NOTICE:
I
will post a quote from a Christian in favor of capital punishment every
fortnight. For this week, it will be an article from a Roman Catholic Priest.
PAGE TITLE: http://www.leaderu.com/index.html
ARTICLE TITLE: First Things - Catholicism & Capital Punishment
DATE: April
2001 (Updated: Saturday 13 July 2002)
AUTHOR: Avery Robert Dulles, S.J.
AUTHOR
INFORMATION: Avery Robert Dulles, S.J.
(August 24, 1918 – December 12, 2008) was a Jesuit priest, theologian, cardinal
of the Roman Catholic Church and served as the Laurence J. McGinley Professor
of Religion and Society at Fordham University from 1988 to 2008. He was an
internationally known author and lecturer.
 |
| Avery Robert Dulles, S.J. |
First Things
Avery Cardinal Dulles
Among the major nations of the
Western world, the United States is singular in still having the death penalty.
After a five–year moratorium, from 1972 to 1977, capital punishment was
reinstated in the United States courts. Objections to the practice have come
from many quarters, including the American Catholic bishops, who have rather
consistently opposed the death penalty. The National Conference of Catholic
Bishops in 1980 published a predominantly negative statement on capital
punishment, approved by a majority vote of those present though not by the
required two–thirds majority of the entire conference.{1} Pope John Paul II has at various times
expressed his opposition to the practice, as have other Catholic leaders in
Europe.
Some Catholics, going beyond the
bishops and the Pope, maintain that the death penalty, like abortion and
euthanasia, is a violation of the right to life and an unauthorized usurpation
by human beings of God’s sole lordship over life and death. Did not the Declaration
of Independence, they ask, describe the right to life as “unalienable”?
In
the Old Testament the Mosaic Law specifies no less than thirty–six capital
offenses calling for execution by stoning, burning, decapitation, or
strangulation. Included in the list are idolatry, magic, blasphemy, violation
of the sabbath, murder, adultery, bestiality, pederasty, and incest. The death
penalty was considered especially fitting as a punishment for murder since in
his covenant with Noah God had laid down the principle, “Whoever sheds the
blood of man, by man shall his blood be shed, for God made man in His own
image” (Genesis 9:6). In many cases God is portrayed as deservedly punishing culprits
with death, as happened to Korah, Dathan, and Abiram (Numbers 16). In other
cases individuals such as Daniel and Mordecai are God’s agents in bringing a
just death upon guilty persons.
In
the New Testament the right of the State to put criminals to death seems to be
taken for granted. Jesus himself refrains from using violence. He rebukes his
disciples for wishing to call down fire from heaven to punish the Samaritans
for their lack of hospitality (Luke 9:55). Later he admonishes Peter to put his
sword in the scabbard rather than resist arrest (Matthew 26:52). At no point,
however, does Jesus deny that the State has authority to exact capital
punishment. In his debates with the Pharisees, Jesus cites with approval the
apparently harsh commandment, “He who speaks evil of father or mother, let him
surely die” (Matthew 15:4; Mark 7:10, referring to Exodus 2l:17; cf. Leviticus
20:9). When Pilate calls attention to his authority to crucify him, Jesus
points out that Pilate’s power comes to him from above—that is to say, from God
(John 19:11). Jesus commends the good thief on the cross next to him, who has
admitted that he and his fellow thief are receiving the due reward of their
deeds (Luke 23:41).
The
early Christians evidently had nothing against the death penalty. They approve
of the divine punishment meted out to Ananias and Sapphira when they are
rebuked by Peter for their fraudulent action (Acts 5:1–11). The Letter to the
Hebrews makes an argument from the fact that “a man who has violated the law of
Moses dies without mercy at the testimony of two or three witnesses” (10:28).
Paul repeatedly refers to the connection between sin and death. He writes to
the Romans, with an apparent reference to the death penalty, that the
magistrate who holds authority “does not bear the sword in vain; for he is the
servant of God to execute His wrath on the wrongdoer” (Romans 13:4). No passage
in the New Testament disapproves of the death penalty.
