High-level statements about the death penalty

As you probably know, Pope Francis has revised the Catechism of the Catholic Church to present a much more forceful opposition to the death penalty.  Briefly, I find Dr. Edward Peters's take on this to be very reasonable, as his opinions are with extraordinary reliability.  In addition to his take, and to points I have made previously, I have just two additional comments on the changes to the Catechism.

1. Any opposition to the death penalty from a Christian, let alone a Catholic, is woefully incomplete without a discussion of the virtue of charity (love), mercy, and forgiveness.  None of those words appear in the revision.
2. The revised version claims, "Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes."  That is a very, very dubious claim.  (a)  Previous generations would have recognized that the dignity of the person has its origin in our creation in the image of God, in the Christ's Incarnation as true man, and in Christ's atoning sacrifice for our sins; and indeed, they would have understood quite well that none of these are changed even after the commission of very serious crimes.  The difference is that they also obviously understood that there is no direct connection between "the dignity of the person" and "no death penalty".  (b)  It is very hard to see this sentence in the Catechism as anything other than chronological snobbery, as though it were self-evident that Popes and bishops over recent decades are smarter or holier than those of previous generations.  It also tends to confuse the Zeitgeist with the activity of the Holy Spirit.

You might think, then, that I would be a big fan of the "Declaration of Truths" that, among other things, defends the possibility that the death penalty may be proper under some circumstances.

28. In accordance with Holy Scripture and the constant tradition of the ordinary and universal Magisterium, the Church did not err in teaching that the civil power may lawfully exercise capital punishment on malefactors where this is truly necessary to preserve the existence or just order of societies (see Gen 9:6; John 19:11; Rom 13:1-7; Innocent III, Professio fidei Waldensibus praescripta; Roman Catechism of the Council of Trent, p. III, 5, n. 4; Pius XII, Address to Catholic jurists on December 5, 1954).

Notice, however, what is missing:  any discussion whatsoever of justice!  Has any government ever massacred innocents without claiming it was "necessary to preserve the existence or just order of societies"?  No doubt that was what Herod would have said about the infants of Bethlehem, what the Hutu would have said about the Tutsi, what Stalin would have said about the kulaks.  Unless the "malefactor" has committed a crime so grave that it justly merits death, no prudential consideration can justify the death penalty.  In other words, prudential considerations can never be the primary reason for capital punishment; they can only limit the freedom of rulers to apply more lenient punishments.

Terminally Ill Man Sentenced to Death

Yesterday, Frazier Glenn Miller, Jr., was sentenced to death for three murders.  This was not a crime of passion, as I suppose is most often the case for murders within families or between lovers -- those cannot exactly be excused, but in many cases they can be pitied, because bad decisions based on raging emotions is a part of human frailty with which we are all familiar.  Nor was this even the callous indifference to life shown by, for example, a bank robber who murders a guard in an effort to get to the cash.  This was murder for the sake of murder, the outgrowth of a hatred that is figuratively demonic -- and perhaps more truly than merely figuratively.

According to a doctor's testimony, Miller is unlikely to live more than a half dozen years.  I'm not sure about the process in Kansas, but given the inevitable appeals, the controversies over the drugs typically used to carry out death sentences and the consequent limited availability of those drugs, and similar considerations, it seems unlikely that the executioner will come for Miller before the Grim Reaper does.  What good does it do to pronounce a sentence that the state will not actually carry out, then?

The sentence was worthwhile and good because it tells the truth about the moral gravity of Miller's crime.  He probably will not die at the hands of the citizens of Kansas, but he deserves to.  This is about the value of his victims, both those he intended to kill and those he actually killed, but it is also about the terrible dignity that is unique to man among the animals:  there is a moral, spiritual dimension to the decisions we make; our choices really matter.  This is a truth that could not be so adequately proclaimed if the only option had been to sentence Miller to prison for twenty five years to life.

Joint Editorial on the Death Penalty

I'm glad to see I'm not alone in insisting that something important is lost if the death penalty is not, at least in principle, a possibility.  There doesn't seem to be much more that needs to be said in addition to what I have already said and what is in those two links.  On the other hand, I feel very disappointed in the National Catholic Register, which has, at least in some of its blogs and columns, been rightly critical in the past of what is called "chronological snobbery" and "consequentialism", yet here the Register is guilty of both faults.

Death Penalty and Jordan's Revenge

2266 The efforts of the state to curb the spread of behavior harmful to people's rights and to the basic rules of civil society correspond to the requirement of safeguarding the common good. 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

2267  Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.
Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity "are very rare, if not practically nonexistent."

-- Catechism of the Catholic Church

First of all, the subject of this post is actually quite different from my other posts on the death penalty, which were about the death penalty as an idea, regardless of whether it were ever carried out or not.  Here we are talking about executions that actually occurred.  The question is, should they have?

