Wednesday, April 2, 2014

Rethinking the Death Penalty in light of Pope John Paul II's 1995 encyclical, Evangelium Vitae

Rethinking the Death Penalty in light of Pope John Paul II's Teaching in Evangelium Vitae

How does one reconcile the traditional church position regarding the death penalty with John Paul II’s argument in Evangelium Vitae? What do St. Augustine and St. Thomas say about the death penalty? What positions do contemporary moral theologians take? What has Cardinal Ratzinger, now Pope Benedict XVI, said about the death penalty? Is the Church’s current teaching teaching on capital punishment a contradiction or a repudiation of its past support? 

The Catechism of the Catholic Church explains capital punishment in these words: “The efforts of the state to curb the spread of behavior harmful to people’s rights and to the basic rules of civil society correspond to the requirement of safeguarding the common good. 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 the guilty party willingly accepts it, 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.[1]

The catechism continues: “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 [i.e., the convicted murderer], authority [should] 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.[2]

“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’.”[3]

In John Paul II’s 1995 encyclical, Evangelium Vitae, (The Gospel of Life), he stated that “the nature and extent of the punishment [for capital crimes] must be carefully evaluated and decided upon, and ought not to 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 to the organization of the penal system, such cases are very rare, if not practically non-existent.”

The paragraph in the second (1997) edition of the Catechism reads: “The traditional teaching of the Church does not exclude recourse to the death penalty, when this is the only possible way of effectively defending human lives against the unjust aggressor” (2267). This replaces the first (1992) edition, which said: “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”[5] (Emphasis mine). This change in the second edition of the Catechism was clearly influenced by the pope’s 1995 encyclical.

John Paul further elaborated on his opposition to the death penalty in a pastoral visit to the U.S. “The new evangelization calls for followers of Christ who are unconditionally pro-life: who will proclaim, celebrate and serve the Gospel of Life in every situation. A sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil. Modern society has the means of protecting itself, without definitively denying criminals the chance to reform. I renew the appeal I made most recently…for a consensus to end the death penalty, which is both cruel and unnecessary.”[6]

Many who oppose the death penalty place it alongside abortion and euthanasia as to be equally condemned. However, in 1983 Joseph Cardinal Bernardin, in his Consistent Ethic of Life, made it clear that capital punishment should not be equated with the crimes of abortion and euthanasia.[7] And as recently as 2004, Joseph Cardinal Ratzinger, then Prefect of the Congregation for the Doctrine of Faith, wrote: “Not all moral issues have the same moral weight as abortion and euthanasia…. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.”[8] (Emphasis mine).

According to the Catechism, in situations where the death penalty is morally permissible,[9] it is left to those who have public responsibility to make such a decision whether the conditions in a particular case justifies execution. When John Paul wrote: “such cases [of executing the criminal] are very rare, if not practically non-existent” (EV no. 56), it is important to note that the phrase “very rare” and “practically non-existent” does not translate as non-existent.
It may seem that Church teaching is ambiguous concerning capital punishment, especially in light of Pope John Paul’s encyclical and Cardinal Ratzinger’s memo where he wrote “a legitimate diversity of opinion” regarding capital punishment may exist. How do (we as) theologians interpret such diversity?

Scripture is often mentioned in support of the death penalty. The passage from Exodus: “An eye for eye,” is most often cited. Opponents quote Ezekiel (33:11): “As I live, says the Lord God, I swear I take no pleasure in the death of the wicked man, but rather in the wicked man’s conversion, that he may live.” In fact, there are many more offenses that were capital crimes, such as adultery or striking or cursing a parent. Nevertheless, there seems to be a progression of mercy, such as is in Ezekiel and in the New Testament’s Sermon on the Mount where Jesus focuses on mercy and reconciliation, rather than the stringent requirements of capital justice.

