"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Friday, April 17, 2015

The Stunning Ignorance of Missouri's Bishops

Missouri's bishops have issued a letter wherein they complain about the supposed speed of executions in that state.

The basis for their complaint is that there have been 15 executions in Missouri since 2013, a rate, they lament, of almost one per month.
"We wonder how much thought can be given to the circumstances of each defendant when these executions are carried out so routinely,” the letter read in urging the recipients to “take a stand for life, mercy and justice.”
The letter said clemency requests are ignored, “even when defendants are profoundly impaired by severe mental illness or traumatic brain injury.”“These cases rarely represent the ‘worst of the worst’ that the death penalty was intended for. Rather, they are evidence of a flawed death penalty system,” the Church leaders said.
 As in most states, the rate of executions has been trending downward in Missouri, despite a slight uptick in 2012:

(source: DPIC).

Nevertheless, the bishops are worried about hasty justice.  Let's take a look at one of the cases they complain about to see if we agree that the murderer was railroaded to his death at the hands of the cruel, incompetent state:

Michael Taylor was executed on February 26, 2014 for the abduction and rape of a 15 year old girl.  As always, because the murder lobby hates focusing on the crimes committed by their beneficiaries, it's good to remember what they actually did to end up on death row:
At approximately 7 a.m. [March 22, 1989], Ann Harrison, a 15-year-old high school student, left her home and stood in front of her house to wait for the school bus. Within moments, Taylor and [co-defendant] Nunley drove by. According to Taylor’s subsequent confession, Taylor was driving and Nunley told him to stop the car “so he could snatch her purse or something.” Nunley pretended to ask Ann Harrison for directions, then grabbed her and dragged her into the car, whereupon Taylor drove away. Nunley did not take the victim’s purse or her other possessions, which remained on the curb next to the Harrison’s mailbox.
Taylor and Nunley took Ann Harrison to Nunley’s mother’s house. On the way, Nunley blindfolded the victim with a sock. After pulling the stolen car into the garage, Taylor and Nunley took Ann into a basement room and Nunley tied her hands with a length of cable. Taylor stated in his confession that he sat in the garage while Nunley raped the victim, and then he raped the victim himself. While Taylor claimed in his confession that he “didn’t finish,” blood-typing and DNA testing of semen found in the victim’s genitals and on her clothing established that the source of the semen was Taylor. As a result of this forcible sexual assault, Ann suffered lacerations to her vagina.
After being repeatedly raped, Ann Harrison pleaded for Taylor and Nunley not to hurt her said that her family could pay them for her safe return; she was allowed to write down her family’s address and telephone number, purportedly so that Taylor and Nunley could arrange for
her ransom. Nunley tied the victim’s hands in front of her, and he and Taylor put her in the trunk of the stolen Monte Carlo.
While Ann Harrison, bound and blindfolded, lay in the trunk, Nunley went upstairs and got two knives, a large butcher knife and a small serrated steak knife; he gave the steak knife to Taylor and kept the butcher knife for himself. According to Taylor’s statement to police, Nunley urged that the victim be killed to prevent her from identifying him, while Taylor was reluctant to participate, in part because Ann had not seen Taylor. By Taylor’s account, Nunley grabbed the victim’s neck and attempted to cut her throat, but the butcher knife was too dull, producing only scratches on her throat. Nunley then stabbed Ann Harrison through the throat and in the chest, while Taylor stabbed her two to four times in the torso. An autopsy of the victim revealed six stab wounds to her chest, side and back which penetrated her heart, lungs and other internal organs, and four more
the forgotten victim
stab wounds to her neck. After the stabbing, Taylor watched for a time as Ann Harrison lay in the trunk and futilely struggled to breathe through her damaged lungs.
Ann Harrison died from her numerous stab wounds, especially the one that penetrated her heart. Ann was alive at the time all 10 wounds were inflicted and remained conscious for up to 10 minutes after the time of her stabbing.
So much for the crime. (Side question:  this crime is not, according to Missouri's bishops, "the worst of the worst?")

