I appreciate the points raised by Prof. Edward Feser on Pope Francis’ recent statements on capital punishment. If Feser’s premise is true—that “the legitimacy of capital punishment is a matter of Catholic orthodoxy”—then I can understand why he would be concerned about Pope Francis’ recent teachings. If, though, the Magisterium has never set forth the legitimacy of capital punishment in a definitive, infallible way, then all of Prof. Feser’s concerns about undermining the deposit of faith and papal error vanish. In what follows, I will try to explain my position—and that of the Holy Father—in a question and answer format.
Does not Scripture affirm the moral legitimacy of capital punishment? How can a Pope contradict Sacred Scripture?
The Bible provides some passages that support the death penalty but it also contains other passages that argue against it. The death penalty prescribed for various acts in the Pentateuch reflect the judicial code of the ancient Israelites, which was subject to change (cf. St. Thomas Aquinas ST I-II qq. 99–100, 103–105). Moreover, God did not always insist that the death sentence be carried out for crimes that deserved it.
In this regard, St. John Paul II singles out Genesis 4:15 as a sign that even the life of a murderer is sacred and worthy of protection from death. As he writes in Evangelium Vitae, 9:
… God, who is always merciful even when he punishes, “put a mark on Cain, lest any who came upon him should kill him” (Gen 4:15). … Not even a murderer loses his personal dignity, and God himself pledges to guarantee this. … As Saint Ambrose writes: “God, who preferred the correction rather than the death of a sinner, did not desire that a homicide be punished by the exaction of another act of homicide.”
Contrary to St. John Paul II, Professors Feser and Joseph Bessette argue that Genesis 4:15 “was not meant to be a teaching against capital punishment” (By Man Shall His Blood Be Shed, p. 298). Genesis 4:15, however, shows God’s wish to preserve and protect the life of a murderer before “the creation of organized society” (cf. Howard J. Bromberg, “Pope John Paul II, Vatican II, and Capital Punishment” Ave Maria Law Review 6, no. 1 : 115). Just as Jesus pointed to God’s original affirmation of the indissolubility of marriage “from the beginning” (Mt 19:4–9), so St. John Paul II sees in Genesis 4:15 God’s original wish to preserve the life of even a murderer.
In their book Professors Feser and Bessette cite Genesis 9:6 a total of 18 times as a biblical proof for the legitimacy of capital punishment, but they provide no papal or magisterial citations of this passage in support of their interpretation. Pope Benedict XVI, however, in his 2012 Post-Synodal Exhortation, Ecclesia in Medio Oriente, n. 26 cites Genesis 9:6 as evidence that God forbids the killing of even those who commit murder:
God wants life, not death. He forbids all killing, even of those who kill (cf. Gen 4:15-16; 9:5-6; Ex 20:13).
Feser and Bessette believe that Romans 13:4 provides the locus classicus of the Christian doctrine on capital punishment. They criticize various episcopal statements on capital punishment for not citing this text or for misunderstanding it. They cite Pope Innocent I referring to Romans 13 in A.D. 405 on the death penalty, but his interpretation is not conclusive. Pius XII, in his Feb. 5, 1955 Address to the Italian Association of Catholic Jurists, cites Rom 13:4, but he does not see it as directly endorsing capital punishment. Instead, he says that this text and other sources “do not refer to the concrete contents of individual juridical prescriptions or rules of actions, but to the essential foundation itself of penal power and its immanent finality’ (non si riferiscono al contenuto concreto di singole prescrizioni giuridiche o regole di azione ma al fondamento stesso essenziale della potestà penale e della sua immanente finalità) [AAS 47 (1955), 81]. So, Benedict XVI interprets Genesis 9:5–6 differently than Feser, and Pius XII understands Rom 13:4 differently as well.