In the early Church Christians refused to participate in war and capital punishment, but when Christianity became the official religion of the Roman Empire, opposition to the death penalty declined. “Tertullian argued that Christians should refrain from participation in civil government, because, among other things, it would entail the condemnation and execution of criminals…” and “Saint Ambrose, in a letter written to a magistrate concerning capital punishment, Ambrose instructed that the example of Jesus and the adulteress should be followed as a model.”[10]

Augustine and Thomas Aquinas argued in favor of the death penalty because, as he believed, it would deter the wicked and protect society. St. Augustine wrote in the fifth century A.D.: The same divine law which forbids the killing of a human being allows certain exceptions as when God authorizes...the representatives of the State’s authority to put criminals to death, according to law...[11] St. Thomas Aquinas responded in part: We observe that if the health of the whole body demands the excision of a member, through its being decayed or infectious to the other members, it will be both praiseworthy and advantageous to have it cut away…the good incur no danger, but rather are protected and saved by the slaying of the wicked, then the latter may be lawfully put to death’ for the sake of the common good.[12]

In the Roman Catechism of the Council of Trent, commenting on the Fifth Commandment, it states: “The prohibition does not apply to the civil magistrate, to whom is entrusted power of life and death, by the legal and judicious exercise of which he punishes the guilty and protects the innocent. The just 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 that prohibits murder. The end of the Commandment is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence.[13]

Recently it has been argued that, “It is nearly the unanimous opinion of the Fathers and Doctors of the Church that the death penalty is morally licit, and the teaching of past popes and numerous catechisms is that this penalty is essentially just (and even that its validity is not subject to cultural variation). 

Most recently, Avery Cardinal Dulles says both Scripture and tradition agree, ‘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’.”[14]

Yet even Augustine was willing to make exceptions. While he supports the right of the state to use capital punishment, he urged: “Do not have a person put to death, and you will have someone who can be reformed.”[15] “This is mirrored in Evangelium Vitae in paragraph 27, to seek to render “criminals harmless without definitively denying them the chance to reform.”

For those who claim that there is no precedence for a pope to question the legitimacy of capital punishment, the ninth-century Pope St. Nicholas I taught: “Without hesitation and in every possible circumstance, save the life of the body and soul of each individual. You should save from death not only the innocent but also criminals, because Christ has saved you from the death of the soul (emphasis mine).”[16]So Pope John Paul II was not completely breaking from tradition.

Also consider that in American society the death penalty is often pursued as a method of retaliation rather than divine justice; hence John Paul’s critique of such application. John Paul, in his encyclical and many other speeches and homilies was principally concerned that capital punishment further eroded the respect for the dignity of human life.

I further agree with Professor David Smolin when he states: “The death penalty should generally not be employed, he (Pope John Paul) seems to imply, both because it is no longer necessary to the protective function of the state, and also because its use (particularly when unnecessary to protect human life) has the inadvertent cultural impact of furthering the culture of death represented by practices such as abortion and euthanasia”(emphasis mine). However, in spite of the attractiveness of that argument, I, like Smolin, can also agree with [Supreme Court] Justice Scalia when he suggests that “the popularity of the death penalty in the United States is a sign that Americans still discern God’s authority over and behind the state; from this perspective maintenance of the death penalty is a helpful antidote to the democratic tendency to forget that God’s authority (rather than the people’s authority) is the ultimate foundation of state authority.”[17]

It does seem a paradox that one can appreciate both the pope’s belief that the death penalty seemingly perpetuates the culture of death and others’ argument, [like Justice Scalia’s], that considers the death penalty a tangible sign of God’s ultimate authority over human life.

