Right and Reason: Capital Punishment


Holy Phinehas Impales Sinner


From the beginning of recorded history the state has used capital punishment rather freely, often excessively. If the death penalty is out of all proportion to the crime, the state does wrong in using it. We are speaking of it here only as applies to very serious crimes, and as murder and treason, which all who approve of capital punishment acknowledge as its proper sphere. The state exists to maintain justice, and one of its chief purposes is the prevention and punishment of crime. In receiving its authority through the natural law, the state also receives from Him the right to use the necessary means for attaining to its end. The death penalty us used as such a means. It fulfills the retributive function of punishment by re-establishing as far as possible the balance of outraged justice and is thought to be the only effectual punishment against the most serious crimes, especially those committed by criminals already under life sentence. By its very nature capital punishment cannot be corrective. But correction, desirable though it be in a punishment, is not absolutely necessary; in the most serious crimes the claims of retribution and deterrence are so imperative that the corrective aspect must be sacrificed, if necessary. If capital punishment often fails as a deterrent, the fault may lie rather in the way it is administered than in the nature of the punishment itself. The law’s long delays can empty the lesson of all its meaning. To be an effective deterrent, punishment should be swift, summary, and sure. Certainly, enough time must be allowed to gather evidence and to give the accused a fair trial, but in their effort to protect the criminal our judges, lawyers, and juries can lose the proper sense of civic responsibility.

Though the state has the right of capital punishment, it need not exercise the right if it can protect itself from criminals in another way. In former ages life imprisonment for all major criminals was impossible because the jails did not exist. If the state can prove that it can effectively handle crime without the death penalty, it may be argued that it not only need not but should not use it

In this section of the text, Fr. Austin makes it clear that the death penalty properly applies to very serious crimes since by applying death to a murderer, for instance, in order to fulfill the “retributive function of punishment” which re-establishes the balance of justice. He rightly says that the death penalty is the only effectual punishment against most serious crimes. He also notes how the element of correction may be sacrificed in order to satisfy justice, as well as protect the common good. This has always been the Christian tradition on the subject.
Now, concerning the last paragraph, Fr. Austin concludes that there may come a set of circumstances wherein it may be argued that the state should not use the death penalty at all. However, since this rule against using the death penalty is only in order to procure the element of protection to society, and not the retributive function also, I don’t think this this reasoning should absolutely ban the death penalty, since the latter has its proper application to certain egregious crimes which, as Fr. Austin said above, can only be the effective way to balance justice. In fact, he even said that those under life sentence are, in some cases, appropriately put to death swiftly.

Right and ReasonNow, contrast this with Pope Francis whose arguments thus far have largely focused on  protective element of state justice, to the utter exclusion of the retributive element. What about those crimes which demand the balance of retributive justice? For example, it was just reported that a Catholic priest, Rev. W. Thomas Faucher, who was sentenced to 25 years in prison, fantasized about raping and killing young children. Imagine if this man were to have lived out his fantasy, and killed 30 or 40 young children? Would anyone argue that the State does not have the right to apply the death penalty for this mean’s crime just purely for the sake of balancing justice? I think the parents would be the first persons to ask.

Catholics are indeed faced with a massive dilemma here. According to the newly revised Universal Catechism (paragraph 2267), the death penalty is said to be totally inadmissible, and, consequently, no Catholic is permitted, per Papal authority, to support its application anywhere in the world. This is directly contradictory to a memorandum published by the Congregation for the Doctrine of the Faith in 2004, just 12 years ago, wherein then Fr. Joseph Ratzinger made it clear that a Catholic’s own opinion on the legitimate application of capital punishment could be at odds with the Pope’s own opinion, since the matter is left for discretion. The assumption underlying this is that there are circumstances where capital punishment is appropriate.

In his most recent address on the subject, Pope Francis could not have been more clear when he said that capital punishment is a “penalty that seriously harms human dignity. It is a penalty contrary to the Gospel as it implies suppressing a life that is always sacred in the eyes of the Creator, and of which only God is the true judge and guarantor.” Wow! A contradiction to the above, I must say. How can the application of the death penalty serve to balance retributive justice, as Fr. Austin Fagothey made plain, and yet at the same time be an egregious crime which contradicts the Gospel by violating a person’s right to life? Francis goes on to say, “In past centuries, when the instruments available to us for the protection of society were lacking and the current level of development of human rights had not yet been achieved, recourse to the death penalty was sometimes presented as a logical and just consequence”. Let’s stop here. Some readers have rightly asked if what is being said here implies that Pope Francis believes that the death penalty *would be* justified in the case where said “instruments” are lacking. However, even if that were the case, we are completely ignoring the retributive justice element of punishment (see Fr. Faucher above)? So we first have to obliterate the idea that capital punishment is appropriate for the reasons of retributive justice before we can even entertain the legitimacy of using modern “instruments” to wholly exclude capital punishment as a just and appropriate act, let alone contrary to the Gospel.