Now, to the bishops' claims that there is too much haste, let's look at the legal process in getting Taylor from the crime to execution of the sentence:
Legal Chronology
1989March 22 – Michael Taylor and co-defendant Roderick Nunley kidnap, rape ad murder 15-year-old Ann Harrison.
July 28 – The state charges Taylor by indictment with first degree murder, forcible rape, kidnapping and armed criminal action
1991February 8 – Taylor pleads guilty to the charges
April 23 – The penalty phase begins before the circuit court
May 3 – The Jackson County Circuit Court sentences Taylor to death for the murder conviction, life for the rape conviction, 15 years for the kidnapping conviction, and life for the armed criminal action conviction
May 13 – Taylor files a notice of appeal
August 9 – Taylor files a Rule 24.035 motion for post-conviction relief in the Jackson County Circuit Court
1992July 1 – The Circuit Court denies post-conviction relief
1993June 29 – The Missouri Supreme Court remands for a new sentencing proceeding
1994May 2 – The second penalty phase begins
June 17 – The Jackson County Circuit Court sentences Taylor to death for the murder conviction, 15 years for the kidnapping conviction, life for the rape conviction and 50 years for the armed criminal action conviction, the sentences to run consecutively
September 15 – Taylor files a Rule 24.034 motion for post-conviction relief in the Jackson County Circuit Court
1995June 20 – The Circuit Court denies post-conviction relief
1996August 2 – The Missouri Supreme Court affirms Taylor’s conviction and sentence and the denial of post-conviction relief. State v. Taylor, 929 S.W.2d 209 (Mo.banc 1996)
1997February 24 – The United States Supreme Court denies certiorari review. Taylor v. Missouri, 519 U.S.1152(1997)
1998February 23 – Taylor files a petition for writ of habeas corpus in the United States District Court of the Western District Missouri
2000July 10 – The District Court denies the petition for writ of habeas corpus in an unpublished order.
2003August 18 – The Court of Appeals affirms the denial of habeas corpus relief. Taylor v. Bowersox, 329 F.3d 963 (8th Cir. 2003)
2004March 22 = The Supreme Court denies discretionary review. Taylor v. Bowersox, 541 U.S. 947 (2004)
2005June 3 – Taylor rifles civil suit challenging constitutionality of lethal injection as method of execution.
2006January 31 – The United States District Court for the Western District of Missouri finds lethal injection is constitutional.
February 1 – The Court of Appeals issues a stay of execution pending review of district court decision. The Supreme Court upholds the stay. Crawford v. Nixon, 126 S.Ct. 1192 (2006)
April 11 – The Missouri Supreme Court issues write to Jackson County Circuit Court prohibiting it from reopening Rule 24.035 litigation. State ex rel. Nixon v. Daugherty, 186 S.W.3d 253 (Mo. band 2006)
April 27 – The Court of Appeals retains jurisdiction and remands to district court for further hearing. Taylor v. Crawford, 445 F.3d 1095 (8th Cir. 2006)
June 26 – The district court find’s Missouri’s method of execution unconstitutional and suggests changes to improve it. Taylor v. Crawford, 2006 WL 1779035 (W.D. Mo2006)
August 9 – The Court of Appeals relinquishes jurisdiction to district court. Taylor v. Crawford, 457 F. 3d 902 (8th Cir. 2006)
September 12 – The district court finds Missouri’s written protocol unconstitutional
2007June 4 – The Court of Appeals reverses district court judgement and finds the written protocol constitutional. Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007)
2008May 20 – The Missouri Supreme Court affirms the denial of post-conviction relief by the Jackson County Circuit Court. Taylor v. State, 254 S.W.3d 856 (Mo. band 2008)
2009February 24 – The Missouri Supreme Court rejects a claim by Taylor and others that written protocol did not conform to state law. Middleton v. Missouri Department of Corrections, 278 S.W.3d 193 (Mo. band 2009)
November 10 – The Court of Appeals for the Eighth Circuit concludes the protocol is applied constitutionally. Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009)
2011May 31 – The Missouri Supreme Court rejects Taylor’s challenge to judge sentencing. State ex del. Taylor v. Steele, 341 S.W.3rd 634 (Mo.banc 2011)
I can assure the good bishops of Missouri that this tortuous 25 year legal history is in no way unusual.  In fact, it's entirely typical of how a death case goes up and down the court system, both state and federal, and is viewed from many different angles, considering many different issues from the sufficiency of the evidence to any bias in the imposition of the penalty to the effectiveness of the defense attorneys.

For each of the 15 murderers executed by the state of Missouri, the same process was followed, including executive clemency reviews.

One would imagine the bishops have access to a lawyer who could explain this simple fact to them.  I'd rather believe it's ignorance than a sleazy attempt to advance an agenda, that led the bishops to make such a disingenuous, deceptive complaint.

Tuesday, April 14, 2015

Rendering Offenders Harmless, Pts. 39 & 40, With a Clerical "Oops" Moment

Violent felon thought to have killed cellmate.   It's reported that in the same prison, another inmate was killed by a fellow inmate in an unrelated incident.

But it's just fine, don't you know, because as the Vatican's UN representative has opined:
twenty years ago, during the papacy of St. John Paul II, the position of the Holy See was “framed within the proper ethical context of defending the inviolable dignity of the human person and the role of the legitimate authority to defend in a just manner the common good of society”. He continued, “Considering the practical circumstances found in most States, as a result of steady improvements in the organisation of the penal system, it appears evident nowadays that means other than the death penalty are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons. For that reason, public authority must 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”.
Oh yes, it's abundantly "evident" that "means other than the death penalty are sufficient to defend human lives against an aggressor."

Except when they're not.  Which is frequently and regularly.

Apparently it's now the position of the Church that the lives of inmates and prison staff are worth risking in order to advance the fairy dust position that we've found a humane way to render offenders harmless.

It seems there is no "preferential option" for the poor when the "poor" is an inmate or prison guard who gets shanked by some violent convict who evaded the death penalty.

The Pope, these bishops, clerics, and Catholic Leftists who so desperately advocate on behalf of vicious murderers ought to compelled to serve 30 days as a prison guard in a maximum security prison before they're heard to pontificate about the penal system.

Saturday, March 21, 2015

LA Bishop An Expert Criminologist?