First, let's look at this from the perspective of the operative virtues. Did the executions respect justice?  That is, were the guilty parties really guilty of crimes so serious that they merited death?  I don't think there can be any doubt that the answer is YES.

Was mercy operative in the executions?  Although there will be some who think it is a mercy that the terrorists were not tortured the same way ISIS tortures its victims, again I think the answer is clear, and this time it is NO.  However, the requirement for mercy is not of the same nature as the requirement for justice, and sometimes it will not be possible to be merciful. 

The state must not show forbearance when the virtue of prudence shows that this would grossly violate its obligation to the public.  Would it have been dangerously irresponsible for the Jordanian government to have simply continued to hold the terrorists in prison?  That is hard to say.  The main consideration is not what the individuals already in custody might do, but rather what their allies still under arms might do.  Those allies are unlikely to be intimidated by the executions, and an escalation in the conflict between Jordan and ISIS seems unavoidable, but a failure of Jordan to (among other things) carry out the executions would likely have been taken as a sign of weakness promising future ISIS successes, and that could be very dangerous -- particularly regarding the ability of ISIS to attract and retain supporters and recruits.

In other words, this appears to be a case of achieving war aims by killing people who have in fact committed crimes meriting death.  War is not inherently evil, particularly if you have expansionist psychopaths with stated plans of world domination on your border and they have already invaded a neighbor.  If it is not necessarily wrong to effect the deaths of soldiers guilty of nothing but being on the opposite side, so long as the rules of a just war are observed and it is done to achieve important military goals, surely it is not necessarily wrong to achieve similar goals by killing those who actually deserve to die.

Interestingly enough, although both war and capital punishment are explicitly treated in the Catechism, this sort of overlap is not.

The Death Penalty: Some Prudent Considerations

It was in the news Sunday that so far this year there have been 11 Texas inmates murdered by other prisoners. During the same period of time, there have been 15 legal executions in Texas. This just goes to further show that capital punishment in the US is already "very rare, if not practically nonexistent" if the practical purpose is to deter crime; a criminal faces risks as daunting or more daunting than the prospect of being apprehended, convicted, sentenced to death, and exhausting his appeals.

It might also be pointed out that eliminating capital punishment does nothing to eliminate "extrajudicial killings" or "justified homicide" by police. If you think that in today's post-9/11 environment no death penalty would not be a word game meaning no trial before the killing, with quite probably more killing actually being done than in the old days of the death penalty, you're fooling yourself.

The Death Penalty and Human Dignity II: Mercy

In an earlier post, I argued that one consequence of human dignity is that we are moral agents who can commit crimes that truly merit death.  If that were all there were to the story, it would be strange indeed that the Pope and the bishops would invoke dignity in order to keep the number of executions to a minimum.



However, there is another aspect of human dignity that is entirely relevant.  Perhaps a robot could be programmed to act with perfect justice, but a robot could not actually give or receive forgiveness.  A robot could not show mercy, nor the theological virtue of charity.  Those things can be done only by persons.

But mercy is absolutely central to what should be happening from a Catholic perspective. After all, there are several other ways in which someone who deserves death may escape execution. 

• He may escape from custody, with or without the help of his guards.
• The official(s) who decide his punishment may 
• be intimidated by threats of riots or violent retribution.
• be bribed or blackmailed. 
• be too lazy or squeamish to carry out his duty.
• approve of the crime and become accessories to it.

By the way, none of these are new.  The same things would have been true during the reign of Caesar Augustus.  

Also, although these circumstances would secure the physical well-being of the criminal, and they may preserve for him "the possibility of redeeming himself", they would not be actual, concrete moral goods.  For a moral good, mercy is needed.  

This has consequences.  

1. The law is not a person; it is more like a robot, or at least like a computer program.  If it is important to preserve the possibility of mercy, a responsible person has to be chosen who can act personally on behalf of the State in dispensing mercy.  In our culture, this is the governor or, at the national level, the president.  The law should not eliminate the possibility of the death penalty, because.
2. Aside from prohibiting the grossest of abuses (for example, the selling of pardons), there should be no obstacles to the chief executive granting at least sufficient mercy to spare the criminal's life.  I understand that this is not the case in some places; I have heard that in Texas the governor cannot commute the death sentence without the recommendation of the parole board.  If this is true, it needs to be changed. 
3. The chief executive has a responsibility to protect the public.  He will have to use prudence to determine whether it would endanger the public to spare someone whose guilt has been firmly established for a heinous crime worthy of death.  If it would not endanger the public, he should be strongly urged to show mercy, remembering that he personally, as well as the State he serves, is in constant need of mercy.
4. Capital cases, which we have been discussing, are more extreme than other criminal cases, but the same principles apply in all cases:  
• first determine the actual guilt and the limits that justice places on punishment, 
• then determine how much of that punishment is demanded by prudence, 
• then show as much mercy as possible.  

