Following my last post on this topic, one reader justly described the proposed change to the Catechism’s text on the death penalty as “confusing.”  One cause of confusion is its failure to acknowledge that there are two different reasons for punishment: the protection of society, and retribution, aka “Paying the guy back.”  (The hackneyed phrase “paid his debt to society” is a colloquial reference to retribution.)

Regarding the protection of society, as I hinted before, I still wonder whether even modern society is safe enough to warrant the abolition of the death penalty.  From a common good standpoint, I suspect it remains necessary in many parts of the world.

Of retribution, I am willing to believe that modernity may render void its ability to justify any civil punishment at all.  But if retribution is passé, it is passé not because society is too good for it, but because we are not good enough; for it seems unquestionable that retribution is legitimate in principle. Thus, as one commenter (Mark Hausam) noted, retribution may be inadmissible, because...

… the secularization of our world does make a big difference as to how we should think of penal sanctions, not because our fundamental moral philosophy has changed but because that philosophy ought to be applied differently in a secular society. In the Middle Ages, if a person was executed, it would have been understood all around what that meant—the state, as an agent of God, is exacting retribution according to God's objective moral standard of justice. In our secular societies today, however, the DP would not ordinarily or by most be understood in that way, but would be understood and justified in other, secular ways. And these secular ways of justifying the DP may very well be violations of human dignity in various ways. If that is the case, then it would be immoral today for those societies to have the DP. It might be immoral for secular societies to attempt anything like "retribution" in general, because they don't have the ideology in place necessary for that. Such a situation would entail a change in our understanding of the nature of penal sanctions without implying a fundamental theological shift.

In other words: it may be that retribution (via the death penalty, or some other punishment) is just when it is understood to be done through God’s authority, and unjust when it is understood as being done through man’s authority alone.

This is a fine distinction; an analogy may clarify.  Let’s say that Hogworth steals Justin’s and Jeremiah’s prized soccer ball.  Justin and Jeremiah, smarting with righteous indignation, head for the Hogworth’s house.  Two possible results ensue.

• Justin and Jeremiah find Hogworth Jr., and proceed not only to reclaim their own projectile, but to liberate a couple of Hogworth’s balls as well.
• Justin and Jeremiah admit to Mrs. Hogworth that they are on a mission of vengeance, Mrs. Hogworth being the duly appointed authority over Hogworth Jr.  When a thorough investigation on her part makes it clear that Hogworth is in fact guilty, the young sinner is made to turn over not only the proceeds of his crime but also two additional items of treasured sports gear.

Both scenarios involve retribution, but it is morally questionable in (a) and not in (b), even though we can all agree that Hogworth deserved it (the young cuss!) in both cases.  The difference is the involvement of Mrs. Hogsworth, who has an authority that Justin and Jeremiah lack.

The same may be true of nations.  Perhaps a society truly “under God” is, like the boys under the ruling of Mrs. Hogworth, able to exact vengeance lawfully, through God and as it were for God.  But it is unclear that a society which has forsakes the idea of divine moorings can defend its desires for vengeance.  (This would explain, incidentally, why religious people can often be for capital punishment when secular people against it: the secular people, because they do not see God as involved in the state, feel they have no right to demand death; the religious people, because they do suppose God is involved in the state, feel that it is somehow not they but God who requires the penalty.)

If all this is true, however, what is one to make of Scripture passages where pagan nations are permitted to employ capital punishment?

I think the key word there is “permitted.”  God permits a great many things which he does not positively command or enact as good; and pagan employment of certain civil penalties probably falls into that category.

In Genesis 9:6, for example, God states that “Whosoever shall shed man's blood, [by man] his blood shall be shed: for man was made to the image of God” (italics added; the bracketed words are not in the Douay translation, although they are in many other translations).  This may be read either as a directive or as a description: God may be telling Noe and his sons (and by extension, the rest of us) to execute murderers, or simply warning that killing leads to more killing.

Jesus’s words “Render therefore to Caesar the things that are Caesar's” (Matthew 22:21) show support for government authority, but they do not prove that everything government does is just.  Was it Caesar’s right to tax c. A.D. 30-33?  Probably.  Was it his right to persecute Christians? Certainly not. Was it his right to order the execution of murderers? That is unclear.

Jesus’s words to Pilate likewise show that Pilate has power, but do not prove that he is right to execute anyone.  Pilate asks Jesus “knowest thou not that I have power to crucify thee, and I have power to release thee?” and Jesus replies: “Thou shouldst not have any power against me, unless it were given thee from above. Therefore, he that hath delivered me to thee, hath the greater sin” (John 19:10-11).  Jesus does not repeat Pilate’s formulation “power to crucify,” but speaks merely of “power,” exousia, which means primarily “power of choice, liberty of doing as one pleases.”  Thus, Jesus’s words leave it open whether Pilate has (a) a moral right to execute criminals, (b) a moral right to punish, but not execute, (c) control by force over punishing/executions, or (d) control by force over Jesus.  Only (a) would suggest that pagans exercise the death penalty legitimately.

Finally, there are St. Paul’s words warning evildoers to beware the strong arm of the law.

Let every soul be subject to higher powers: for there is no power but from God: and those that are, are ordained of God.  Therefore he that resisteth the power, resisteth the ordinance of God. And they that resist, purchase to themselves damnation.  For princes are not a terror to the good work, but to the evil. Wilt thou then not be afraid of the power? Do that which is good: and thou shalt have praise from the same.  For he is God's minister to thee, for good. But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is God's minister: an avenger to execute wrath upon him that doth evil.  (Romans 13:1-4)

St. Paul ascribes to all power divine origin, but it does not follow that every person or government wielding their power from God wields it as God would wish.  God often permits unjust exercises of power (by bad men like Hitler, or by corrupt nations like the Babylonians) because he can turn that power to good use. The drift of St. Paul’s remarks, then, seems to be that  wrongdoers ought to submit to the penalties of the Roman government, understanding that its penalties for wrongdoing come from God, albeit in an indirect fashion—and in a way that may implicate the Roman government in injustice as well.  A man may deserve fining, imprisonment, or even execution; and God may permit a government to enact his punishment; but the government—like Jeremiah and Justin enacting their vengeance on Hogsworth—may still be doing it wrong, especially if it does not know God.