Los Angeles Archbishop Jose Gomez opines that "through advances in law enforcement and criminal justice, our society has many ways to punish violent offenders and to prevent them from committing further violence." Therefore, he says, while capital punishment is theoretically permissible according to Catholic teaching (oops!  it seems he's now a dissenter from Pope Francis' newly-announced teaching) it is not needed in the U.S.

I only wish in his article, the good bishop would have been so kind as to enlighten us as to just what these "advances" are which prevent criminals from committing further violence.

Can he point us to the studies which he's conducted that show that some particular technique or process that we have in this country has wondrously de-fanged the murderers who otherwise would have to be executed?

Can he at least point us to the study group or expert panel that the American bishops or that Vatican have established in order to illuminate and expound upon the marvelous innovations in criminal justice and penology that have obliterated violent recidivism?

I'd like to know, because it seems to me we're having a heck of a hard time rendering offenders harmless.

But what do I know?  I'm sure Apb. Gomez is a criminologist of the first order, or that he, or the US bishops, or the Vatican, or the Catholic Left, all of whom constantly refer to these amazing breakthroughs in penology and criminal justice, can point us to the studies, surveys, or research that support their view.

Commence cricket-chirping.

Friday, March 20, 2015

Another Pope John XXII?

This, if true, would mean the Pope as a private person adheres to a materially heretical view.
In a lengthy letter written in Spanish and addressed to the president of the International Commission against the death penalty, Pope Francis thanks those who work tirelessly for a universal moratorium, with the goal of abolishing the use of capital punishment in countries right across the globe.
Pope Francis makes clear that justice can never be done by killing another human being and he stresses there can be no humane way of carrying out a death sentence. For Christians, he says, all life is sacred because every one of us is created by God, who does not want to punish one murder with another, but rather wishes to see the murderer repent. Even murderers, he went on, do not lose their human dignity and God himself is the guarantor.
Capital punishment, Pope Francis says, is the opposite of divine mercy, which should be the model for our man-made legal systems. Death sentences, he insists, imply cruel and degrading treatment, as well as the torturous anguish of a lengthy waiting period before the execution, which often leads to sickness or insanity.
The Pope also condemns the use of the death penalty by “totalitarian regimes” or “fanatical groups” who seek to exterminate “political prisoners”, “minorities”, or anyone seen as a threat to political power and ambitions.
But he makes quite clear that the use of capital punishment signifies “a failure” on the part of any State. However serious the crime, he says, an execution “does not bring justice to the victims, but rather encourages revenge” and denies any hope of repentence or reparation for the crime that has been committed.
The view that the death penalty is never just under any conditions and that human dignity or the sacredness of life is violated by the state executing a criminal clearly contradicts Catholic teaching, including the current CCC and Pope St. John Paul II's Evangelium Vitae, both of which clearly reiterate that the state may justly execute offenders in certain cases.

A Pope professing private (e.g., not formally promulgated or taught in a formal way, such as by an encyclical) error is not unprecedented. It's not surprising to see a Pope from a country without the death penalty and imbued with European sensibilities, with their prejudice against the American justice system and use of the death penalty, express personal opposition to it.

He will never, however, attempt to promulgate his erroneous views in an authoritative way to the Church.  You can bet the ranch (and the Barque of Peter) on that.

Wednesday, March 18, 2015

A Passing

Bad news for Jay Anderson, who is a past Mayor of this little town-that-was, and who recently gave up active blogging at his excellent blog..


Populorum Progessio

Progress is slow, but we'll take it where it comes.

A disciple of Shea's pacifist errors about capital punishment asks for help from Sacred Scripture in supporting the reader's effort to convince a "Bible Protestant" that Scripture is against the death penalty... and Shea can't point the reader to any such Scriptural support.

Because there ain't any.

Monday, March 09, 2015

Part IV: America's Death Penalty Does Not Contradict Any Catholic Teaching

Even if one takes for granted that the "modified" or "updated" or "developed" position of Evangelium Vitae and the Catechism (#2267) with regard to the death penalty is absolute, true, correct, and binding always and everywhere as the only moral justification for the death penalty, the death penalty in this country is-- surprise!-- still in conformity with that position.

The two "new" conditions under which the DP would seem to approved by the current teaching are:  1) the DP can only be resorted to when the "improvements" (the nature of which we're left guessing about) to the penal system are not sufficient to render offenders harmless;  and 2) given these "improvements" we expect to see that the DP is used only "rarely."

With this in mind, let's review the actual situation in the United States, and not the cartoon characterizations by some fevered bloggers.

As to the first point, it is difficult to know just what "improvements" the churchmen who penned these documents are referring to.  We can assume they mean life without parole;  or perhaps they mean that we have high-security prisons.  Since we are left without clear direction on this point, it's hard to fathom how the authors of the current teaching expect the laity charged with implementing a criminal justice system to respond to their new teaching.

But assuming for the sake of argument that the "improvements" referred to are life imprisonment and secure prisons, in the United States at any rate these "improvements" have certainly not been effective in rendering offenders harmless.  I've pointed out at some length and without contradiction that despite life sentences and high security prisons, some offenders continue to be very real threats to the safety and lives of prison personnel and fellow inmates, and to the public when they escape or have their sentences reduced or commuted for some reason.  I won't repeat here the myriad concrete cases where mere imprisonment has utterly failed to restrain offenders.  Suffice to say, there are enough of these examples to reach a sound conclusion that "life imprisonment" or lengthy incarceration, cannot guarantee to a moral certainty that an offender will be rendered harmless.

