Avery Cardinal Dulles"If the Pope were to deny that the death penalty could be an exercise of retributive justice, he would be overthrowing the tradition of two millenia of Catholic thought, denying the teaching of several previous popes, and contradicting the teaching of Scripture."- Avery Cardinal Dulles
Catholicism
& Capital Punishment
by Avery Cardinal Dulles April 2001
Among the
major nations of the Western world, the United States is singular in still
having the death penalty. After a five-year moratorium, from 1972 to 1977,
capital punishment was reinstated in the United States courts. Objections to
the practice have come from many quarters, including the American Catholic
bishops, who have rather consistently opposed the death penalty. The National
Conference of Catholic Bishops in 1980 published a predominantly negative
statement on capital punishment, approved by a majority vote of those present
though not by the required two-thirds majority of the entire conference. Pope
John Paul II has at various times expressed his opposition to the practice, as
have other Catholic leaders in Europe.
Some
Catholics, going beyond the bishops and the Pope, maintain that the death
penalty, like abortion and euthanasia, is a violation of the right to life and
an unauthorized usurpation by human beings of God’s sole lordship over life and
death. Did not the Declaration of Independence, they ask, describe the right to
life as “unalienable”?
While
sociological and legal questions inevitably impinge upon any such reflection, I
am here addressing the subject as a theologian. At this level the question has
to be answered primarily in terms of revelation, as it comes to us through
Scripture and tradition, interpreted with the guidance of the ecclesiastical
magisterium.
In the Old
Testament the Mosaic Law specifies no less than thirty-six capital offenses calling
for execution by stoning, burning, decapitation, or strangulation. Included in
the list are idolatry, magic, blasphemy, violation of the sabbath, murder,
adultery, bestiality, pederasty, and incest. The death penalty was considered
especially fitting as a punishment for murder since in his covenant with Noah
God had laid down the principle, “Whoever sheds the blood of man, by man shall
his blood be shed, for God made man in His own image” (Genesis 9:6). In many
cases God is portrayed as deservedly punishing culprits with death, as happened
to Korah, Dathan, and Abiram (Numbers 16). In other cases individuals such as
Daniel and Mordecai are God’s agents in bringing a just death upon guilty
persons.
In the New
Testament the right of the State to put criminals to death seems to be taken
for granted. Jesus himself refrains from using violence. He rebukes his
disciples for wishing to call down fire from heaven to punish the Samaritans
for their lack of hospitality (Luke 9:55). Later he admonishes Peter to put his
sword in the scabbard rather than resist arrest (Matthew 26:52). At no point,
however, does Jesus deny that the State has authority to exact capital
punishment. In his debates with the Pharisees, Jesus cites with approval the
apparently harsh commandment, “He who speaks evil of father or mother, let him
surely die” (Matthew 15:4; Mark 7:10, referring to Exodus 2l:17; cf. Leviticus
20:9). When Pilate calls attention to his authority to crucify him, Jesus
points out that Pilate’s power comes to him from above-that is to say, from God
(John 19:11). Jesus commends the good thief on the cross next to him, who has
admitted that he and his fellow thief are receiving the due reward of their
deeds (Luke 23:41).
The early
Christians evidently had nothing against the death penalty. They approve of the
divine punishment meted out to Ananias and Sapphira when they are rebuked by
Peter for their fraudulent action (Acts 5:1-11). The Letter to the Hebrews
makes an argument from the fact that “a man who has violated the law of Moses
dies without mercy at the testimony of two or three witnesses” (10:28). Paul
repeatedly refers to the connection between sin and death. He writes to the
Romans, with an apparent reference to the death penalty, that the magistrate
who holds authority “does not bear the sword in vain; for he is the servant of
God to execute His wrath on the wrongdoer” (Romans 13:4). No passage in the New
Testament disapproves of the death penalty.
