The tension in the church's death penalty teaching

As Tom reported yesterday, Pope Francis has declared that the death penalty is "inadmissible because it is an attack on the inviolability and dignity of the person."   I'd like to take take a look at the Catholic church's teaching on the death penalty in the two most recent revisions of the applicable paragraph in the Catechism of the Catholic Church.  I'll try to identify the underlying principles present in those paragraphs, and touch on a tension that seems to be present in those syntheses.


The first principle I'd like to identify is articulated, or at least strongly implied, in the Catechism in a paragraph that, as far as I know, Francis hasn't modified.  It is paragraph 2266, the paragraph that precedes the one, 2267, which the pope has now revised (although, at the time I write this, the revised version of 2267 still isn't on the Vatican website).  Here is 2266:

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.

As you can see, 2266 is a statement of principles of Catholic punitive justice.  It is not particularly about the death penalty, but is more generally about punishment of crimes.  It might be summarized as follows: For purposes of the common good, legitimate public authority has the right and duty to punish criminal offenders, and the punishment should be proportionate to the crime.

Let me boil it down even further to this principle: Crimes should be punished justly and proportionately.

Of course, it is no accident that this paragraph comes immediately before the paragraph about the death penalty, the paragraph which Francis recently modified, and which John Paul II had revised before him, each successive revision retracting by degrees the church's traditional approval of the death penalty.

The church traditionally has approved of the death penalty because of the principle that crimes should be punished justly and proportionately.  Some crimes are sufficiently heinous, causing such grave public disorder, that legitimate public authority's putting the guilty party to death is the just and proportionate punishment.

We can summarize the traditional teaching: The death penalty is just.

That the death penalty is just is the principle which, it seems to me, underlies western society's and the church's traditional approval of the death penalty.  Perhaps that is so obvious that it needn't be articulated; but inasmuch as a good deal of contemporary discourse and controversy on the death penalty, at least in the United States, tends to focus on other matters, such as whether or not the folks currently on death row actually committed the crimes they're accused of, and the specific means used to administer the death penalty (drug cocktails, firing squads, hangings), it may be good to go back to that first principle.  For those in the United States who continue to support the death penalty - and their numbers still are legion - this is the fundamental reason they support it: because the death penalty is just.  People look around, they see heinous crimes being committed, and they demand and expect a just and proportionate punishment.  If certain people on death row shouldn't be there, those are instances of specific failures in the criminal justice system, but those instances don't shed any light on whether or not the death penalty is an exercise in justice; every prisoner on death row who does deserve to be there would seem to be an argument in favor of the death penalty, according to the principle we're considering here, because we can't talk about "deserve" without acknowledging that there are circumstances that justify the death penalty.  Likewise, that some methods of administering the death penalty strike us as more barbaric or less efficient than others doesn't really say anything about whether or not the sentence is just.

 This traditional principle also is the source of tension in any attempts like John Paul II's and Francis's to qualify or retract approval for the death penalty.  For these developments in church teaching to be received by the faithful, the developments cannot ignore, and must do their best to harmonize, this traditional - and seemingly true - understanding of the death penalty: that it is just.

After John Paul II revised the Catechism to align it with church teaching on the death penalty, which he developed during his pontificate, 2266 was as I've quoted it here.  But then, in his version of 2267, John Paul II introduced other principles.  He wrote, in his version of 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. [Emphasis mine]

I've bolded the last phrase to highlight that John Paul II's magisterial interpretation of the Catholic tradition is rooted in the requirement to defend the innocent.  I am sure we all agree that defending the innocent is a worthy undertaking; in fact, undoubtedly it is one of the chief reasons that prisons exist; if the bad guys are restrained, they can't do further injustices against me, my loved ones or my property.

John Paul II's version of 2267 continues on:

"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.] [Emphases mine]

Still other ideas and justifications are introduced here.  Taken all in all, it seems to me we can identify the following principles which John Paul II's teaching attempted to address:

1. The death penalty is just (still implied in 2266, and also present in 2267's concession that the tradition "does not exclude ... recourse to the death penalty")
2. Innocent persons must be protected
3. The dignity of human persons, even offenders who have committed heinous crimes, must be respected
4. Christ's redemption is for everyone, and even offenders who commit heinous crimes shouldn't be deprived of that possibility

I don't claim that all four of these are perfectly harmonized in this teaching; in fact, is seems to me that the principle we identified as arising out of the tradition, that the death penalty is just, lives in tension with the other principles we've teased out here.

My personal view of John Paul II's magisterium on this topic is that his introduction of these additional principles arose out of his insight that contemporary culture was what he characterized as a Culture of Death - in other words, the culture was (and arguably still is) characterized by rampant and sinful disrespect for the human person resulting in irreverence for the gift of life.  I've thought it significant that the Catechism puts its paragraphs on the death penalty under the section heading of the 5th Commandment, Thou Shalt Not Kill.  It seems that John Paul II acknowledged the force of the traditional principle, rooted in justice, but also saw the imperative of witnessing against the culture of death; and that imperative overrode, mostly or even completely, the traditional requirements of justice.

So - what has Francis done with this most recent revision?  Here is his new version of 2267:

2267. 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. 

Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption. 

Consequently, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”,and she works with determination for its abolition worldwide. [Emphases mine]

Francis's revision cites the same principles which we've enumerated above.  And his "however" in the second paragraph seems to acknowledge that our traditional principle (the death penalty is just) lives in tension with the other principles - in fact, we seem to have reached the point now where the other principles have now completely superseded the traditional principle that the death penalty is just. 

 And note that Francis has introduced a new principle, not previously present in earlier editions:

5. The significance of penal sanctions.  

It's not completely clear here what is meant by "significance", but in a 2014 speech, but Francis said this:

It is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor ... All Christians and people of good will are thus called today to struggle not only for abolition of the death penalty, whether it be legal or illegal and in all its forms, but also to improve prison conditions, out of respect for the human dignity of persons deprived of their liberty.  And this, I connect with life imprisonment.  Life imprisonment is a hidden death penalty.

So it seems that Francis is concerned, not only with the death penalty as an attack on human persons, but also the possibility that unjust prison sentences are another form of attack on the human person.  We might cite the extremely long and punitive sentences that have been handed down during the so-called War on Drugs.  Not to mention claims of sentencing disparity between rich and poor, or between persons of color and white persons.

My view about the church's teaching on the death penalty is that the traditional principle, The death penalty is just, has been superseded by the other principles we've identified here.  But looking at the American political landscape, it seems to me that many Americans have not relinquished the traditional principle.  I expect that political and social conflict over the death penalty will continue as we continue to work to harmonize these competing principles of justice, protection, and respect for human dignity.