All of which is to say, whatever "improvements" these authors imagined that would render offenders harmless have yet to exist in the U.S.  That some offenders might not kill or assault in prison is certainly true;  but to speak of a causal relation between some general "improvement" and the propensity of an offender to commit violence, is to evince a woeful lack of understanding of actual conditions in the criminal justice system.

Whether or not the "improvements" have been made and are successful, however, the good news (if one views it as such)  is that as to the second desire of the authors, that the DP should only be "rarely" resorted to, imposition of the death penalty continues to decline.

In 2013, the last year available for murder statistics, there were about 80 death sentences handed down nationally (source: Death Penalty Information Center, an abolition group which boasts that death sentences are near a historic low) for the 14,196 murders committed (source: Bureau of Justice Statisticsa rate of 0.56%, which is a rate consistent with recent years.

So whatever view one takes of the current Catholic teaching, the simple fact is, the death penalty is imposed very rarely in the US, in less than one percent of murder cases.  This is easily explained as the result of death--eligible cases (usually aggravated forms of murder) being relatively rare; prosecutor caution in seeking the most serious of sentences, considering the cost and trauma to the state and the victims' families during long and contentious appellate procedures that go far beyond those experienced in non-death cases; and of course, jury caution in imposing this type of punishment.

Thus, for all the sturm und drang of the Catholic Left, and overblown rhetoric about blood lust, the death penalty is a very rare occurrence in relation to the number of murders in this country.

Would that these tender souls reserve some of their tears for all the forgotten victims of murder (the 14,000-plus), instead of for the very small number (80, and only 72 in 2014) of the worst offenders who receive a death sentence.

Alas, dead victims do not make good fodder for ostentatious moral preening by the living Left.

Friday, March 06, 2015

Part III: Reconciling the Old and the New

In earlier posts, we've seen that both Scripture and Sacred Tradition bear witness to the constant teaching of the Church that the death penalty is moral, not just because it is a tool of societal self defense, but because it is a positive vindication of the sanctity of human life.

In recent years, this teaching has come under challenge because of many comments from Popes since John Paul II, bishops and bishops' conferences, individual priests and theologians, and even in some formal settings such as an encyclical and a new catechism.

What then to make of it? The task of a Catholic theologian is not to assume a breach of teaching from an apparent new teaching and the old one (what Pope Benedict XVI would call a "hermeneutic of rupture"), but rather, to seek to reconcile the apparent break with the prior teaching, to see if they can be harmonized (Pope Benedict's "hermeneutic of continuity" and what we lawyers call "in pari materia"), and failing that, to point out the apparent break respectfully to the Church's pastors and seek a clarification.

We turn then to the new state of affairs with these thoughts in mind.

In 1992, the first version of the new Catechism of the Catholic Church appeared, written in French. In apparent departure from previous thinking, this Catechism placed consideration of the death penalty, not in the discussion of the Fifth Commandment generally, but more particularly in the section dealing with self-defense. In this section, self-defense is posited as a right and even a duty. (No. 2265). Society, in turn, possesses this right of self-defense and hence the right to inflict “the death penalty in cases of extreme gravity,” as “a penalty proportioned to the gravity of the crime” ( No. 2266).

The only restriction urged upon governments was the following:
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 these better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.
(No. 2267).  After this 1992 French version of the Catechism, Pope John Paul II promulgated the encyclical Evangelium Vitae in 1995. As the first encyclical to address specifically the death penalty, it has clearly resolved any doubt about the weight of the teaching concerning the morality of the death penalty. It is now indisputable that in fact this teaching is part of the Ordinary Magisterium.[1]

In No. 27 of that encyclical, the Holy Father continues to expound upon the prudential concerns governing the application of the death penalty in the modern state: “[a]mong the signs of hope … there is evidence of a growing public opposition to the death penalty …. Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform.” However, the Pope acknowledges that “such a penalty is seen as a kind of ‘legitimate defense’ on the part of society.”

Moreover, this discussion of the death penalty is couched among other general observations, such as the Holy Father’s approving acknowledgement that more people are opposed to war. Certainly, in noting that more people are opposed to war, the Holy Father is not nullifying the traditional teaching on a just war. He is simply expressing the hope that society is moving away from ready recourse to war. So with capital punishment, the Pope is not questioning the morality of it per se, but only expressing the same hope as he does in the case of war: that recourse to it may not be as necessary as in the past.

Then, in No. 56 of the encyclical, the Holy Father returns to the topic of capital punishment, in his discussion of self-defense. Pope John Paul first restates the moral situation involved in killing in self-defense:
legitimate defense can be not only a right but a grave duty for someone responsible for another's life, the common good of the family or of the State. Unfortunately it happens that the need to render the aggressor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor whose action brought it about, even though he may not be morally responsible because of a lack of the use of reason.
(citations omitted)(emphasis added). Again the Holy Father is stating the perennial moral teaching of the Church: that the state has a grave duty in certain cases to take life in defense of society. One cannot have a grave duty to do something that violates human dignity or the moral law.

