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.”