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Avery Cardinal Dulles
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"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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