Turning to
Christian tradition, we may note that the Fathers and Doctors of the Church are
virtually unanimous in their support for capital punishment, even though some
of them such as St. Ambrose exhort members of the clergy not to pronounce
capital sentences or serve as executioners. To answer the objection that the
first commandment forbids killing, St. Augustine writes in The City of God:
The same divine law which forbids the killing of a human being allows certain exceptions, as when God authorizes killing by a general law or when He gives an explicit commission to an individual for a limited time. Since the agent of authority is but a sword in the hand, and is not responsible for the killing, it is in no way contrary to the commandment, “Thou shalt not kill” to wage war at God’s bidding, or for the representatives of the State’s authority to put criminals to death, according to law or the rule of rational justice.
In the
Middle Ages a number of canonists teach that ecclesiastical courts should
refrain from the death penalty and that civil courts should impose it only for
major crimes. But leading canonists and theologians assert the right of civil
courts to pronounce the death penalty for very grave offenses such as murder
and treason. Thomas Aquinas and Duns Scotus invoke the authority of Scripture
and patristic tradition, and give arguments from reason.
Giving
magisterial authority to the death penalty, Pope Innocent III required
disciples of Peter Waldo seeking reconciliation with the Church to accept the
proposition: “The secular power can, without mortal sin, exercise judgment of
blood, provided that it punishes with justice, not out of hatred, with
prudence, not precipitation.” In the high Middle Ages and early modern times
the Holy See authorized the Inquisition to turn over heretics to the secular
arm for execution. In the Papal States the death penalty was imposed for a
variety of offenses. The Roman Catechism, issued in 1566, three years after the
end of the Council of Trent, taught that the power of life and death had been
entrusted by God to civil authorities and that the use of this power, far from
involving the crime of murder, is an act of paramount obedience to the fifth
commandment.
In modern
times Doctors of the Church such as Robert Bellarmine and Alphonsus Liguori
held that certain criminals should be punished by death. Venerable authorities
such as Francisco de Vitoria, Thomas More, and Francisco Suárez agreed. John
Henry Newman, in a letter to a friend, maintained that the magistrate had the
right to bear the sword, and that the Church should sanction its use, in the
sense that Moses, Joshua, and Samuel used it against abominable crimes.
Throughout
the first half of the twentieth century the consensus of Catholic theologians
in favor of capital punishment in extreme cases remained solid, as may be seen
from approved textbooks and encyclopedia articles of the day. The Vatican City
State from 1929 until 1969 had a penal code that included the death penalty for
anyone who might attempt to assassinate the pope. Pope Pius XII, in an
important allocution to medical experts, declared that it was reserved to the
public power to deprive the condemned of the benefit of life in expiation of
their crimes.
Summarizing
the verdict of Scripture and tradition, we can glean some settled points of
doctrine. It is agreed that crime deserves punishment in this life and not only
in the next. In addition, it is agreed that 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.
Yet, as we
have seen, a rising chorus of voices in the Catholic community has raised
objections to capital punishment. Some take the absolutist position that
because the right to life is sacred and inviolable, the death penalty is always
wrong. The respected Italian Franciscan Gino Concetti, writing in L’Osservatore
Romano in 1977, made the following powerful statement:
In light of the word of God, and thus of faith, life-all human life-is sacred and untouchable. No matter how heinous the crimes . . . [the criminal] does not lose his fundamental right to life, for it is primordial, inviolable, and inalienable, and thus comes under the power of no one whatsoever.
If this right and its attributes are so absolute, it is because of the image which, at creation, God impressed on human nature itself. No force, no violence, no passion can erase or destroy it. By virtue of this divine image, man is a person endowed with dignity and rights.
To warrant
this radical revision—one might almost say reversal—of the Catholic tradition,
Father Concetti and others explain that the Church from biblical times until
our own day has failed to perceive the true significance of the image of God in
man, which implies that even the terrestrial life of each individual person is
sacred and inviolable. In past centuries, it is alleged, Jews and Christians
failed to think through the consequences of this revealed doctrine. They were
caught up in a barbaric culture of violence and in an absolutist theory of
political power, both handed down from the ancient world. But in our day, a new
recognition of the dignity and inalienable rights of the human person has
dawned. Those who recognize the signs of the times will move beyond the
outmoded doctrines that the State has a divinely delegated power to kill and
that criminals forfeit their fundamental human rights. The teaching on capital
punishment must today undergo a dramatic development corresponding to these new
insights.
