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 millenia of
Catholic thought, denying the teaching of several previous popes,
and contradicting
the teaching of Scripture.”
-Avery Cardinal Dulles
R. Michael Dunningan, J.D., J.C.L.
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,
7].
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
naïve 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
hair-dressers” [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 16 th 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 Exclusionof 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. Schönborn, “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:
1 defense of society against the criminal,
2 rehabilitation of the criminal, and
3 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)].
Prudential Judgments
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 nonexistent” 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 nonexistent.”
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 nonexistent.
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,56]. 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
Schönborn, 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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