THERE IS AN ORDER OF JUSTICE, and there is an order of mercy. St. Thomas speaks of an order of justice and an order of mercy in God,* both arising from God who is absolute Good. This notion of these two orders operating as one in the Word of God is intensely Scriptural. Justice and mercy are qualities of God, qualities of the Word, qualities of man, and indeed qualities of all creation.
Misericordia et veritas occurrerunt iustitia et pax deosculatae sunt. "Mercy and truth have met each other: justice and peace have kissed," says Psalm 85(84):10. What is true in God is true for man, the image of God who is called to imitate his maker. The prophet Micah makes the justice-cum-mercy a mark of God's will, for what else does God want from us but facere iudicium et diligere misericordiam, to do justice and to love mercy? (Micah 6:8) Indeed, as St. Thomas makes clear in his Summa Theologiae, in all God's works there is truth, mercy, and justice. [S.T., I, q. 21, art. 4, c.] And nowhere is there more truth to this joinder of justice and mercy than on the Cross, where Jesus was the brute physical expression, as it were, of the mysterious reconciliation of God's Justice and God's Mercy.
"Mercy differs from justice, but is not in opposition to it," says John Paul II in his encyclical on mercy, Dives in misericordia (No. 4). Indeed, meditating on Christ crucified leads to no other conclusion. And in his encyclical on mercy, John Paul II is very Anselmian, for as St. Anselm reflected in his meditations on God's mercy and God's justice: "For, though it is hard to understand how your mercy is not inconsistent with your justice; yet we must believe that it does not oppose justice at all, because it flows from goodness, which is no goodness without justice; nay, that it is in true harmony with justice. For, if you are merciful only because you are supremely good, and supremely good only because you are supremely just, truly you are merciful even because you are supremely just. Help me, just and merciful God, whose light seek; help me to understand what I say."**
Iustitia sine misericordia crudelitas est, misericordia sine iustitia mater est dissolutionis, says St. Thomas Aquinas in his commentary on the Gospel of Matthew. "Justice without mercy is cruelty, and mercy without justice is the mother of dissolution."*** Pope John Paul II echoes this sentiment: "In no passage of the Gospel message does forgiveness, or mercy as its source, mean indulgence towards evil, towards scandals, towards injury or insult. In any case, reparation for evil and scandal, compensation for injury, and satisfaction for insult are conditions for forgiveness." DM, 14. "Thus the fundamental structure of justice always enters into the sphere of mercy. Mercy, however, has the power to confer on justice a new content, which is expressed most simply and fully in forgiveness" DM, 14.
Evangelium vitae is John Paul II's reminder to us that in the area of capital punishment, justice without mercy is cruelty, and mercy without justice is the mother of dissolution. It is his effort "to confer on justice" of the death penalty "a new content," one informed by mercy.
Mercy--like justice--is a virtue. This "movement of the mind" which is mercy, "obeys the reason, when mercy is vouchsafed in such a way that justice is safeguarded." [S.T. IIaIIae, q. 30, a. 3, ad. 1. De Civ. Dei, ix.5] Again, Evangelium vitae is John Paul II's effort to think about the death penalty within the order of mercy, yet safeguarding the order of justice.
It is within this great respect for human life and his great regard for God's mercy, that John Paul II addresses the relationship of the Fifth Commandment to the "problem of the death penalty" which is handled in paragraphs 56 and 57 of Evangelium vitae.
In understanding John Paul II's treatment of it, it is important to recognize its placement in the encyclical. His handling of the "problem of the death penalty," which addresses the relationship of the Fifth Commandment to malefactors guilty of capital offenses, is a preamble to handling the issue of the "innocent person." In other words, John Paul II focuses on the non-absolute force of God's commandment when malefactors are involved,† before moving forward to those instances where an innocent person is involved, when such commandment becomes absolute. EV, 57. Thus, Pope John Paul II addresses the order of mercy (which applies to how we handle the life of a malefactor guilty of a capital offense and not worthy, in justice, to life but worthy, instead, to the extreme punishment of death) before he goes into the order of justice (which applies to how we handle violations of the life of the innocent).