This
abolitionist position has a tempting simplicity. But it is not really new. It
has been held by sectarian Christians at least since the Middle Ages. Many
pacifist groups, such as the Waldensians, the Quakers, the Hutterites, and the
Mennonites, have shared this point of view. But, like pacifism itself, this
absolutist interpretation of the right to life found no echo at the time among
Catholic theologians, who accepted the death penalty as consonant with
Scripture, tradition, and the natural law.
The
mounting opposition to the death penalty in Europe since the Enlightenment has
gone hand in hand with a decline of faith in eternal life. In the nineteenth
century the most consistent supporters of capital punishment were the Christian
churches, and its most consistent opponents were groups hostile to the
churches. When death came to be understood as the ultimate evil rather than as
a stage on the way to eternal life, utilitarian philosophers such as Jeremy
Bentham found it easy to dismiss capital punishment as “useless annihilation.”
Many governments
in Europe and elsewhere have eliminated the death penalty in the twentieth
century, often against the protests of religious believers. While this change
may be viewed as moral progress, it is probably due, in part, to the
evaporation of the sense of sin, guilt, and retributive justice, all of which
are essential to biblical religion and Catholic faith. The abolition of the
death penalty in formerly Christian countries may owe more to secular humanism
than to deeper penetration into the gospel.
Arguments
from the progress of ethical consciousness have been used to promote a number
of alleged human rights that the Catholic Church consistently rejects in the
name of Scripture and tradition. The magisterium appeals to these authorities
as grounds for repudiating divorce, abortion, homosexual relations, and the
ordination of women to the priesthood. If the Church feels herself bound by
Scripture and tradition in these other areas, it seems inconsistent for
Catholics to proclaim a “moral revolution” on the issue of capital punishment.
The
Catholic magisterium does not, and never has, advocated unqualified abolition
of the death penalty. I know of no official statement from popes or bishops,
whether in the past or in the present, that denies the right of the State to
execute offenders at least in certain extreme cases. The United States bishops,
in their majority statement on capital punishment, conceded that “Catholic
teaching has accepted the principle that the State has the right to take the
life of a person guilty of an extremely serious crime.” Joseph Cardinal
Bernardin, in his famous speech on the “Consistent Ethic of Life” at Fordham in
1983, stated his concurrence with the “classical position” that the State has
the right to inflict capital punishment.
Although
Cardinal Bernardin advocated what he called a “consistent ethic of life,” he
made it clear that capital punishment should not be equated with the crimes of
abortion, euthanasia, and suicide. Pope John Paul II spoke for the whole
Catholic tradition when he proclaimed in Evangelium Vitae (1995) that
“the direct and voluntary killing of an innocent human being is always gravely
immoral.” But he wisely included in that statement the word “innocent.” He has
never said that every criminal has a right to live nor has he denied that the
State has the right in some cases to execute the guilty.
Catholic
authorities justify the right of the State to inflict capital punishment on the
ground that the State does not act on its own authority but as the agent of
God, who is supreme lord of life and death. In so holding they can properly
appeal to Scripture. Paul holds that the ruler is God’s minister in executing
God’s wrath against the evildoer (Romans 13:4). Peter admonishes Christians to
be subject to emperors and governors, who have been sent by God to punish those
who do wrong (1 Peter 2:13). Jesus, as already noted, apparently recognized
that Pilate’s authority over his life came from God (John 19:11).
