On the Inopportune Nature of Capital Punishment

Most arguments about Capital Punishment focus on whether it is intrinsically right or wrong. But perhaps there is a middle position, wherein Capital punishment is not described as intrinsically wrong, but its use is described essentially as inopportune. Let’s just call this the inopportunist position.

This is largely where I stand. I am an inopportunist, acknowledging that Capital Punishment is not intrinsically wrong, but also arguing it should seldom or ever be used under current circumstances. More on that in a minute.

But first to say, I think it is clear that Capital punishment is permitted by the Scriptures, under certain circumstances, even in the New Testament. For example, St. Paul says,

Do you want to be free from fear of the one in authority? Then do what is right and he will commend you. For he is God’s servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God’s servant, an agent of wrath to bring punishment on the wrongdoer. (Rom 13:3-4)

With a text like this it is clear that the Church cannot simply declare the death penalty intrinsically wrong. In this sense it is different from abortion, for in abortion the innocent are murdered. In capital punishment the (presumably) guilty are killed, to both punish them and protect others.

It is also a true fact that, when asked to enforce the law that an adulteress be stoned to death, Jesus did not do so and did not agree with any insistence that the Law must be followed. Yet he did not act to abrogate the law in this respect in any judicial sort of way.  So while it is hard to demonstrate that he set aside the law, altogether, it is clear that he does not insist that punitive regulations requiring the death penalty be followed. Hence, neither are we required to apply this penalty according to Old Testament provisions.

So, to be clear, since scripture cannot be merely set aside, and since the New Testament does not explicitly abrogate recourse to the death penalty permitted in the Old Testament, then the Church does not, and I would argue, cannot, declare it to intrinsically wrong. But neither can or should we insist that all Old Testament punitive law requiring the death penalty for certain crimes, be enforced.

Prudential Judgment – So, lets argue that, given the New Testament record, we are permitted but not required to use the death penalty.  And if we are permitted, but not required to do do something, we are now in the realm of practical or prudential judgment, not merely moral judgment. And, for the Church, we are also in the realm of pastoral judgment.

“Pastoral judgment” here indicates a judgment, based on careful discernment, by the pastors of the Church (The Pope and Bishops, effectively),  of the best stance and teaching for the Church on this matter. Their judgment should be based in Scripture and Tradition, but also, as a practical and prudential judgment, takes into account the current context, and how this issue affects and influences other teachings and the Church’s capacity to teach and witness to them.

With all this in mind, I would argue that the Church has adopted, as a prudential judgement and pastoral approach, what I am calling the “inopportunist” position. Namely, that Capital Punishment, though not intrinsically evil, and permissible under certain very specific situations, is not required, and should almost never be used. The Catechism states this clearly enough:

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, non-lethal 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 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.” (Catechism of the Catholic Church # 2267)

As a prudential judgment and pastoral approach the Catechism states some of the following reasons that Capital Punish be rare, if not  non-existent. Such a position is:

  1. more in keeping with the concrete conditions of the common goodIt would seem that here there is a reference to the overall pastoral vision of the Church to restore greater respect for the sacredness of all human life. We live in times where this is particularly doubted by many. The Church has battled powerfully to end abortion, withstand euthanasia, embryonic stem cell research and so forth. Further, there is the often hidden but profound tragedy that over 90% of pregnancies with a poor prognosis (i.e. birth defects, Down Syndrome, etc) are “terminated.” In other parts of the world, and even here in America, some use abortion for sex-selection. But the Church insists that human life is sacred, even when coming to us in the non-preferred sex, or with the burdens of handicaps and challenges. Given the overall and increasing disrespect for human life, especially with regard to troubled human persons, the Church has adopted as a pastoral approach that serves the wider common good of respect for all human life, even of the guilty. This pastoral stance makes sense, for the credibility of our witness to life and to the common good that such a witness serves. And though it is possible for us to make distinctions as we did above, such distinctions are often lost on an often cynical populace. There is not a pro-lifer around who hasn’t had to answer questions cynically raised by those who scorn pro-lifers’ consistency on the issue of life. There is a good pastoral and prudential judgement that says, Capital punishment should be off the table – just don’t use it.
  2. more in conformity to the dignity of the human personThis largely includes what is said above. It may be hard for us emotionally to see and accept this, but even serious criminals do not lose their fundamental dignity. Note the Catechism does not say that Capital punishment intrinsically violates human dignity, only that eliminating it practically is “more” in keeping with human dignity.  In this regard, note that in God’s original dispensation, long before the Mosaic Law, God confronted Cain for killing his brother, and God punished him with exile in the land of Nod. But Cain feared for his life. But the LORD said to him, Not so; if anyone kills Cain, he will suffer vengeance seven times over. Then the LORD put a mark on Cain so that no one who found him would kill him. (Gen 4:15). Hence, though punished, Cain did not loose his dignity nor was the sacredness of his life forfeited.
  3. without definitely taking away from him the possibility of redeeming himselfWhile some argue that the impending death of a criminal will help him repent, the usual human experience is that repentance and conversion take place more slowly over time. God himself adopts a great patience with us as Scripture says, The Lord is not slow in keeping his promise, as some understand slowness. Rather, He is patient with you, not wanting anyone to perish, but everyone to come to repentance (2 Peter 3:9). For us who would be like God, we want every one to come to repentance and be saved, even those who have done terrible things. Hence the Catechism teaches it is fitting for us to allow the guilty to live in hopes that they may come to life saving repentance.

Hence, the Church, without ruling Capital Punishment intrinsically evil, sees its use to be inopportune for the reasons stated. So what is a Catholic to do?

Why not just stand with the Pope and Bishops on this? We’re in a tremendous battle to recover the dignity of all human life (not just some) and the death penalty is a fly in the ointment. It distracts from the pro-life vision and renders the witness of many pro-lifers less effective. Recent Popes and most all the world’s bishops and the Catechism have adopted a position which excludes recourse to the death penalty and such a position makes good sense given the climate we are in.

Again, why not just stand with them? They are our pastoral leaders and have asked precisely this, that we stand together with them on this and all other life issues.Why not just do it? Why not set politics aside, and personal preferences too and say, “For the sake of unity and a more coherent and powerful pro-life witness, I will stand with the Pope and Bishops on this.”

Is insisting on the death penalty really that important? Why die on that hill (pardon the expression)? Given that the Church does not say it is intrinsically wrong,  and thus your conscience is respected, is it really so awful to say, “I will stand with the Church on this and oppose frequent use of the death penalty, that I will ask that it almost never be used” ?  Is what the Pope and bishops teach really so bad?

Think about it. Perhaps there is a “third way” in this case. Perhaps we need not argue forever on whether the death penalty is right or wrong, just that its use is inopportune, given current conditions and the pastoral challenges to restore respect for life in accord with the common good. Think practically and prudentially. Again, think about it.

Photo: Wikimedia Commons

In this Video Senator Rick Santorum looks at the Pro-life continuum in a stunning way: