Editor’s Note: This is Part 2 of a three-part series. Part 3 will run tomorrow. You can read Part 1 here.
It is claimed there was a “development” of Catholic doctrine on the death penalty during the pontificate of John Paul II that precludes its application in “modern society.” Upon close examination of the relevant texts, however, one finds that the posited “development” is really an opinion bound up with a matter of fact: that current penal systems can render murderers “harmless,” so that the death penalty should be imposed only rarely, if at all. This opinion does not (and cannot) repeal the traditional teaching that just retribution, deterrence and expiation are also legitimate aims of the death penalty.
First of all, the 1992 version the Catechism of the Catholic Church (CCC)—issued before the definitive Latin text now in effect—preserved the traditional teaching intact:
2266: Preserving the common good of society requires rendering the aggressor unable to inflict harm. For this reason the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty . . . The primary effect of punishment is to redress the disorder caused by the offense. When the punishment is voluntarily accepted by the offender, it takes on the value of expiation. Moreover, punishment has the effect of preserving public order and the safety of persons. . . .
2267: 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, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.
“Rendering the aggressor unable to inflict harm” is not positively presented as the sole criterion for imposition of the death penalty, but as only one element of “preserving the common good of society,” which certainly includes more than restraining future violence by the same criminal. Paragraph 2266 also teaches that commensurate punishment, redressing the disorder caused by the offense and expiation are legitimate purposes of penal law. Public authority—exercising the discretion I have already mentioned—“should” use bloodless means in place of capital punishment, but only if they would be sufficient to protect public order and the safety of persons, not simply the safety of persons. Thus, the 1992 CCC can be harmonized with the traditional teaching that the death penalty is a legitimate form of civil vengeance for grave crimes, not merely a form of societal self-defense.
Uncertainty arises, however, with the statement that penalties short of death “better correspond to the concrete conditions of the common good.” This is a sweeping factual claim outside the competence of the Magisterium. No explanation is offered as to which “concrete conditions” in which places suddenly make the death penalty inappropriate, even though Pius XII expressly approved it as recently as 1954.
Even more problematic is the statement that bloodless penalties are “more in conformity to the dignity of the human person.” If this is true, then why did the Church approve the death penalty for 1,992 years? The CCC does allow that the death penalty also conforms to human dignity, only less so than bloodless penalties. But how is one to determine relative conformity to human dignity as between confinement for life in a hellish prison and an execution that may well be preceded by repentance? Here the distinction between natural and supernatural dignity must be drawn. All created things have natural dignity, but only man has the supernatural dignity of an immortal soul. From the natural perspective, a prison sentence may appear more “dignified” than execution; but if imminent execution provokes final penitence, from the supernatural perspective a death freely accepted in expiation for sin is infinitely more in accord with human dignity. Moreover, “modern” prisons are occasions of grave sin at every turn. That prisons are “more in conformity to human dignity” than capital punishment is dubious at best. The Holy Ghost does not vouchsafe factually contingent assessments of prison conditions throughout the world. Such assessments are simply not matters of Catholic doctrine.
The question of the “development” of teaching came to the fore with promulgation of John Paul II’s Evangelium Vitae (EV) in 1995. The following passages are pertinent:
Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform. (EV, 27)
The primary purpose of the punishment which society inflicts is “to redress the disorder caused by the offense.” Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behavior and be rehabilitated. (EV, 56)
It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent. (EV, 56)
EV moves closer toward the position that there is only one basis—societal self-defense—for imposition of the death penalty. Yet the phrases “defending public order,” “adequate punishment for the crime,” and “redress the disorder caused by the offence” would allow imposition of the death penalty even when the offender can supposedly be “rendered harmless” by other means. EV does not strictly deny this, but rather proposes prudentially to limit application of the death penalty based on an assertion that is patently dependent upon the existence of particular facts: because “modern society in fact has the means of effectively suppressing crime by rendering criminals harmless,” cases in which the death penalty is warranted are “very rare, if not practically non-existent.”
