years later, the Catechism of the Catholic Church was revised to reflect this view. A number of scholars emphatically dissented and insisted that the Catholic tradition clearly affirmed the right of the state to kill convicted criminals as a just punishment.

Fast forward to last October, when in an address given to a conference organized by the Pontifical Council for the New Evangelization, Pope Francis spoke about the importance of the Catechism of the Catholic Church and the need for the Church to present her teaching in ways that engaged the modern world, with its particular questions and concerns. He recalled, quoting the Catechism of the Council of Trent, that the presentation of the doctrine of the Church must always “be directed to the love that never ends.” With that he turned his attention to the problem of capital punishment, which he said should have a more adequate treatment in the Catechism.

That change was not long in coming. Earlier this month, the Vatican announced that the Pope had followed through on his proposal and directed that the language of the Catechism on capital punishment be amended. The revised paragraph in fact does little more than make John Paul’s judgment more explicit by concluding that “the death penalty is inadmissible because it attacks the inviolability and dignity of the person.” Once again, this prompted many writers to claim that the Pope has rejected the definitive doctrine of the Church and to insist that execution can indeed be a just punishment. Strong words have been written, even to the point of suggesting that Francis in this matter has failed the duties of his office.

It is a peculiar controversy, to say the least. No serious Catholic scholar who defends the legitimacy of capital punishment, as far as I know, also claims that the penalty should be imposed more often than it is. Instead, I believe that they wish to defend, as a rather abstract principle, the right of civil authorities to execute persons justly convicted of capital crimes. And in many instances, their deeper motive is to defend the integrity of the Magisterium of the Church, which they believe has consistently upheld this right. On their view, claiming that the Church can, or has, changed its teaching so that it now holds that executing persons convicted of grave crimes is never a just punishment is to undermine the witness and authority of the Magisterium.

But is this in fact the settled teaching of the Church, a doctrine called into serious question by St. John Paul, Benedict, and now Francis? If it is, it stands in unresolved tension with the rest of the Church’s witness to life issues and to the inviolability of human dignity.

Very able Catholic scholars have taken opposing positions on the morality of execution. I can understand why some scholars regard it as a serious moral evil and, candidly, I am inclined to share their view. What is less clear to me is why other philosophers and theologians with impeccable pro-life credentials are so passionately concerned to defend it.

Braver and more patient scholars than I have reviewed the history of the Church’s statements and practices regarding capital punishment, from the beginnings of Christianity to the modern era. The consensus is that many prominent theologians and bishops over time have accepted and defended the right of the state to impose capital punishment. They further argue that the practice of the Church has commonly been to accept this state of affairs and even in many cases to remand criminals, such as convicted heretics, to civil authorities for execution. For quite a few Catholic scholars, this settles the matter, since it appears that this has been the persistent and universal teaching of the Church. While they might be willing to agree that, at least in the modern world, execution should never actually be used as a punishment, they would insist that it remains the right of the state to kill.

My own view, and that of many others, is that the historical record is less consistent and less convincing than many suppose it to be and that it does not, in fact, support the claim that the Church has committed itself irreformably to the right of the state to kill. If this judgment is true, then the integrity of the Magisterium is not at issue. In any event, one of the hallmarks of the Catholic moral tradition, as Pope Benedict so eloquently reminded us, is the search for coherent explanation, even for positions accepted as a matter of revelation. In fidelity to that tradition, I have several questions to pose to scholars who support the right of the state to kill, directly and intentionally, criminals convicted of grave crimes.

First: Can you admit the possibility of development in “the understanding of Christian truth”? The fact that the Church comes to understand speculative theological questions more profoundly over time is indisputable. One only has to look at the history of Christology, or sacramental theology, or even ecclesiology, to see that this is true. The question here is whether this can also be true of the moral teaching of the Church. In other words, is it possible that the community of Christian faithful, especially the college of bishops (as successors of the apostles), might come to understand more clearly over time what the Gospel asks of Christian disciples? In framing this question, it is important to make two additional points.

One is that Christian culture always develops in the soil of a previous, foundational culture and matures as a synthesis of elements of that previous culture and the essentials of a Christian vision of human nature and destiny. I submit that the historical record shows that the Church is often a gradual critic of cultures, tolerating for a time what it discerns that it cannot change immediately and perhaps even coming gradually to realize it must speak out against a common practice in a culture in which it has taken root and grown to maturity.

A second point has to do with the trajectory of change, that is, about prohibiting what was once tolerated, rather than permitting now what was once prohibited. I know of no instance in which the Church has taught definitively and irreformably that a certain action was prohibited to Christian disciples but later taught that it was permissible. There are, however, in keeping with my first point, a number of examples in which the Church at an earlier point in history tolerated, or even defended, a practice in society that it later rejected and prohibited. One may think of various forms of slavery or the use of torture, among others.