Then, citing the requirements that society inflict a punishment adequate to address the crime, defend public order, protect peoples’ safety and allow for the possibility of rehabilitation of the criminal, the Holy Father concludes:
It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.
The Holy Father thus again reaffirms the principle that the death penalty is morally licit when necessary “to defend society” when the unidentified improvements he refers to are inadequate to that purpose. The only addition to the traditional teaching on capital punishment is a reflection on issues surrounding the prudential, practical issue of which cases merit the penalty.

That the Holy Father leaves untouched the Magisterial teaching concerning the moral legitimacy of the death penalty is clear from No. 57, the section immediately following his discussion of the death penalty, where he states:
If such great care must be taken to respect every life, even that of criminals and unjust aggressors, the commandment "You shall not kill" has absolute value when it refers to the innocent person. And all the more so in the case of weak and defenseless human beings, who find their ultimate defense against the arrogance and caprice of others only in the absolute binding force of God's commandment.
(emphasis added). The Fifth Commandment, then, applies in an absolute sense, to forbid killings, not in the case of capital punishment rightly administered, but only as regards innocent life. The Holy Father, then, at least obliquely returns to the source of the traditional justification of the death penalty that we've seen in Part II: the command of God to respect and vindicate innocent life and redress its violation.

Following upon Evangelium Vitae, in 1997 the Holy Father promulgated the normative edition of the Catechism of the Catholic Church, in Latin. This version contained revisions to the original French edition, reflecting the Holy Father’s statements in EV. The most substantive revisions occurred in the sections dealing with capital punishment.[2]

In No. 2267, the Catechism states:
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, nonlethal 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 are 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.
In light of Evangelium Vitae, the recognition in this section that death penalty is morally licit puts to rest any question about the moral legitimacy of capital punishment belonging to the Ordinary Magisterium of the Church. Again, the development, if it may be called that, is the pragmatic, prudential suggestions regarding the use of the death penalty in cases of necessity. Let's look at these "developments" in detail.

1.  The Issue of "Improvements" Rendering Recourse to the DP "Rare":

Note that the famous statement that death cases should be "rare" or "non-existent" is a statement that rests on the premise that "improvements" in the penal system, or "non-lethal means" have the ability to protect the public from the offender. Now what's interesting about this observation of both EV and the Catechism is that the limitation placed on the death penalty is not a philosophical or theoretical one, but a practical or pragmatic one. While the Catechism refers to a non-death sentence as "more" in conformity with the dignity of the human person, it does not state that use of the death penalty is not compatible with human dignity.. The “rare, if not practically non-existent” statement, is then, not one of dogmatic weight. It is purely a pragmatic judgment and is any event not self-defining.  Does this text enjoy any special protection from error about such detailed judgments of concrete social conditions? What studies or surveys did the authors rely upon to come to the conclusions they reach? Are their observations about concrete "improvements" to be taken as universally valid? Has the penal system of Iraq or of Afghanistan evolved or "improved" so as to mirror that of France or Italy or other Western European nations? What improvements specifically are being referred to? In which countries? And just what is “rarity” in this context? 

What if the two documents are simply wrong as a matter of social science about the perceived level of improvements rendering the chance of harm "non-existent" or "rare?" It would not seem to constitute an attack of a magisterial statement to assess the continuing validity of the necessarily contingent, sociological, not philosophical or theological claims that unspecified "improvements" have rendered the death penalty effectively obsolete.

The answers to these questions are not readily apparent and are subject to honest interpretation by those charged with carrying out justice in particular cases. Interestingly, where EV affirmatively claims that these "improvements" have rendered the death penalty mostly unjustified, the Catechism uses conditional language: "if non-lethal means are sufficient...". Thus, the Catechism seems to avoid the more categorical language of EV and leaves the judgment of when or if non-lethal means should suffice to the competent authorities, i.e., the public prosecutor (and of course, ultimately the jury and the sentencing judge).

The rationale in both texts for restrictive use of capital punishment, then, is the assertion of actual social conditions as the authors believe them to be. The statement that certain unspecified "improvements" in the penal system render the death penalty largely unjustified is entirely different than a proposition such as "human dignity demands that executions be rare or non-existent." It would be a problematic and theologically difficult and delicate matter to reconcile with prior teaching a presumptively magisterial assertion that there is an intrinsic component in the nature of man that renders the death penalty unjust. Neither text, however, makes that statement.  Thus, modern abolitionists who assert that the death penalty is immoral per se or violates human dignity, fall afoul of the Church's post-conciliar teaching.

2. Restrictive Use of DP "More" In Conformity With Human Dignity; Non-restrictive Use Therefore Only "Less" In Conformity With Human Dignity.

The strongest theoretical and therefore theological as opposed to merely contingent, practical, claim occurs when the Catechism enjoins refraining from the death penalty when it can be done without endangering society, and that this refraining is "more" in conformity with human dignity. This leaves the possibility that use of the death penalty is still "in conformity with human dignity" but only less so, when it is simply the right and just course to vindicate the virtue of justice and the common good even if the offender could be otherwise rendered harmless.

