Is Opposition to the Death Penalty an Infallible Teaching?

I'm glad the Department of Defense has decided not to livestream the execution by firing squad of mass murderer, Nidal Hasan. We don't need more folks addicted to violence drooling over the opportunity to watch someone die in real time. It makes me think of snuff films. A live execution enables the sick and voyeuristic to get their jollies. 

Death is not an entertainment opportunity. I was with both my mom and my dad and my husband's dad when they died. There's a world of difference in being a companion on the final stretch of life's journey. It's a gift of accompaniment, for the Catholic a final opportunity to pray for and with our loved ones. That's not what executions are about. Anyone who wants to go to an execution either for vengeance or entertainment should be banned. I would hope that even family members of victims, who choose to witness the execution of their loved one's killer, would go primarily to pray for his final repentance.

But let's talk about capital punishment in the light of Church doctrine. Despite the changes in the catechism by Pope Francis saying that capital punishment is now "inadmissible" because circumstances have changed, 65% of Americans support it for individuals convicted of murder. In some ways that's neither here nor there. Public opinion is not the arbitrator of morality. Nevertheless, there is a place for argument (in the classical sense) on the question of whether the death penalty is, in fact, inadmissible because of changing circumstances. That was the argument of Pope John Paul II, Francis, and the CDF. John Paul II called the need for capital punishment rare, Francis called it inadmissible. Are these infallible statements or prudential ones?

Catholics for Catholics (CFC) has an interesting article on the issue. It describes the history which, up until Pope Francis, recognized the authority and legitimacy of the state to make the determination of whether capital punishment was necessary to protect the common good. Pope John Paul II said it was rarely, if ever, necessary but did not take the hard line of Francis. As CFC wrote:

The Catechism of the Council of Trent published in 1566 stated that the prohibition of killing “Thou shalt not kill” “does not apply to the civil magistrate, to whom is entrusted power of life and death, by the legal and judicious exercise of which he punishes the guilty and protects the innocent. The use of the civil sword, when wielded by the hand of justice, far from involving the crime of murder, is an act of paramount obedience to this commandment which prohibits murder.”

In the 1900s, Pope Pius XII stated: “In the case of the death penalty the State does not dispose of the individual’s right to life. Rather public authority limits itself to depriving the offender of the good of life in expiation for his guilt, after he, through his crime, deprived himself of his own right to life.”

Pope John Paul II believed that the state in our times possesses more means for preventing crime, and can “[render] one who has committed an offense incapable of doing harm – without definitely taking away from him the possibility of redeeming himself” and that “the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically nonexistent,” still acknowledged that “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.”

Msgr. Charles Pope, who opposes the death penalty, wrote an article in 2018, after the change in the catechism, stating that it didn't actually change the doctrine but developed it because of changed circumstances. I found his reasoning a little convoluted. One person commenting on the article made what I thought was a cogent argument:

Msgr. Pope,

Capital punishment and its legitimate use is certainly a moral issue, and the Church certainly has the authority to lay out principles for its moral and licit use. But how can the pope declare that the conditions are met everywhere and in all cases globally at this point in time such that its imposition by the State is now inadmissible? The pope has no competency or authority in this arena. And where are the data? What metrics were used to come to this conclusion? What was the last society or country to finally have a sufficiently advanced detention system to warrant a universal ‘inadmissibility’ of capital punishment? What were the acceptance and rejection criteria for knowing whether such a condition of advancement was met? The pope or the Church has no competence or expertise in assessing the condition of a society’s penal system because determining the condition of a penal system to adequately protect society is not an issue of faith and morals; it’s a matter of expert opinion and prudential judgment of the State.

And then there's the question of whether the death penalty is a deterrent. For years, liberals tried to convince us that it is not. A reader sent me this article which makes the case that it most certainly is:

Endless Plea Deals Prove The Death Penalty Is A Powerful Deterrent

The article links to studies that show there is deterrent effect that  saves lives:

A 2003 study [Naci Mocan] co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. "The results are robust, they don't really go away," he said. "I oppose the death penalty. But my results show that the death penalty (deters) — what am I going to do, hide them?"

