Given all the recent attention to the death penalty here at our site (and other places around the web, of course!), and the recent extended lesson on the concept of “cooperation with evil” that John Berkman and Charlie Camosy gave us in their “Are We All Michael Vick?” series, I can’t resist pointing our readers to Maureen Dowd’s column in the NY Times this week.
In the midst of a variety of other reflections on religion in public life, including the Church’s willingness to “aggressively meddle” in the politics of abortion, Dowd wonders at the lack of obvious meddling with political figures who supported the Iraq war or who support the death penalty.
She points out that Scalia himself, in his support of the continued use of the death penalty, is now dissenting from the clear teaching of the second consecutive pope to insist that the times when the death penalty is needed are “very rare, if not practically non-existent.”
She ends, quite provocatively, by introducing the concept of cooperation with evil, and applying it to the Supreme Court’s own involvement in the application of the death penalty:
If you facilitate something that has been deemed wrong, like taking a human life, are you cooperating in evil?
Maybe the Supreme Court should ask itself that question. Are you “cooperating in evil,” Justice Scalia?
Now, let me note that, in the traditional use of the death penalty, the magistrates who sentenced a criminal to death, who upheld and executed that sentence, were seen as participating in a basically good act, because what they were doing most fundamentally was protecting the common good, though that act necessarily also resulted in the death of one who was a threat to the common good. But the point that Blessed John Paul made, and that Benedict has echoed, is that when alternative, non-lethal means exist to protect the common good (i.e. modern highly secure prison systems), those means should be chosen over lethal means. In fact, when a means exists by which one can secure the good effect one seeks (protection of the common good) without the evil effect one had had to endure (the destruction of a human life), then the act in question no longer meets the traditional qualifications of the principle of double effect, and is in fact not justified. And if the act is not justified, it seems to me that any sort of participation in or facilitation of that act is in fact a cooperation with evil.
Now, it seems to me that, in matters such as this, in order to give some leeway to our leaders, we often fall back on the idea that specific applications of Church teaching (especially related to war and the death penalty) involve “prudential judgments” that cannot be pronounced upon in precisely the timeless way a clear evil like abortion can be pronounced upon. But it seems to me that, in the case of the death penalty, one could invoke the idea of “prudential judgment,” if, say, we were stranded on an island, or otherwise without nonlethal means to protect society from a particular criminal. We would be obligated (or our leader would be) to make a prudential judgment about the threat and what the best way to secure the common good would be. And I think that, given the variety of times and places and cultures in which Catholic teaching has been, is, and will be turned to for guidance on these issues, it is imperative that the teaching leave such room for “prudential judgment.” But it seems to me that, at least in the United States in the 21st century, the cases where this is a real judgment call are “very rare, if not practically non-existent.”
I agree that the use of the death penalty in the US has been something that Catholics should oppose, but I want to support Dana’s appeal to prudent judgment.
Besides the desert island scenario, consider the one that concerns me, namely that of a catastrophic economic collapse in western democratic states based on things like accumulated debt. Not so hard to imagine, right?
In such a situation, the pressures on budgets for maintaining the common good of law and order would presumably be unprecedented. There would be considerably less money available for not only police and courts, but prisons. This would be very different situation than the one for which JPII offered his judgment that the cases that justified the death penalty were “very rare, if not practically non-existent.” It would be more a case of impoverished citizens (let’s say they are struggling for financial survival) would be required to foot the bill for imprisoning such offenders indefinitely.
Do we really want to be taking the position that Catholic teaching precludes governments from putting to death those proven to be serious offenders (say serial killers, leaders of violent gangs, etc) in order to protect the common good of law and order in cases where there simply isn’t funding to imprison them? (I’m assuming that–somewhat like the case of the island– in such a situation of economic crisis, the cost of execution would be considerably less than imprisonment).
It seems to me that causing someone’s death is evil to the extent that it is unjust. It is certainly unjust to put the innocent to death as often happens in current capital punishment. But do “you” (not Dana) think it would always be unjust to put to death someone who has been proven to be a serious threat to public safety when the public can’t afford to imprison him?