Seen in this light, perhaps the harmonizing of the prior teaching and the current one rests on an understanding that the current position is predicated in large measure upon the purely contingent social conditions of "the" penal system (again, of course, there is no "the" penal system; there are hundreds of individual penal systems, all possessing differing capacities to render offenders harmless), and that what is contingent may change. Indeed, contingent circumstances of social institutions are subject to myriad reasonable yet differing conclusions. While the teaching authority of the Church is absolute in Faith and Morals, in sociological questions such as the efficacy of a given nation's penal system, the contentions of the Church's representatives are subject to reasonable debate and disagreement.

The new "teaching" if it can be called that, is then, not so much the positing of a new moral position as it is a reference to concrete circumstances coupled with an observation that the death penalty should optimally only be used to protect society, not to protect the larger concept traditionally referred to as the "common good."

While the Catechism does refer to human dignity, it does so only to state that refraining from execution is more in conformity with human dignity when public safety is secured by other means than death; it does not claim that other uses of the death penalty (e.g., death imposed for purely reasons of justice, not social protection) are not in conformity with human dignity; the negative implication of the Catechism is that the traditional use of the death penalty would simply be less in conformity with human dignity, not that it would be unjust or immoral per se.

In this light, the two positions, old and new, can be reasonably seen as not in contradiction: where the former position did not particularly emphasize under what circumstances the death penalty optimally should be used, so long as it was at least justified by the common good; the new position stresses that the highest or best use of this punishment is where public safety alone demands it, while in other situations it would be still a morally permissible but less perfect option.

In sum, the principles I deduce from the forgoing as guiding Catholics (and all Christians) about when resort to the death penalty would be justifiable are:
1) Recourse to the death penalty is moral per the Ordinary Magisterium;
2) As a practical matter, the death penalty should be avoided when "non-lethal" means can protect society; and
3) Recourse to the death penalty even where "non-lethal" means suffice to protect society is moral, but less in conformity with human dignity.
The next posting will examine whether, broadly considered, the death penalty in this country conforms with these principles.

[1] See, Rev. Thomas Williams, L.C., “Capital Punishment and the Just Society” in Catholic Dossier, Vol. 4, No. 5 (Sept./Oct. 1998).  Curiously, Fr. Williams asserts that the moral legitimacy of capital punishment was an open question prior to Evangelium Vitae, which he nevertheless acknowledges has resolved the issue in favor of the morality of the death penalty.

[2] This is the opinion of Christopher Cardinal Schonborn, Cardinal Archbishop of Vienna, who, as a priest, led the commission responsible for producing the Catechism See, Catholic Dossier, Vol.4, No. 5 (1998).  

Part II: A Quick Primer on Catholic Tradition Regarding Capital Punishment


In the last post, we looked at a brief overview of the Scriptural sources supporting the Church's perennial teaching on the morality of the death penalty.  In this post, I'll review, in un-exhaustive summary fashion, what some sources of the Church's Tradition teach about the death penalty.  I'm unaware of any contrary authoritative sources which would contradict my thesis that the Church has always, as part of its ordinary magisterium, taught the moral permissibility of the death penalty.  Again, I will not defend here why these sources are significant, but would direct the reader here for a good overview of how these sources of Tradition relate to Scripture and constitute evidence of the Church's fundamental teachings on issues of Faith and morals.

St. Augustine is representative of the views of the Church Fathers on the question, and he states that:
The same divine law which forbids the killing of a human being allows certain exceptions. Since the agent of authority is but a sword in the hand, and is not responsible for the killing, it is in no way contrary to the commandment ‘Thou shalt not kill’, for the representative of the State’s authority to put criminals to death, according to the Law or the rule of rational justice.[1]
In another place, the great Father argues against the notion that the guilty should live in the hope of their conversion, stating that “inflicting capital punishment…protects those who are undergoing capital punishment from the harm they may suffer … through increased sinning which might continue if their life went on.”[2]

The second century Church Father Athenagoras assumed the morality of the death penalty:
If these charges are true [of atheism, cannibalism, and incest], spare no class: proceed at once against our crimes; destroy us root and branch, with our wives and children, if any Christian is found to live like the Brutes... For when they know that we [Christians] cannot endure even to see a man put to death, though justly, who of them can accuse us of murder or cannibalism?
Tertullian, in his De Spectaculis, ch. 19 and  De Anima, Ch. 56:
It is a good thing when the guilty are punished.  Who will deny this but the guilty?
But death that comes from the hands of justice, the avenger of violence, should not be accounted as violent.
This patristic theme is adopted by none other than St. Thomas Aquinas, who viewed attacks on capital punishment based on Scripture with scorn, holding that “the civil rulers execute, justly and sinlessly, pestiferous men in order to protect the peace of the state.”[3] Interestingly, St. Thomas expressly refutes one of the commonly stated reasons for opposition to the death penalty:[4]
The fact that the evil, as long as they live, can be corrected from their errors does not prohibit the fact that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement. They also have at that critical point of death the opportunity to be converted to God through repentance. And if they are so stubborn that even at the point of death their heart does not draw back from evil, it is possible to make a highly probable judgment that they would never come away from evil to the right use of their powers.[5]
Ironically, Sr. Helen Prejean’s (of "Dead Man Walking" fame) own involvement with the death
penalty demonstrates this relationship between the ultimate punishment and redemption. For if
Patrick Sonnier had not been sentenced to die for his crimes, he probably would not have met Sr. Prejean, and probably would never have come to take responsibility for his crimes and seek atonement. Shortly before his death he received the Blessed Sacrament and recited with Sr. Prejean Isaiah 43, “I have called you by your name, you are mine.” He did these things, and perhaps died in the state of grace because of receiving the death penalty and knowing, as much as any man may, the moment and hour of his death. In a way, he could be seen as proof of St. Augustine’s observation that repenting and dying in the state of grace is to be preferred to living only to lose one’s soul through increased sinning.

