Is the Death Penalty Moral?




Further to the recent terrible news of the shooting in Colorado at a screening of the new Batman film there has been a considerable amount of discussion regarding whether the perpetrator, James Holmes, should face the death penalty or not.

I became involved in a discussion with some friends, who were adamant that Homes should be killed for what he had done. Certainly I share their disgust at his crimes, but consider the death penalty to be something we do not employ in civilised society. As a Catholic, I also consider it broadly disconsonant with the fundamental dignity of all human life. I also think the Church teaches us that it is a broadly unacceptable course of action today. During the discourse, all kinds of arguments were employed to try and justify recourse to capital punishment, quoting the Council of Trent for example, and suggesting that the teaching of the Church does not change. This is correct of course, the Church's teaching does not change, but it does develop and needs to be re-evaluated in the light of the development of society. The Church's teaching on capital punishment is an excellent example of how this 'hermeneutic of continuity' works. In fact, the teaching of the Church remains not that the death penalty is acceptable as an arbitrary method of dispensing with those of murderous intent. Rather it is a method of last resort to protect society.

I was thus prompted to write this synopsis of Church teaching on the death penalty, a teaching which is impressively nuanced, and perhaps not what one would expect. I love what the Church has to say in this regard as I find it resonates with my internal sense of natural justice, but, like all doctrine, it requires some study to understand it properly.

When considering the morality of the death penalty, one must remember that it it has been a method employed by the Holy See itself. It is notable that, though since the foundation of the Vatican State in 1929, capital punishment has never been used and the law was abrogated in 1969. 

Perhaps the best way to start is to consider what the Church teaches about good and evil acts. Let’s look at the Catechism of the Catholic church, which presents an organic synthesis of the essential and fundamental contents of Catholic teaching, as regards both faith and morals, in the light of the Second Vatican Council and the whole of the Church’s Tradition (cf. CCC 11).

We note that:

1755 A morally good act requires the goodness of the object, of the end, and of the circumstances together. An evil end corrupts the action, even if the object is good in itself (such as praying and fasting "in order to be seen by men").
The object of the choice can by itself vitiate an act in its entirety. There are some concrete acts - such as fornication - that it is always wrong to choose, because choosing them entails a disorder of the will, that is, a moral evil.

1756 It is therefore an error to judge the morality of human acts by considering only the intention that inspires them or the circumstances (environment, social pressure, duress or emergency, etc.) which supply their context. There are acts which, in and of themselves, independently of circumstances and intentions, are always gravely illicit by reason of their object; such as blasphemy and perjury, murder and adultery. One may not do evil so that good may result from it.

Link. 

If we consider what is taught about the death penalty in the Catechism, we can see that is presented in the context of the the fifth commandment: “You shall not kill” (Ex 20:13; cf. Deut 5:17). The section begins by quoting the CDF instruction Donum Vitae, intro. 5., which states: 

"Human life is sacred because from its beginning it involves the creative action of God and it remains for ever in a special relationship with the Creator, who is its sole end. God alone is the Lord of life from its beginning until its end: no one can under any circumstance claim for himself the right directly to destroy an innocent human being." CCC 2258

The Catechism goes on to recall the witness of sacred history, noting that Scripture specifies the prohibition contained within the fifth commandment in Ex 23:7 as “Do not slay the innocent and the righteous”. This specification is given where the Ten Commandments  (which are given in a single event of theophany and commandment (Ex 20:1-17)) are explained in detail (this section after the theophany event is usually referred to as the Covenant Code and adds depth to the Decalogue). Israel had the death penalty, so this teaching is useful, it qualifies the fifth commandment, explains it. This was an important clarification for me personally, because it always confused me that God commanded “thou shalt not kill”, but that didn’t stop an awful lot of killing going on after that in the Bible! I often wondered why there was such a contradiction...But that's another subject for another day.

Despite the qualification in the covenant code, Jesus adds to the fifth commandment the proscription of anger, hatred and vengeance, asking His disciples to turn the other cheek and to love their enemies (cf. Matt 5:22-39; 5:44; CCC 2262). Jesus did not defend Himself and told Peter to leave his sword sheathed (cf. Matt 26:52; CCC 2263).

