7 Reasons America Shouldn't Execute

The Register asked several scholars to comment on Justice Antonin Scalia's arguments about the death penalty, the Register's critical editorial about those arguments, and Justice Scalia's rejoinder.

It is with great reluctance that I take issue with Justice Scalia, who is rightly regarded as one of the outstanding legal experts of the nation and an exemplary Catholic. I agree with what he says about the constant Catholic tradition in favor of the death penalty and the harmony of that tradition with the system of criminal justice that undergirds the United States Constitution and the Bill of Rights. But I differ with Justice Scalia in his interpretation of Pope John Paul II in Evangelium Vitae.

In Evangelium Vitae the Pope enunciates as an absolute principle that the direct and voluntary killing of an innocent human being is always gravely immoral (No. 57). He also says that capital punishment ought not to be imposed except “when it would not be possible otherwise to defend society” (Evangelium Vitae, No. 56).

Following the Catechism of the Catholic Church (No. 2109), I interpret the defense of society as including not only physical defense against the criminal but also the vindication of the moral order. This interpretation agrees with the principle that the primary purpose of the punishment that society inflicts is “to redress the disorder caused by the offense” (Evangelium Vitae, No. 56).

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 millennia of Catholic thought, denying the teaching of several previous popes, and contradicting the teaching of Scripture (notably in Genesis 9:5-6 and Romans 13:1-4).

I doubt whether the tradition is reversible at all, but even if it were, the reversal could hardly be accomplished by an incidental section in a long encyclical focused primarily on the defense of innocent human life. If the Pope were contradicting the tradition, one could legitimately question whether his statement outweighed the established teaching of so many past centuries.

I believe that the Pope, without contradicting the tradition, is exercising his prudential judgment that in our time adequate punishment, including the moral and physical defense of society, can generally be accomplished by bloodless means, which are always to be preferred.

“Prudential” has a technical theological meaning, possibly unfamiliar to Justice Scalia. It refers to the application of Catholic moral doctrine to concrete cases in which it is necessary to make a human estimate of what is appropriate. Since Christian revelation tells us nothing about the particulars of contemporary society, the pastors of the Church have to use their personal judgment as spiritual leaders.

As a reason for severely limiting the death penalty today, the Pope mentions steady improvements in the penal system. Here in the United States one could name additional reasons. Speaking at the same conference in Chicago where Justice Scalia delivered his remarks, I proposed the following seven reasons:

1. The inequitable application of the death sentence by courts and juries that are prejudiced against certain groups;

2. The inability of poor and uneducated clients in many cases to obtain adequate legal counsel;

3. The likelihood that innocent persons might be put to death, even in the absence of the two factors already mentioned;

4. The difficulty of judging the subjective guilt of the defendant, especially in cases where the defendant is very young, mentally retarded, or psychologically impaired.

5. The tendency of executions to inflame an unhealthy appetite for revenge in society. Personal vindictiveness, according to Christian standards, is immoral;

6. The failure of modern democratic society to perceive the judgment of the State as embodying a transcendent order of justice;

7. The urgency of manifesting respect for the value and dignity of human life at a time when assaults on innocent human life through abortion, euthanasia and violent crime are widely prevalent.

My sixth reason requires a word of explanation.

As Justice Scalia in his Chicago speech recognizes, the traditional rationale for the death penalty has been undermined by modern democratic theory, which tends to depict the State as a pliant instrument of the will of the people. I still hold that the court may and should embody a transcendent moral order, but I note that the symbolic or pedagogical value of its decisions, which has been so important in the past, has been largely eroded.

Justice Scalia seems to concede too much to the new mentality when he writes to the Register, regarding the imposition of the death penalty: “It is my job to administer whatever response American people give to that question” (emphasis added). Does this mean that if the American people want the court to follow public opinion polls rather than a transcendent moral order, the court can no longer serve as a minister of divine justice (cf. Romans 13: 4)? I do not believe we have sunk so far.

Justice Scalia raises the question whether a judge who accepts current papal teaching could in good conscience hear cases involving the death penalty. If the Pope (as I believe) allows for capital punishment in some rare cases, to be determined by prudential considerations, his position is not contrary to the American Constitution and the Bill of Rights, and raises no problems.

Even a judge who believed that capital punishment should never be used in our country today, and that such was the expressed belief of the Pope, might still affirm the death penalty in certain cases on the ground that, although the law was bad, the decision was nevertheless constitutional, legally correct, and not manifestly opposed to the moral law. One can legitimately implement a law that one regards as prudentially wrong. Capital punishment, after all, is legal in the United States, and is not murder.

Cardinal Avery Dulles is a professor at Fordham University in New York.

Many Americans dismissed Alexander Solzhenitsyn when he criticized the decadence of Western Culture. Others more recently ignored his plea for a restoration of the death penalty: “There are times when the state needs capital punishment in order to save society.” This is Christian doctrine. Since popes are preserved from essential error by “grace of state,” none has wrongly claimed authority to call capital punishment morally evil.

“Development of doctrine” does not apply here.

As the Church's teaching on contraception cannot “develop” in a way that would declare its intrinsic evil to be good, so the right of a state to execute criminals cannot “develop” so that its intrinsic good becomes evil. For Cardinal John Henry Newman, development of doctrine involves “preservation of type.” Changes in the way a doctrine is expressed and applied cannot alter its essence.