In any event, the Church for Her part continued to insist on the moral propriety and even the necessity of the death penalty. At the Council of Trent, a catechism was prepared, universal in scope, whose theological weight is greater than that of the recent Catechism of the Catholic Church, since the former was an act of a General Council of the Church. It still remains an important source of theology. The Tridentine catechism places consideration of capital punishment in its treatment of the Fifth Commandment:
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. (Emphasis added).
As if to underscore this teaching, the Council Fathers urge as a remedy against violating this Commandment a reflection upon the evil of homicide, which is surely vastly more relevant to our society than to theirs:
The enormity of this sin [of murder] is manifest from many and weighty passages of Holy Scripture. So much does God abominate homicide that He declares in Holy Writ that of the very beast of the field He will exact vengeance for the life of man, commanding the beast that injures man to be put to death. And if He commanded man to have a horror of blood, He did so for no other reason than to impress on his mind the obligation of entirely refraining, both in act and desire, from the enormity of homicide.

The murderer is the worst enemy of his species, and consequently of nature. To the utmost of his power he destroys the universal work of God by the destruction of man, since God declares that He created all things for man’s sake. Nay, as it is forbidden in Genesis to take human life, because God created man to his own image and likeness, he who makes away with God’s image offers great injury to God, and almost seems to lay violent hands on God Himself.
These strong words almost sound foreign to us, immersed in a culture of death turned lukewarm to the horror of murder. Yet the Fathers of Trent do not offer pragmatic reasons for the death penalty. They hold it to be a necessity based on obedience to the Fifth Commandment itself, inasmuch as capital punishment does not diminish but affirms the sanctity of life.

In our own times the Church has not modified this ancient and venerable teaching. Pope St. Pius X promulgated a catechism which also, following Trent’s arrangement, refers to capital punishment in discussing the Fifth Commandment:
Q. Are there cases in which it is lawful to kill?
A. It is lawful to kill when fighting in a just war; when carrying out by order of the Supreme Authority a sentence of death in punishment of a crime; and finally, in cases of necessary and lawful defense of one’s own life against an unjust aggressor.
Papal teaching was in accord with this view as late as the pontificate of Pope Pius XII, who stated in an address that “when it is a question of the execution of a man condemned to death it is then reserved to the public power to deprive the condemned of the benefit of life, in expiation of his fault, when already, by his fault, he has dispossessed himself of the right to live.”[6]

So it is not surprising that even up to the very eve of the Second Vatican Council, Adolph Tanquerey could address the issue of the death penalty in his seminal moral theology text by first stating this principle:
The civil authority is able to punish with the ultimate punishment of death evildoers duly convicted of the most grave crimes, as often as the public good requires (quoties id requirit bonum publicum). (emphasis added).[7]
Father Tanquerey supports this principle by demonstrating that recourse to capital punishment is strongly rooted in both history and human psychology, and ends his discussion by emphasizing the ethical probity of the death penalty:
Justice demands that the offended moral order be repaired and restored by a congruent satisfaction; and therefore the duty devolves upon the leaders of the Republic to take care that grave crimes are punished by proportionate penalties; for otherwise the moral order is disturbed and endangered. Certainly there are crimes of such gravity committed which, in the general estimation, will only be able to be expiated by means of the death penalty; of such a kind especially is murder cruelly committed after mature deliberation; for crimes which are the greatest affront to the moral order, and encompass the greatest harm, require of their nature the greatest punishment, that is, capital punishment. And therefore this rule is established by common sense: ‘Whoso sheds the blood of man, shall by man have his blood shed.’[8]
Sacred Tradition, then, has consistently viewed capital punishment as a vindication of the sacredness of life. This is clearly shown by the way various Doctors, Popes, and Councils have firmly rooted their validation of the death penalty in discussing the Fifth Commandment; not only to explain why capital punishment does not offend against this Commandment, but also to underscore that by this punishment the sacred gift of life is vindicated. Clearly, the moral approval of capital punishment in the sources just examined is based, not on political expediency or practical concerns such as deterrence, but on obedience to the Fifth Commandment and in recognition of the sanctity of life.

