Can the Church ever bless the death penalty?

A man protests against the execution of a death row inmate in St Louis, Missouri (CNS)

In his memoir The Church and I, the Catholic apologist Frank Sheed recalled his part in an unusual conversion story. A murderer on death row had asked to become a Catholic. Since time was short, the chaplain gave him a copy of Sheed’s A Map of Life, a brisk explanation of God, the Church, sin, redemption and the afterlife. Sheed relates: “The man was baptised, made his first Communion. Then he was told that if he applied for a reprieve he would probably get it. He refused, saying, ‘If that book is true, I’m going.’ And he went.”

In 1980, when those words were written, it did not seem strange that either a distinguished lay theologian like Sheed, or a newly baptised criminal, would accept the death penalty. But Catholic culture has changed a good deal in the decades since. It was in 1980 that the US bishops first openly called for the abolition of the death penalty – though they acknowledged that Catholics might disagree. By 2007 the bishops were arguing that the sacredness of human life “compels us as Catholics” to oppose capital punishment.

In that same period, many theologians have queried the traditional justifications of the death penalty. They have been inspired by the US bishops’ campaign, but even more by the popes. St John Paul II and Benedict XVI argued against the practice of the death penalty: they did not say that it was always and everywhere wrong, but urged governments to do away with the practice. Pope Francis has not made that distinction. Earlier this month, he suggested in a homily that the Holy Spirit had led the Church to realise that the death penalty was “inadmissible”.

Francis was not issuing a dogmatic pronouncement, and his remarks are more likely to intensify the debate than to end it. For political as well as theological reasons, capital punishment will be one of the Catholic talking points of 2017 and beyond.

This debate is politically significant because in several countries the Catholic clergy and laity are at the forefront of campaigns against the death penalty. As part of his crackdown on drug dealers, Philippine president Rodrigo Duterte is trying to pass a new law reintroducing capital punishment. The country’s bishops are united in opposition and helped to organise the 21-day series of demonstrations which culminated on Wednesday outside the Senate. The Indonesian government is also using the death penalty to fight the narcotics trade, leading to protests from the Indonesian bishops.

In America, the Catholic Mobilizing Network, with the support of at least some bishops, is asking the faithful to sign a pledge to fight the death penalty, which “contradicts the Catholic Church’s pro-life teaching”.

There is a vital distinction here, which public statements sometimes obscure. One can support the death penalty in theory but oppose it in practice. Some American Catholics, for instance, believe that capital punishment is in principle legitimate, but also that it should also be abolished in the US because of the present state of the criminal justice system.

These questions feature in an important new book by two American Catholic thinkers, the philosopher Edward Feser and the political scientist Joseph Bessette, with the severe title By Man Shall His Blood Be Shed. The reference is to Genesis 9:6: “Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.”

Feser and Bessette offer several justifications for the death penalty, beginning with a traditional natural law argument. It is part of the natural order for us to experience pleasure when we do good, and pain when we do wrong. The criminal, whether a petty thief or a mass murderer, breaks this connection: he seeks his pleasure in something contrary to his own fulfilment. “Punishment,” Feser and Bessette write, “is a matter of restoring the natural connection between pain and acting contrary to nature’s ends.”

They quote Aquinas as saying that since an offender “has been too indulgent to his will”, he should suffer “either willingly or unwillingly, something contrary to what he would wish”, for the sake of the “restoration of the equality of justice”. The same idea is affirmed by the 1992 Catechism of the Catholic Church: “Punishment has the primary aim of redressing the disorder introduced by the offence.”

All right, you might respond, but can death really be part of restoring the equality of justice? Catholic philosophers such as Christopher Tollefsen argue that depriving someone of their life takes away a “basic, intrinsic good” in a way that depriving them of their liberty does not.

Feser and Bessette have their reply to this and several other objections, and no doubt the debate will continue to be thrashed out in journals and magazines. But such discussions inevitably turn, eventually, to the question of what the Church teaches. And that takes us deep into Catholic history.

In 1210, Pope Innocent III negotiated a reconciliation with a group of Waldensian heretics. The group could return to the Church if they affirmed various Catholic tenets. Along with having to believe in the Trinity, the sacraments and so on, the group were asked to agree that “the secular power can without mortal sin impose a judgment of blood.” For Pope Innocent, support (in principle at least) for the death penalty was actually a test of Catholic orthodoxy.