The Catechism explains that though legitimate defense of persons and societies is allowed, it does not constitute an exception to the prohibition against the murder of the innocent that constitutes intentional killing; the aggressor may die as a result of your taking action to protect, but this is not the intention of your action. The intention is the defense of the innocent, or those unable to defend themselves against an aggressor (CCC2263). This means that legitimate defense can be more than a right—it can be a grave duty for one, like a husband, or a father, who is responsible for the lives of others (CCC 2264). This does not change the fact that every act directly willed is imputable to its author, however an effect can be tolerated without being willed by its agent. Thus a bad effect is not imputable if it was not willed either as an end or as a means of action. For a bad effect to be imputable, it must be foreseeable and the agent must have the possibility of avoiding it. (cf. CCC 1737)

Another very important point, and I think a comforting one also, is to acknowledge that there is a strong emphasis on punishment in Church teaching. A little research reveals that the Catechism, in its original text of 1992 listed the functions of punishment with a hierarchy, putting retribution for injustice first. There is no doubt that this is a key and essential feature of punishment. It is the retribution for those judged guilty which distinguishes punishment from mere terror or manipulation. A deterrent effect upon those guilty and on others is another feature of punishment, but the reconciliatory function has been given more prominence of late. In the definitive (Latin) edition of the Catechism there is not a suggestion of hierarchy and subordination of functions. Even in the original there was a very strong discouragement from use of the death penalty, mainly because it precludes all possibility of a person reforming. 

We see this explained in CCC 2266: punishment has the primary aim of redressing the disorder introduced by the offense and if willingly accepted by the perpetrator, 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 (cf. Luke 23:40-43; CCC 2266).

With regard to the death penalty itself, the essential sentence comes in paragraph 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.”

This however is qualified immediately following with the caveat that if non-lethal means are sufficient, authority will limit itself to such means, as these are more in keeping with the common good and more in conformity with the dignity of the human person.

Just looking through some special morals books on this, there are some key things to think about from both sides of this argument:

1. The Gospel injunction to "turn the other cheek" Mt 5:39. However, this has a parallel in Romans 12:19-21, based on Proverbs 25:21-22 and is important in showing that Jesus’ teaching is a strategy for winning, not for passive resignation or indifference to evil. The goal is to shame the opponent into a change of heart. This presupposes the requisite dispositions in the opponent which are not always present. In such difficult cases recourse to other biblical principles may be necessary (cf. Brown, R.E., et al, NJBC, p. 646).

2. The Gospel does acknowledge the role of the civil authorities to punish wrong-doers Mt 22:23-22; Rom 31:1-7; 1 Pet 2:13-15

3. Although Capital Punishment is not discussed in the New Testament, it existed and neither it, nor its operation were challenged.

4. The right to self-defense is rooted in the natural inclination to self-preservation (St. Thomas Aquinas, Summa Theologiae, I-II, q. 94, a. 2). Here St. Thomas judged that it was the proper function of the public authorities to punish wrong-doers, not the right or responsibility of individuals. Thus offenders ought to be brought to justice according to a proper system of apprehension, investigation and trial. An individual does not have the right to kill an unjust aggressor normally.

5. The right to self-defense is not an absolute duty for an individual where that individual is the only one at risk; he might forgo that right for reasons of pacifism. However it would seem to be different of the one at risk were frail and needed assistance in order to save his life or to avoid serious injury.

6. St. Thomas thinks that murderers lose their right to be treated as human beings and are worse than animals—thus they could be killed—although only by command of public authority and after judgement (Summa Theologiae, I-II, q. 64 a. 2-3).

7. Recent changes in attitude are, to some extent, the result of the execution of people who have later been found to be innocent, and partly because the execution leaves no possibility for the criminal to reform. The major change however, is the existence in many more developed parts of the world of much more sophisticated means if controlling dangerous criminals. Notice that it is the common good which accounts for this teaching; the common good requires the effective protection of society and the effective restraint of criminals who are a threat to the lives of others.

8. Notice the way Capital Punishment is discouraged in Evangelium Vitae:

It is an "extreme" (Evangelium Vitae, n. 56) not to be used except "when it would be not possible otherwise to defend society"—something "very rare, if not practically non-existent" because of "steady improvements in the organisation of the penal system". It quotes the Catechism saying that public authority "must limit itself to such (bloodless) means", since "they better correspond to the concrete conditions of the common good" and are "more in conformity to the dignity of the human person".

Given the changes in the penal system, the Magisterium is stating very strongly that there is no longer a proportionate reason for capital punishment and that such punishment is no longer a proportionate means of dealing with dangerous criminals in modern society. However, note that it stops short of excluding capital punishment altogether: this is because of the practice in past centuries, no doubt, but also because there could be 'rare occasions' when the 'concrete conditions of the common good' were not what they generally are in the developed world. Unusual circumstances such as civil disorder might render effective protection of the innocent from the danger from very violent criminals something which could not be 'otherwise' assured. For example, if a group were to be marooned on a desert island and one turned out to be murdering others. In such a circumstance, it would be practically impossible to incarcerate the individual indefinitely, and recourse to the death penalty would be defensible.



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