The Death Penalty: What Is Rare?

This is the third in a series of posts about the death penalty from a Catholic perspective. 

The topic for today comes from this passage from the Catechism:

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.'

Let's not kid ourselves:  It was a bad idea to write a passage about the conditions prevailing "today", if "today" means anything other than "during the course of our natural lives" or "before the eschaton".  To the extent that secular leaders want to show respect to the Catholic Church, they need only say, "Well, that may have been true in the mid 90's when it was written, but everything is different today, especially after 9-11."  Count on it -- much more shameless claims are made all the time. 

My main topic here, though, is the word "rare".  Consider the following statement:

Circumstances which require people to be rescued by boat from their roofs are very rare, if not practically non-existent.

Is the statement true?  No doubt.  It may well be that on most years no one needs to be saved from a rooftop.  But there is a real and practical difference between circumstances that are practically non-existent and circumstances that are non-existent; those people who find themselves stranded on a roof need help sent, not to have that aid denied because someone thinks thinks "rarely" means "never".

In fact, it can be argued that executions in the US are indeed rare -- too rare, at any rate, to be an effective deterrent.  From 1976--2005 (inclusive), there were 11080 killings by police that were ruled justifiable homicide, but from 1976--September 20, 2012 there were only 1305 legal executions.  A violent criminal is roughly 10 times more likely to be killed by police than to be executed after a trial; if he is not deterred by the greater risk, he will not be deterred by the lesser.

Just like people have to be rescued as individuals, they have to be tried as individuals, not as some kind of statistical average.  We must neither increase the number of executions because it is "too low" nor decrease the number of executions simply because it is "too high". 

Is the statement that executions should be rare then completely without value?  No.  It is something like a spell-checker.  When a spell-checker indicates a word is misspelled, it does not necessarily mean it is a mistake; it may just be a word that is not in the spell-checker's dictionary.  For example, the word "eschaton", which I have used above, is not in my spell-checker's dictionary. A spell-checker does not tell you the word is wrong, it warns you to double-check.  In a similar way, whenever the number of executions trends noticeably upward or there is any question whether executions can be accurately described as "rare", it is time to double-check the criminal justice system to make sure this is not due to errors.

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! 

--------------

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.

The Death Penalty and Human Digntity

This is the first of a series of posts to examine the death penalty.

It is easy to see that many priests and bishops are troubled by the death penalty.  It would be troubling if they were not, since it is their calling to be shepherds.  The honest ones will admit that Catholic teaching does not demand the absolute abolition of the death penalty, but they argue that consideration of human dignity means that it should practically be abolished.  My argument is that it is precisely because of human dignity that the death penalty should not be absolutely abolished.

We humans have three claims to dignity.

1. "And [God] said: Let us make man to our image and likeness.... And God created man to his own image: to the image of God he created him: male and female he created them."
2. "For us men and for our salvation he came down from heaven, and by the Holy Spirit was incarnate of the Virgin Mary, and became man."
3. "For our sake he was crucified under Pontius Pilate, he suffered death and was buried, and rose again on the third day in accordance with the Scriptures."

One of the consequences of our first claim to dignity -- that we are created in the image and likeness of God -- is that we are moral actors.  This sets us apart from mere animals.

Without this understanding, it is impossible to understand anything about any kind of punishment for crimes.  That is why it is unfortunate that the Catechism places so much emphasis on the "practical" side of the question.  If a tree drops a limb that kills someone, it might be deemed dangerous and removed, which we would find rational, or it may be chopped down in a fit of fury even though it poses no further threat, an act we would certainly find irrational.  It is not likely that many would find it irrational, though, to prosecute and jail Edger Ray Killen for the murders in 1964 of three civil rights workers, even though at the time of the trial in 2005 Killen was 80 years old and no longer a threat to society.  The tree is not a moral agent, Killen is.

Where I come from, there is an expression:  so-and-so is "not worth hanging".  It is an expression that must not be taken literally.  We can really be indebted to another person, but not to a useful tree; justice may call for the execution of someone guilty of terrible crimes, but it will never call for the death of a tree.  Any attempt to save the lives of condemned criminals by denying that they are more morally significant than a tree must be resisted, precisely because of the human dignity the Church defends.

The point of this post is only to answer a question that Msgr. Pope asked me some time ago when we were disagreeing about the death penalty:  "Why is this important to you?"

This barely touches the surface of the subject of the death penalty, but this will have to be enough for part 1.