Early last month, four Catholic journals—America, the National Catholic Reporter, the National Catholic Register, and Our Sunday Visitor—issued a joint editorial, “Capital Punishment Must End,” advocating for the abolition of the death penalty in the United States. The editorial was significant not only for its message, but also because it brought together editorial offices from across the Catholic political and theological spectrum. Soon after its publication, the contributors to this blog unanimously endorsed the editorial.
The editorial received support elsewhere in the Catholic blogosphere, as well, but this support was not shared by all. Most criticisms have focused on the fact that the Catholic tradition has long asserted that the state has the right to enforce the penalty of death for the most serious crimes (John McCloskey provides a good overview in his critique of the editorial), whereas the joint editorial, in its moral urgency and call for an outright abolition of the practice, appears to depart from that tradition by implying that capital punishment is absolutely wrong. As a site devoted to reasoned commentary on the Catholic moral tradition, I believe this blog is well-placed to respond to these criticisms, so I offer this defense of the joint editorial and our endorsement of it, although speaking for myself rather than for the other contributors in any official capacity.
As the joint editorial, and indeed many of its critics, point out, in his 1995 encyclical Evangelium Vitae, after identifying growing opposition to the death penalty as a “sign of hope” (#27), Pope John Paul II wrote:
It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent (#56).
This statement was significant enough that the then recently published Catechism of the Catholic Church–which already stated that “If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person” (#2267)—was revised to reflect John Paul’s judgment.
As Edward Peters rightly notes in his critical response to the editorial, John Paul’s was a prudential rather than a principled rejection of capital punishment, consistent with the earlier tradition approving its use in limited cases. All of the critiques of the editorial hinge on this point. What all of the critics fail to note, however, is that, as part of John Paul’s “authentic Magisterium,” this teaching deserves the “religious submission of mind and will” of the Catholic faithful, in the words of Lumen Gentium (#25). This point is reinforced by the repetition of this teaching by John Paul’s successors Benedict XVI and Francis and the U.S. bishops’ consistent advocacy for the death penalty’s abolition. As the Congregation for the Doctrine of the Faith’s Instruction on the Ecclesial Vocation of the Theologian makes clear, a considered disagreement with such a teaching is possible, but “willingness to submit loyally to the teaching of the Magisterium on matters per se not irreformable must be the rule” (#24). But if that is the case, then the editors of the four journals should be able to act on this authentic Magisterium of the popes and bishops in good faith, without qualification, let alone without holding back their assent to it due to others’ misgivings. Indeed, it is the editorial’s critics who must labor under the shadow of disagreeing with the Magisterium’s teaching.
Still, the critics’ charge is that the editorial not only assents to, but even goes beyond John Paul’s teaching by objecting to capital punishment in principle. For example, Peters claims that the editorial “for the most part only repackages and recycles prudential arguments against the death penalty as if they were arguments in principle.” Given how central this accusation is to all of the critics’ challenges, it is striking that nowhere in the editorial do its authors make any claims about the absolute or intrinsic wrongness of the death penalty. Without such an explicit statement to point to, it seems that the critics’ accusation hinges on two things: the editorial’s description of the death penalty as “abhorrent,” and its advocacy for the total abolition of the death penalty, with no room for the discretion of government authorities.
This first point seems exceptionally weak. “Abhorrent” is not a technical theological term, and simply means to be deserving of strong opposition. Yet the critics of the editorial try to give the word a precise significance, suggesting that the term is somehow only appropriate in describing intrinsic evils. For example, Carl E. Olson writes, “The use of ‘abhorrent’ is especially strange considering the word conjures up a clear sense of objective evil, even though capital punishment, when administered lawfully, prudentially, and proportionally, is nothing of the sort.” Even more strongly, Steve Long asserts that to call the death penalty “abhorrent” is “the language of the Waldensians,” the medieval heretics who, as he points out, held that the death penalty was malum in se, that is, intrinsically evil, and were required to renounce this view to regain communion with the church. But this association of “abhorrent” with intrinsic evil is arbitrary on the part of the critics, and therefore allows them to read more into the editorial than is really there; there is no reason to think that something must be intrinsically evil to be abhorrent. In part, the critics are guilty of the common misuse of the term “intrinsic evil” (described by David Cloutier at this blog), conflating its actual meaning, that an act is always wrong, with the seriousness of the evil involved, as if intrinsically evil acts are always worse than those which are not intrinsically evil. But this would mean that an engaged couple, after many years of a loving relationship, having sexual intercourse prior to their marriage—an intrinsic evil in Catholic teaching—is worse than the Nazis’ invasion of Poland, since after all war is not intrinsically evil, which seems absurd. Which is more abhorrent? Clearly an act can be abhorrent, worthy of strong opposition, without involving an intrinsically evil act. And if one shares John Paul’s judgment that instances in which the death penalty is justified are, in the contemporary world, “practically non-existent,” then it stands to reason that one could consider the practice “abhorrent” tout court in the present context, because it involves the unnecessary taking of human life, without considering it intrinsically evil.
