What About the Death Penalty?
“Being Pro-life” 3: The history of the Church’s teaching on the death penalty is more complex than it seems.
Last week there was celebration among pro-life Alabamians as Gov. Kay Ivey signed one of the nation’s strongest bans on abortion. Similar measures advanced in other states, including Missouri and Tennessee.
On Thursday of last week, the governors of Alabama and Tennessee declined to intervene in scheduled executions of convicted murderers, and both men were put to death.
In his pro-life signature encyclical The Gospel of Life (Evangelium Vitae), on which this series of “Being Pro-life” posts is based, Pope St. John Paul II denounced laws permitting abortions as intrinsically unjust and affirmed the duty of societies to defend in law the rights of all members of the human family, including the unborn.
The Catholic Church teaches that abortion is intrinsically evil and that the death penalty is not. Yet what is gravely evil extrinsically, dependent in part on circumstances, is no less gravely evil for not being intrinsically evil, and the moral case that all human life is sacred is felt by many on both sides of the abortion debate, including John Paul II, to be undermined by support for the death penalty.
But doesn’t the Church’s tradition unanimously support the death penalty?
Not so fast. The history on this topic is more complex than it seems.
The death penalty in the ancient Church
The ancient Church deeply disapproved of capital punishment and judicial torture. A Roman church order of about A.D. 200 forbids a Christian magistrate to order an execution on pain of excommunication. No Christian layman could tolerably bring a charge against anyone if the penalty might be excommunication (John Boardman et al. [eds.], The Oxford History of the Classical World , p. 471).
In 405 Pope Innocent I reversed that order of excommunication, decreeing that magistrates could not be excommunicated for pronouncing death sentences. In doing so, he did not endorse the death penalty on the basis of Catholic teaching; rather, he said: “On this point nothing has been handed down to us.”
As this mixed history suggests, the tradition taken as a whole does not condemn the death penalty outright, but it’s far from comfortable with it.
For the first few centuries, treatment of this topic by the early Fathers is characterized by an implicit tension between two key ideas (for more on this, see E. Christian Brugger’s Capital Punishment and the Roman Catholic Moral Tradition):
- Civil authority has just recourse to the death penalty.
- Christians may never participate in violence and bloodshed.
For an early example of the first idea: Writing in the second century, Clement of Alexandria used a surgical metaphor to describe how the law treats a convict whose condition appears “incurable, posting to the last stage of wickedness”:
In its solicitude for the rest [of society], that they may not be destroyed by it (just as if amputating a part from the whole body), [the law] condemns such a one to death. (source)
Note that Clement’s justification for execution lay in the necessity of preventing the evil person from harming the rest of the community, as a surgeon amputates a diseased body part to prevent it from infecting the rest of the body.
For an early example of the second idea: Another second-century writer, Athenagoras, called abortion murder in the same breath as he condemned any Christian involvement in killing, including bloodsport as well as executions.
For when they know that we [Christians] cannot endure even to see a man put to death, though justly; who of them can accuse us of murder or cannibalism? Who does not reckon among the things of greatest interest the contests of gladiators and wild beasts, especially those which are given by you? But we, deeming that to see a man put to death is much the same as killing him, have abjured such spectacles. How, then, when we do not even look on, lest we should contract guilt and pollution, can we put people to death? And when we say that those women who use drugs to bring on abortion commit murder, and will have to give an account to God for the abortion, on what principle should we commit murder? (source)
Military service as well as the death penalty was rejected in principle by a number of early Christians. These views were excessively rigorous, but they are part of the record of the Church’s efforts to work out what Christ’s teaching really meant.
The death penalty in the medieval tradition
In later centuries, Christian giants from St. Augustine to St. Thomas Aquinas argued that the death penalty is not contrary to the Fifth Commandment and can be accepted by Christians.
In a much-quoted passage from The City of God (I, 21), Augustine wrote:
The agent who executes the killing does not commit homicide; he is an instrument as is the sword with which he cuts. Therefore, 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 public authority to put criminals to death, according to the law, that is, the will of the most just reason.
Augustine did not hold, however, that execution for capital crimes was required by justice, and he made the case for showing mercy, all the more in view of our own need for mercy from God:
Since, therefore, God shows such great patience and mercy toward sinners … it follows that we men ought to be such toward other men. … The very avengers of crime … who enforce the law against proved injuries done to others … quail before the divine judgment, recalling that they have need of the mercy of God for their own sins, and they do not think they do an injury to their office if they show mercy to those over whom they have the lawful power of life and death (Letter 153).
Augustine considered it to be the role of the Church to plead for clemency for the accused, as he himself did in advocating for the lives of Donatist schismatics who assaulted or even murdered Catholics. (Read more.)
The classic Catholic defense of the death penalty is that of Aquinas in his Summa Contra Gentiles (3:146).
The common good is better than the particular good of one person. So the particular good should be removed in order to preserve the common good. But the life of certain pestiferous men is an impediment to the common good which is the concord of human society. Therefore, certain men must be removed by death from the society of men.