Hi Bill– Thanks for posting here! You raise a good point about impending economic catastrophes – but it seems pretty clear that (a) death penalty cases cost taxpayers substantial amounts of money as well, and (b) it’s not clear that we are at the point where “impoverished citizens” would have to foot the bill for public safety. If we simply raise taxes slightly, especially on those who have more than enough, we should wipe out debt and be able to maintain human dignity.
I am a little late responding here, but the thrust of Dowd’s column, and perhaps this blog post, is that it is the job of a Supreme Court justice to step in and overturn laws that he or she disagrees with, or more specifically the job of a Catholic Supreme Court justice to overturn laws contrary to Catholic teaching.
In Centesimus Annus, John Paul proposes the separation of the legislative, executive, and judicial powers as preferable for the sake of the rule of law. This means that lawmaking belongs to the legislative branch. Of course sometimes the legislature makes immoral laws, but it is the job of the people to correct them, not judges (unless the laws also conflict with more fundamental laws, such as the US Constitution).
Also Dowd does not seem to understand the concept of cooperation with evil. Cooperation with evil is not necessarily bad. Some cooperation with evil is necessary. Catholic moral theology distinguishes between formal and material cooperation. Justice Scalia is not necessarily involved in formal cooperation, which is consent to the evil (I don’t know his personal opinion on the death penalty). Material cooperation is performing actions that help make the evil possible, but there are different types of material cooperation. A justice failing to overrule an unjust law is different from a legislator voting for the unjust law, for the reasons outlined above. Of course one might argue that if being a judge means upholding unjust laws, then one should not be a judge, but I think that is an extreme view.
I know what I have said here needs to be expanded, but it is late…
Really, it shouldn’t have to be pointed out that supporting capital punishment is in no sense cooperation with evil. Inasmuch as the Church has always acknowledged the right of the State to execute criminals for serious crimes it’s a bit much to contend that agreeing with the Church is an evil thing to do.
The response that “JPII changed all that” doesn’t fly very far either. If we believe that morality is timeless, how are we to accept that what was moral for nearly two millennia is now evil? Are we to believe that Cardinal Ratzinger was condoning evil when he said: “There may be a legitimate diversity of opinion even among Catholics about … applying the death penalty”?
Ender, what is your take on Pope Benedict welcoming Mexico’s abolition of the death penalty and approaching it as part of more generalized concern for the right to life? http://www.patheos.com/blogs/markshea/2011/10/catholic-theologians-dissent-from-combox-capital-punishment-experts/
Charles – I assume that BXVI would like to see capital punishment ended. Having said that, his personal distaste of the practice does not translate to Church teaching and that teaching today is that capital punishment is not intrinsically evil.
Given that it is not intrinsically evil, and that he himself said we may hold a diversity of opinions on its application, it cannot logically be claimed that supporting it constitutes cooperation with evil. Capital punishment is not evil if the Church (even theoretically) recognizes the validity of its use.
Intrinsic evil is a red herring when talking about the evil of capital punishment. A practice need not be intrinsically evil in order to always consider it evil within a broad set of circumstances. War is not intrinsically evil, but it is of course always wrong, say, when not declared by a legitimate authority. The death penalty is not intrinsically evil, but the Church teaches that in the circumstance where a criminal may otherwise be safely imprisoned, it is always wrong. This is not a result of the ‘personal distaste’ of the last two popes, but rather the teaching of the Church.
I disagree that the Church has said that capital punishment is always wrong if a criminal can be safely imprisoned. I understand that this is what is implied by CCC 2267 (and EV #56) but I consider this teaching to be prudential, not doctrinal – a position explicitly held by Cardinal Dulles and implied by Cardinal Ratzinger and even the USCCB.
Beyond what are clearly opinions about the capabilities of penal systems (modern and ancient), there is no justification for basing the morality of the death penalty on security, which is only a secondary objective of punishment. The primary objective of punishment is retributive justice and the Church has always taught that the death penalty is a just punishment for (at least) murder. The justness of that punishment cannot change with the times as it is based on the severity of the crime, not the need for protection.