Taken in its entirety, The New Testament provides principles and examples that argue against the application of capital punishment (cf. Christopher D. Marshall, Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment [Eerdmans, 2001], 241). The most notable example, of course, is Jesus’ own intervention to prevent the stoning of the woman caught in adultery (Jn 8:1–11). St. Ambrose—in writing to the magistrate, Studius—points to Jesus’ intervention as a “model to follow” so the guilty can “have hope of correction” (Ambrose, Letter 90). Feser and Bessette, however, try to argue that John 8:1–11 provides no evidence that Jesus was opposed to capital punishment. Moreover, they try to dismiss the citation of John 8:1–11 in documents of the USCCB on criminal justice (2000) and the death penalty (2005).
Contrary to Prof. Feser, the Bible, taken as a whole, does not provide support for capital punishment for today. In 1976 the Pontifical Commission for Justice and Peace issued a statement, The Church & the Death Penalty, which notes: “The existence of capital punishment in the Old Testament does not of itself justify it for today. None of the passages (Exodus 21:21ff; Ex 22:19, Lv 20:10) usually cited demand that capital punishment be used today. A fortiori, the New Testament does not prescribe it” (Origins, Dec. 9, 1976 Vol. 6:25, 389–391).
Is there not a universal consensus among the Church Fathers in support of the death penalty? How can Pope Francis contradict the universal consensus of the Church Fathers?
There was no universal consensus of the Church Fathers in favor of the death penalty. I agree with Prof. Bromberg (cited above) that the testimony of early Christians as a whole “embodies a strong aversion to the state inflicting death on its subjects” (p. 132). Jesus did not leave his apostles a legal code to follow for the secular sphere. Instead, He provided his words and deeds as an example to follow. In light of this, many Church Fathers such as St. Justin Martyr (c. 100–165), Athenagoras (133–190), Tertullian (160–220), Lactantius (220–320), St. Cyprian (200–258), and St. Ambrose (340–397) spoke out against Christian involvement with the death penalty or urged it not to be used. Professors Feser and Bessette, however, try to downplay these examples by arguing that, although these Church Fathers might have been opposed to capital punishment in practice, they did not oppose it in principle (cf. pages 111–118 of their book).
By way of response, it should be noted that these early Church Fathers were not so much concerned with challenging the power of the Roman Empire to carry out capital punishment as they were with directing Christians to live up to the higher righteousness demanded by Christ. In this, they spoke very much like Pope Francis in that they saw the execution of criminals as contrary to the Gospel. They did not speak out against the death penalty on prudential grounds but on Christian grounds. Tertullian insisted that “the Creator “puts His interdict on every sort of man-killing by that one summary precept, ‘Thou shalt not kill’” (De Spectaculis, 2). St. Cyprian noted that Christians “do not in turn assail their assailants, for it is not lawful for the innocent to kill even the guilty” (Epistle 60 to Cornelius). Lactantius wrote that “there is no exception to this command of God. Killing a human being, whom God willed to be inviolable, is always wrong [occidere hominem sit semper nefas] (Divine Institutions, lib. VI cap. 20). The Council of Elvira (ca. 300–303) required a Christian magistrate “to keep away from the Church during the year of his service as a joint magistrate (duumvir) because he might have to carry out capital sentences” (can. 56). The Canons of the Synod of Rome under Pope Damasus I (r. 366–384) stated that civil servants “who have sentenced to death, given unjust judgments, and carried out judicial torture cannot be immune from sin” (Cap. V, n. 13; PL, 13, 1181f). The ApostolicTradition/ Consitutions (ca. 215–380) stipulated that “a military man in authority must not execute men; if he is ordered he must not carry it out” (16, 9). Even if some of the Church Fathers (e.g. Lactantius) were not always consistent in their opposition to capital punishment, this only shows that there was not a universal consensus in support of the practice.