However, Professor Steven Long argues, as long as “wrongful homicide” [abortion] is “legally affirmed and protected as a right” then the “primary medicinal end of the death penalty” is obstructed from view due to the “radical [cultural] devaluation of life.”[18]

I would agree that the application of the death penalty does, in reality, add to the killing of our culture of death; instead of fostering justice for the common good, as St. Thomas argued, justice is actually hampered due to a lack of an understanding of the dignity of human life. In other words, capital punishment may still be biblically and theologically valid, but “the prudence of its application is affected by the culture of death.”[19] Pope John Paul II taught that justice could only be found when and where every human life is “respected, protected, loved, and served.” He asked, “How is it still possible to speak of the dignity of every human person when the killing of the weakest and most innocent is permitted? (EV no. 20)”[20]

What, I believe, John Paul II was emphasizing in Evangelium Vitae was the intrinsic dignity of the human person, especially in our modern culture that has compromised human dignity, particularly through abortion and euthanasia. Therefore, I argue, as do others, that in order to redress the harm – indeed the injustice and evil – wrought by abortion and euthanasia, we ought not impose the death penalty so as to emphasize that all human life is sacred – guilty and non-guilty.

Yet, it is important for the critics of the death penalty to recall what Avery Cardinal Dulles of Fordham University said: “The Catholic Magisterium does not, and never has, advocated unqualified abolition of the death penalty.”[21]
One could argue that the death penalty does more harm than good given our current cultural situation where there is such an unparalleled contempt for human life. In Evangelium Vitae John Paul II argues that the use of capital punishment will not improve our society due to its widespread acceptance of abortion and the mentality of a culture of death. In fact, “the death penalty may in fact reinforce our worst instincts, so that it is more medicinal not to inflict such punishment” because the death penalty reinforces “a notion that life is expendable.”

Consequently, this would explain why the teaching of the Catechism maintains that refraining from the death penalty is more in keeping with the current societal conditions of the common good. Joseph Cardinal Ratzinger explained the current teaching along similar lines: “Clearly, the Holy Father has not altered the doctrinal principles which pertain to this issue [the death penalty] as they are presented in the Catechism, but has simply deepened the application of such principles in the context of present-day historical circumstances.”[23]

This clearly underlines John Paul’s assertion that “If such great care must be taken to respect every life, even that of criminals and unjust aggressors, the commandment ‘You shall not kill’ has absolute value when it refers to the innocent person.”[24] (Italics mine). Therefore if the state withholds execution of those who deserve death, this act will drive home the sanctity of each and every human life, especially the unborn – those who are innocent of a crime and have done nothing to merit death.

Although this teaching is not taught infallibly, Catholics should still seek religious submission of mind and will to the Magisterium of the Roman Pontiff, even when he is not speaking ex cathedra.[25]

There are those who argue for the application of capital punishment with recourse to the right and duty of legitimate public authority to safeguard human dignity and promote the common good; others argue against capital punishment on grounds of human dignity and the common good.

Abortion and euthanasia both take innocent lives; capital punishment takes the lives of convicted murderers. Therefore there is an amount of toleration for diversity of opinion concerning capital punishment. However, Pope John Paul wrote in Evangelium Vitae that the cases where the executions of the convicted criminal are necessary are very rare, if practically non-existent. Nevertheless, others maintain that they are not completely non-existent.

I believe the best argument against capital punishment relates to its application in light of the culture of death. The intrinsic worth of the human person as created in the image of God is obscured by the cultural diminishment of the value of human life. It follows then that by applying capital punishment, the intended desire, namely to show honor and respect for the human life of the slain, is not achieved; rather human life is further devalued by the exacting of another human life, even though biblically and theological it can be argued to be just and equitable.

When justice is limited to bloodless means of punishment, the good of all human life is respected and the momentum of a nefarious mentality that views human life as disposable decreases.

Due to the contempt for human life described in Evangelium Vitae, the application of capital punishment is not fostering the common good, but is actually harmful. Using St. Thomas’ reasoning, in today’s situation the death penalty may lead to the commission of more numerous, grievous sins by strengthening and encouraging the idea that human life is dispensable. 