Pius XII,
in a further clarification of the standard argument, holds that when the State,
acting by its ministerial power, uses the death penalty, it does not exercise
dominion over human life but only recognizes that the criminal, by a kind of
moral suicide, has deprived himself of the right to life. In the Pope’s words,
Even when there is question of the execution of a condemned man, the State does not dispose of the individual’s right to life. In this case it is reserved to the public power to deprive the condemned person of the enjoyment of life in expiation of his crime when, by his crime, he has already dispossessed himself of his right to life.
In light
of all this it seems safe to conclude that the death penalty is not in itself a
violation of the right to life. The real issue for Catholics is to determine
the circumstances under which that penalty ought to be applied. It is
appropriate, I contend, when it is necessary to achieve the purposes of
punishment and when it does not have disproportionate evil effects. I say
“necessary” because I am of the opinion that killing should be avoided if the
purposes of punishment can be obtained by bloodless means.
The
purposes of criminal punishment are rather unanimously delineated in the
Catholic tradition. Punishment is held to have a variety of ends that may conveniently
be reduced to the following four: rehabilitation, defense against the criminal,
deterrence, and retribution.
Granted
that punishment has these four aims, we may now inquire whether the death
penalty is the apt or necessary means to attain them.
Rehabilitation. Capital punishment does not reintegrate the
criminal into society; rather, it cuts off any possible rehabilitation. The
sentence of death, however, can and sometimes does move the condemned person to
repentance and conversion. There is a large body of Christian literature on the
value of prayers and pastoral ministry for convicts on death row or on the
scaffold. In cases where the criminal seems incapable of being reintegrated
into human society, the death penalty may be a way of achieving the criminal’s
reconciliation with God.
Defense
against the criminal. Capital
punishment is obviously an effective way of preventing the wrongdoer from
committing future crimes and protecting society from him. Whether execution is
necessary is another question. One could no doubt imagine an extreme case in
which the very fact that a criminal is alive constituted a threat that he might
be released or escape and do further harm. But, as John Paul II remarks in Evangelium
Vitae , modern improvements in the penal system have made it extremely rare
for execution to be the only effective means of defending society against the
criminal.
Deterrence. Executions, especially where they are painful,
humiliating, and public, may create a sense of horror that would prevent others
from being tempted to commit similar crimes. But the Fathers of the Church
censured spectacles of violence such as those conducted at the Roman Colosseum.
Vatican II’s Pastoral Constitution on the Church in the Modern World explicitly
disapproved of mutilation and torture as offensive to human dignity. In our day
death is usually administered in private by relatively painless means, such as
injections of drugs, and to that extent it may be less effective as a
deterrent. Sociological evidence on the deterrent effect of the death penalty
as currently practiced is ambiguous, conflicting, and far from probative.
Retribution. In principle, guilt calls for punishment. The
graver the offense, the more severe the punishment ought to be. In Holy
Scripture, as we have seen, death is regarded as the appropriate punishment for
serious transgressions. Thomas Aquinas held that sin calls for the deprivation
of some good, such as, in serious cases, the good of temporal or even eternal
life. By consenting to the punishment of death, the wrongdoer is placed in a
position to expiate his evil deeds and escape punishment in the next life.
After noting this, St. Thomas adds that even if the malefactor is not
repentant, he is benefited by being prevented from committing more sins.
Retribution by the State has its limits because the State, unlike God, enjoys
neither omniscience nor omnipotence. According to Christian faith, God “will
render to every man according to his works” at the final judgment (Romans 2:6;
cf. Matthew 16:27). Retribution by the State can only be a symbolic
anticipation of God’s perfect justice.
For the
symbolism to be authentic, the society must believe in the existence of a
transcendent order of justice, which the State has an obligation to protect.
This has been true in the past, but in our day the State is generally viewed
simply as an instrument of the will of the governed. In this modern
perspective, the death penalty expresses not the divine judgment on objective
evil but rather the collective anger of the group. The retributive goal of
punishment is misconstrued as a self-assertive act of vengeance.