Statistical studies like his are among a dozen papers since 2001 that capital punishment has deterrent effects. They all explore the same basic theory — if the cost of something (be it the purchase of an apple or the act of killing someone) becomes too high, people will change their behavior (forego apples or shy from murder)....

Among the conclusions:

• Each execution deters an average of 18 murders, according to a 2003 nationwide study by professors at Emory University. (Other studies have estimated the deterred murders per execution at three, five and 14).

• The Illinois moratorium on executions in 2000 led to 150 additional homicides over four years following, according to a 2006 study by professors at the University of Houston.

• Speeding up executions would strengthen the deterrent effect. For every 2.75 years cut from time spent on death row, one murder would be prevented, according to a 2004 study by an Emory University professor.

Here's a list of murderers who plea bargained to avoid the death penalty. Think about a rapist or home invader who knows he will get the death penalty if he murders his victim/victims. Even brutal killers want to live and would rather spend life in prison than be executed. All punishment is a deterrent. When a Catholic says the act of contrition in the confessional, he witnesses to the deterrent effect of the punishment saying, "I am heartily sorry...because I dread the loss of heaven and the pains of hell." 

So the question is, are the lives of the innocent worth the death penalty for the guilty? The guilty have endless rights and appeals. The innocent have no rights at all in the minds of  vicious killers. Of course there are different levels of guilt: premeditated murder, murders of passion, manslaughter, etc. Trials are all about determining the level of guilt which certainly should be considered when determining punishment for a guilty verdict. 

Do we pray for the killers' reform? Of course. The death penalty and imminent execution have a way of focusing the mind. It may be the last, best opportunity for repentance and salvation for the guilty. That so many killers try to avoid the death penalty illustrates that.

And so, I remain convinced that capital punishment is moral when it has been established beyond a reasonable doubt that the perpetrator is guilty and there is no other way to protect inmates, guards, and the general population from later murders. Capital punishment is the prerogative of the state and its obligation to protect the common good of its citizens. In many places the circumstances discussed in the catechism have not really changed.  Providing lifetime incarceration of vicious murderers in an escape-impossible environment is not possible everywhere on the globe. 

Read about the drug lord El Chapo who escaped twice from maximum-security Mexican prisons, was responsible for tens of thousands of deaths, not to mention the assassinations he personally carried out. He's now in another maximum security facility in Colorado. Hopefully he will remain there for the rest of his life. In the past he bribed his way out of jail. As one of the richest people in the world because of his lucrative and deadly drug trade, he could well afford to finance the tunnels that allowed him to escape. 

The catechism is not infallible and the changes in the catechism relating to the death penalty do not constitute an infallible doctrine. Those who claim it does are wrong. Yes, we should give serious consideration to documents from the Vatican, but we can still use our intellect to make prudential decisions, e.g., to recognize when an error is an error. The death penalty is not intrinsically evil like abortion and other kinds of murder. It should be rarely used, but there are occasions when it becomes necessary to protect the innocent. The fact that released or escaped murderers kill again proves it. "Whosoever shall shed man's blood, his blood shall be shed: for man was made to the image of God."

I'll close with a comparison of the catechism entries before John Paul, after John Paul, and after Francis. Hat tip to Phil Lawler for this. Confusion anyone? Does the Francis version respect the dignity of the innocent victims of mass murderers and future victims if the perpetrator escapes or is released? What do you think? I would simply point out that the Church does not and never has taught that the "death penalty is inadmissible." To accept that statement is to say that the Church was wrong for 2000 years up until the enlightenment give to us by Pope Francis who no doubt will soon be up for canonization.

Lord of Life, have mercy on us!

Changes in the Catechism on capital punishment:

Original wording

2266: Preserving the common good of society requires rendering the aggressor unable to inflict harm. For this reason, the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, <i>not excluding, in cases of extreme gravity, the death penalty…

2266, cont.: The primary effect of punishment is to redress the disorder caused by the offense….

2267: If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and 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 with the dignity of the human person.

As amended by Pope John Paul II

2267: “…cases of absolute necessity for suppression of the offender today are very rare, if not practically non-existent.”

As amended again by Pope Francis (in current edition)

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 the duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense...

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.