As I mentioned, I think it is the editorial’s endorsement of the total abolition of the death penalty that irks its critics. For example, Long writes, “The wisdom of applying this penalty is essentially a prudential matter. But as prudential there is no such thing as ‘de facto abolition’ since circumstances change . . . .” Essentially Long’s point is that the death penalty should not be abolished because, no matter how unnecessary it might seem now, a circumstance might arise in which it is necessary. But this is wrong for two reasons. First, it conflates the legal order with the moral order. There is no contradiction in enacting an absolute legal prohibition against something on prudential grounds. For example, the use of chemical weapons has been prohibited by international law, despite the absence of anything that makes their use intrinsically wrong compared to other types of weapons. Or again, despite initial beliefs about its promise as a way of treating mental illness, lobotomies are today prohibited by the medical profession because of their potential risks. Second, Long has distorted the meaning of prudence. When Thomas Aquinas explains the virtue of prudence, he makes clear that it involves the application of universal principles to concrete, particular action: “Now actions are in singular matters: and so it is necessary for the prudent man to know both the universal principles of reason, and the singulars about which actions are concerned” (ST IIaIIae 47.3). Yet Long seems to suggest that prudent judgment involves abstracting oneself from one’s concrete situation, considering instead all possible circumstances, no matter how remote their possibility; this is not prudence, but rather its opposite. Consider that Long’s objection is not really to John Paul’s prudential judgment that today the instances justifying the death penalty are “practically non-existent,” but instead to the judgment that this implies the abolition of the death penalty. Since both John Paul and the Catechism’s teaching, however, is grounded in contemporary society’s ability to deter the criminal and protect society through non-lethal means, then the only thing that could override this judgment, the change in circumstances that Long believes makes the abolition of the death penalty unwise, would be the catastrophic breakdown of society, rendering the modern penal system ineffective. So in effect, Long is arguing that we in the United States, in 2015, should not abolish the death penalty because it might be necessary in some hypothetical, post-apocalyptic future in which society has no way to protect itself but to put dangerous criminals to death, no matter how unlikely this scenario may be. But this is clearly absurd. It is of the nature of prudential judgment that it can change as the circumstances change; this does not mean that our prudential judgment must be hamstrung by the remotest possibility of change in the unforeseen future.
As the example of Long illustrates, the heart of the matter is, I think, the abuse of the concept of prudence (which Cloutier also ably explains in the post linked above). Peters writes that because the Catechism and John Paul’s conclusion about the death penalty is a prudential judgment, it is “by definition, debatable.” Now this is true as far as it goes, but as Cloutier makes clear, this does not mean that the issue is endlessly debatable, or that no definitive judgment can be made. Some judgments are more reasonable than others, and it would indeed be imprudent to fail to act on a reasonable judgment simply because the judgment is debatable. As the examples of chemical weapons and lobotomies above are meant to illustrate, it is even possible to achieve moral certainty that under present conditions, a certain practice can never be justified; such is the judgment that the death penalty should be abolished. It is telling that not a single one of the critiques of the joint editorial directly challenges the prudential arguments made by Pope John Paul and the Catechism, nor those of the joint editorial itself. Instead, the appeal to “prudential judgment” is used as a trump card enabling the critics to ignore these arguments, based on the present conditions of society, which seems to be hard to square with the actual virtue of prudence, let alone the “religious submission of mind and will” to Magisterial teaching cited above.
The critics of the joint editorial raise some other objectionable points, as well, but I believe the above points are the central issues involved. These things considered, I believe the joint editorial is completely justified, does not make overstated claims about the morality of capital punishment, as its critics contend, and is a faithful response to Magisterial teaching.
There is no great difficulty in reconciling Evangelium Vitae with prior teachings from (e.g.) Aquinas and the Roman Catechism of 1566. Together, they see the justification of the death penalty specifically as a means of protecting the common good from the guilty party. (It is noticeable that these sources all defend the death penalty on a different basis than other kinds of punishment.)
“Since both John Paul and the Catechism’s teaching, however, is grounded in contemporary society’s ability to deter the criminal and protect society through non-lethal means…”
I don’t see any justification in Catholic teaching for selecting the death penalty as a deterrent to others.
I think that there are entirely possible circumstances in which the gap between Evangelium Vitae’s careful “very rare” application of the death penalty, and the joint editorial’s outright claim of “de facto abolition” may need to be taken into consideration.
I don’t think that (e.g.) any of the judicial executions in the USA of the last 50 years would qualify for Evangelium Vitae’s allowable kinds of execution, so I agree that it would be good to abandon all the current kinds of execution carried out in the USA.