Therefore, Pope John Paul’s acknowledgment of the state’s right to employ the death penalty, while insisting on its limited use, is not a contradiction of Catholic tradition nor does it mean that that “a development of doctrine has occurred.”[26]

Therefore it would seem clear that Catholicism and the death penalty are not mutually exclusive. Both the Catechism and the pope’s encyclical do not necessarily contradict the principle that the state has the right to employ capital punishment; they do, nevertheless, seem to signify a shift in understanding, as I have shown and described in the above paragraphs.

However, Catholic social teaching is built upon two equal foundations: the innate dignity of the human person and the common good. “Moreover, for John Paul II, the punishment of any crime should not only seek to redress wrong and protect society. It should also encourage the possibility of repentance, restitution and rehabilitation on the part of the criminal.”[27]

Unfortunately our society looks to violence for quick solutions to multifaceted human problems. Opposition to capital punishment is a clear expression of our belief in the matchless worth and dignity of each human being from the moment of his or her conception, as creatures made in the image and likeness of God. The pope’s teaching is evident: even those who have taken human life are to be treated with the utmost dignity.

In John’s gospel when Jesus refuses to condemn the woman caught in the act of adultery, his words and actions make us acutely aware of the dignity of human life.[28]

As I have stated above St. Augustine asked that the death penalty not be used on anyone, not even on those who have committed the most heinous of crimes. Augustine’s argument was based on his claim that the human dignity of being made in the “image of God” can be obscured but never erased.

St. Thomas Aquinas justified the use of the death penalty when used for the sake of preserving the common good of society. At the same time, however, he also argued that if a convicted criminal could be imprisoned and kept from being a danger to society, hence removing his threat to the common good, the state would not be justified in killing such a criminal.

Since Vatican Council II, especially in its document, Gaudium et Spes, the inviolable right to life has come to the fore: “There is an ever growing awareness of the sublime dignity of the human person, who stands above all things and whose rights and duties are universal… The social order and its developments must constantly yield to the good of the person, since the order of things must be subordinate to the order of persons and not the other way around.”[29] The document continues: “everyone must consider his every neighbor without exception as another self, taking into account first of all his life and the means necessary for living it with dignity… The teaching of Christ even requires that we forgive injustices, and extend the law of love to include every enemy, according to the command of the New Law…”[30]

In conclusion I reiterate that the Church is consistent in upholding the dignity and sacredness of human life from the moment of conception until natural death. 

In “Confronting a Culture of Violence,” the U.S. bishops state: “A consistent ethic of life remains the surest foundation of our life together.” As we become more aware of the Gospel challenges of our Christian vocation through theological reflection to daily achieve greater union with Christ, we will envision a culture of life and a civilization of love that will no longer include the death penalty. Pope John Paul seemingly places the dignity of the human person at the heart of the Church’s mission. “To rediscover and make others rediscover the inviolable dignity of every human person makes up an essential task, in a certain sense, the central and unifying task of the service which the Church and the lay faithful in her are called to render to the human family.”[31] 

Archbishop Charles Chaput helps us to understand that, “The Church’s critique of capital punishment is not an evasion of justice. Victims and their survivors have a right to redress, and the state has a right to enforce that redress and impose grave punishment for grave crimes. It is not an absolute rejection of lethal force by the state. The death penalty is not intrinsically evil. Both Scripture and long Christian tradition acknowledge the legitimacy of capital punishment under certain circumstances. The Church cannot repudiate that without repudiating her own identity.”[32]

Consequently, rather than claiming that capital punishment is unjust, the pope was arguing for the promotion of Gospel values. For the pope (and bishops) it seems that abolition of capital punishment would reiterate the belief in the unique worth and dignity of every human being from the moment of conception, as creatures made in the image and likeness of the God who is indeed the Lord of all life. Therefore, to bring about the culture of life, Christians must proclaim the truth of the human person: a steadfast affirmation of the value and sanctity of all human life.

According to the Catechism, the traditional teaching of the Church has acknowledged the right and duty of legitimate public authority to punish criminals in cases of extreme gravity with the death penalty. Nonetheless Pope John Paul exhorted us not to impose the death penalty so as to emphasize that all human life is sacred, in hopes of reversing the dangerous precedent of the prevailing culture of death that has cheapened life and rendered it disposable.