Turning
to Christian tradition, we may note that the Fathers and Doctors of the Church
are virtually unanimous in their support for capital punishment, even though
some of them such as St. Ambrose exhort members of the clergy not to pronounce
capital sentences or serve as executioners. To answer the objection that the
first commandment forbids killing, St. Augustine writes in The City of God:
The same divine law which forbids
the killing of a human being allows certain exceptions, as when God authorizes
killing by a general law or when He gives an explicit commission to an individual
for a limited time. Since the agent of authority is but a sword in the hand,
and is not responsible for the killing, it is in no way contrary to the
commandment, “Thou shalt not kill” to wage war at God’s bidding, or for the
representatives of the State’s authority to put criminals to death, according
to law or the rule of rational justice.
In
the Middle Ages a number of canonists teach that ecclesiastical courts should
refrain from the death penalty and that civil courts should impose it only for
major crimes. But leading canonists and theologians assert the right of civil
courts to pronounce the death penalty for very grave offenses such as murder
and treason. Thomas Aquinas and Duns Scotus invoke the authority of Scripture
and patristic tradition, and give arguments from reason.
Giving
magisterial authority to the death penalty, Pope Innocent III required
disciples of Peter Waldo seeking reconciliation with the Church to accept the
proposition: “The secular power can, without mortal sin, exercise judgment of
blood, provided that it punishes with justice, not out of hatred, with
prudence, not precipitation.” In the high Middle Ages and early modern times
the Holy See authorized the Inquisition to turn over heretics to the secular
arm for execution. In the Papal States the death penalty was imposed for a
variety of offenses. The Roman Catechism, issued in 1566, three years after the
end of the Council of Trent, taught that the power of life and death had been
entrusted by God to civil authorities and that the use of this power, far from
involving the crime of murder, is an act of paramount obedience to the fifth
commandment.
In
modern times Doctors of the Church such as Robert Bellarmine and Alphonsus
Liguori held that certain criminals should be punished by death. Venerable
authorities such as Francisco de Vitoria, Thomas More, and Francisco Suárez
agreed. John Henry Newman, in a letter to a friend, maintained that the
magistrate had the right to bear the sword, and that the Church should sanction
its use, in the sense that Moses, Joshua, and Samuel used it against abominable
crimes.
Throughout
the first half of the twentieth century the consensus of Catholic theologians
in favor of capital punishment in extreme cases remained solid, as may be seen
from approved textbooks and encyclopedia articles of the day. The Vatican City
State from 1929 until 1969 had a penal code that included the death penalty for
anyone who might attempt to assassinate the pope. Pope Pius XII, in an
important allocution to medical experts, declared that it was reserved to the
public power to deprive the condemned of the benefit of life in expiation of
their crimes.
Summarizing
the verdict of Scripture and tradition, we can glean some settled points of
doctrine. It is agreed that crime deserves punishment in this life and not only
in the next. In addition, it is agreed that the State has authority to
administer appropriate punishment to those judged guilty of crimes and that
this punishment may, in serious cases, include the sentence of death.
Yet,
as we have seen, a rising chorus of voices in the Catholic community has raised
objections to capital punishment. Some take the absolutist position that
because the right to life is sacred and inviolable, the death penalty is always
wrong. The respected Italian Franciscan Gino Concetti, writing in L’Osservatore
Romano in 1977, made the following powerful statement:
In light of the word of God, and
thus of faith, life—all human life—is sacred and untouchable. No matter how
heinous the crimes . . . [the criminal] does not lose his fundamental right to
life, for it is primordial, inviolable, and inalienable, and thus comes under
the power of no one whatsoever.
If this right and its attributes are
so ab solute, it is because of the image which, at creation, God impressed on
human nature itself. No force, no violence, no passion can erase or destroy it.
By virtue of this divine image, man is a person endowed with dignity and
rights.
To
warrant this radical revision—one might almost say reversal—of the Catholic
tradition, Father Concetti and others explain that the Church from biblical
times until our own day has failed to perceive the true significance of the
image of God in man, which implies that even the terrestrial life of each
individual person is sacred and inviolable. In past centuries, it is alleged,
Jews and Christians failed to think through the consequences of this revealed
doctrine. They were caught up in a barbaric culture of violence and in an
absolutist theory of political power, both handed down from the ancient world.
