Readers of this website are aware that many Catholics who claim to be faithful to the Magisterium are nonetheless brazen in their open support for the death penalty. We’ve discussed Cardinal Raymond Burke’s declaration to an audience that the teaching on the death penalty was simply the pope’s “opinion as a man.” More recently, Adam Rasmussen wrote about the scandal of the National Catholic Prayer Breakfast granting its annual Christifideles Laici award to then-US Attorney General William Barr last year in the midst of a spree of federal executions he had ordered.
This dissent against Church teaching on the death penalty predates this papacy and the teaching’s 2018 revision by Francis. The 1997 formulation of the teaching, promulgated by Pope St. John Paul II, was also widely dismissed by prominent Catholics. This widespread dissent, I suspect, may have played a role in Pope Francis’s decision to bring the faithful closer to the mind of the Church by closing all potential loopholes in the teaching.
This is the official current teaching of the Church, following the revision of the Catechism’s paragraph 2267 by Pope Francis on August 2, 2018 (emphasis mine):
“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.
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.”
This replaces the 1997 formulation of paragraph 2267, promulgated by St. John Paul II, which read:
“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.’”
The fundamental change is actually quite narrow in scope. In 1997, if nonlethal means are sufficient to protect the people, then authority will limit itself to such means. The central reason for avoiding the death penalty is the same in 1997 as in 2018—upholding the dignity of the human person—although the 2018 wording is much more direct and assertive.
Additionally, the 1997 formulation left a small bit of leeway in situations where the death penalty might be applied: in cases where “non-lethal means are” not “sufficient to defend and protect people’s safety from the aggressor.” The 1997 teaching concludes by casting doubt on whether such circumstances even exist anymore: “the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically nonexistent.’”
In spite of this—in spite of John Paul’s cries for clemency in death penalty cases and in spite of his and Pope Benedict’s pleas for abolition of the practice—a stalwart group of prominent death penalty advocates fueled Catholic dissent against their teaching and their advocacy. Clicking through the archives of a publication like First Things, one comes across innumerable apologia in defense of the practice, including that of the late US Supreme Court Justice Antonin Scalia, who wrote, “It will come as no surprise from what I have said that I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism).”
Crisis Magazine, at least in the past, had a little more diversity on the topic, but as it has become more radicalized into traditionalist and reactionary points of view, it is just as brazen in voicing dissent. For example, in 2013, the New York priest George Rutler (who has recently been in the news) published a piece entitled “Hanging Concentrates the Mind,” which can be described as something of a loving tribute to the past use of the death penalty by the papal states, in which he essentially waxes poetic about the “medicinal” qualities of the death sentence.
It is clear that the dissent from the Church’s teaching against the death penalty, therefore, long predates the 2018 teaching. Some, like Justice Scalia—who was not one to beat around the bush—dismissed the teaching as worth less than the paper it was printed on. More often, writers and thinkers who professed great loyalty to John Paul and Benedict took that tiny sliver of a loophole in the 1997 teaching and drove a truck through it.
Because it came up recently on social media (including once in a tweet by a US bishop), I’d like to respond to a frequently-used talking point invoked by proponents of the death penalty to justify dissent from the Church’s official teaching on the matter.
Giving ammunition to these dissenters was a letter by then-Cardinal Joseph Ratzinger, sent to the US bishops in 2004. In his letter, “Worthiness to Receive Holy Communion,” the future pope wrote:
“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 or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.”
This statement has been widely interpreted as permission from the Holy See to dissent from the Church’s official teaching on the death penalty, but is it really? Read in context, the statement is distinguishing between actions that are never permissible (abortion and euthanasia) and actions that—at the time—might be permissible if certain conditions were met (the death penalty and war). Because one must discern whether the conditions whereby it is permissible to go to war or to apply capital punishment are met, the Holy Father and an individual Catholic might reach different conclusions in good conscience.
But how do we know what those conditions are? Well, we look to the Magisterium. This is what the Catechism says about the decision to go to war:
2309 The strict conditions for legitimate defense by military force require rigorous consideration. The gravity of such a decision makes it subject to rigorous conditions of moral legitimacy. At one and the same time:
– the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;
– all other means of putting an end to it must have been shown to be impractical or ineffective;
– there must be serious prospects of success;
– the use of arms must not produce evils and disorders graver than the evil to be eliminated. the power of modem means of destruction weighs very heavily in evaluating this condition.
These are the traditional elements enumerated in what is called the “just war” doctrine.
The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good.
Now let’s look at what the 2004 letter says: “There may be a legitimate diversity of opinion even among Catholics about waging war.” Because war, although discouraged, is a legitimate option, the decision to go to war is a matter of prudential judgment. That said, the judgment must be applied according to the conditions enumerated in the just war doctrine above. And two people might look at the same situation and come up with different conclusions, including the pope.
What Cardinal Ratzinger was not saying was, “A Catholic can differ from the pope on whether the principles of just war doctrine must be applied.”
Likewise, Ratzinger was not suggesting that the teaching on capital punishment could be disregarded. His letter speaks of a situation where “a Catholic were to be at odds with the Holy Father on the application of capital punishment.” Once again, he is speaking about a matter of prudential judgement about a potentially licit course of action.
At the time the letter was written, the pope and an individual Catholic could look at the same situation and could reach different conclusions about whether the conditions were met. What were those conditions? “If this is the only possible way of effectively defending human lives against the unjust aggressor.” In other words, the pope could have looked at a situation and discerned, “this is not the only possible way of effectively defending human lives against the unjust aggressor. Therefore the death penalty should not be applied.” Another Catholic might evaluate the same situation and conclude, “this is the only possible way of effectively defending human lives against the unjust aggressor. Therefore the death penalty may be applied.”
The 2004 letter was not carte blanche to ignore the Catechism. It was not permission to appeal to the theory of “retributive justice” as a justification for capital punishment. It simply meant that because there were circumstances (albeit very limited) under which it was permissible to apply the death penalty, someone might reach a different conclusion than the pope about whether the necessary conditions apply.
Determining whether the conditions are met is a matter of discernment and conscience. But it must be done under the conditions set by the Church. In the example of war, Ratzinger was saying that you might disagree with the pope on whether the conditions for just war are met.
Thanks to the revised 2018 teaching, there is no longer any justification for disagreeing with the pope on the death penalty. The Church now says there are no conditions where it is admissible.
And for that reason, the 2004 letter does not justify dissent from the Catechism’s teaching on the death penalty.
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