The Death Penalty: Do We Need Justice?

This is the second posting in a series discussing capital punishment.  The first post discussed why human dignity actually requires that the death penalty remain at least a theoretical possibility.

For today's discussion, I will need to quote some documents that are very relevant to a Catholic understanding of capital punishment.  Let me say at the outset that I myself am bound by Catholic teaching.  It is important to understand that the emphasis, particularly of recent documents, is distinctly "pastoral"; they are much more exhortations to minimize the number of executions than philosophical treatises meant to explore the subject in depth.

The two most-cited passages come from the Catechism of the Catholic Church,

2266 The State's effort to contain the spread of behaviors injurious to human rights and the fundamental rules of civil coexistence corresponds to the requirement of watching over the common good. Legitimate public authority has the right and duty to inflict penalties commensurate with the gravity of the crime.  The primary scope of the penalty is to redress the disorder caused by the offense. When his punishment is voluntarily accepted by the offender, it takes on the value of expiation. Moreover, punishment, in addition to preserving public order and the safety of persons, has a medicinal scope: as far as possible it should contribute to the correction of the offender.

2267 The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor.
"If, instead, bloodless means are sufficient to defend against the aggressor and to protect the safety of persons, public authority should 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.
"Today, in fact, given the means at the State's disposal to effectively repress crime by rendering inoffensive the one who has committed it, without depriving him definitively of the possibility of redeeming himself, cases of absolute necessity for suppression of the offender 'today ... are very rare, if not practically non-existent.'[John Paul II, Evangelium vitae 56.]

and Evangelium Vitae,

Among the signs of hope we should also count the spread, at many levels of public opinion, of a new sensitivity ever more opposed to war as an instrument for the resolution of conflicts between peoples, and increasingly oriented to finding effective but "non-violent" means to counter the armed aggressor. In the same perspective there is evidence of a growing public opposition to the death penalty, even when such a penalty is seen as a kind of "legitimate defense" on the part of society. Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform.

There is also a much earlier source which should be cited: the Catechism of the Council of Trent,

Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.

So what exactly has changed?

The most obvious change is that the recent documents insist that a necessary condition for the death penalty to be appropriate is that no other effective means of securing public safety must exist.  That was simply not present in the Catechism of the Council of Trent, though it is not in conflict with anything in the older document.

This new emphasis has impressed many Catholics so much that they have understood it to mean that the State may not execute people because they deserve it, but may execute people to preserve public safety.  In other words, capital punishment has nothing to do with justice, only with prudence.  If this understanding were in fact correct, its consequences would be truly shocking and impossible to reconcile with a well-formed conscience (which is one proof that it is in fact not correct.)

1.  It may easily happen that public safety is enhanced by the death of an innocent man.  Or, as someone said, "You know nothing.  Neither do you consider that it is expedient for you that one man should die for the people and that the whole nation perish not."

2.  If the decisions about capital punishment are merely prudential, there will immediately be the claim that it is beyond the competency of the bishops to comment on.  Oh, and it's beyond the competency of the citizenry, too, since the government and its lackeys can always claim to have important, secret knowledge that can't be shared with the public, but if it were it would show that black is white and white is black.  This is exactly what happened when Bush decided he wanted a war with Iraq; the Pope opposed the war, but the Pope's biographer approved of it, and for many that was good enough.

3.  If the government is the sole decider of who must be put to death to remove threats to public safety, "threat to public safety" will become a very elastic concept.  After all, aren't both parties convinced that their rivals in the other party would be a disaster to America if elected?  Surely their political opponents are a greater threat to public safety than any mere serial killer! 

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Now go back and look again at what was actually written.  There are plenty of phrases that indicate that justice is still required, that it is still a necessary condition for the criminal to deserve death.  These are not emphasized because it must have seemed obvious that it is wrong to execute anyone who has not done something to deserve death.  I agree that it should be obvious, but in our morally illiterate society, such assumptions are no longer safe.

To sum up, in the past it was taught that no one should be put to death unless he had done something worthy of death, but it was probably assumed that for the proper authorities this condition was both necessary and sufficient.  Today the teaching is that for capital punishment to be right, both the criminal must have done something to merit death and there must be no other practical way to protect the public.  The idea that anyone, regardless of guilt, may be put to death in order to secure public safety must be vehemently rejected.