With regard to popes of the patristic period, it is true that Pope Innocent I (r. 401–407), in a letter to the Bishop of Toulouse, gives permission for civil officials to carry out judicial tortures or capital punishment. However, he also states: “About these things we read nothing definitive from the forefathers” (Epistula VI, c. 3, n. 8). This statement is significant because it shows that nothing had been handed down in the deposit of faith on the issues of judicial torture or capital punishment. The judgment of Innocent I, therefore, was not definitive. In fact, his successor, Pope St. Nicholas I (r. 858–867), in his responses to the Bulgarians (Nov. 13, 866), condemns judicial torture (Denz.-H, 648). On the subject of capital punishment, Pope St. Nicholas tells the Bulgarians: “….without hesitation and in every possible circumstance, save the life of the body and soul of each individual. You should save from death not only the innocent but also criminals, because Christ has saved you from the death of the soul” (Epistula 97, cap. 25). Here we see a Pope appealing to Christian principles—not prudential ones—to argue against the death penalty. Feser’s claim of a unanimous consent of the Church Fathers on capital punishment is mistaken. His claim of a 2,000 year old Catholic tradition in support of the death penalty is overblown.
Didn’t Pope Innocent III in the Middle Ages require support for the death penalty in a profession of faith, and didn’t the Roman Catechism of St. Pius V solemnly affirm the moral legitimacy of capital punishment? Isn’t the legitimacy of the death penalty an infallible doctrine of the Catholic Church?
The original profession of faith drawn up by Pope Innocent III in 1208 made no reference to capital punishment (see note to Denz.-H, 795). The following article, however, was added in 1210:
In regard to the secular power, we affirm (asserimus) that it can exercise a judgment of blood without mortal sin, provided that in carrying out the punishment it proceeds not out of hatred, but judiciously, not in a precipitous manner, but with caution (Denz.-H, 795).
The Waldensians had challenged a practice thought to be sometimes necessary for preserving the social order. Innocent III wanted to assure public officials that they could carry out capital sentences without mortal sin under certain conditions. The profession of faith was directed to a particular group and not to the universal Church. It, therefore, does not qualify as a definitive, infallible pronouncement. In the universal profession of faith of Lateran IV (1215)—which was directed at the Albigensians and the Waldensians—nothing is said about accepting the moral legitimacy of the death penalty (cf. Denz.-H, 800–802). In a disciplinary canon of Lateran IV, clergy are forbidden “to pronounce a sentence involving the shedding of blood, or carry out a punishment involving the same, or be present when such a punishment is carried out” (canon 18). This reveals a definite uneasiness about the practice of capital punishment because clergy are forbidden to be involved with it.
The Roman Catechism of 1566 looks upon capital punishment as an exception to the commandment, “Thou shalt not kill.” This exception was made because the practice was thought necessary for public security and the suppression of violence at that time. If such conditions are no longer present, the reasons for the exception to “Thou shalt not kill” no longer apply. Catechisms, in themselves, are not expressions of solemn infallible authority. They only carry the doctrinal weight that the teachings they present already possess (see Cardinals Ratzinger and Schönborn, Introduction to the Catechism of the Catholic Church [Ignatius Press, 1994], 25–27). Since nothing definitive had been taught by the magisterium on the death penalty at the time of the Roman Catechism, there is nothing definitive about the subject in it.
Other papal statements on the death penalty by Leo X (1520) and Pius XII (r.1939–1958) do not qualify as infallible pronouncements. The argument that the moral legitimacy of capital punishment has been taught by the universal ordinary magisterium is not convincing. According to Lumen Gentium, 25, all of the bishops in communion with the Roman Pontiff would need to manifest universal agreement that the legitimacy of capital punishment must be definitively held by all Catholics. Until recent decades most Catholic bishops did not issue statements on the death penalty. The episcopal statements that have been issued since the 1990s express strong opposition to the practice (cf. Bromberg, op. cit. pp. 125–127). In n. 64 of the Relatio Finalis of the 2105 Synod of Bishops, the bishops express their firm rejection of the death penalty, and Pope Francis incorporates this firm rejection in n. 83 of his 2016 post-synodal exhortation, Amoris Laetitia. There are over 5,000 Catholic bishops in the world today. I think very few, if any, would hold to Prof. Feser’s thesis that the acceptance of the moral legitimacy of the death penalty is a requirement for Catholic orthodoxy.