In the first place, the phrase “very rare, if not practically non-existent” offers no real guidance. Who defines “very rare,” and what is meant by “practically” non-existent? The words suggest a prohibition of the death penalty without actually imposing one—because, of course, the Magisterium cannot now prohibit what it has always approved as a matter of revealed truth. Rather, the proposed new limitation on the death penalty is bottomed entirely on the claim that “Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless . . .”
But what are these “means” which modern society has? None other than prisons. Yet there have always been prisons. If it were merely a question of rendering criminals “harmless” by imprisonment, the Church would always have taught that life imprisonment is to be preferred to capital punishment. If anything, life imprisonment 500 years ago was far more likely to be life imprisonment than it is today. EV’s reference to “steady improvements in the organization of the penal system” is of no help. Which “steady improvements” in which “penal system” now make the death penalty unacceptable? May only societies with laggardly penal systems continue to execute convicted murderers in ordinary course? How many “steady improvements” must prisons achieve before the death penalty becomes “very rare, if not practically non-existent”?
In short, the quality of prison systems seems a rather insubstantial moral criterion for deciding application of the death penalty. What about just retribution, expiation, deterrence, and aggravating factors such as the number or tender age of the victims? The Pope has no right to remove these criteria from civil authority’s prudential judgment, nor does EV actually do so.
All of this assumes it could be demonstrated that “modern” imprisonment really achieves even the minimalist penal goal of rendering murderers “harmless.” Quite the contrary, convicted murderers routinely kill each other in prison, or kill guards, or are paroled to claim more victims among the general population. For this reason alone, we are not bound to accept EV’s purely factual assertion that prisons render murderers harmless. This is simply not true. And what about the murderer who does kill again, either in prison or upon release? How many people must a murderer murder before the death penalty becomes appropriate under the nebulous “rare, if not practically non-existent” standard?
Amazingly, EV does not even call for life imprisonment without parole for cold-blooded killers, but rather states that “modern society” should allow even these “the chance to reform” and “be rehabilitated.” Neither the Catechism nor EV provides an answer to a grieving father’s recent lament that if a “rehabilitated” murderer-rapist on parole had been executed—in accordance with traditional Church teaching based on revealed truth—his daughter would be alive today.
Based solely on EV 56, however, in 1997 the 1992 CCC was amended for the Latin definitive edition:
2267: [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 more in conformity with the dignity of the human person. Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm—without definitely taking away from him the possibility of redeeming himself —the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically non-existent.’ [quoting EV, 56]
Note that the key phrase in the 1992 version—
the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty
has been replaced by—
the 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.
Thus, societal self-defense now appears to be presented as the sole criterion for imposition of the death penalty under the “traditional teaching of the Church.” And yet in the 1997 CCC we still find the following: “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.” (¶ 2266) Is not the death penalty a punishment proportionate to the offense of murder? Does it not redress the disorder caused by the offense? Does it not assume the value of expiation—indeed, the supreme expiation—if willingly accepted?
The 1997 CCC addresses none of these questions, but simply repeats the Pope’s sweeping penological opinion in EV that cases requiring the death penalty are “rare, if not practically non-existent,” because of “the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm.” But who decides whether penological “possibilities” suffice to outweigh the need for capital punishment? As always, civil authority decides. EV does not bind civil authority to forego the death penalty. EV does not forbid Catholics to advocate the death penalty or to vote for general death penalty legislation. Therefore, the posited “development” of doctrine is illusory.
hristopher A. Ferrara (B.A., J.D. Fordham University) is a civil rights attorney who represents pro-life activists in state and federal courts across the country. He is founder and Chief Counsel of the American Catholic Lawyers Association, a religious organization devoted to the pro bono defense of the rights of Catholics in the courts and in public discourse. His fifth book, The Church and the Libertarian, has been praised as “a fine exposition of Catholic social teaching” and a “joy to read” (Catholic Herald) and “a future classic… required reading for the layman and seminarian alike” (The Distributist Review). Mr. Ferrara is a frequent contributor to The Latin Mass Magazine and The Remnant, and his articles and essays have appeared in numerous other publications.