Some Catholics, who once pointed out the flaws in the “seamless garment” argument, now rush to put on that garment as though there has been a sudden development. By definition, the development of doctrine cannot happen overnight. The new edition of the Catechism revises the section on capital punishment. This was not a development of doctrine. It was, however, problematic for placing a prudential judgment in a catechetical text, more problematically so than in an encyclical like Evangelium Vitae. Paragraph 2266 of the Catechism names the primary consideration of retribution, but No. 2267 ignores it.

That the vast majority of opinion has turned against capital punishment is irrelevant to the case and is not universally so. Nor is it universally so that penal systems have improved in a way that renders capital punishment unnecessary. There are many very different systems.

There has been a development, not in essential doctrine, but in moral criticism. Here, I am edified by the fine scholastic logic of Justice Scalia, as when he identifies the mistaken modern equation of private morality and governmental morality.

Catholics have distinguished between peace and pacifism. They disserve systematic theology when they fail to make a parallel distinction between the dignity of life and a total ban on capital punishment. The cogency of Catholic apologetics crumbles when reason is abandoned for sentimentality in consequence of philosophical idealism and subjectivism. We also may be witnessing here some tension between personal-ist phenomenology and Thomist realism.

Absolute rejection of capital punishment weakens the cogency of pro-life apologetics. Some churchmen cite skewered statistics on the execution of innocent victims.

Since 1973 the present U.S. system has overturned about 33% of all convictions, although only .6% of those criminals were found to be factually innocent. DNA testing makes justice ever more secure, and capital offenders receive due process far more deliberately than other offenders. In numerous instances, e.g. the defeat of Senator John Ashcroft, strongly anti-abortion politicians have lost elections to pro-abortion candidates who were against capital punishment. This gets worse when criminals, freed in response to ecclesiastical appeals for mercy, kill again.

The pastoral commentary of the Church guides moral method, but the prudential calculus, in punishment as in the declaration of war, rests in the civil government whose authority pertains to natural law and is not granted by the Church. To propose otherwise under the guise of doctrinal development would be a species of clerical triumphalism that post-Enlightenment humanists claimed to abhor. Few see this as clearly as a distinguished Justice of the U.S. Supreme Court.

Father Rutler is pastor of the Church of our Saviour in New York.

In various ways the Register editorial gave Justice Scalia a bum rap. Also, contrary to the editorial, Evangelium Vitae no obstacle to abolition of the death penalty.

According to Scalia, if a judge thinks the death penalty is immoral he should resign. There are other options but that issue is beyond the space available here.

Scalia said that because Evangelium Vitae “does not represent ex cathedra teaching … it need not be accepted by practicing Catholics.” Many liberal Catholics advanced this tired argument to support their sit-in schism over Humanae Vitae. Canon Law and the Catechism adopt the teaching of the Second Vatican Council's document Lumen Gentium that “loyal submission of will and intellect must be given … to the authentic teaching authority of the Roman Pontiff, even when he does not speak ex cathedra.”

Cafeteria Catholicism is wrong, whether the pick-and-choose customers are liberal or conservative, judges or peasants.

We have two questions: First, does the state have authority to impose the death penalty? John Paul affirms the traditional answer: Yes.

Second, when may that penalty be used? John Paul has given us a development of the teaching on that point. The “primary aim” of punishment is still retribution, “redressing the disorder introduced by the offense” (Catechism of the Catholic Church, No. 2266).

Because of the importance of the conversion of the criminal, however, retribution will not justify execution unless the new test for the use of that penalty is satisfied. It must be “the only possible way of effectively defending human lives against the unjust aggressor” (Catechism, No. 2267). If this were merely John Paul's personal opinion and not a binding teaching, he would not have put it in the Catechism.

I agree fully with that teaching, which caused me to change my former support for a limited use of the death penalty. But even if we disagree with it, we are obliged to give it “loyal submission of will and intellect.”

A Catholic can no longer argue for the use of the death penalty on grounds of retribution, deterrence of others from committing crimes or for any other reason unless the execution is “the only possible way” of protecting others from this criminal. The decision as to whether it is “the only possible way” depends, of course, on a prudential judgment. John Paul was correct in saying that, “Today… the cases in which the execution of the offender is an absolute necessity are very rare, if not practically non-existent” (Evangelium Vitae. 56).

Although that factual judgment must be made as to each penal system and each case, the new test according to which that judgment must be made is a universal criterion, binding in all places and in all cases. If the death penalty in that system in not an “absolute necessity,” that is, “the only possible way” to protect others from this criminal, it is immoral to impose it.

The death penalty might still be justified in cases such as a maximum-security life inmate who murders another inmate, or in a condition of unrest where the security of imprisonment cannot be guaranteed or perhaps in cases involving violations of the laws of war by leaders of international terrorist networks. These cases are debatable.

John Paul asserts the primacy of the person over the claim of the state to be the arbiter of the ending as well as of the beginning of life. Each person and each society has to have a pope, a visible, authoritative interpreter of the moral law. I hope Justice Scalia, whom I admire, will come to accept this teaching of the Church. And I hope he will not conclude that his agreement with that teaching will oblige him to resign from the Supreme Court.

We need him on the court. We already have a Pope.

Charles Rice is a professor emeritus at University of Notre Dame Law School.