Moreover, as a perennial teaching touching on a matter of morals, it is impossible to avoid the conclusion that the Church’s teaching on the death penalty belongs to the Ordinary Magisterium of the Church. It is a teaching to which the following statement of the Fathers of Vatican I applies:
[T]he Church would lose its immutability and dignity and it would cease being a life-giving society and a necessary means of salvation if it could wander from the safe path of truth in matters of faith and morals, and if, in preaching and explaining these matters, it could deceive or be deceived.[9]
The moral liceity of the death penalty thus belongs to the perennial moral teaching of the Church, and one would have to posit that the Church had erred and thus failed in its Divine mission, if one would affirm that the death penalty is in fact always and everywhere immoral. The Church would, for its entire history, have not taught the truth to society about morality, but rather affirmed the moral good of what is in fact a moral evil. But this is impossible for a Catholic to admit. The Church could no more have taught erroneously that capital punishment is not only licit but laudable than She could have erroneously taught that use of artificial contraception is always and everywhere contrary to the moral law. The Church is Divinely protected from leading men astray in its constant teachings concerning moral issues. She is the teacher and informer of consciences and would have failed in Her mission if She had suddenly been found to have erred for so long on such a fundamental issue of morality.

In the next post, we will see what has apparently changed and what has not, in Catholic teaching in recent years.


[1] City of God, Book I, chapter 21.
[2] On the Lord’s Sermon, 1.20.63-64.
[3] Summa Contra Gentiles, III, 146.
[4] See, e.g., Evangelium Vitae, no. 27.
[5] Summa Contra Gentiles, III, 146.
[6] Address, 9/14/52.
[7] Synopsis Theologiae Moralis, IV, 284. (Translated by author).
[8] Id., IV, 286 (Translated by author).
[9] Draft on the Dogmatic Constitution on the Church of Christ, Chapter 9.

Part I: A Quick Primer on Capital Punishment in Sacred Scripture

Since there is a renewed assault on Catholic teaching on the issue of Capital Punishment by some in the print media and the blogosphere, I think it would be useful to begin an examination of what, for Catholics, is the source of our beliefs: Sacred Scripture and Sacred Tradition. This will be a 4-post project.

This first post will simply lay out the more prominent Scriptural citations supporting the moral legitimacy of capital punishment, either explicitly or by inference. I won't attempt to argue Old vs. New Testament issues, as I generally deny the false dichotomy some posit between the moral law of the Old Covenant and that of the New. They are the same, even while many ritual requirements ("the Law") were indeed abrogated by the New Covenant. But moral teachings are always constant and unchanging, coming as they do from one and the same Lawgiver. Their applicability may change (e.g., we do not have to execute adulterers and other sexual sinners); but the principle of whether the state may justly execute offenders does not change. Here is a good summary of my views on these issues.

Here then is a quick look at Scriptural sources supporting the morality of the death penalty:

“Whoso sheddeth man’s blood, by man shall his blood be shed,…”
--Gen. 9:6
"Whoever kills any man shall surely be put to death.... You shall have the same law for the [foreigner] and for one from your own country; for I am the Lord your God." 
--Lev. 24:17-22
"Defile not the land of your habitation, which is stained with the blood of the innocent: neither can it otherwise be expiated, but by his blood that hath shed the blood of another."
--Num. 35:33

"He that curseth his father, or mother, dying let him die: he hath cursed his father, and mother, let his blood be upon him. If any man commit adultery with the wife of another, and defile his neighbour's wife, let them be put to death, both the adulterer and the adulteress. If a man lie with his stepmother, and discover the nakedness of his father, let them both be put to death: their blood be upon them. If any man lie with his daughter in law, let both die, because they have done a heinous crime: their blood be upon them. If any one lie with a man as with a woman, both have committed an abomination, let them be put to death: their blood be upon them. If any man after marrying the daughter, marry her mother, he hath done a heinous crime: he shall be burnt alive with them: neither shall so great an abomination remain in the midst of you. He that shall copulate with any beast or cattle, dying let him die, the beast also ye shall kill. The woman that shall lie under any beast, shall be killed together with the same: their blood be upon them. If any man take his sister, the daughter of his father, or the daughter of his mother, and see her nakedness, and she behold her brother's shame: they have committed a crime: they shall be slain, in the sight of their people, because they have discovered one another's nakedness, and they shall bear their iniquity. If any man lie with a woman in her flowers, and uncover her nakedness, and she open the fountain of her blood, both shall be destroyed out of the midst of their people. Thou shalt not uncover the nakedness of thy aunt by thy mother, and of thy aunt by thy father: he that doth this, hath uncovered the shame of his own flesh, both shall bear their iniquity."
--Leviticus, 20: 9-20
"If any man strike with iron, and he die that was struck: he shall be guilty of murder, and he himself shall die.  If he throw a stone, and he that is struck die: he shall be punished in the same manner.  If he that is struck with wood die: he shall be revenged by the blood of him that struck him.  The kinsman of him that was slain, shall kill the murderer: as soon as he apprehendeth him, he shall kill him.  If through hatred any one push a man, or fling any thing at him with ill design: Or being his enemy, strike; him with his hand, and he die: the striker shall be guilty of murder: the kinsman of him that was slain as soon as he findeth him, shall kill him."
--Numbers 35: 16-21.
Therefore he that resisteth the power, resisteth the ordinance of God, and they that resist purchase to themselves eternal damnation. For rulers are not a terror to the good work, but to the evil. . . For he is the minister of God to thee for good. But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is the minister of God: and avenger to execute wrath upon him that doth evil.
--Rom. 13:2-4.