The death
penalty, we may conclude, has different values in relation to each of the four
ends of punishment. It does not rehabilitate the criminal but may be an
occasion for bringing about salutary repentance. It is an effective but rarely,
if ever, a necessary means of defending society against the criminal. Whether
it serves to deter others from similar crimes is a disputed question, difficult
to settle. Its retributive value is impaired by lack of clarity about the role
of the State. In general, then, capital punishment has some limited value but
its necessity is open to doubt.
There is
more to be said. Thoughtful writers have contended that the death penalty,
besides being unnecessary and often futile, can also be positively harmful.
Four serious objections are commonly mentioned in the literature.
There is,
first of all, a possibility that the convict may be innocent. John Stuart Mill,
in his well-known defense of capital punishment, considers this to be the most
serious objection. In responding, he cautions that the death penalty should not
be imposed except in cases where the accused is tried by a trustworthy court
and found guilty beyond all shadow of doubt.
It is
common knowledge that even when trials are conducted, biased or kangaroo courts
can often render unjust convictions. Even in the United States, where serious
efforts are made to achieve just verdicts, errors occur, although many of them
are corrected by appellate courts. Poorly educated and penniless defendants
often lack the means to procure competent legal counsel; witnesses can be
suborned or can make honest mistakes about the facts of the case or the
identities of persons; evidence can be fabricated or suppressed; and juries can
be prejudiced or incompetent. Some “death row” convicts have been exonerated by
newly available DNA evidence. Columbia Law School has recently published a
powerful report on the percentage of reversible errors in capital sentences
from 1973 to 1995. Since it is altogether likely that some innocent persons
have been executed, this first objection is a serious one.
Another
objection observes that the death penalty often has the effect of whetting an
inordinate appetite for revenge rather than satisfying an authentic zeal for
justice. By giving in to a perverse spirit of vindictiveness or a morbid
attraction to the gruesome, the courts contribute to the degradation of the
culture, replicating the worst features of the Roman Empire in its period of
decline.
Furthermore,
critics say, capital punishment cheapens the value of life. By giving the
impression that human beings sometimes have the right to kill, it fosters a
casual attitude toward evils such as abortion, suicide, and euthanasia. This
was a major point in Cardinal Bernardin’s speeches and articles on what he
called a “consistent ethic of life.” Although this argument may have some
validity, its force should not be exaggerated. Many people who are strongly
pro-life on issues such as abortion support the death penalty, insisting that
there is no inconsistency, since the innocent and the guilty do not have the
same rights.
Finally,
some hold that the death penalty is incompatible with the teaching of Jesus on
forgiveness. This argument is complex at best, since the quoted sayings of
Jesus have reference to forgiveness on the part of individual persons who have
suffered injury. It is indeed praiseworthy for victims of crime to forgive
their debtors, but such personal pardon does not absolve offenders from their
obligations in justice. John Paul II points out that “reparation for evil and
scandal, compensation for injury, and satisfaction for insult are conditions
for forgiveness.”
The
relationship of the State to the criminal is not the same as that of a victim
to an assailant. Governors and judges are responsible for maintaining a just
public order. Their primary obligation is toward justice, but under certain
conditions they may exercise clemency. In a careful discussion of this matter
Pius XII concluded that the State ought not to issue pardons except when it is
morally certain that the ends of punishment have been achieved. Under these
conditions, requirements of public policy may warrant a partial or full
remission of punishment. If clemency were granted to all convicts, the nation’s
prisons would be instantly emptied, but society would not be well served.
In
practice, then, a delicate balance between justice and mercy must be
maintained. The State’s primary responsibility is for justice, although it may
at times temper justice with mercy. The Church rather represents the mercy of
God. Showing forth the divine forgiveness that comes from Jesus Christ, the
Church is deliberately indulgent toward offenders, but it too must on occasion
impose penalties. The Code of Canon Law contains an entire book devoted to
crime and punishment. It would be clearly inappropriate for the Church, as a
spiritual society, to execute criminals, but the State is a different type of
society. It cannot be expected to act as a Church. In a predominantly Christian
society, however, the State should be encouraged to lean toward mercy provided
that it does not thereby violate the demands of justice.