And Innocent could look back to many popes, saints and Doctors of the Church who affirmed the justness of capital punishment in some circumstances. They often disliked the death penalty, but never ruled it out entirely. St Ambrose, for instance, while urging the magistrate Studius to be merciful, admitted that the “authority” of Scripture permitted the ultimate punishment.

He was referring to Romans 13:4, which says that the civil ruler “is the servant of God to execute his wrath on the wrongdoer”. This and Genesis 9:6, along with several other scriptural passages, were thought by the Fathers to settle the matter.

That consensus continued after the Waldensians. In the 16th century, St Pius V approved the Catechism of the Council of Trent, which permits the death penalty; in the 20th, Pius XII devoted several thoughtful speeches to the nature of capital punishment. One of Pius’s arguments was that an offender can “deprive himself of the right to live”.

This history weighed on the editors of the 1992 Catechism, a text overseen by St John Paul II. While affirming the old teaching that punishment should correct an imbalance, and that it should be proportionate to the crime, the Catechism argued that public authorities ought to prefer “bloodless” means as long as they could still safeguard the public. The 1997 edition and John Paul II’s 1995 encyclical Evangelium Vitae went further: occasions when the death penalty was necessary for public safety were, John Paul said, “very rare, if not practically non-existent”.

For some, this was just John Paul expressing a political judgment, as when he opposed the Iraq War. For others, it was a clear example of doctrinal change. Campaigner Sister Helen Prejean described the moment she read the revised Catechism: “My heart leaps. At last the river bends. With this seismic change, Church teaching on the death penalty forever flows in another direction.”

The standard response is that the Catechism’s words are phrased with deliberate caution, and are neither affirmative enough nor authoritative enough to contradict all the teaching that came before. Moreover, the First Vatican Council taught that nobody should interpret Scripture “against the unanimous consent of the Fathers”. But that unanimous consent seems to indicate that the death penalty is theoretically licit.

There is another problem, noted in Feser and Bessette’s book: why would one take seriously a Church which for almost two millennia was so gravely mistaken, and so confident in its mistake?

Given the consensus of past teaching, it’s hard to see this as a plausible case of doctrinal development. As Feser remarks over email, some theologians “have turned the notion of development into a euphemism or lawyer’s trick whereby outright reversals of past teaching are magically made orthodox by slapping the label ‘development’ on them.  You might as well say that denying Christ’s divinity or the doctrine of original sin can be reconciled with past teaching as long as we call them ‘developments’ and get enough people to go along with this sleight of hand.”

The Magisterium has clarified the point somewhat: speaking in 2004 as Prefect of the Congregation for the Doctrine of the Faith, Cardinal Joseph Ratzinger said that capital punishment “may still be permissible”, and that Catholics are welcome to disagree about applying the death penalty – as they are not about, say, euthanasia.

Fr Robert Sirico of the Acton Institute says he is impressed by “the cumulative effect” of Feser and Bessette’s theological arguments. But unlike them, he believes that the Church should oppose the use of capital punishment, in America and elsewhere. “I see that under the right circumstances the death penalty is justifiable; I just fail to see it is necessary, and hence it should be avoided,” he tells me. At the same time, Fr Sirico regrets the “distortion” of the debate, with some commentators “making the death penalty the moral equivalent of abortion”.

Feser puts it more strongly. “There has been a kind of snowball effect,” he says, “whereby churchmen say ever more extreme and doctrinally reckless things on the subject, contradicting Scripture, the Fathers and Doctors of the Church, the history of papal teaching and natural law.”

I ask Feser if, in that case, he is fighting a losing battle. He believes not: “This kind of cognitive dissonance is unstable and will inevitably invite correction, because its implications for the entire structure of Catholic teaching are so dire. In the long run the truth always wins out in Catholicism.”

Perhaps everyone would agree with that. But it won’t make the coming struggles over the truth any less bitter.

Dan Hitchens is deputy editor of the Catholic Herald

This article first appeared in the May 26 2017 issue of the Catholic Herald. To read the magazine in full, from anywhere in the world, go here.