But in our day, a new recognition of the dignity and inalienable rights of the
human person has dawned. Those who recognize the signs of the times will move
beyond the outmoded doctrines that the State has a divinely delegated power to
kill and that criminals forfeit their fundamental human rights. The teaching on
capital punishment must today undergo a dramatic development corresponding to
these new insights.
This
abolitionist position has a tempting simplicity. But it is not really new. It
has been held by sectarian Christians at least since the Middle Ages. Many
pacifist groups, such as the Waldensians, the Quakers, the Hutterites, and the
Mennonites, have shared this point of view. But, like pacifism itself, this
absolutist interpretation of the right to life found no echo at the time among
Catholic theologians, who accepted the death penalty as consonant with
Scripture, tradition, and the natural law.
The
mounting opposition to the death penalty in Europe since the Enlightenment has
gone hand in hand with a decline of faith in eternal life. In the nineteenth
century the most consistent supporters of capital punishment were the Christian
churches, and its most consistent opponents were groups hostile to the
churches. When death came to be understood as the ultimate evil rather than as
a stage on the way to eternal life, utilitarian philosophers such as Jeremy
Bentham found it easy to dismiss capital punishment as “useless annihilation.”
Many
governments in Europe and elsewhere have eliminated the death penalty in the
twentieth century, often against the protests of religious believers. While
this change may be viewed as moral progress, it is probably due, in part, to
the evaporation of the sense of sin, guilt, and retributive justice, all of
which are essential to biblical religion and Catholic faith. The abolition of
the death penalty in formerly Christian countries may owe more to secular
humanism than to deeper penetration into the gospel.
Arguments
from the progress of ethical consciousness have been used to promote a number
of alleged human rights that the Catholic Church consistently rejects in the
name of Scripture and tradition. The magisterium appeals to these authorities
as grounds for repudiating divorce, abortion, homosexual relations, and the
ordination of women to the priesthood. If the Church feels herself bound by
Scripture and tradition in these other areas, it seems inconsistent for
Catholics to proclaim a “moral revolution” on the issue of capital punishment.
The
Catholic magisterium does not, and never has, advocated unqualified abolition
of the death penalty. I know of no official statement from popes or bishops,
whether in the past or in the present, that denies the right of the State to
execute offenders at least in certain extreme cases. The United States bishops,
in their majority statement on capital punishment, conceded that “Catholic
teaching has accepted the principle that the State has the right to take the
life of a person guilty of an extremely serious crime.” Joseph Cardinal
Bernardin, in his famous speech on the “Consistent Ethic of Life” at Fordham in
1983, stated his concurrence with the “classical position” that the State has
the right to inflict capital punishment.
Although
Cardinal Bernardin advocated what he called a “consistent ethic of life,” he
made it clear that capital punishment should not be equated with the crimes of
abortion, euthanasia, and suicide. Pope John Paul II spoke for the whole
Catholic tradition when he proclaimed in Evangelium Vitae (1995) that
“the direct and voluntary killing of an innocent human being is always gravely
immoral.” But he wisely included in that statement the word “innocent.” He has
never said that every criminal has a right to live nor has he denied that the
State has the right in some cases to execute the guilty.
Catholic
authorities justify the right of the State to inflict capital punishment on the
ground that the State does not act on its own authority but as the agent of
God, who is supreme lord of life and death. In so holding they can properly
appeal to Scripture. Paul holds that the ruler is God’s minister in executing
God’s wrath against the evildoer (Romans 13:4). Peter admonishes Christians to
be subject to emperors and governors, who have been sent by God to punish those
who do wrong (1 Peter 2:13). Jesus, as already noted, apparently recognized
that Pilate’s authority over his life came from God (John 19:11).
