The Church’s Surprising Stance on Capital Punishment – Part 1

This piece on capital punishment is a revision of the original, which first appeared in Latin Mass Magazine (Summer 2001). It is written from a “traditionalist” perspective, a traditionalist being simply a Catholic who affirms—as a Catholic must—that the Second Vatican Council changed nothing of what a Catholic must believe in order to be a member of the Church in good standing. As the First Vatican Council declared: “For the Holy Spirit was not promised to the Successors of Peter that by His revelation they might disclose new doctrine, but that by His help they might guard the revelation transmitted through the apostles and the deposit of faith, and might faithfully set it forth.” (Cf. Denzinger, §1836)

Of course, an authentic development of doctrine is always possible in the sense of a fuller explication of what the Church has always taught. But neither a pope nor a Council has an oracular function of providing the latest and most reliable Catholic teaching. The Catholic faith, unlike the statute books on which lawyers rely, does not involve periodic “pocket parts” containing amendments or repeals to be inserted into the back of the book. If the “hermeneutic of continuity” means anything, it means that Catholic teaching on faith and morals is not subject to reversal. A reversible Magisterium would be no Magisterium at all, but rather a human agency bereft of the promises of Christ—like the Protestant sects which have abandoned doctrine after doctrine over the centuries since Luther began the process of abandonment.

The Traditional Teaching on Capital Punishment

And so it is with Catholic teaching on the morality of capital punishment. According to the constant teaching of the Church, God Himself has ordained that legitimate civil authority shall have the right and duty to punish deliberate murder (and other grave crimes) with the penalty of death. Capital punishment honors the Fifth commandment, because it vindicates the sanctity of human life. Hence, in its teaching on the Fifth Commandment the Catechism of the Council of Trent declares:

Again, this prohibition does not apply to the civil magistrate, to whom is entrusted the power of life and death, by the legal and judicious exercise of which he punishes the guilty and protects the innocent. The use of the civil sword, when wielded by the hand of justice, far from involving the crime of murder, is an act of paramount obedience to this commandment which prohibits murder. The end of the commandment is the preservation and sanctity of human life, and to the attainment of this end, the punishments inflicted by the civil magistrate, who is the legitimate avenger of crime, naturally tend, giving security to life by repressing outrage and violence.

As the Tridentine Catechism teaches, the death penalty protects the sanctity of life through legitimate legal vengeance to repress outrage and violence in society. This involves just retribution and deterrence as legitimate aims of penal law.

The Catechism’s reference to the civil sword evokes St. Paul’s teaching on the divine right of civil authority to avenge wrongdoing by the sword: “But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is God’s minister: an avenger to execute wrath upon him that doeth evil.” Rom. 13:4 Reflecting on this passage, St. Thomas teaches that capital punishment imitates divine justice; for after all, eternal damnation is the ultimate form of capital punishment: “According to the order of His wisdom God sometimes slays sinners forthwith in order to deliver the good, whereas he sometimes allows them time to repent, according as what is expedient to His elect. This also does human justice imitate according to its powers . . .” (ST II-II, Q. 64, Art. 2)

Thus the right of civil authority to punish evildoers by the sword in appropriate cases is a matter of revealed truth, not a changeable prudential judgment. This is not to deny that civil authority can exercise prudential judgment in abstaining from the exercise of its right to impose capital punishment, or even abolish it entirely in keeping with historical circumstances. For example, earlier this year the Governor of Illinois, Pat Quinn, signed an executive ban on the death penalty in his state given the appalling evidence of numerous executions of innocent persons in Illinois based on “forced confessions, unreliable witnesses, and incompetent legal representation.” As a lawyer, I am well familiar with the grave potential in any legal system for catastrophic miscarriages of justice which, in the case of capital punishment, cannot be rectified. The Church has never taught that civil authority must impose capital punishment for murder, but only that it has a divine sanction when it does so.

It must not be forgotten that the death penalty, like any criminal penalty, serves as a form of expiation. That is why prisons were once called penitentiaries. As Saint Thomas observes in the Summa: “Even death inflicted as a punishment for crimes takes away the whole punishment for those crimes in the next life, or at least part of that punishment, according to the quantities of guilt, resignation, and contrition; but a natural death does not.” (Cf. Romano Amerio Iota Unum, 435). Further, in the case of capital punishment the expiatory penalty reflects the sin of one whose grave crime has caused him to lose the right to life. Some 700 years after the Summa, Pope Pius XII repeated the constant teaching of the Church in this regard: “Even when it is a question of someone condemned to death, the state does not dispose of an individual’s right to life. It is then the task of public authority to deprive the condemned man of the good of life, in expiation of his fault, after he has already deprived himself of the right to life by his crime.” (AAS, 1952, pp. 779 et. seq)

