ARTICLE

CAPITAL PUNISHMENT:
A WORK IN PROGRESS OR
PROGRESS UN-WORKING?

by Msgr. William B. Smith

Few texts of the Catechism have occasionedThe official teaching of the Catholic Church on “capital punishment” seems, in the judgment of many, to have undergone something of a “development” of moral doctrine. Such a development, in the positive sense, i.e, a positive non-contradictory development, is surely possible. Consider Veritatis Splendor (8/3/93) n. 4, which speaks of the Popes individually or with the College of Bishops: “with assistance from the Spirit of truth they have contributed to a better understanding of moral demands in the area of human sexuality, the family, and social, economic and political life” (VS 4).

The precise question at issue is the moral standing of capital punishment. Some will say that the presentation of capital punishment in the Catechism of the Catholic Church (1992) #2266 differs surely in restrictiveness from the teaching of the Roman Catechism of 1566. Further, with the publication of the encyclical Evangelium Vitae (3/25/95) n. 56, the definitive Latin edition of the Catechism (1997) has been corrected in paragraphs # 2266, #2267 to be even more restrictive than the original French edition of the Catechism (1992).

The Catechism (1997) #2267 says, in part, “... 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....”

“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 ... the cases in which the execution of the offender is an absolute necessity are very rare, if not practically non-existent” (CCC # 2267).

Thus, classic elements of the conventional Catholic teaching remain: 1) the Church does not deny the State the “right” to recourse to the death penalty (i.e., it is not morally forbidden as intrinsically evil); but 2) the Church’s official teachers clearly teach that this recourse is tightly circumscribed, indeed so tightly circumscribed as to be “practically non-existent.”

Capital punishment ironically stands at the beginning of Christianity. The Lord Jesus, Founder of Christianity, was Himself a victim of capital punishment, as were most of the Apostles and a great many of the early martyrs.

The canonical Scriptures were rarely invoked to question capital punishment. Indeed, the Old Testament commanded it at times: the so-called lex talionis (Ex 21:23), and, the categorical command of Gn 9:6: “If anyone sheds the blood of man, by man shall his blood be shed”; precisely for the reason stated: “For in the image of God has man been made” (Gn 9:6). The penalties for murder and manslaughter were legislated as norms “for you and all your descendants, wherever you live” (Nm 35:16-29).

This is seen as Old Testament justice but that justice is sometimes tempered with mercy, prudence and even stated exceptions that are not so well remembered and rarely cited. For example, no one was to kill the murderer Cain: “If anyone kills Cain, Cain shall be avenged sevenfold” (Gn 4:15); and again, the great cry in Ezekiel: “Answer them: 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. Turn, turn from your evil ways!” (Ez 33:11).

Few took the latter two citations as a restriction on the community’s right to execute a justly condemned criminal. The same proved true of the Lord’s reversal of the “eye for an eye” (life for life) (Mt 5:38): “But I say to you, offer no resistance to one who is evil. When someone strikes you on your right cheek, turn the other one to him as well” (Mt 5:39).

More prominent among Christian writers was their recollection and invocation of St. Paul’s defense of civil authority: “for it (authority) is a servant of God for your good. But if you do evil, be afraid, for it does not bear the sword without purpose; it is the servant of God to inflict wrath on the evildoer” (Rms 13:4). Rms 13:4 became and remained the locus classicus of western theology regarding capital punishment.

With Clintons in the White House, it strains Christian faith to see civil authority “as the servant of God for your good.” But our Christian ancestors were convinced it was better to suffer harm than to directly cause any. They had much greater concern for the legitimate authority of the office than for the shortcomings of the office-holders. The Scriptures seem not then to offer a definitive answer unless we emphasize one aspect while neglecting another.
A further road bump for the development-of-doctrine approach is that the two greatest theologians and doctors of the West clearly accept the legitimacy of capital punishment.

First, the great St. Augustine in his magisterial City of God teaches that all homicide is not murder:

For this reason the commandment forbidding killing was not broken by those who have waged wars on the authority of God, or those who have imposed the death penalty on criminals when representing the authority of the State in accordance with the laws of the State, the most just and reasonable source of power (City of God, Bk. 1, c. 21).