Pius
XII, in a further clarification of the standard argument, holds that when the
State, acting by its ministerial power, uses the death penalty, it does not
exercise dominion over human life but only recognizes that the criminal, by a
kind of moral suicide, has deprived himself of the right to life. In the Pope’s
words,
Even when there is question of the
execution of a condemned man, the State does not dispose of the individual’s
right to life. In this case it is reserved to the public power to deprive the
condemned person of the enjoyment of life in expiation of his crime when, by
his crime, he has already dispossessed himself of his right to life.
In
light of all this it seems safe to conclude that the death penalty is not in
itself a violation of the right to life. The real issue for Catholics is to
determine the circumstances under which that penalty ought to be applied. It is
appropriate, I contend, when it is necessary to achieve the purposes of
punishment and when it does not have disproportionate evil effects. I say
“necessary” because I am of the opinion that killing should be avoided if the
purposes of punishment can be obtained by bloodless means.
The
purposes of criminal punishment are rather unanimously delineated in the
Catholic tradition. Punishment is held to have a variety of ends that may
conveniently be reduced to the following four: rehabilitation, defense against
the criminal, deterrence, and retribution.
Granted
that punishment has these four aims, we may now inquire whether the death
penalty is the apt or necessary means to attain them.
Rehabilitation. Capital punishment does not reintegrate the criminal into
society; rather, it cuts off any possible rehabilitation. The sentence of
death, however, can and sometimes does move the condemned person to repentance
and conversion. There is a large body of Christian literature on the value of
prayers and pastoral ministry for convicts on death row or on the scaffold. In
cases where the criminal seems incapable of being reintegrated into human
society, the death penalty may be a way of achieving the criminal’s
reconciliation with God.
Defense
against the criminal. Capital punishment is obviously an
effective way of preventing the wrongdoer from committing future crimes and
protecting society from him. Whether execution is necessary is another
question. One could no doubt imagine an extreme case in which the very fact
that a criminal is alive constituted a threat that he might be released or
escape and do further harm. But, as John Paul II remarks in Evangelium Vitae,
modern improvements in the penal system have made it extremely rare for
execution to be the only effective means of defending society against the
criminal.
Deterrence. Executions, especially where they are painful,
humiliating, and public, may create a sense of horror that would prevent others
from being tempted to commit similar crimes. But the Fathers of the Church
censured spectacles of violence such as those conducted at the Roman Colosseum.
Vatican II’s Pastoral Constitution on the Church in the Modern World explicitly
disapproved of mutilation and torture as offensive to human dignity. In our day
death is usually administered in private by relatively painless means, such as
injections of drugs, and to that extent it may be less effective as a
deterrent. Sociological evidence on the deterrent effect of the death penalty as
currently practiced is ambiguous, conflicting, and far from probative.
Retribution. In principle, guilt calls for punishment. The graver the
offense, the more severe the punishment ought to be. In Holy Scripture, as we
have seen, death is regarded as the appropriate punishment for serious
transgressions. Thomas Aquinas held that sin calls for the deprivation of some
good, such as, in serious cases, the good of temporal or even eternal life. By
consenting to the punishment of death, the wrongdoer is placed in a position to
expiate his evil deeds and escape punishment in the next life. After noting
this, St. Thomas adds that even if the malefactor is not repentant, he is
benefited by being prevented from committing more sins. Retribution by the
State has its limits because the State, unlike God, enjoys neither omniscience
nor omnipotence. According to Christian faith, God “will render to every man
according to his works” at the final judgment (Romans 2:6; cf. Matthew 16:27).
Retribution by the State can only be a symbolic anticipation of God’s perfect
justice.
For
the symbolism to be authentic, the society must believe in the existence of a
transcendent order of justice, which the State has an obligation to protect.
This has been true in the past, but in our day the State is generally viewed
simply as an instrument of the will of the governed. In this modern
perspective, the death penalty expresses not the divine judgment on objective
evil but rather the collective anger of the group. The retributive goal of punishment
is misconstrued as a self–assertive act of vengeance.