Echoing the surgery analogy used by Clement of Alexandria in the second century, Aquinas justified the death penalty based on the danger such “pestiferous men” pose to the common good:
Now, the physician quite properly and beneficially cuts off a diseased organ if the corruption of the body is threatened because of it. Therefore, the ruler of a state executes pestiferous men justly and sinlessly in order that the peace of the state may not be disrupted.
Now, by this we set aside the error of some who say that corporeal punishments are illicit to use. These people adduce as a basis for their error the text of Exodus (20:13): “You shall not kill,” which is mentioned again in Matthew (5:21) …
Note that Aquinas acknowledged ongoing opposition to the death penalty as a contrary opinion to be refuted. He also offered this important qualification:
Execution of the wicked is forbidden wherever it cannot be done without danger to the good. Of course, this often happens when the wicked are not clearly distinguished from the good by their sins, or when the danger of the evil involving many good men in their ruin is feared.
In other words, St. Thomas condemned the death penalty if there is any danger of harm to the innocent.
Finally, Aquinas offered this rebuttal to the argument (made by Augustine in pleading for mercy for convicts) that not executing a criminal gives him time to repent:
The fact that the evil, as long as they live, can be corrected from their errors does not prohibit the fact that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement. They also have at the critical point of death the opportunity to be converted to God through repentance. And if they are so stubborn that even at the point of death their heart does not draw back from evil, it is possible to make a highly probable judgment that they would never come away from evil to the right use of their powers.
Here, once again, Aquinas cites “the danger which threatens from their way of life” as the justification for execution. Like Clement, he cited the necessity of preventing the evil person from harming the rest of the community as the rationale for the death penalty.
The death penalty in the modern era
As recently as 1949 the moral licitness of the death penalty was reaffirmed in passing by Pope Pius XII:
Even when it is a 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 disposed himself of his right to live. (source)
It is worth noting that this is a sort of aside in an address about medical ethics, not a formal teaching in a document about crime and punishment. Still, this and other addresses by Pius XII attest his clear acceptance of the state’s right to recourse to the death penalty.
In 1992 the first edition of the Catechism of the Catholic Church struck a more cautious note:
If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.
While the Catechism is a “sure norm” for teaching the faith, magisterially speaking, as then-Cardinal Joseph Ratzinger noted in the introduction, it adds no doctrinal weight to any individual doctrine it contains.
However, three years later, Pope St. John Paul II quoted in full this paragraph in Evangelium Vitae, one of the most important magisterial documents of his reign. That does give it more magisterial weight.
Speaking even more forcefully, John Paul II went on to state that society “ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society.”
While differing in emphasis, this is consistent with the rationale for the death penalty offered by Clement of Alexandria and Thomas Aquinas, among others, regarding the need to protect society from the evil person.
The death penalty, just wars, and self-defense
What John Paul II does is to clearly place the death penalty on the same moral footing as just wars, licit self-defense and other responses to unjust aggression.
In each of these other cases, the Church teaches that it is permissible to take human life only when no means of preventing or avoiding deadly harm are feasible. If other means have not been ruled out — if there is a real possibility of averting an invasion through diplomatic pressure, or of deterring an attacker with a warning shot before shooting to kill — lethal force may not be used.
The death penalty, according to John Paul II, is not a special case where we may have other ways of stopping a dangerous aggressor, such as a life sentence, but still licitly choose death as preferable. All cases are the same: If they are feasible, nonlethal approaches must be used.
That’s not to say that a murderer doesn’t deserve death or that he hasn’t in some sense relinquished his right to life, as Pius XII said. But just because someone deserves death doesn’t automatically mean we are justified in taking his life.
After all, a murderous attacker likewise relinquishes his right to live, in the sense that his intent warrants the use of potentially lethal force — but we are justified in using such force only if we have no other feasible option. (Obviously in a real attack we may have only split seconds to act, in which case we must do the best we can. In principle, though, one must seek to use the lowest level of force one can reasonably hope will be successful. At any rate, this consideration doesn’t apply to sentencing criminals, where ample time for deliberation is available.)
Going further, John Paul II offered a prudential judgment that seems virtually undeniable:
Today however, as a result of steady improvements in the organization of the penal system, such cases [of genuine necessity] are very rare, if not practically nonexistent.
Earlier in the encyclical he said, more sweepingly:
Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform.
This was recognized as an important development in the Church’s social teaching on the death penalty, so much so that the Catechism was revised to reflect this judgment that in modern society cases where the death penalty is truly necessary in order to defend society are “very rare, if not practically nonexistent.”
These were not Pope St. John Paul’s only words on the death penalty. In a 1999 papal Mass in St. Louis, the Holy Father called for “a consensus to end the death penalty, which is both cruel and unnecessary.”
Forcefully linking this call to the “gospel of life,” he cited the need for “followers of Christ who are unconditionally pro-life: who will proclaim, celebrate and serve the gospel of life in every situation” and praising opposition to the death penalty as “a sign of hope.”
Those words “unconditionally pro-life” echo, of course, the challenge of The Gospel of Life highlighted here. For Pope St. John Paul II, “the inescapable responsibility of choosing to be unconditionally pro-life” brings with it a challenge to work to end the death penalty.
How much weight does this have for Catholics? More to come.
“Being Pro-Life” series: