Capital punishment: Intrinsically evil or morally permissible?

The revision of no. 2267 of the Catechism of the Catholic Church recently authorized by Pope Francis to develop magisterial teaching on the death penalty has generated a variety of conflicting interpretations. These interpretations could be divided up in different ways. One division might note that some interpretations claim—or strongly imply—that the revision teaches that the death penalty is intrinsically evil,ⁱ whereas others claim that it continues to teach, in line with past magisterial declarations, that the death penalty is morally permissible in certain circumstances.ⁱⁱ A problem for both interpretations is that neither the text of the revision nor the text of the Congregation for the Doctrine of the Faith’s official commentary on it seems decisively to warrant either one. What I’m saying, in other words, is that what we appear to have on our hands is a case of interpretive undecidability.

Here I’m going to do two things: first, I present examples of these conflicting interpretations and consider arguments for and against them, and then I briefly discuss what I think might be the appropriate courses of action to take in light of the apparent interpretative undecidability of the texts.

For the sake of convenience, I’ll use IEI to stand for the interpretation that holds that the revision teaches that the death penalty is intrinsically evil and MPI to stand for the interpretation that holds that it teaches that the death penalty is morally permissible in certain circumstances.

Conflicting interpretations

Writing in the National Catholic Register, Patrick Lee seemed to defend IEI. According to Lee, the teaching of the revision has its basis in the Gospel’s command to love our neighbor. Loving a person, Lee explains, means that we can never choose his death:

[T]o love a person is to will the genuine good of that person, and fundamental to that is a person’s life. So to choose a person’s death is contrary to the Gospel moral prescription to love our neighbor as ourselves.

Because applying the death penalty would entail choosing some person’s death, it clearly follows, thinks Lee, that the death penalty is contrary to the morality of the Gospel. This is implicit, he suggests, in Pope John Paul II’s teaching, and Pope Francis does little more than make it explicit:

This point is also contained in St. John Paul II’s teaching in the encyclical Veritatis splendor (The Splendor of Truth) on the respect owed to the fundamental goods of persons (48). So Pope Francis is merely making explicit the moral conclusion implicit in previous moral teaching.

This teaching on capital punishment is an important reaffirmation of the central tenet of the Gospel: that we are called to love even our enemies; that we are to do good to those who hate us; to imitate God, who causes the rain to fall both on the good and the evil—a teaching we very much need to hear in our comfortable affluent culture.

Any action contrary to a moral prescription of the Gospel must surely be intrinsically evil, for when could it ever be permissible to violate such a prescription? Lee never explicitly says that the revision of CCC 2267 teaches that the death penalty is intrinsically evil, but from the remarks I have quoted the implication seems unavoidable.ⁱⁱⁱ

If I have misunderstood Lee, I would be happy to be corrected. But supposing that my reading is the right one, is there anything in the new text of CCC 2267 or in the CDF commentary on it that supports Lee’s interpretation?

The most obvious passage to appeal to in the revised text is this one:

Consequently, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,”^iv and she works with determination for its abolition worldwide.

We can find the same affirmation in the CDF commentary:

Pope Francis has asked for a revision of the formulation of the Catechism of the Catholic Church on the death penalty in a manner that affirms that “no matter how serious the crime that has been committed, the death penalty is inadmissible because it is an attack on the inviolability and the dignity of the person.”

Taken by themselves these passages do seem to lend strong support to IEI. But is there anything in the texts of the revision of CCC 2267 and the CDF commentary that could count against IEI and in favor of MPI?

Here I want to turn to Msgr. Charles Pope, who argues against IEI. In fact, Msgr. Pope insists that this interpretation is “reckless.” Msgr. Pope believes that the revision only means to claim that the death penalty is “inadmissible” in certain contemporary circumstances, not absolutely. Thus, Msgr. Pope wishes to defend MPI. Here are his own words:

Some have said that the use of the word “inadmissible” is the same as calling the death penalty intrinsically evil. This seems a reckless charge meant to inflame. Had the Pope or the CDF meant to call it such (and it is not) they would have used the words “intrinsic evil”—but that is not the case. A more benign understanding is that the use of the death penalty is inadmissible due to the current circumstances. The context for the word “inadmissible” is supplied by the prior sentences and should be used in understanding it.

Although Lee seems evidently to favor IEI, he certainly wouldn’t see it—as Msgr. Pope does—as a “charge” against the revision. He thinks the revision is rooted in the morality of the Gospel. Putting that issue aside, however, what can Msgr. Pope point to in the texts to support his case?

He tells us above that the “context for the word ‘inadmissible’ is supplied by the prior sentences and should be used in understanding it.” He explains this further:

The new wording [of CCC 2267] addresses a change in the circumstances of our times. While acknowledging the past assessments that permitted the use of the death penalty, the new wording uses an important interpretive phrase: “Today, however, …” What this means is that given the circumstances of our times, the current stance of the Church is that the use of the death penalty is both unnecessary and unwarranted. This is not the same as saying that previous Church teaching was wrong. The emphasis is on current circumstances, in which the need for this penalty is less than demonstrable, and there is an uneven application of “penal sanctions imposed by the state.” These circumstances make the use of the death penalty inadmissible because it does not meet the standards upon which the teaching insists: that it is necessary for the common good and that it is justly and consistently applied. You may disagree with these conclusions, but the point is that the teaching has not been changed; rather, current circumstances do not accord with what is necessary for legitimate recourse to the death penalty.

Msgr. Pope is right that before we get the line about the inadmissibility of the death penalty in the revised text there are comments that appear to suggest that we’re living in a new situation and need to adapt our understanding of the death penalty to it. This is what he’s referring to:

Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.

Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.

Immediately after these two paragraphs there follows the passage that we have already seen: “Consequently, the Church teaches, in the light of the Gospel, that ‘the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,’ and she works with determination for its abolition worldwide.” It’s natural to read this as a conclusion drawn from premises contained in the second paragraph above, two of which refer not to universal moral principles but to changed historical circumstances.

But, as Alan Fimister has observed, if we take the second paragraph above as containing the premises for the conclusion signaled by “Consequently,” it’s not altogether clear what weight is to be assigned to the different premises. Are they all necessary for getting us to the conclusion or could any one of them get us to the conclusion with the help of certain other implied premises? This isn’t clarified by the text. The first premise, which tells us that “there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes” could be understood to lead us to the conclusion with the help of a premise that tells us that we ought never to attack the dignity of the person (which most people would grant). But if this reading is permitted by the text (and I don’t see anything that positively prohibits it), then the revision could very plausibly be taken to teach that the death penalty is intrinsically evil.

It’s not obvious, then, that the letter of the revision of CCC 2267 conclusively supports MPI. But there’s more. The only previous teaching explicitly cited by the revision comes from the speech Pope Francis gave last October on the 25th anniversary of Fidei depositum (which I commented on here) in which he announced his desire to revise the Catechism’s teaching on the death penalty. The CDF commentary on the revision also cites this speech (twice). It’s from this speech that we get the statement about the death penalty being inadmissible insofar as it attacks the inviolability and dignity of the person. And in the speech that conclusion is reached solely on the basis of the moral demands of the Gospel and our (alleged) new and better understanding of them. There’s no reference to the contemporary historical circumstances that are mentioned in the revision.

What’s the hermeneutic relationship between the revision of CCC 2267 and the papal speech from last October? Should we take our interpretive bearings on the revision from it?^v If so, then that strengthens the case for IEI. And there is even more absolutist language in the speech than in the revision. Consider these remarks:

It must be forcefully affirmed that it is inhumane to condemn a person to death and that, however the sentence is carried out, it humiliates personal dignity. In itself it is contrary to the Gospel because it is a free decision to suppress a human life that is always sacred in the eyes of the Creator and that, in the final analysis, has God alone as the true judge and guarantor.

It would be very hard not to construe the Pope here as teaching that the death penalty is intrinsically evil.

But before the proponents of IEI declare victory, I think it’s important to point out that none of the absolutist language I just quoted made it into the final draft of the revision. Its exclusion could have been quite deliberate. It’s not inconceivable that the CDF saw it as impossible to reconcile in any reasonable way with the antecedent magisterial teaching and concluded that it expressed merely a personal opinion of Pope Francis.^vi

Proposals

Considerations such as the foregoing lead me to suggest that it’s impossible to settle the controversy between IEI and MPI by appealing only to the revised text of CCC 2267 and the CDF commentary on it.

Cardinal Rino Fisichella, president of the Pontifical Council for the Promotion of the New Evangelization, told Vatican Radio last week that the words of the new text of CCC 2267 are “clear” and “precise” and “don’t leave any room whatsoever for equivocation on this teaching.”^vii I’m afraid I can’t agree with Cardinal Fisichella. As I have tried to show, I think just the opposite is true.

Nobody needs a reminder about just how disastrous an ambiguous footnote in Amoris laetitia has been for the Church. If no action is taken to clear up the present confusion over the teaching of the revised version of CCC 2267, then this could well be Amoris laetitia redux.

So, what should be done? To my mind, the easiest thing to do would be to retract the revision and leave CCC 2267 as is. The 1997 editio typica version of the text is perfectly clear. And its continuity with the previous magisterial teaching (which acknowledges the moral permissibility of the death penalty in certain circumstances) is evident. The case that Edward Feser makes for the irreformability of the previous teaching is probably as demonstrative as anybody could hope for.^viii Another possibility would be a revision of the revision. That revision would have to make its continuity with previous magisterial teaching plain. A third possibility would be for the CDF to publish a note on the proper interpretation of the revision. But I think this would be less optimal than the first two courses of action since it would stand outside the text of the Catechism itself.

Endnotes:

i^ See, e.g., Cardinal Charles Bo, “Cardinal Bo: Death Penalty ‘Inadmissability’ Is ‘Fearless Assertion’ to Protect Human Dignity,” Zenit, August 10, 2018; Cardinal Blaise Cupich, “Remarks at the American Bar Association on Capital Punishment,” Archdiocese of Chicago website, August 2, 2018; Cardinal Rino Fisichella, “La pena di morte è inammissibile,” L’Osservatore Romano, August 2, 2018; “Fisichella: pena di morte, cambiamento Catechismo in continuità col magistero,” Radio Vaticana, August 3, 2018; Patrick Lee, “Death Penalty: A Genuine and Important Development of Catholic Teaching,” National Catholic Register, August 3, 2018.

ii^ See, e.g., Archbishop José Gomez, “Statement from Archbishop José H. Gomez Regarding Changes to the Catechism of the Catholic Church on the Death Penalty,” ADLA Newsroom, August 3, 2018; Thomas Nash’s contribution to this symposium; Fr. Thomas Petri, OP, “Pope Francis and the death penalty: a change in doctrine or circumstances?” Catholic News Agency, August 3, 2018; Msgr. Charles Pope, “Let’s Be Careful in Our Charges Regarding the New Wording of the Catechism on the Death Penalty,” Archdiocese of Washington blog, August 3, 2018.

iii^ If Lee doesn’t attribute it explicitly to the teaching of the revision he does, at any rate, believe that the Church must take this position. Thus, he writes: “Indeed, if it is okay to kill the criminal, why should it not be okay—at least in many cases—to torture him? Isn’t being tortured—at least in many cases—less of a harm to someone than being killed? And Vatican II explicitly lists torture as an intrinsically evil action.”

iv^ Pope Francis, “Address to Participants in the Meeting organized by the Pontifical Council for the Promotion of the New Evangelization,” October 11, 2017; L’Osservatore Romano, October 13, 2017, 5.

v^ Cardinal Fisichella seems to treat the speech and the revision of the Catechism as doctrinally unified. See references in n. 1 above.

vi^ Proponents of MPI could also draw attention to paragraph 7 of the CDF commentary, which could be interpreted as making advertence to contemporary circumstances a necessary part of the reasoning behind the inadmissibility of the death penalty.

vii^ “E quindi ci sono parole chiare, nette, che non lasciano equivoci di sorta su questo insegnamento.” See the link to Fisichella’s interview with Vatican Radio in n. 1 above.

viii^ I also recommend John Joy’s “Capital Punishment and the Infallibility of the Church,” Dialogos Institute blog, October 27, 2017. Archbishop Charles Chaput, who has called for an end to the death penalty for prudential reasons, nevertheless recognizes that the Church’s teaching on its moral permissibility is irreformable. This statement of his from 2005 is often quoted: “The death penalty is not intrinsically evil. Both Scripture and long Christian tradition acknowledge the legitimacy of capital punishment under certain circumstances. The Church cannot repudiate that without repudiating her own identity.” See “Archbishop Chaput clarifies Church’s stance on death penalty,” Catholic News Agency, October 18, 2005.

Other Essays in the Symposium: 

• “Catechism changes demand the impossible” by Christopher R. Altieri, who says the new text on capital punishment seems to require Catholics to substitute this Pope’s judgment on this subject for their own.

• “Some questions for defenders of capital punishment” by Robert G. Kennedy, who argues that the historical record is less consistent than many suppose and it does not, in fact, support the claim that the Church has committed itself irreformably to the right of the state to kill.”

• “Development, not deviation: Evaluating Francis’ modification on the death penalty” by Thomas J. Nash, who writes, “We can reaffirm that state executions are not intrinsically evil, even while we join Pope Francis in working toward the abolition of their social application.”

• “The death penalty debate and the Church’s magisterium” by Edward N. Peters, who writes: “I regard the liceity of the death penalty as having been established with infallible certitude by the Church’s ordinary magisterium.”

• “On human dignity and the death penalty” by Fr. James V. Schall, S.J. who observes: “Whether human dignity is upheld if we allow no executions remains an open question. As Plato intimated, a case for the execution of certain criminals can be made precisely in the name of their human dignity.”