Perhaps no other Patristic text is cited as often as the above from his City of God; yet, the same great Doctor of the West could write and teach and preach:

Man is what God made, sinner is what man made himself to be. So do not condemn people to death, or while you are attacking the sin you will destroy the man. Do not condemn to death, and there will be someone to repent. Do not have a person put to death, and you will have someone who can repent. Do not have a person put to death, and you will have someone who can be reformed. As a man having this kind of love for men in your heart, be a judge of the earth. Love terrifying them if you like, but still go on loving. If you must be high and mighty, be high and mighty against sin, not against the person. Be savage with what you dislike in yourself, not with one who was made in the same way as you. You come from the same workshop, from the hands of the same craftsman; the same clay provided your raw material. Why destroy, by not loving, the one on whom you sit in judgment? Because what you are destroying is justice, by not loving the one on whom you sit in justice. “But penalties must be applied.” I don’t deny it, I don’t forbid it; only let it be done in a spirit of love, a spirit of caring, a spirit of reforming (Sermo 13, c. 7, #8).1

Eight centuries later, it was St. Thomas Aquinas who asks and answers in his Summa Theologiae: “Is it legitimate to kill sinners?” His response is, in part, “Now every individual person is as it were a part of the whole. Therefore if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good, for a little leaven sours the whole lump” (ST, II-II, 64, a. 2).

On this Aquinas is also adamant that the killing of malefactors is legitimate only in so far as it is ordered to the well-being of the whole community. This “right” belongs only to those charged with the care of the whole community—only rulers who exercise public authority; never is this allowed to private persons (ST, II-II, 64, 3). In this Aquinas agrees with and cites Augustine (City of God, I, 26).

The reasoning of Aquinas is graphic, even clinical—every part is related to the whole precisely as imperfect to perfect, which is why every part is naturally for the sake of the whole. If the well-being of the whole body demands the amputation of a limb, if a limb is gangrenous and threatens to infect the others, the treatment commended is amputation (ST II-II, 64, 2).

However, the human person is not a member of the human community in the same sense or the same way bodily parts are subordinated to the integral good of the individual body. Surely we are moral members of the human community and we do have clear and serious obligations to the common good. But the human person is not ordered completely and in every respect to political society (ST I-II, 21, a. 4, ad 3) and even the goal of human society is subordinated to the goal of eternal life in heaven (ST, II-II 26, 3; I, 60, 5; I-II, 96, 4).

There appears as well in Aquinas the condition—if any man is “dangerous to the community and is subverting it” (ST, II-II, 64-2). This was written in a time when long-term prisons and effectively complete isolation did not exist. One could ask today whether Aquinas might frame the question today in a way not much different from the Catechism. Answers to that might differ, but the question can be asked.

Just prior to Aquinas, there was a formal Profession of Faith for the Waldensians (1208) and its insertion (1210) about capital punishment: “Concerning the secular power, we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly” (DS, 795).

At the end of the 12th century, the Waldenses2 were rebuked for usurping the office of preaching, rejecting the authority of unworthy priests, refusing to take oaths, and “for categorically forbidding the killing of any man” (NCE 14:771). In reconciling Waldensians to the Church, the above was inserted into the Profession of Faith for them. Since it is a Profession of Faith, it enjoys a highly theological note. It is one reason why I believe the Church will not, because she cannot, deny the resort to capital punishment by legitimate authority if necessary to protect the common good. Thus, capital punishment in se cannot be called intrinsically evil.

Capital punishment was not a Reformation issue. Thus, what we find in the Roman Catechism of 1566 is typical and normative of its teaching on the Fifth Commandment:

Even among human beings there are some limitations to the extent of this prohibition of killing. The power of life and death is permitted to certain civil magistrates because theirs is the responsibility under law to punish the guilty and protect the innocent. Far from being guilty of breaking this commandment, such an execution of justice is precisely an act of obedience to it. For the purpose of the law is to protect and foster human life. This purpose is fulfilled when the legitimate authority of the state is exercised by taking the guilty lives of those who have taken innocent life. In the Psalms we find a vindication of this right: “Morning by morning I will destroy all the wicked in the land, cutting off all evildoers from the city of the Lord” (Ps. 101:8). (Roman Catechism, Part III, 5, n. 4).

The citation of Psalm 101:8 is one of the citations St. Thomas makes in the Sed contra of his article (ST, II-II, 64,2). It seems to be limited to those guilty of taking innocent life, thus limited as punishment for murder and manslaughter.

