Capital Punishment and the Church: Magisterial Sources

IN OUR LAST POST, we addressed the issue of capital punishment from the perspectives of the Old Testament and the New Testament. Succinctly, reviewing these sources we should come to the only one conclusion as to the Old Testament: it teaches the moral liciety of capital punishment, and it does not view such punishment as a violation of the Fifth Commandment not to kill. Rather, it views it as supportive of that commandment. With respect to the New Testament, we find no abrogation of the Old Testament teaching. Here, we might adopt the conclusion of Cardinal Dulles that "No passage in the New Testament disapproves of the death penalty."

Let us now skip over 2000 years to the current state of teaching in the Catholic Church. For the official teaching, we turn to the Catechism of the Catholic Church and to Pope John Paul II's Encyclical letter Evangelium vitae. This latter has been described as "a watershed"* in the debate of the issue of the death penalty, and it is what informs to a large degree the former document in its editio typica. To be sure, the encyclical Evangelium vitae by virtue of its being an encyclical is a highly authoritative document, and it is "the first papal encyclical to deal specifically with capital punishment." It is, moreover, "the weightiest Magisterial statement on the subject to date."*

St. Nicholas stopping executions

The Church's official teaching is found in Article 5 of the Catechism, the article dealing with the Fifth Commandment, nestled in the part discussing legitimate defense:

Article 5

THE FIFTH COMMANDMENT

You shall not kill. [Ex 20:13; Cf. Deut 5:17.]

You have heard that it was said to the men of old, "You shall not kill: and whoever kills shall be liable to judgment." But I say to you that every one who is angry with his brother shall be liable to judgment. [Mt 5:21-22.]

2258 "Human life is sacred because from its beginning it involves the creative action of God and it remains for ever in a special relationship with the Creator, who is its sole end. God alone is the Lord of life from its beginning until its end: no one can under any circumstance claim for himself the right directly to destroy an innocent human being." [CDF, instruction, Donum vitae, intro. 5.]

The current Catechism (editio typica published in 1997) differs in various particulars from the original version which was written in French (published in 1992), and there are some notable differences in the two texts on the matter of capital punishment. Most significant is the influence of Pope John Paul II's encyclical Evangelium vitae (which relies on the 1992 version of the Catechism). To highlight the encyclical's influence on the Catechism on the issue of capital punishment, I place the editio typica text next to the original version.

The teaching between the two versions is not appreciably different except for the novel statement by Pope John Paul II that modernly ("today") the instances where the death penalty ought to be meted out are "very rare, if not practically non-existent." EV, No. 56.

Editio typica	1994 Version
2265 Legitimate defense can be not only a right but a grave duty for someone responsible for another's life. Preserving the common good requires rendering the unjust aggressor unable to inflict harm. To this end, those holding legitimate authority have the right to repel by armed force aggressors against the civil community entrusted to their charge.[66] [66 St. Thomas Aquinas, STh II-II, 64, 7, corp. art.]	2265 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.
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.[67] [67 Cf. Lk 23:40-43.]	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, not excluding, in cases of extreme gravity, the death penalty. For analogous reasons those holding authority have the right to repel by armed force aggressors against the community in their charge. The primary effect of punishment 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 has the effect of preserving public order and the safety of persons. Finally punishment has a medicinal value; 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.]	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 to the dignity of the human person.

Evangelium vitae:

Moreover, "legitimate defence 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". [Catechism of the Catholic Church, No. 2265 (1992).] 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. [Cf. Saint Thomas Aquinas, Summa Theologiae, II-II, q. 64, a. 7; Saint Alphonsus De' Liguori, Theologia Moralis, l. III, tr. 4, c. 1, dub.3.]

56. This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God's plan for man and society. The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offence".[Catechism of the Catholic Church, No. 2266 (1992).] Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfils the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated. [Cf. ibid.]

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.

In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: "If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, 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 to the dignity of the human person". [Catechism of the Catholic Church, No. 2267 (1992).]

The requirement of "absolute necessity" before authorities may use capital punishment to defend society, and the opinion (theological or prudential only?) that, in modern contexts, such "absolute necessity" is "very rare, if not practically non-existent," seem to be a significant tightening of the screws on when legitimate authority may apply capital punishment to maintain order and defend itself against malefactors.

A helpful aid in determining the intent of the Pope and the bindingness of this teaching, is the opinion given by Cardinal Ratzinger in an instruction or memorandum to the U.S. Bishops concerning when one is worthy of receiving Holy Communion. In the memorandum (dated July 3, 2004), the future Pope gives the following clarification:

3. Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment . . . he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities . . . to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible . . . to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about . . . applying the death penalty, but not however with regard to abortion and euthanasia.

Without question, then-Cardinal Ratzinger recognized a difference in bindingness between the Magisterium's teaching concerning abortion and euthanasia and the Magisterium's teaching concerning the application of the death penalty.

_____________________________________________
*Thomas D. Williams, The World as it Could Be (Crossroads, 2011), 80.