In analyzing John Paul II’s encyclical and the Catechism, the punishment of crimes should both seek to redress wrong and protect society. It has long been part of our tradition to leave open the possibility of repentance, restitution and rehabilitation on the part of the criminal. In America many hold the death penalty to be the best way to deal with capital crime. However, the Church holds a belief in the unique worth and dignity of each person from the moment of conception, creatures made in the image and likeness of God - even those who have taken life must be treated with dignity.

It would seem that the growing number of opponents to capital punishment and the traditional adherents of the church teaching that permits capital punishment will continue to coexist in tension for years to come. Though Evangelium Vitae was not a repudiation of past teachings, there does, however, seem to be some evolution in the understanding of the application of capital punishment.

Therefore, in light of the current cultural situation, withholding the employment of capital punishment will actually serve to promote the value of life as opposed to the former support of capital punishment. The pope, in his wisdom, has directed the Church in a new direction without rejecting, contradicting, or repudiating its past support of capital punishment.

[1] Catechism of the Catholic Church paragraph no. 2266. (The Catechism will be denoted as CCC).
[2] Ibid.
[3] Ibid.
[4] Evangelium Vitae, Pope John Paul II’s encyclical letter, 25 March 1995, paragraph no. 56.
[5] 1992 version of the Catechism of the Catholic Church, paragraph no. 2266.[6] Pope John Paul II’s homily, January 27, 1999, St. Louis, MO.
[7] Avery Cardinal Dulles, Catholicism & Capital Punishment, FIRST THINGS, vol. 112, April 2001, pp. 30-35.
[8] Worthiness to Receive Holy Communion — General Principles, memorandum of Cardinal Ratzinger to Cardinal McCarrick, first made public in July 2004.
[9] CCC 2267.
[10] “He Beareth not the Sword in Vain: the Church, the Courts, and Capital Punishment,” by Patrick M. Laurence. Ave Maria Law Review, Spring 2003.[11] Augustine, City of God, Book 1, chapter 21.
[12] Summa Theologiae, Part II-II, Q. 64, art. 2
[13] Roman Catechism, Council of Trent, Part III, paragraph II.[14] “Evangelium Vitae, St. Thomas Aquinas, and the Death Penalty” by Steven A. Long. The Thomist, 1999, pp. 511-52.
[15]Augustine of Hippo, Sermon 13, paragraph no. 8.
[16] Robert Fastiggi, in “Antonin Scalia and His Critics: The Church, the Courts, and the Death Penalty,” First Things, vol. 126 (October 2002): 8-18
[17] David Smolin, in “Antonin Scalia and His Critics: The Church, the Courts, and the Death Penalty,” First Things, vol. 126 (October 2002): 8-18
[18] Steven Long, in “Antonin Scalia and His Critics: The Church, the Courts, and the Death Penalty,” First Things, vol. 126 (October 2002): 8-18.
[19] Ibid.
[20] Judie Brown, in “Antonin Scalia and His Critics: The Church, the Courts, and the Death Penalty,” First Things, vol. 126 (October 2002): 8-18
[21] Avery Cardinal Dulles, “Catholicism and Capital Punishment,” First Things vol. 112, pp. 30-35.
[22] Laurence, He Beareth the Sword Not in Vain.
[23] Ibid.
[24] Ibid.
[25] Second Vatican Council, Lumen Gentium [Dogmatic Constitution on the Church] no. 25 (1964).
[26] Laurence, He Beareth Not the Sword in Vain.
[27] Ibid.
[28] John 8:1-11
[29] Gaudium et spes, No. 26.
[30] Ibid., Nos. 27-28.
[31] Evangelium Vitae, No. 45.
[32] Justice, Mercy, and Capital Punishment By the Most Reverend Charles J. Chaput, O.F.M. Cap., March 2005, USCC.

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