The basic thrust of this part of the encyclical is therefore rhetorical. It is the preamble intended to strengthen Pope John Paul II's main argument and the burden of the encyclical: the absolute inviolability of the right to life of innocent human beings. Essentially, Pope John Paul II is arguing that if a malefactor's life is to be treated with such regard, with such great care, what sort of absolute regard should be shown the innocent? If the guilty--those who in the order of justice deserve to die, those who by their crimes have yielded their right to life--are, in the order of mercy, given such concern, what should be our moral attitude of those who have not so yielded their right to life, those who, in the order of justice are innocent and not only do not deserve death but cannot even defend themselves? The whole force of the encyclical's argument is lost if the distinction between the order of mercy and the order of justice is ignored.
Significantly, John Paul II does not ever suggest that the execution of a malefactor guilty of a capital offense violates the Fifth Commandment or is unjust. This is very important in understanding the encyclical. He suggests that staying the execution of a malefactor through clemency is preferable if "bloodless means are sufficient to defend human lives against an aggressor and to protect the public order and safety of persons." In such cases the "public authority must limit itself to such [bloodless] means," not because it would be unjust to do otherwise, but "because such bloodless means better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person." EV, 56.
The language which I have highlighted, in particular the comparative phrases ("better correspond" and "more in conformity") suggests several things. First, it suggests that public authority's use of the death penalty instead of bloodless means still corresponds to the common good, but, in the Pope's view, not as well in some particular "concrete" circumstances. One has to have two goods for one to be better than another. This is true also with respect to the death penalty's conformity to the dignity of the human person. Using bloodless means are "more in conformity with the dignity of the human person" which suggests that the death penalty is still in conformity with the dignity of the human person, but less so than the bloodless means. Again for something to be more in conformity with an end than another thing suggests that both are in relative conformity with that end. In other words, we are working with two goods or two just actions, one better and one less good. We are not dealing with evil on the one hand, and good on the other.
Second, this better correspondence of bloodless means of punishment to the common good is based upon "concrete conditions" and so it is not in each and every instance true. It is not true generally or absolutely in the Pope's mind (or he would have said so). This leads to the possibility that there may be "concrete" instances where the opposite is true, where the death penalty better corresponds to the needs of the common good.
Contrast the Pope's comparative language when dealing with the malefactor with the language when dealing with the innocent. When it comes to the killing of an innocent, it always "contradicts the fundamental virtues of justice and charity." EV, 58. The Pope never says that justice is contradicted by the application of the death penalty.
The Pope has been criticized for seeming to ignore the retributive or vindicative purpose of the death penalty and link justification of the death penalty to an unjust aggressor analysis. But such criticism is, in my mind, erroneous because it presumes that John Paul II is arguing the justice of the death penalty when he is not. He is handling the "problem of the death penalty" not within the order of justice, but within the order of mercy.
The reason why John Paul II does not address the notion of the retributive or vindicative justification of the death penalty in his encyclical is not because it has no relevance to the death penalty analysis, but rather because he presupposes it. In other words, he assumes in this part of the encyclical that the malefactor may justly be put to death. For his argument, the Pope supposes that the order of justice is met. If the order of justice were not met by the imposition of the death penalty, he would condemn the death penalty outright, which he does not.
Given that the order of justice is met, Pope John Paul II then goes a step beyond it into the order of mercy. Given that the malefactor deserves to die in the order of justice, what does the order of mercy say about it?
The order of mercy does not focus on the retributive or vindicative aspects of justice. It has to get beyond those aspects. But the order of mercy is not for all that without boundaries. And it is those boundaries precisely which John Paul II has focused on in his encyclical and which is his unique contribution to the Church's doctrine on capital punishment. What John Paul II is saying is that mercy cannot be exercised, and the life of one justly condemned to die cannot be spared, if to spare his life would result in harm against other human lives, would not protect the public order, or the safety of persons. Mercy's limits are set by the same sort of analysis that is used when determining the use of force against an unjust aggressor. It would be unmerciful and against charity (and, indeed, also against justice) for public authority to have a misguided sense of mercy which exposes others to harm from the malefactor, or which fails to comply with one's duty to preserve others from the harm that might be caused by a malefactor.
In the encyclical, Pope John Paul II reaffirms the traditional view that the "primary purpose of the punishment which society inflicts is 'to redress the disorder caused by the offense.'" EV, 56. In other words, death penalty, like all punishment, must be understood within its retributive or vindicative purpose, for it is there that it finds its principal justification. "Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime." This is clearly a recognition that the retributive or restorative aspect of punishment is a moral good, and the principal one in justifying any punishment.
However, the notion of retribution or vindication is strongly tinged by the perception of the people over whom the public authority has governance and whose common good has been harmed by the malefactor. When a population has lost faith in the death penalty as an expression of justice, it loses some of its subjective retributive or vindicative qualities. Simply put, if a significant majority of the population of a state find the death penalty offensive, it loses some of its subjective retributive or vindicative qualities in that it is perceived by the population as not an appropriate expression of justice. This is separate and apart from whether it is objectively appropriate.
The Pope also recognizes that there are other goods involved in punishment, some of which clearly may be negated by actually executing the malefactor guilty of a capital offense, e.g., his rehabilitation or conversion. An unrehabilitated man, a man who does not repent of his crime, and who is put to death in a state of mortal sin cannot be rehabilitated and cannot be saved.
Another good of punishment is that it protects society from future acts of the malefactor, and therefore protects the common good. In modern societies, given the state of penal technology, it is the Pope's prudential judgment that, in the context of malefactors guilty of a capital offense, this particular good of punishment can be equally achieved through "bloodless means." In other words, under modern penal science, the common good would be equally protected if such criminals were put to death or were properly confined.
All human beings--be they innocent or be they sinners and malefactors--"in as much as they are created in the image of God, have the dignity of a person." All men are endowed with a spiritual and immortal soul, intelligence and free will, and are ordered to God and call in both soul and body to eternal destiny, eternal beatitude with God. St. Dismas, who suffered with Christ in the neighboring cross, is the Scriptural attestment to this fact that even those who may be justly put to death have the opportunity to receive the grace of conversion. The last shall be first. Granted, this wonderful dignity can be "marred" through sin which "deforms the image of God in his own person." EV, 36. And yet that divine image can be "restored, renewed, and brought to perfection" in those who "commit themselves to following Christ." EV, 36. There is not one man who is excluded from this "Word of life," and therefore it includes the malefactor justly condemned to die who we might hope obtains God's grace of conversion and repentance.
Punishment of a malefactor is a physical evil, but a moral good because it is restorative of justice. This is true even when it pertains to the death penalty. If the death penalty were not a moral good it would have to be condemned outrightly, which it is not. The Pope's teaching is that, given the conditions of: (i) a population that does not view capital punishment favorably, and (ii) penal technology sufficiently advanced as to assure that the common good is protected, then certain judgments concrete judgments can be made about the death penalty.
Assuming the common good can be equally protected from potential harm of the malefactor as a result of penal technology, the Pope's concrete judgment is that the marginal increase in moral good obtained from putting a malefactor to death (instead of punishing him with a life sentence) is less than the moral good obtained from exercising mercy and sparing his life because it leads to greater respect for the dignity of man, the right to life, and it holds out the prospect of conversion.
To be sure, unlike justice, mercy is not something that can be compelled. It can only be urged. And yet Christians are obliged to show mercy. We might recall Shakespeare's The Merchant of Venice when Portia entreats the Jew Shylock to show mercy in his case against Antonio for his pound of flesh. "On what compulsion, must I? Tell me that."
To which Portia responds in words that are timeless:
The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blessed:
It blesseth him that gives and him that takes.
'Tis mightiest in the mightiest. It becomes
The thronèd monarch better than his crown.
His scepter shows the force of temporal power,
The attribute to awe and majesty
Wherein doth sit the dread and fear of kings,
But mercy is above this sceptered sway.
It is enthronèd in the hearts of kings.
It is an attribute to God himself.
And earthly power doth then show likest God’s
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this—
That in the course of justice none of us
Should see salvation. We do pray for mercy,
And that same prayer doth teach us all to render
The deeds of mercy.
Act IV, sc. 1. 191
It is within this great tradition of mercy that Shakespeare places in the words of Portia that we must place ourselves in order to understand John Paul II's hortatory plea that the moral law which allows that the malefactor who, in the order of justice may merit the death penalty as his just deserts--ought to seasoned with mercy by those who hold the dreadful and fearful power of the sword. And when so seasoned, the death penalty ought be something "very rare, if not practically non-existent."
But Pope John Paul II's plea is hortatory and is based upon prudence, and so his plea that the death penalty be "very rare, if practically non-existent" does not bind under penalty of mortal sin which would be the case if we had an act of injustice or an intrinsic evil. At most, failure to exercise mercy under the circumstances the Pope recites, if they in fact exist, would be a venial sin, or perhaps a positive imperfection, and unseeming lack of mercy and harshness for a Christian who should know far better than others not of the household of faith, that "in the course of justice none of us should see salvation," and who prays, in the prayer the Lord gave him, that same prayer wherein the Lord "doth teach us all to render the deeds of mercy." The fact that one may stand with justice and refuse mercy and still be in good standing with the Church and even worthy of communion,†† of course, does not make the plea for mercy any less incumbent upon us or those who govern us.
We might recall the words of St. Anselm: "He who is good to the wicked by both punishing them and sparing them is better than he who is good to the wicked only by punishing them." And sparing the life of a malefactor who justly can be put to death gives God the room to exercise his marvels. "God spares the wicked out of justice," St. Anselm continues, "for it is just that God, than whom none is better or more powerful, should be good even to the wicked, and should make the wicked good." Proslogion, IX.
In closing, in dealing with the "problem of the death penalty" we should recall the words, indeed the prayers, of St. Anselm, which would serve us well as a motto:
"Spare, in mercy;
avenge not, in justice."
Parce per clementiam,
ne ulciscaris per iustitiam.
______________________________
*St. Thomas Aquinas, IV Sententiarum dist.15 q.4 art. 7 qcula 3a. The context is regarding merit and prayer.
**St. Anselm, Proslogion, IX. (Nam etsi difficile sit intelligere, quomodo misericordia tua non absit a tua iustitia, necessarium tamen est credere, quia nequamquam adversatur quod exundat ex bonitate, quae nulla est sine iustitia, immo vere concordat iustitiae. Nempe si misericors es, quia es summe bonus, et summe bonus non es, nisi quia es summe iustus: vere idcirco es misericors, quia summe iustus es. Adiuva me, iuste et misericors Deus, cuius lucem quaero, adiuva me, ut intelligam quod dico.)
***St. Thomas Aquinas, Super Matthaeum, Cap. V, l. 2.
†I say non-absolute,but I don't mean without limit. The death penalty is not automatically just; it cannot be meted out without limit. Not only must the offense be one which, in justice, merits death, but the procedures involved in adjudication must give rise to moral certainty of guilt. Moreover, these have to be applied fairly and not selectively or with an aim against a particular group. Additionally, the inner attitude of the trier of fact, the judge, or the executioner must be proper. In other words, there are requirements of justice that must be met for the death penalty to be just. The ordo juris, the legal order, which results in the death penalty must comply with the requirements of the ordo justitiae, the order of justice.
††This is, of course, 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." To be worthy of presenting oneself to receive Holy Communion, one cannot be in a state of mortal sin, which would be the case is one had sinned against justice by putting a malefactor to death. A member of a jury, a judge, a governor, an executioner who participate in the conviction and execution of a man are therefore not sinning mortally.
†††One can beneficially recall that even the damned are shown mercy. "Even in the damnation of the reprobate mercy is seen, which, though it does not totally remit, yet somewhat alleviates, in punishing short of what is deserved." [S.T., I, q. 21, art. 4, r.1] If God shows mercy to the justly damned, can we do any less in showing mercy to those justly condemned to die?
Misericordia et veritas occurrerunt iustitia et pax deosculatae sunt. "Mercy and truth have met each other: justice and peace have kissed," says Psalm 85(84):10. What is true in God is true for man, the image of God who is called to imitate his maker. The prophet Micah makes the justice-cum-mercy a mark of God's will, for what else does God want from us but facere iudicium et diligere misericordiam, to do justice and to love mercy? (Micah 6:8) Indeed, as St. Thomas makes clear in his Summa Theologiae, in all God's works there is truth, mercy, and justice. [S.T., I, q. 21, art. 4, c.] And nowhere is there more truth to this joinder of justice and mercy than on the Cross, where Jesus was the brute physical expression, as it were, of the mysterious reconciliation of God's Justice and God's Mercy.
"Mercy differs from justice, but is not in opposition to it," says John Paul II in his encyclical on mercy, Dives in misericordia (No. 4). Indeed, meditating on Christ crucified leads to no other conclusion. And in his encyclical on mercy, John Paul II is very Anselmian, for as St. Anselm reflected in his meditations on God's mercy and God's justice: "For, though it is hard to understand how your mercy is not inconsistent with your justice; yet we must believe that it does not oppose justice at all, because it flows from goodness, which is no goodness without justice; nay, that it is in true harmony with justice. For, if you are merciful only because you are supremely good, and supremely good only because you are supremely just, truly you are merciful even because you are supremely just. Help me, just and merciful God, whose light seek; help me to understand what I say."**
Iustitia sine misericordia crudelitas est, misericordia sine iustitia mater est dissolutionis, says St. Thomas Aquinas in his commentary on the Gospel of Matthew. "Justice without mercy is cruelty, and mercy without justice is the mother of dissolution."*** Pope John Paul II echoes this sentiment: "In no passage of the Gospel message does forgiveness, or mercy as its source, mean indulgence towards evil, towards scandals, towards injury or insult. In any case, reparation for evil and scandal, compensation for injury, and satisfaction for insult are conditions for forgiveness." DM, 14. "Thus the fundamental structure of justice always enters into the sphere of mercy. Mercy, however, has the power to confer on justice a new content, which is expressed most simply and fully in forgiveness" DM, 14.
Evangelium vitae is John Paul II's reminder to us that in the area of capital punishment, justice without mercy is cruelty, and mercy without justice is the mother of dissolution. It is his effort "to confer on justice" of the death penalty "a new content," one informed by mercy.
Mercy--like justice--is a virtue. This "movement of the mind" which is mercy, "obeys the reason, when mercy is vouchsafed in such a way that justice is safeguarded." [S.T. IIaIIae, q. 30, a. 3, ad. 1. De Civ. Dei, ix.5] Again, Evangelium vitae is John Paul II's effort to think about the death penalty within the order of mercy, yet safeguarding the order of justice.
It is within this great respect for human life and his great regard for God's mercy, that John Paul II addresses the relationship of the Fifth Commandment to the "problem of the death penalty" which is handled in paragraphs 56 and 57 of Evangelium vitae.
In understanding John Paul II's treatment of it, it is important to recognize its placement in the encyclical. His handling of the "problem of the death penalty," which addresses the relationship of the Fifth Commandment to malefactors guilty of capital offenses, is a preamble to handling the issue of the "innocent person." In other words, John Paul II focuses on the non-absolute force of God's commandment when malefactors are involved,† before moving forward to those instances where an innocent person is involved, when such commandment becomes absolute. EV, 57. Thus, Pope John Paul II addresses the order of mercy (which applies to how we handle the life of a malefactor guilty of a capital offense and not worthy, in justice, to life but worthy, instead, to the extreme punishment of death) before he goes into the order of justice (which applies to how we handle violations of the life of the innocent).
The basic thrust of this part of the encyclical is therefore rhetorical. It is the preamble intended to strengthen Pope John Paul II's main argument and the burden of the encyclical: the absolute inviolability of the right to life of innocent human beings. Essentially, Pope John Paul II is arguing that if a malefactor's life is to be treated with such regard, with such great care, what sort of absolute regard should be shown the innocent? If the guilty--those who in the order of justice deserve to die, those who by their crimes have yielded their right to life--are, in the order of mercy, given such concern, what should be our moral attitude of those who have not so yielded their right to life, those who, in the order of justice are innocent and not only do not deserve death but cannot even defend themselves? The whole force of the encyclical's argument is lost if the distinction between the order of mercy and the order of justice is ignored.
Significantly, John Paul II does not ever suggest that the execution of a malefactor guilty of a capital offense violates the Fifth Commandment or is unjust. This is very important in understanding the encyclical. He suggests that staying the execution of a malefactor through clemency is preferable if "bloodless means are sufficient to defend human lives against an aggressor and to protect the public order and safety of persons." In such cases the "public authority must limit itself to such [bloodless] means," not because it would be unjust to do otherwise, but "because such bloodless means better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person." EV, 56.
The language which I have highlighted, in particular the comparative phrases ("better correspond" and "more in conformity") suggests several things. First, it suggests that public authority's use of the death penalty instead of bloodless means still corresponds to the common good, but, in the Pope's view, not as well in some particular "concrete" circumstances. One has to have two goods for one to be better than another. This is true also with respect to the death penalty's conformity to the dignity of the human person. Using bloodless means are "more in conformity with the dignity of the human person" which suggests that the death penalty is still in conformity with the dignity of the human person, but less so than the bloodless means. Again for something to be more in conformity with an end than another thing suggests that both are in relative conformity with that end. In other words, we are working with two goods or two just actions, one better and one less good. We are not dealing with evil on the one hand, and good on the other.
Second, this better correspondence of bloodless means of punishment to the common good is based upon "concrete conditions" and so it is not in each and every instance true. It is not true generally or absolutely in the Pope's mind (or he would have said so). This leads to the possibility that there may be "concrete" instances where the opposite is true, where the death penalty better corresponds to the needs of the common good.
Contrast the Pope's comparative language when dealing with the malefactor with the language when dealing with the innocent. When it comes to the killing of an innocent, it always "contradicts the fundamental virtues of justice and charity." EV, 58. The Pope never says that justice is contradicted by the application of the death penalty.
The Pope has been criticized for seeming to ignore the retributive or vindicative purpose of the death penalty and link justification of the death penalty to an unjust aggressor analysis. But such criticism is, in my mind, erroneous because it presumes that John Paul II is arguing the justice of the death penalty when he is not. He is handling the "problem of the death penalty" not within the order of justice, but within the order of mercy.
The reason why John Paul II does not address the notion of the retributive or vindicative justification of the death penalty in his encyclical is not because it has no relevance to the death penalty analysis, but rather because he presupposes it. In other words, he assumes in this part of the encyclical that the malefactor may justly be put to death. For his argument, the Pope supposes that the order of justice is met. If the order of justice were not met by the imposition of the death penalty, he would condemn the death penalty outright, which he does not.
Given that the order of justice is met, Pope John Paul II then goes a step beyond it into the order of mercy. Given that the malefactor deserves to die in the order of justice, what does the order of mercy say about it?
The order of mercy does not focus on the retributive or vindicative aspects of justice. It has to get beyond those aspects. But the order of mercy is not for all that without boundaries. And it is those boundaries precisely which John Paul II has focused on in his encyclical and which is his unique contribution to the Church's doctrine on capital punishment. What John Paul II is saying is that mercy cannot be exercised, and the life of one justly condemned to die cannot be spared, if to spare his life would result in harm against other human lives, would not protect the public order, or the safety of persons. Mercy's limits are set by the same sort of analysis that is used when determining the use of force against an unjust aggressor. It would be unmerciful and against charity (and, indeed, also against justice) for public authority to have a misguided sense of mercy which exposes others to harm from the malefactor, or which fails to comply with one's duty to preserve others from the harm that might be caused by a malefactor.
In the encyclical, Pope John Paul II reaffirms the traditional view that the "primary purpose of the punishment which society inflicts is 'to redress the disorder caused by the offense.'" EV, 56. In other words, death penalty, like all punishment, must be understood within its retributive or vindicative purpose, for it is there that it finds its principal justification. "Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime." This is clearly a recognition that the retributive or restorative aspect of punishment is a moral good, and the principal one in justifying any punishment.
However, the notion of retribution or vindication is strongly tinged by the perception of the people over whom the public authority has governance and whose common good has been harmed by the malefactor. When a population has lost faith in the death penalty as an expression of justice, it loses some of its subjective retributive or vindicative qualities. Simply put, if a significant majority of the population of a state find the death penalty offensive, it loses some of its subjective retributive or vindicative qualities in that it is perceived by the population as not an appropriate expression of justice. This is separate and apart from whether it is objectively appropriate.
The Pope also recognizes that there are other goods involved in punishment, some of which clearly may be negated by actually executing the malefactor guilty of a capital offense, e.g., his rehabilitation or conversion. An unrehabilitated man, a man who does not repent of his crime, and who is put to death in a state of mortal sin cannot be rehabilitated and cannot be saved.
Another good of punishment is that it protects society from future acts of the malefactor, and therefore protects the common good. In modern societies, given the state of penal technology, it is the Pope's prudential judgment that, in the context of malefactors guilty of a capital offense, this particular good of punishment can be equally achieved through "bloodless means." In other words, under modern penal science, the common good would be equally protected if such criminals were put to death or were properly confined.
All human beings--be they innocent or be they sinners and malefactors--"in as much as they are created in the image of God, have the dignity of a person." All men are endowed with a spiritual and immortal soul, intelligence and free will, and are ordered to God and call in both soul and body to eternal destiny, eternal beatitude with God. St. Dismas, who suffered with Christ in the neighboring cross, is the Scriptural attestment to this fact that even those who may be justly put to death have the opportunity to receive the grace of conversion. The last shall be first. Granted, this wonderful dignity can be "marred" through sin which "deforms the image of God in his own person." EV, 36. And yet that divine image can be "restored, renewed, and brought to perfection" in those who "commit themselves to following Christ." EV, 36. There is not one man who is excluded from this "Word of life," and therefore it includes the malefactor justly condemned to die who we might hope obtains God's grace of conversion and repentance.
Punishment of a malefactor is a physical evil, but a moral good because it is restorative of justice. This is true even when it pertains to the death penalty. If the death penalty were not a moral good it would have to be condemned outrightly, which it is not. The Pope's teaching is that, given the conditions of: (i) a population that does not view capital punishment favorably, and (ii) penal technology sufficiently advanced as to assure that the common good is protected, then certain judgments concrete judgments can be made about the death penalty.
Assuming the common good can be equally protected from potential harm of the malefactor as a result of penal technology, the Pope's concrete judgment is that the marginal increase in moral good obtained from putting a malefactor to death (instead of punishing him with a life sentence) is less than the moral good obtained from exercising mercy and sparing his life because it leads to greater respect for the dignity of man, the right to life, and it holds out the prospect of conversion.
To be sure, unlike justice, mercy is not something that can be compelled. It can only be urged. And yet Christians are obliged to show mercy. We might recall Shakespeare's The Merchant of Venice when Portia entreats the Jew Shylock to show mercy in his case against Antonio for his pound of flesh. "On what compulsion, must I? Tell me that."
To which Portia responds in words that are timeless:
The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blessed:
It blesseth him that gives and him that takes.
'Tis mightiest in the mightiest. It becomes
The thronèd monarch better than his crown.
His scepter shows the force of temporal power,
The attribute to awe and majesty
Wherein doth sit the dread and fear of kings,
But mercy is above this sceptered sway.
It is enthronèd in the hearts of kings.
It is an attribute to God himself.
And earthly power doth then show likest God’s
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this—
That in the course of justice none of us
Should see salvation. We do pray for mercy,
And that same prayer doth teach us all to render
The deeds of mercy.
Act IV, sc. 1. 191
It is within this great tradition of mercy that Shakespeare places in the words of Portia that we must place ourselves in order to understand John Paul II's hortatory plea that the moral law which allows that the malefactor who, in the order of justice may merit the death penalty as his just deserts--ought to seasoned with mercy by those who hold the dreadful and fearful power of the sword. And when so seasoned, the death penalty ought be something "very rare, if not practically non-existent."
But Pope John Paul II's plea is hortatory and is based upon prudence, and so his plea that the death penalty be "very rare, if practically non-existent" does not bind under penalty of mortal sin which would be the case if we had an act of injustice or an intrinsic evil. At most, failure to exercise mercy under the circumstances the Pope recites, if they in fact exist, would be a venial sin, or perhaps a positive imperfection, and unseeming lack of mercy and harshness for a Christian who should know far better than others not of the household of faith, that "in the course of justice none of us should see salvation," and who prays, in the prayer the Lord gave him, that same prayer wherein the Lord "doth teach us all to render the deeds of mercy." The fact that one may stand with justice and refuse mercy and still be in good standing with the Church and even worthy of communion,†† of course, does not make the plea for mercy any less incumbent upon us or those who govern us.
We might recall the words of St. Anselm: "He who is good to the wicked by both punishing them and sparing them is better than he who is good to the wicked only by punishing them." And sparing the life of a malefactor who justly can be put to death gives God the room to exercise his marvels. "God spares the wicked out of justice," St. Anselm continues, "for it is just that God, than whom none is better or more powerful, should be good even to the wicked, and should make the wicked good." Proslogion, IX.
In closing, in dealing with the "problem of the death penalty" we should recall the words, indeed the prayers, of St. Anselm, which would serve us well as a motto:
"Spare, in mercy;
avenge not, in justice."
Parce per clementiam,
ne ulciscaris per iustitiam.
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*St. Thomas Aquinas, IV Sententiarum dist.15 q.4 art. 7 qcula 3a. The context is regarding merit and prayer.
**St. Anselm, Proslogion, IX. (Nam etsi difficile sit intelligere, quomodo misericordia tua non absit a tua iustitia, necessarium tamen est credere, quia nequamquam adversatur quod exundat ex bonitate, quae nulla est sine iustitia, immo vere concordat iustitiae. Nempe si misericors es, quia es summe bonus, et summe bonus non es, nisi quia es summe iustus: vere idcirco es misericors, quia summe iustus es. Adiuva me, iuste et misericors Deus, cuius lucem quaero, adiuva me, ut intelligam quod dico.)
***St. Thomas Aquinas, Super Matthaeum, Cap. V, l. 2.
†I say non-absolute,but I don't mean without limit. The death penalty is not automatically just; it cannot be meted out without limit. Not only must the offense be one which, in justice, merits death, but the procedures involved in adjudication must give rise to moral certainty of guilt. Moreover, these have to be applied fairly and not selectively or with an aim against a particular group. Additionally, the inner attitude of the trier of fact, the judge, or the executioner must be proper. In other words, there are requirements of justice that must be met for the death penalty to be just. The ordo juris, the legal order, which results in the death penalty must comply with the requirements of the ordo justitiae, the order of justice.
††This is, of course, 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." To be worthy of presenting oneself to receive Holy Communion, one cannot be in a state of mortal sin, which would be the case is one had sinned against justice by putting a malefactor to death. A member of a jury, a judge, a governor, an executioner who participate in the conviction and execution of a man are therefore not sinning mortally.
†††One can beneficially recall that even the damned are shown mercy. "Even in the damnation of the reprobate mercy is seen, which, though it does not totally remit, yet somewhat alleviates, in punishing short of what is deserved." [S.T., I, q. 21, art. 4, r.1] If God shows mercy to the justly damned, can we do any less in showing mercy to those justly condemned to die?