However, one might consider the case of (e.g.) Pablo Escobar, the Columbian drug lord. By all accounts he could corrupt the penal system, the law enforcement system, and the legislative system of an entire country. It could then be a reasonable decision that the only way of protecting the common good would be execution. It would be highly undesirable if there were no judicial way of implementing this — it would leave the country’s common good legally defenseless.
The reality of 1990’s Columbia is quite recent, and far from being a “hypothetical, post-apocalyptic future”. (And it’s not so far away from the USA’s experience of the era of Prohibition.)
Lumen Gentium 25’s ” religious submission of mind and will” is exactly what Dominican Theologian Yves Congar meant when he said that often Counciliar statements are incomplete and could have said more. If in 1454 as a Portuguese, you submitted to Pope Nicholas V in Romanus Pontifex, middle of fourth large paragraph, well…you as a conquistador could despoil and enslave native Brazilians….and told God right after death that you had submitted your will and intellect to Romanus Pontifex.
In 1529 Pope Leo X excommunicated any Catholic who agreed with Luther that burning heretics was against the Holy Spirit ( art.33 condemned) Exsurge Domine. You could burn five people then in 1524 whom we now in 2015 trust with our heart transplants…and you could tell God that you submitted your mind and will to Exsurge Domine.
In short Lumen Gentium 25 needs a ton of qualifications and is that ever true with this new death penalty idea. Check homicide by country at wiki which gives ( unlike Evangelium Vitae and the catechism ) UN figures on murder rates. The two largest Catholic populations are Brazil and Mexico and they have no death penalty and awful murder rates and awful prisons. China which is comparable because it has one billion poor people is 25 times safer from murder than Brazil and 20 times safer than Mexico from murder….by UN numbers. One would think that a Pope would have checked first before expounding on such a topic. But no one confronts Popes if they are paid by the Catholic system as profs or Cardinals. And on top of that never ackowledged income source of unanimity, there is the Oath within the Profession of Faith that is less nuanced even than Lumen Gentium 25 which says one must agree with the Magisterium….arguably in 2015 or in 1454 or in 1520. Google most dangerous cities of the world at statista web site. Of the fifty most murderous cities on earth, 43 are in Catholic countries with no death penalty. How did Pope Benedict and his catechism as Cardinal line up with unresearched deas of John Paul II? Easily…read section 42 of Verbum Domini wherein Benedict is the first Pope in history to state that the Old Testament herem or massacres were sins rather than ordered by God and he feels scholars trained in genre criticism will expound this. What in the world made him miss 70 AD which is not ancient and which involved more deaths than all of Canaan and was predicted by Christ as coming because Jerusalem had not known the hour of its visitation….ergo it would come not simply due to Roman choice but by God’s choice of using Rome as Axe ( see Isaiah 10 middle and end for that concept).
Lumen Gentium 25…. clean it up first so that it did not justify slavers in 1454 and protestant burnets in 1520.
I believe Matthew Shadle makes some excellent points about prudence and the Church’s teaching on capital punishment. I wonder, though, whether he concedes too much when he agrees with Peters and Long that John Paul II’s rejection of capital punishment was prudential rather than principled. Both Aquinas (ST II-II, q. 47 a. 3 ad 1) and the Catechism of the Catholic Church (CCC) understand prudence as the virtue by which “we apply moral principles to particular cases” (CCC, 1806). With regard to capital punishment we need to ask what principles are invoked to discern if and when the death penalty may be used. Peters reads the CCC, 2267 as in harmony with what Henry Davis, S.J. taught some 70 years ago. I agree that there is some degree of continuity, but I don’t find in the cited passage of Davis a clear affirmation of the principle (affirmed by both John Paul II and the CCC) that non-lethal means of punishment are “more in conformity with the dignity of the human person.” This is a principle not a prudential judgment, and it supports the other principle articulated by John Paul II in Evangelium Vitae [EV], 56, viz., that it is not licit (neque … licere) to impose the death penalty “except in cases of absolute necessity (nisi absoluta instante necessitate), namely when it would not be possible otherwise to defend society.” Now both EV, 56 and the CCC, 2267 do invoke prudential elements (e.g. “the concrete conditions of the common good”), but a twofold principle is laid out that is meant to inform any prudential judgment regarding the death penalty: 1) that non-lethal means of punishment better correspond to human dignity; and 2) that recourse to the death penalty is not licit except in cases of absolute necessity: namely, when it would not be possible otherwise to defend society. There might be legitimate debate about what would qualify as cases of absolute necessity, but those who favor the death penalty have the burden of proof to show that recourse to capital punishment is the only possible way of defending society.
I commend those who try to read the teaching of EV, 56 and the CCC, 2267 in continuity with prior Church teaching. It’s always good to try to see Catholic moral teachings in continuity with the past. There is, however, at least a new emphasis in what the Church now teaches about capital punishment. This new emphasis is found in the principle (not prudential judgment) that non-lethal means “are more in conformity to the dignity of the human person.”