Capital Punishment: It’s About Both the Penalty and the Death

COMMENTARY: It matters if the penalty is just or unjust, although it could be argued that today capital punishment is ‘inadmissible’ because the modern state is no longer competent to administer it.

Demonstrators protest federal executions of death row inmates, in front of the US Justice Department in Washington, DC, on December 10, 2020.
Demonstrators protest federal executions of death row inmates, in front of the US Justice Department in Washington, DC, on December 10, 2020. (photo: Nicholas Kamm / AFP via Getty)

In the 25 years since Evangelium Vitae (The Gospel of Life), Catholic teaching on the death penalty has been more and more about the death, and less and less about the penalty.

A recent tweet from Bishop Daniel Flores of Brownsville, Texas, demonstrated that quite vividly: “How was the execution of Brandon Bernard any different from Herod’s state sanctioned execution of John the Baptist?”

Brandon Bernard was executed on Dec. 10, the latest federal execution after a moratorium on the federal death penalty was lifted in the summer. He was convicted of the killing 22 years ago of two youth ministers and torching their bodies. He had a religious conversion while in prison; Catholic bishops, as per usual with any execution, asked for clemency.

If the death penalty is about the death, and not the penalty, then all executions by the civil authority are alike; John the Baptist is Brandon Bernard is Thomas More is Anne Boleyn is Dietrich Bonhoeffer is Adolf Eichmann. 

But if one considers the penalty, then it matters whether the penalty is just or unjust, and who is administering it. To be executed for dissenting from a criminal regime is quite different than being executed for being part of that regime. Herod did not think that he was doing justice; those who sentenced Bernard thought that they were. 

Bishop Flores is too sophisticated a thinker — the recently elected chairman of the USCCB doctrine committee — to be contained by Twitter, so he expanded upon his thinking for America.

Bishop Flores argues, like St. John Paul II and Pope Francis, against the death penalty by addressing secondary reasons, passing over the primary reason, the propriety of the penalty. I hope he might find my arguments here a friendly disagreement on the argument, even as we agree on the final position.

“Does the death penalty flow from a securely just process?” writes Bishop Flores. “Does killing people make us safer? Does it solve any problems that could not be addressed in other more humane ways? Does it uphold human dignity? According to the social teaching of the church, the answer is no.”

Thus on the grounds of due process, fair judgment, deterrence, public safety, humane treatment of prisoners and human dignity, Bishop Flores finds the death penalty wanting. I largely agree. I first came to oppose the death penalty in the early 1990s as I became aware of extent of wrongful convictions and the widespread abuse of police and prosecutorial power. 

All of which is adequate, but it leaves aside Catholic teaching about what penalties are for in the first place.

St. John Paul II and Pope Francis have modified No. 2267 of the Catechism of the Catholic Church. They have not modified No. 2266, which teaches about the purpose of penalties in general, before No. 2267 treats the death penalty:

“Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people’s safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party.”

The state has the duty to administer punishment. which has the “primary aim” of “redressing the disorder.” “Public order and protecting people’s safety” are not the primary aims of the penalty. The reason why Church tradition judged the death penalty to be legitimate is precisely because sometimes the disorder is so grave that only the most severe penalty can redress it.

When St. John Paul II revised No. 2267 for the 1997 editio typica of the Catechism, he judged that “the cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent.” 

He argued on the grounds of “protecting people’s safety” by using means “more in conformity to the dignity of the human person.” 

After amending the Catechism, despite another eight years as pope, John Paul did not address the lack of coherence between “primary aim” (No. 2266) and public safety (No. 2267).

In 2018, Pope Francis entirely revised No. 2267, but left No. 2266 on the “primary aim” of penalties in place. 

“Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good,” the new No. 2267 begins, implicitly affirming that the “primary aim” of penalties was “redress.”

Pope Francis then judges the death penalty to be “inadmissible” because of:

1) a growing awareness of human dignity, 

2) a “new understanding of penal sanctions imposed by the state,” and 

3) other effective means of ensuring public safety.

The revision of 2018, like the one in 1997, does not address the “primary aim” of penalties, even as it ratchets up the language against the death penalty. 

So how to reconcile the amended No. 2267 with No. 2266? A possible solution is suggested in the “new understanding of penal sanctions imposed by the state.” What does that mean? 

In an accompanying letter to bishops about the amended No. 2267, Cardinal Luis Ladaria of the Congregation for the Doctrine of the Faith wrote that this “new understanding” is that “penal sanctions applied by the modern State … should be oriented above all to the rehabilitation and social reintegration of the criminal.” 

Obviously “social reintegration” is incompatible with execution. That may explain why Pope Francis has referred to life imprisonment as a “secret death penalty” in his encyclical on fraternity and social friendship Fratelli Tutti (268). But that’s a separate issue.

The CDF letter could be read implicitly to argue that penal sanctions no longer have the “primary aim” of redressing the disorder, effectively repealing No. 2266. That would run up against a very long tradition of teaching on penalties, from the patristic period until effectively the day before yesterday. 

In any case, given that one paragraph of the Catechism does not cancel out another, that reading of the CDF letter would simply add to the lack of coherence between No. 2266 and No. 2267.

Is there a better way to reconcile the two? I would respectfully suggest that, for those of us who oppose the use of the death penalty, there is, without ending up on the path to equating the death of John the Baptist with that of Brandon Bernard. An argument can be made about the penalty, not the death.

A hint comes when the CDF letter refers to the “modern State.” The medieval state — one assumes that is the contrast being drawn — understood itself to be an instrument of Divine Providence. As such, it administered penalties that carried a certain divine sanction; punishment of heretics by the state comes to mind. 

Relative to the death penalty, the medieval state understood itself to be administering a penalty that Sacred Scripture makes very clear that God mandated. The death penalty, which is proportionate to some grave offenses, could be within the competence of a state, which participates in divine governance. 

Today the neither the Church nor the state regards the “modern state” in that fashion. One could then argue that while the “primary aim” of the penalty remains “redress,” the state is no longer a legitimate authority to administer the death penalty, as it has severed itself from any sense of acting as an instrument of Providence. The death penalty is thus “inadmissible” because the modern state is no longer competent to administer it.

I would suggest that this is a more compelling way to resolve the current lack of coherence between No. 2266 and No. 2267, especially compared to the alternative of ignoring the incoherence altogether. 

I might also add that arguing, as Pope Francis does, that an “increasing awareness that the dignity of the person” changes our moral evaluation of the death penalty is hard to square with the massive escalation in deaths by lethal injection all over the world. 

For example, in my own country of Canada, more than 5,600 people were killed by lethal injection in 2019, 2% of all deaths in the country. The last state execution in Canada took place in 1962. These new lethal injections deaths are from euthanasia and assisted suicide, which the federal government is about to significantly expand. 

Given the relatively few executions that take place compared to other assaults on human life, I might propose a different question: How is the death by lethal injection of Brandon Bernard in an Indiana prison different from what goes on every day in many hospitals around the world?