Death Penalty: Magisterium vs. Left and Right

When it comes to the death penalty, the Church teaches:

2267 Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, nonlethal 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 are more in conformity to the dignity of the human person.

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent.

Now, among the sundry subcultures of the Church there are certain “universes of discourse” where one can say this and receive varying replies. When citing the above passage, one will (depending on the subculture you are addressing) receive anything ranging from a shrug, a nod of affirmation, a plea to equate abortion and the death penalty or a passionate denunciation (as, for instance from folks like these guys). What interests me is how these universes of discourse work: what is and is not permissible, how the red flags go up and down, and who gets marked as “in” and “out” when discussing some square peg of Catholic teaching that does not fit in the round hole of ideological and tribal commitment.

And so, whenever the death penalty gets mentioned here and there at St. Blogs, two basic sorts of people come out of the woodwork to argue with each other and the Church.

The first sort of person one often hears from is the guy who assumes that the death penalty, war and abortion are morally equivalent issues. Mention the death penalty and these folks show up faster than you can say “Pro-life hypocrite” (a favor term of theirs). The problem is, it is not, strictly speaking, hypocrisy to be “pro-war” or “pro-death penalty” (depending on the circumstances) while always opposing abortion. If one favors an unjust war or an unjust application of capital punishment while still claiming to be pro-life then the epithet “hypocrite” is accurate. But if one truly believes a war is just (meaning, among other things, that one is reluctant to prosecute it but has no other choice) then one is no more a hypocrite than a surgeon who reluctantly cuts into living flesh to save a patient is the moral equivalent of Jack the Ripper.

Likewise, with the death penalty, as the Catechism makes clear, the Church has always recognized that Caesar may use the sword to punish serious crime (Romans 13). In contrast, abortion is always the taking of innocent human life, which can never be justified for any reason. So the notion that a prolifer who backs a particular application of the death penalty is ipso fact a hypocrite is likewise bunk. John Paul II was as prolife as they come, but he never declared that the death penalty was intrinsically immoral.

Having cleared that elementary point out of the way, however, we then run into a second sort of difficulty: what I call Death Penalty Maximalism. This is a species of reactionary dissent from magisterial teaching which seeks to pick, cafeteria style, from the Church’s teaching and listen to the Church only insofar as her teaching is useful for upholding the proposition that the maximum number of people possible (including minors) should be subjected to capital punishment.

The reason I use the term “death penalty maximalist” is that such a position stands at the far end of the scale from the clear and obvious teaching of the Church articulate in the CCC passage above. It is a difference of emphasis from the Church’s position rather than two polar opposites or a Manichean division of black and white. That’s because the Church does not and cannot say that the death penalty is intrinsically immoral, nor can the Maximalist insist that it is absolutely immoral not to apply the death penalty.

The reasons for this are found in Scripture itself. Just as Romans 13 places the sword in the hand of Caesar to execute judgment on capital criminals under certain circumstances, so it also clearly shows us instances where criminals guilty of capital crimes (e.g., the adulterous murder King David in the Old Testament and the woman taken in the very act of adultery in the New Testament) have been spared the extreme penalty. In short, despite the fundamentalist readings of Genesis 9:6 (“Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image”) constantly provided by enthusiasts for capital punishment, the Catholic tradition has always regarded the death penalty with flexibility. The Church has never said that merely because the death penalty may be inflicted, it must be inflicted. It cannot be otherwise since God himself has never inflicted the death penalty with rigidity. God's mercy does not always inflict, even on the richly deserving capital criminal, the punishment he or she deserves. Paul, who was accessory to the lynch murder of a completely innocent man, was not only not given his just desserts as a blasphemer and a violent man, he was shown such great mercy that he became an apostle of Christ. So while the Church has never fallen into the foolish game of making the death penalty the moral equivalent of abortion, she also tells us that wherever possible, clemency is preferable to death.

This development of Magisterial teaching seen in the Catechism above (for development it is and not John Paul’s dismissible personal opinion) means that, on the spectrum of possible applications of the death penalty, the Church’s basic posture is that the onus is on Caesar to show that execution is necessary, not on the human person to show why his dignity makes him worthy of not being killed. The point is that the dignity of the human person derives not from his works, whether good or ill, but from the God who made him in his image and likeness. The Church does not deny that Caesar, for the sake of the common good, may execute a capital criminal. But the Church does suggest that if the common good is not threatened by a criminal behind bars, then mercy rather than strict vengeance for the crime is the better course. And in the First World, including here in the US, that means that the practical result is that Catholics should work for the abolition of the death penalty.

This seems reasonable to me an I am therefore, following the Magisterium, a death penalty minimalist. That is, while I do not concede that the death penalty is the moral equivalent of abortion, I still think its application should be restricted to absolute necessity and do not see any real necessity for it when we have the technology to keep the offender from harming again. Indeed, it seems a fortiori reasonable with a penitent brother or sister who not only is no longer a threat to others, but who now seeks to serve Christ. So, with the Church, I think the best course is life in prison and, in particular, for penitents of capital offenses to serve a life sentence rather than be put to death. That's the minimalist position in a nutshell.

For the maximalist, the Catechism (CCC 2267) is wrong, not merely in saying that “the cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent” (which is a practical judgment based on things like prison safety). No, for the Maximalist it is wrong in principle: the death penalty is not merely applied to protect the community but to serve (allegedly) Justice! And since it is a matter of principle (allegedly) then it follows that we must execute as many capital criminals as possible so that Justice may be served as completely as possible. For the Maximalist, the onus is on the Church to show why a capital criminal should be spared, not on Caesar to show why he should be killed. And so, for the Maximalist, the Church has allegedly both betrayed the Tradition and has overstepped into Caesar’s realm.

On a Catholic site, then, when this matter gets raised there will inevitably arise those Maximalists who show up to do a number of things at once:

1. Denounce the developed Magisterial teaching as actually contradictory of the Tradition;

2. Cite sundry theological authorities pre-dating the development of the Tradition in order to show that the Magisterium has no right to opinions St. Thomas does not share (be sure to spam every discussion of the death penalty anywhere, from Buddhist to Catholic to Anglican to sundry political blogs to foreign and domestic. The whole world needs to hear the good news of death). Such arguments tend to ignore the fact that Thomas would be horrified at being pitted against the teaching of the Church, and that Thomas is not infallible;

3. Quote Scripture like a fundamentalist (especially, Genesis 9:6) and oppose it to Evangelium Vitae, declaring things like “JP2’s humanist personal opinions do not equal magisterial teaching even if they’re printed in a Catechism. The Pope has no power to redefine Catholic Moral Doctrine in a way that contradicts the constant teaching of the Church. Read your Vatican I.”;

4. Denounce death penalty minimalists or abolitionists, not merely as Catholics who are making a different prudential judgment from a different part of the spectrum of possible applications of the death penalty, but as heretics, cowards, weakling, moral posturers, heartless fiends who mock the suffering of victims, etc.;

5. Occasionally, throw in non sequiturs like “Opposition to the death penalty is really just an attempt to divert our attention from abortion” or “Not that many people get executed and they are mostly probably guilty, so it’s no big deal”. This sometime happens when overheated people make the “abortion=war=death penalty” moral equivalences.

Bottom line: For the dedicated death penalty maximalist, if you aren't in favor of maximum death for the maximum number of criminals, you are a Bad Catholic. To quote one Catholic who recently warmly applauded the death of the penitent Teresa Lewis and rebuked those who were not eager to slay her:

In more balanced ages, men did not so easily arrogate to themselves the right to spare murderers, et. al. They knew, both as Christians and as members of true cultures, that such reprobates were to be offered the assistance and gifts of the Church, and then to be sent out of this world forthwith, to seek mercy from God. It is, I often think, an insidious side effect of the creeping disease of Modernism (which is far from defeated) that some of us Catholics fear death so much that we dare not trust even the likes of this Teresa scoundrel to it.

The notion that Christian piety is best demonstrated by "trusting" somebody else to death is a curious one and is echoed by other opinions one encounters with alarming frequency in the conservative Catholic blogosphere:

Don’t any of you self-righteous death penalty opponents ever read the Bible? As he was hanging on the cross Jesus promised Paradise to the felon who confessed the justice of the death penalty (cf. Luke 23: 39-43)

The strange conflation of dogmatic Death Penalty Maximalism with some sort of core doctrine of Catholic faith is a classic illustration of how a tribal shibboleth can get fuddled with the heart of the faith. For, of course, the actual biblical teaching is that Jesus promises paradise to the one who placed his faith in Him, not to those who place their faith in the death penalty. Indeed, Jesus himself, presented with an open and shut case of capital guilt under the law of Moses—a woman taken in the very act of adultery—did not inflict the death penalty when, according to legal rigorism, he should have. Instead, He, like the Church that followed him, saw that the extreme penalty did not have to be inflicted and chose mercy instead.

Those who denounce the Magisterium's death penalty minimalism as “modernism” never seem to realize that if we are to hold to their fundamentalist take on the death penalty, then we need to be consistent. The Good Thief regards, not merely capital punishment, but crucifixion as just. Do those who (having just asserted the novel theory of "salvation by faith in the death penalty") therefore assert that crucifixion is a just form of capital punishment? If not, why not? If so, then why don’t those basing their demand for capital punishment on Scripture likewise demand that we re-institute crucifixion in these United States as just punishment for thieves or terrorists?

Nor do flat-footed appeals to biblical fundamentalism stop there. For if the Magisterium’s teaching is heretical when it comes to the capital punishment Scripture supposedly demands for murder, then what about all the other capital crimes in Scripture besides murder? Why such a consistent failure by Maximalists to mention them?

For, of course, most death penalty maximalists do indeed neglect to demand that we put homosexuals, adulterers, cross dressers and sassy teenagers to death. You also don’t hear too much about the need for America to get back to witch burning or pressing idolators, blasphemers, or atheists to death. Yet all these crimes are likewise seen as offenses against the Ten Commandments in the Church’s tradition and were, at one time, as subject to the death penalty as murder. Yet, death penalty maximalists almost never go there.

The reason they don’t is simple: the Church is right. Mercy is preferable to mercilessness and our culture suffers from a major case of bad conscience which demonstrates that Maximalists are haunted by this fact every day. That is why even most Maximalists do not want to really be so maximal as all that.

A Death Penalty Maximalist is consistent when he simply points out that those who regard abortion and the death penalty as morally equivalent do not know what they are talking about. Maximalists have the backing of the Catholic tradition insofar as they make that point. But, unfortunately for Maximalists, they then go further and try to dissent from the Church’s guidance by denouncing the bishops and John Paul II as “wrong” for their Minimalism while being unable to account for the radical inconsistencies in their own Maximalist position. They want to have the Maximalist cake and eat it. So they call for the death penalty as a deterrent, but not so loudly that somebody might reinstitute public guillotines and hangings with blood spurting, heads leaping from the block, and women, teenagers, and a disproportionate number of poor people kicking and struggling at the end of a rope. They labor to maintain the status quo of our present insane system which yaks about “deterrence” while keeping the whole thing private, sterile, and utterly out of the public eye. They appeal to the Good Thief’s views on the acceptability of capital punishment, yet do not appeal to his views of the acceptability of crucifixion. Indeed, Maximalists studiously avoid talk of stoning adulterers while denouncing, say, Iranians as barbarous for imposing such penalties. They appeal to the Bible to demand the death of (some) capital criminals, yet seem none too eager to call for the deaths of the many in our culture who would have been executed in ancient Israel.

Some might call that hypocrisy. I call it the recognition that this is not ancient Israel and that the leaven of mercy in the Church leavens culture as well. I also call it a sort of residual prudence which seems to know, somewhere in the back of its heart or mind, that urging the power to kill undesirables into the hand of a rapidly de-Christianizing and increasingly barbarous culture is rather like a delegation of ancient Christians going to Diocletian and demanding that he do something to crack down on all those weird new religions infesting the Empire. We Christians may get a lot more than we bargained for. The Death Penalty is not dogmatically defined by the Church as intrinsically immoral. So what? Neither is playing in traffic. It’s still a bad idea and the Church still urges us to oppose it. I, for one, agree.

Copyright 2011 - Mark P. Shea