In sum, one must be cautious about rejecting the possibility that the Church’s understanding of the Gospel’s implications for society can develop and similarly cautious about assuming that a consensus of theologians who address an issue constitutes a foundation for a claim that the Church has taught irreformably on a moral matter.

Second: Can you reconcile your analysis of the state’s right to execute with the Church’s teaching on killing in other contexts? Your support of the right of the state to impose capital punishment is a claim that the state may legitimately intend directly to kill. Yet in virtually every other category of killing, and often in connection with capital punishment itself, the tradition of the Church has been to justify killing on other grounds. For example, a private individual, quite apart from any appeal to the authority of the state, may in some situations kill in defense of self or another. The explanation for this is not that the attacker forfeits his right to life, or that the defender suddenly gains a right to kill, but rather that the killing is not directly intended. The real intention is to stop the attack, even if the only available means would result in the death of the attacker. If the use of lethal force disabled the attacker and stopped the attack, it would be a grave crime to use lethal force a second time to kill the helpless attacker. Similarly, the police are authorized as agents of the state to defend the common good with lethal force but unlike Agent 007, they do not really have a license to kill. Even in war, the morally sound objective in the use of lethal force is to stop the enemy’s unjust aggression and it is a war crime to kill an enemy combatant who is no longer capable of participating in that aggression. Why then do you defend the alleged right of the state to execute convicted criminals as a unique category of directly intended killing?

Third: Can you generate a precise and exhaustive list of capital crimes? Several kinds of arguments are offered in support of capital punishment. One is that it may at times be necessary to kill a guilty party in order to defend the community. This seems to be the sense of John Paul’s earlier revision of the Catechism. However, this tacitly admitted that in such a case execution is not punishment and not directly-intended killing; it is a defense of the common good for which no other means is available. A second reason sometimes offered is that execution may be therapeutic, either because it prompts the criminal to repent of his crime or because it ensures that he cannot sin again. A third reason is that it is a deterrence that may be useful in discouraging others from committing grave crimes; certainly the person executed is deterred. But all of these reasons justify execution in terms of its consequences, not as a just punishment.

Many supporters of capital punishment, as punishment, insist that killing the criminal is somehow proportionate to his offense. The crime is so serious that death is warranted as a proportionate response. So, which crimes are so grave that nothing less than death is a fully proportionate punishment? Premeditated murder would probably make list but would anything else be counted? Federal law has included treason and espionage. Would you include crimes such as rape, torture, or kidnapping? And if so, on precisely what grounds would you do so? On a natural law foundation, rather than a basis in culture and custom, precisely what distinguishes a capital crime from other serious crimes? And a bonus question is: why should we think that clemency, which has so often been encouraged in the history of the Church, is not an offense against justice, at least justice for victims and their families?

Fourth: Would you also be willing to defend non-lethal corporal punishments, in principle, as legitimate for some crimes? I am thinking of punishments common in history, such as scourging, branding, or even maiming? We can agree, I think, that even the worst criminals do not entirely lose their human dignity. If we can destroy the good of life as a punishment, why can we not also destroy some lesser good, such as bodily integrity?

Pope Francis is somewhat less disciplined in his use of language than St. John Paul II, to say nothing of Pope Benedict XVI, and apparently somewhat more inclined to use informal modes of communication. His reservations about capital punishment could have been explained more thoroughly and the failure to do so contributes to controversy and confusion. If he really wishes us to understand the revision of the Catechism to mean that execution as punishment is always immoral, he should say this more plainly (“inadmissible” is too vague) and he should explain how this is consistent with the teaching and practice of the Church in history. By the same token, supporters of capital punishment have questions of their own to answer.

Other Essays in the Symposium: 

• “Catechism changes demand the impossible” by Christopher R. Altieri, who says the new text on capital punishment seems to require Catholics to substitute this Pope’s judgment on this subject for their own.

• “Development, not deviation: Evaluating Francis’ modification on the death penalty” by Thomas J. Nash, who writes, “We can reaffirm that state executions are not intrinsically evil, even while we join Pope Francis in working toward the abolition of their social application.”

• “The death penalty debate and the Church’s magisterium” by Edward N. Peters, who writes: “I regard the liceity of the death penalty as having been established with infallible certitude by the Church’s ordinary magisterium.”

• “On human dignity and the death penalty” by Fr. James V. Schall, S.J. who observes: “Whether human dignity is upheld if we allow no executions remains an open question. As Plato intimated, a case for the execution of certain criminals can be made precisely in the name of their human dignity.”

• “Capital punishment: Intrinsically evil or morally permissible?” by Joseph G. Trabbic, who argues that what we appear to have on our hands is a case of interpretive undecidability.