The Pontifical Commission for Justice and Peace in 1976 stated that “The Church has never directly addressed the question of the state’s right to exercise the death penalty” (Origins Dec. 9, 1976, 391). The Commission also stated that “the Church has never condemned its use by the state,” and “the Church has condemned the denial of that right” (probably in reference to the 1210 profession of faith for the Waldensians). Nothing in the 1976 document of the Pontifical Commission, however, indicates a definitive, infallible judgment of the Church in favor of the legitimacy of capital punishment. The way was open for legitimate development.
Didn’t Cardinal Ratzinger in 2004 say Catholics could hold to a variety of opinions on the death penalty?
The 2004 memorandum of Cardinal Ratzinger was on the subject of worthiness to receive Holy Communion and not on the death penalty per se. It was sent to Cardinal McCarrick as guidance for the USCCB. Its publication was due to a leak, and it does not appear on the Vatican website in the list of CDF documents or in the AAS. Prof. Feser and others have inflated the importance of this leaked memo, and they have misinterpreted it. The “legitimate diversity of opinion” on applying the death penalty would need to be understood within the context of Evangelium Vitae, 56 and the CCC, 2267, which teach that recourse to the death penalty is licit if it “is the only possible way of effectively defending human lives against the unjust aggressor.” There might be a legitimate diversity of opinions over what might be the cases in which the death penalty is “the only possible way” of defending human lives. This is what Cardinal Ratzinger meant. He did not intend to give a carte-blanche for all opinions on the death penalty. The recent teachings of Pope Francis on capital punishment—which are already included in the AAS 106  842–843 and the AAS 107 , 362–365—carry more weight.
Do Catholics need to accept what Pope Francis teaches on the death penalty?
Pope Francis has not definitively and infallibly condemned the death penalty, but he has taught that “today the death penalty is inadmissible” (Hoy dia la pena de muerte es inadmisible; AAS 107 , 363). He has also taught that it is “per se contrary to the Gospel” (Address of Oct. 11, 2017). He has not yet condemned capital punishment as intrinsically immoral, but his mind and will on the subject are sufficiently clear in various expressions of his ordinary papal magisterium. Papal speeches or allocutions are expressions of the ordinary papal magisterium, especially when they appear in the AAS. (cf. Msgr. Joseph C. Fenton, “The Doctrinal Authority of Papal Allocutions” American Ecclesiastical Review Vol. 134  109–117). Catholics are obliged to adhere to teachings of the ordinary papal magisterium “with religious assent, which though distinct from the assent of faith, is nonetheless an extension of it” (CCC, 892; cf. Lumen Gentium, 25).
Does not Pope Francis’ position on the death penalty mean that prior popes who accepted capital punishment (e.g. Innocent I, Innocent III, Leo X, and Pius XII) were wrong?
Answer: This is an artificial and simplistic way of understanding the matter. These prior popes were making judgments based on the conditions of their times and the state of doctrinal development in which they lived. Their perspectives were acceptable during their times, but they would not be acceptable now in light of recent Catholic teachings.
What if a Catholic has difficulty accepting what Pope Francis teaches on the death penalty?
Such a Catholic has the right to make known these difficulties to the competent authorities, but always with a sincere desire to overcome his or her difficulties. I would suggest a careful reading of the 1990 CDF document, Donum Veritatis, especially n. 31, which gives this advice:
Faced with a proposition to which he feels he cannot give his intellectual assent, the theologian nevertheless has the duty to remain open to a deeper examination of the question. For a loyal spirit, animated by love for the Church, such a situation can certainly prove a difficult trial. It can be a call to suffer for the truth, in silence and prayer, but with the certainty, that if the truth really is at stake, it will ultimately prevail.