Tuesday, March 23, 2004

Catholicism and Capital Punishment (Avery Cardinal Dulles)

Abridged version of the article from First Things (April 2001). 

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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, . . .

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 . . .

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.

. . . 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.

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 four objections are . . . 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.

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For further reading, see:

Why the Death Penalty? Capital Punishment and the Catholic Tradition, by Christopher Kaczor (philosopher).

Capital Punishment and Church Teaching (Part 2),
by Fr. William Saunders.

Issue of the Catholic Dossier devoted to capital punishment (Sep/Oct 1998; includes articles by Msgr. William Smith, Charles E. Rice, Gerard V. Bradley, James Hitchcock, and Janet E. Smith).




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