The
death penalty, we may conclude, has different values in relation to each of the
four ends of punishment. It does not rehabilitate the criminal but may be an
occasion for bringing about salutary repentance. It is an effective but rarely,
if ever, a necessary means of defending society against the criminal. Whether
it serves to deter others from similar crimes is a disputed question, difficult
to settle. Its retributive value is impaired by lack of clarity about the role
of the State. In general, then, capital punishment has some limited value but
its necessity is open to doubt.
There
is more to be said. Thoughtful writers have contended that the death penalty,
besides being unnecessary and often futile, can also be positively harmful.
Four serious objections are commonly mentioned in the literature.
There
is, first of all, a possibility that the convict may be innocent. John Stuart
Mill, in his well–known defense of capital punishment, considers this to be the
most serious objection. In responding, he cautions that the death penalty
should not be imposed except in cases where the accused is tried by a
trustworthy court and found guilty beyond all shadow of doubt.
It
is common knowledge that even when trials are conducted, biased or kangaroo
courts can often render unjust convictions. Even in the United States, where
serious efforts are made to achieve just verdicts, errors occur, although many
of them are corrected by appellate courts. Poorly educated and penniless
defendants often lack the means to procure competent legal counsel; witnesses
can be suborned or can make honest mistakes about the facts of the case or the
identities of persons; evidence can be fabricated or suppressed; and juries can
be prejudiced or incompetent. Some “death row” convicts have been exonerated by
newly available DNA evidence. Columbia Law School has recently published a
powerful report on the percentage of reversible errors in capital sentences
from 1973 to 1995. Since it is altogether likely that some innocent persons
have been executed, this first objection is a serious one.
Another
objection observes that the death penalty often has the effect of whetting an
inordinate appetite for revenge rather than satisfying an authentic zeal for
justice. By giving in to a perverse spirit of vindictiveness or a morbid
attraction to the gruesome, the courts contribute to the degradation of the
culture, replicating the worst features of the Roman Empire in its period of
decline.
Furthermore,
critics say, capital punishment cheapens the value of life. By giving the
impression that human beings sometimes have the right to kill, it fosters a
casual attitude toward evils such as abortion, suicide, and euthanasia. This
was a major point in Cardinal Bernardin’s speeches and articles on what he
called a “consistent ethic of life.” Although this argument may have some
validity, its force should not be exaggerated. Many people who are strongly
pro–life on issues such as abortion support the death penalty, insisting that
there is no inconsistency, since the innocent and the guilty do not have the
same rights.
Finally,
some hold that the death penalty is incompatible with the teaching of Jesus on
forgiveness. This argument is complex at best, since the quoted sayings of
Jesus have reference to forgiveness on the part of individual persons who have
suffered injury. It is indeed praiseworthy for victims of crime to forgive
their debtors, but such personal pardon does not absolve offenders from their
obligations in justice. John Paul II points out that “reparation for evil and
scandal, compensation for injury, and satisfaction for insult are conditions
for forgiveness.”
The
relationship of the State to the criminal is not the same as that of a victim
to an assailant. Governors and judges are responsible for maintaining a just
public order. Their primary obligation is toward justice, but under certain
conditions they may exercise clemency. In a careful discussion of this matter
Pius XII concluded that the State ought not to issue pardons except when it is
morally certain that the ends of punishment have been achieved. Under these
conditions, requirements of public policy may warrant a partial or full
remission of punishment. If clemency were granted to all convicts, the nation’s
prisons would be instantly emptied, but society would not be well served.
In
practice, then, a delicate balance between justice and mercy must be
maintained. The State’s primary responsibility is for justice, although it may
at times temper justice with mercy. The Church rather represents the mercy of
God. Showing forth the divine forgiveness that comes from Jesus Christ, the
Church is deliberately indulgent toward offenders, but it too must on occasion
impose penalties. The Code of Canon Law contains an entire book devoted to
crime and punishment. It would be clearly inappropriate for the Church, as a
spiritual society, to execute criminals, but the State is a different type of
society. It cannot be expected to act as a Church. In a predominantly Christian
society, however, the State should be encouraged to lean toward mercy provided
that it does not thereby violate the demands of justice.