It is
sometimes asked whether a judge or executioner can impose or carry out the
death penalty with love. It seems to me quite obvious that such officeholders
can carry out their duty without hatred for the criminal, but rather with love,
respect, and compassion. In enforcing the law, they may take comfort in believing
that death is not the final evil; they may pray and hope that the convict will
attain eternal life with God.
The four
objections are therefore of different weight. The first of them, dealing with
miscarriages of justice, is relatively strong; the second and third, dealing
with vindictiveness and with the consistent ethic of life, have some probable
force. The fourth objection, dealing with forgiveness, is relatively weak. But
taken together, the four may suffice to tip the scale against the use of the
death penalty.
The
Catholic magisterium in recent years has become increasingly vocal in opposing
the practice of capital punishment. Pope John Paul II in Evangelium Vitae declared
that “as a result of steady improvements in the organization of the penal
system,” cases in which the execution of the offender would be absolutely
necessary “are very rare, if not practically nonexistent.” Again at St. Louis
in January 1999 the Pope appealed for a consensus to end the death penalty on
the ground that it was “both cruel and unnecessary.” The bishops of many
countries have spoken to the same effect.
The
United States bishops, for their part, had already declared in their majority
statement of 1980 that “in the conditions of contemporary American society, the
legitimate purposes of punishment do not justify the imposition of the death
penalty.” Since that time they have repeatedly intervened to ask for clemency
in particular cases. Like the Pope, the bishops do not rule out capital
punishment altogether, but they say that it is not justifiable as practiced in
the United States today.
In coming
to this prudential conclusion, the magisterium is not changing the doctrine of
the Church. The doctrine remains what it has been: that the State, in
principle, has the right to impose the death penalty on persons convicted of
very serious crimes. But the classical tradition held that the State should not
exercise this right when the evil effects outweigh the good effects. Thus the
principle still leaves open the question whether and when the death penalty
ought to be applied. The Pope and the bishops, using their prudential judgment,
have concluded that in contemporary society, at least in countries like our
own, the death penalty ought not to be invoked, because, on balance, it does
more harm than good. I personally support this position.
In a
brief compass I have touched on numerous and complex problems. To indicate what
I have tried to establish, I should like to propose, as a final summary, ten
theses that encapsulate the Church’s doctrine, as I understand it.
1) The
purpose of punishment in secular courts is fourfold: the rehabilitation of the
criminal, the protection of society from the criminal, the deterrence of other
potential criminals, and retributive justice.
2) Just
retribution, which seeks to establish the right order of things, should not be
confused with vindictiveness, which is reprehensible.
3)
Punishment may and should be administered with respect and love for the person
punished.
4) The
person who does evil may deserve death. According to the biblical accounts, God
sometimes administers the penalty himself and sometimes directs others to do
so.
5)
Individuals and private groups may not take it upon themselves to inflict death
as a penalty.
6) The
State has the right, in principle, to inflict capital punishment in cases where
there is no doubt about the gravity of the offense and the guilt of the
accused.
7) The
death penalty should not be imposed if the purposes of punishment can be
equally well or better achieved by bloodless means, such as imprisonment.
8) The
sentence of death may be improper if it has serious negative effects on
society, such as miscarriages of justice, the increase of vindictiveness, or
disrespect for the value of innocent human life.
9) Persons
who specially represent the Church, such as clergy and religious, in view of
their specific vocation, should abstain from pronouncing or executing the
sentence of death.
10)
Catholics, in seeking to form their judgment as to whether the death penalty is
to be supported as a general policy, or in a given situation, should be
attentive to the guidance of the pope and the bishops. Current Catholic
teaching should be understood, as I have sought to understand it, in continuity
with Scripture and tradition.
Avery Cardinal Dulles, S.J. holds
the Laurence J. McGinley Chair in Religion and Society at Fordham University.
This essay is adapted from a McGinley Lecture delivered by Cardinal Dulles in
New York City.
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