Where the conditions fit and are fulfilled, it is described not as an injustice but rather as an exercise of justice (a consideration not alien to Aquinas; cf. ST, II-II, 158, 1, ad 3; and 188, 3, ad 1). But here too, if the purpose of just laws is to protect and foster human life, and another, perhaps as effective, means is available “to protect and foster human life,” one could argue against the exercise of capital punishment without denying the justice of its basis.

Prior to Vatican Council II, Pope Pius XII in a number of addresses (9/14/52; 10/3/53; 10/15/54; 12/5/54; 2/5/55) focused on the traditional concept of the state as the upholder of justice, and its competence to punish with resources deemed necessary and reasonable, explaining the foundation of penal power and its purpose. Pope Pius did not explicitly defend or deny the state’s right to impose the death penalty, but he did defend the state’s right to have a retributive intention in its penal administration (NCE v. 3, p. 81).

While Pope Pius affirmed the right of the state to use capital punishment, his argumentation surely differs from Aquinas in one significant regard—Pope Pius does not see the human person in society as a mere part, as part to whole. The emphasis on the dignity and sacredness of each individual would emerge as a central theme and teaching of Vatican Council II; e.g. GS, nn. 24 and 26; and later in CCC # 2258.

Post World War II, the capital punishment abolition movement was, at first, a largely secular movement. Relatively few Catholics, here or elsewhere, were active or prominent voices in such debates. That has changed in the past two decades especially on the episcopal level. The Pontifical Magisterium together with numerous Episcopal Conferences have argued that if your society does not have capital punishment, don’t introduce it; if you do have it, don’t use it.

In conventional Catholic theology, the argument has not been whether the state has such a right (it does), but whether it accomplishes the goals and purposes that are claimed for it.

The usual understanding is that just punishment—any just punishment—should serve three functions: retribution, reform and deterrence. It has always been obvious that capital punishment does not reform or rehabilitate, so it was asked, in the face of truly capital crimes, whether the retributive function was of such importance that the reform aspect could be omitted. The deterrent argument is probably unprovable, pro or con. But in some jurisdictions with the greatest number of executions, we still have some of the highest rates of capital crime (e.g., the state of Texas).

Sociology and its statistics are probably best left to its proponents and opponents. It is my personal opinion that the high rate of public approval or acceptance of capital punishment (usually between 70 and 75% in the USA) has nothing to do with theology but much to do with dissatisfaction, even fear, that the criminal justice system is not working, that in the disjointed fallout from the Warren Court the guilty seem to have more publicized “rights” than the innocent, and so large numbers believe that a silver (even magic) bullet called capital punishment will restore our civil and social life to pre-Warren days.

Pontifical and Episcopal teaching documents do better to focus on properly theological sources rather than on my or their deep hunches. The NCCB (11/27/80) and others have done this emphasizing the unique dignity of each person, the truth that God is the Lord of Life not us, and the example and teaching of Jesus on mercy and forgiveness.

These, of course, are reflected most prominently in the Pontifical Magisterium: Evangelium Vitae, n. 56, and the Catechism (1997) #2266, #2267.

Even the classic theologians, Augustine and Aquinas, in the long Catholic tradition are not univocal in their understanding, presentation and justification on capital punishment. Both in Scripture citations and citations from the Fathers and Doctors of the Church, some have cited one aspect while forgetting or neglecting another. Almost all Catholic justifications of capital punishment are stated in terms of: “in order to preserve the common good,” necessary “to protect and foster human life,” and more modernly, “the only possible way of effectively defending human lives against the unjust aggressor.”
This debate will and should continue since the conditional premise makes it more and more difficult to sustain that capital punishment is truly a “necessity” in actual modern circumstances, much less “an absolute necessity” for effectively defending human lives against the unjust aggressor.

Msgr. William B. Smith, S.T.D., is professor of moral theology at St. Joseph’s Seminary in Dunwoodie, Yonkers, New York.


NOTES

(1)    J. Rotelle, ed. The Works of Augustine, Sermons III/1 (Brooklyn: New City Press, 1990) pp. 312-313; original in PL 38:110-111.
(2)    Cf. New Catholic Encyclopedia v. 14 (1967), 779-781.