It
is sometimes asked whether a judge or executioner can impose or carry out the
death penalty with love. It seems to me quite obvious that such officeholders
can carry out their duty without hatred for the criminal, but rather with love,
respect, and compassion. In enforcing the law, they may take comfort in
believing that death is not the final evil; they may pray and hope that the
convict will attain eternal life with God.
The
four objections are therefore of different weight. The first of them, dealing
with miscarriages of justice, is relatively strong; the second and third,
dealing with vindictiveness and with the consistent ethic of life, have some
probable force. The fourth objection, dealing with forgiveness, is relatively
weak. But taken together, the four may suffice to tip the scale against the use
of the death penalty.
The
Catholic magisterium in recent years has become increasingly vocal in opposing
the practice of capital punishment. Pope John Paul II in Evangelium Vitae
declared that “as a result of steady improvements in the organization of the
penal system,” cases in which the execution of the offender would be absolutely
necessary “are very rare, if not practically nonexistent.” Again at St. Louis
in January 1999 the Pope appealed for a consensus to end the death penalty on
the ground that it was “both cruel and unnecessary.” The bishops of many
countries have spoken to the same effect.
The
United States bishops, for their part, had already declared in their majority
statement of 1980 that “in the conditions of contemporary American society, the
legitimate purposes of punishment do not justify the imposition of the death
penalty.” Since that time they have repeatedly intervened to ask for clemency
in particular cases. Like the Pope, the bishops do not rule out capital
punishment altogether, but they say that it is not justifiable as practiced in
the United States today.
In
coming to this prudential conclusion, the magisterium is not changing the
doctrine of the Church. The doctrine remains what it has been: that the State,
in principle, has the right to impose the death penalty on persons convicted of
very serious crimes. But the classical tradition held that the State should not
exercise this right when the evil effects outweigh the good effects. Thus the
principle still leaves open the question whether and when the death penalty ought
to be applied. The Pope and the bishops, using their prudential judgment, have
concluded that in contemporary society, at least in countries like our own, the
death penalty ought not to be invoked, because, on balance, it does more harm
than good. I personally support this position.
In
a brief compass I have touched on numerous and complex problems. To indicate
what I have tried to establish, I should like to propose, as a final summary,
ten theses that encapsulate the Church’s doctrine, as I understand it.
1)
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.
2)
Just retribution, which seeks to establish the right order of things, should
not be confused with vindictiveness, which is reprehensible.
3)
Punishment may and should be administered with respect and love for the person
punished.
4)
The person who does evil may deserve death. According to the biblical accounts,
God sometimes administers the penalty himself and sometimes directs others to
do so.
5)
Individuals and private groups may not take it upon themselves to inflict death
as a penalty.
6)
The State has the right, in principle, to inflict capital punishment in cases
where there is no doubt about the gravity of the offense and the guilt of the
accused.
7)
The death penalty should not be imposed if the purposes of punishment can be
equally well or better achieved by bloodless means, such as imprisonment.
8)
The sentence of death may be improper if it has serious negative effects on
society, such as miscarriages of justice, the increase of vindictiveness, or
disrespect for the value of innocent human life.
9)
Persons who specially represent the Church, such as clergy and religious, in
view of their specific vocation, should abstain from pronouncing or executing
the sentence of death.
10)
Catholics, in seeking to form their judgment as to whether the death penalty is
to be supported as a general policy, or in a given situation, should be
attentive to the guidance of the pope and the bishops. Current Catholic
teaching should be understood, as I have sought to understand it, in continuity
with Scripture and tradition.
{1}The
statement was adopted by a vote of 145 to 31, with 41 bishops abstaining, the
highest number of abstentions ever recorded. In addition, a number of bishops
were absent from the meeting or did not officially abstain. Thus the statement
did not receive the two–thirds majority of the entire membership then required
for approval of official statements. But no bishop rose to make the point of
order.
Avery
Cardinal Dulles, S.J., holds the Laurence J. McGinley Chair in Religion and
Society at Fordham University. This essay is adapted from a McGinley Lecture
delivered by Cardinal Dulles in New York City.
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