Pius XII rejected what Romano Amerio calls “the canons of the new hermeneutic” when he insisted in a speech to Catholic jurists in 1955 that “the passage of St. Paul was of permanent and universal value, because it refers to the essential foundation of penal authority and to its inherent purpose.” Amerio rightly notes that the modern opponents of the death penalty “ignore the great truth that capital punishment is itself expiatory.” But, he writes, “one cannot cancel out the decrees of the Old Testament regarding the death penalty, by a mere stroke of the pen. Nor can canon law, still less the teaching of the New Testament, be canceled out at a stroke.” (Amerio, 432, 434).

The expiatory nature of the death penalty may be its most important aspect. Sacred Scripture itself provides the example of the good thief on the cross (Lk. 23-39-42), whose very recognition that “we receive the due reward of our deeds” is a sign of the working of God’s grace in a soul being moved to faith in Christ. The good thief’s expiation, through his acceptance of the condign penalty of death, is so complete as to merit his immediate entry into paradise. Indeed, the common experience of mankind is that nothing is more likely to provoke repentance in hardened sinners than imminent execution. The historic accounts of death row conversions could be set forth endlessly. Even the proudly defiant Timothy McVeigh apparently converted. McVeigh, “a self-described agnostic, received the Catholic sacrament of the Anointing of the Sick by an unidentified prison chaplain.” (CNN, June 11, 2001). We do not know if McVeigh was saved, but who can say that convicted killers languishing in prisons which are sinkholes of immorality are more likely than a condemned man to receive the grace of final penitence?

Whether they recognize it or not, Catholic death penalty opponents implicitly view the right to life from a worldly and bodily perspective, “as if it were inherent in man’s mere [biological] existence, when, in fact, it derives from his moral goal… his ordination to values that transcend temporal life, and this goal is built into his spirit inasmuch as it is an image of God.” (Amerio 1996, 436). The eternal destiny of man is precisely why, as the Tridentine Catechism teaches, capital punishment actually defends life in its full and supernatural sense.

Editor’s note: Be sure to check back tomorrow for part 2 of this three-part series.

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.

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  • matt1

    I’m not sure whether this article’s purpose is to drive controversy or just to stir the pot among Catholics. I don’t know why else anyone would so casually dismiss the clearly articulated positions of our last two popes, the Apostolic nuncio to the U.N., and any number of other Catholic luminaries on this issue (Chaput comes to mind first).

    The author attempts to squelch disagreement from the outset by grasping as far back as he can and shouting “Magisterium!” This man is perhaps a noble traditionalist (who even italicizes FIRST Vatican Council in case we missed the qualifier). But painting an area of Church teaching obviously open to discussion in crisp blacks and whites serves no one.

    The Church’s teaching tradition is vibrant because it lives. Of course the Church has historically allowed for the death penalty. The case could even be made for it in our own time in very limited circumstances. The Church does not contradict herself, but neither does she ignore the fact that protecting society in the 1500’s is hardly the same proposition as protecting a society armed with the SuperMax.

    As for expiation…did the Good Thief really relent because of his circumstances, or in spite of them? The punishment certainly didn’t help his comrade find God. Punishment by the state in general is absolutely permissible and no doubt brings about some good; the question here is whether the State can extend that punishment to take life it did not create.

    Would that our “pro-life” attorneys placed as much value on human life (yes, even the lives of sinners) as our popes do.

  • doopy

    From the Catechism
    2267 Assuming that the guilty party’s identity and responsibility have been fully determined, 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.

    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 to 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 nonexistent.”-John Paul II,

  • Joe DeVet

    Since this post is labeled Part 1, I assume that in a subsequent part the author will attempt to harmonize this (what appears to me to be accurate) historical explication of the teaching. Then God willing it will be clear how the traditional teaching, and modern commentary on it, are not truly at odds. In proposing the end of the practice of capital punishment in today’s developed cultures, John Paul II affirmed the traditional teaching that such punishment is justifiable. He did not claim to change the teaching.

  • christforreealfreedom

    I love God, he protects the innocent. Leave it to us humans to complicate the right to life issues. Also, if someone dies voluntarily for another person saving their life, then a sinner can become a hero, and we know that person will have favor from God. Likewise, a prisoner in a penitentiary who has received capitol punishment for taking another persons life, has the opportunity to pray and ask God for forgiveness, and eventually loses his own life as punishnment, has his own opportunity to be with God. God wants us all to be with him. If a killer does not receive proper punishment, then how is he to know that he did anything wrong? He may not come to know and be with God,then whose sin is that?