Our God spoke to Noah saying, “From the hand of every man’s brother I will require the life of man. Whoever sheds man’s blood, by man his blood shall be shed, for in the image of God He made man” (Gen 9:5b-6). We are not told here God instituted the death penalty for the sake of the common good, but because of something resident within the human being destroyed, i.e. he bears God’s image. Even if you understand this institution to be restricted to a past age, one could never accuse God Himself with the crime of sin or of contradicting the eternal Gospel of the ages. Such a thing would be absurd!

Francis goes on to say:

That is why the new wording of the Catechism also implies taking responsibility for the past and recognizing that the acceptance of this form of punishment was a consequence of a mentality of the time, more legalistic than Christian, that sacralized the value of laws lacking in humanity and mercy. The Church cannot remain in a neutral position in the face of the current demands for the reaffirmation of personal dignity.”

Is is abundantly clear by this text that the Pope understands the application of the death penalty to have been contrary to the Gospel even in the past, even if it was ever thought by people then to be necessary. When he says that the application of capital punishment in the past was “more legalistic than Christian”, he is saying that the Gospel, rightly understood, would have *never* permitted the death penalty to be applied.

But Francis insists that this is not a contradiction to past teaching, because:

The reform of the text of the Catechism in the point dedicated to the death penalty does not imply any contradiction with the teaching of the past, because the Church has always defended the dignity of human life. However, the harmonious development of the doctrine imposes the need to reflect in the Catechism that, notwithstanding the gravity of the crime committed, the Church teaches, in the light of the Gospel, that the death penalty is always inadmissible because it counters the inviolability and the dignity of the person.”

So how does Francis bridge the former belief of the Church to the current revision on the Catechism? Because the Church has *always defended the dignity of human life*. In other words, the past may have had a mixture of always defending the dignity of human life together with the death penalty, but as time and reflection have been processed, we realize that a defense of human dignity now requires a final decision to put away the death penalty as something always contrary to the Law of God. Francis does not understand the application of the death penalty in former centuries as an act of justice, but rather a poorly formed mentality with regard to something which the Church always held, namely, a defense for the inviolability of human life & dignity. It took centuries to finally see that they cannot co-exist (i.e. the death penalty and a defense of human


St. Dismas – Good Thief on the Cross

dignity), but now the reflection has yielded that they cannot co-exist.

If that was not clear enough, Francis continues:

In the same way, the Magisterium of the Church understands that life sentences [las penas perpetuas], which deny the possibility of moral and existential redemption of the condemned and of the community, are a form of death penalty in disguise

So not only is the death penalty intrinsically contradictory to the gospel, but also life imprisonment as well. This would certainly transgress what we read from Fr. Austin on how a corrective telos is not always to be kept, and can sometimes be sacrificed in light of the retributive and protective ends of punishment. This would also indicate that for Pope Francis, the matter is *not merely* keeping society protected. For if the matter was simply about protection to society, life imprisonment would suffice as a just alternative to avoid the death penalty. But here even keeping the serious criminal away for the rest of his life is committing the very same crime against human dignity which, for Francis, the death penalty creates. Make sure you catch that. “..life sentences…are a form of death penalty in disguise”. Remember that. When someone comes along and tells you that the Pope merely thinks that public jails and prison systems render the death penalty unnecessary, bring this point to the fore , namely, that even granted the exclusion of the criminal from society for the rest of his life, the Pope still thinks the very same crime of death penalty is being committed. This proves that there is something resident in human dignity which Pope Francis sees as the formal reason for why the death penalty is immoral, and thus, matters of external circumstances in penal instrumentality is not even in the purview on this point.

One might ask what grounds the Pope’s condemnation of the death penalty? He answers quite plainly when he says:

“God is a Father Who always awaits the return of the son who, knowing that he has made a mistake, asks for forgiveness and starts a new life. No one, then, can be deprived of his life or of his hope of redemption and reconciliation with the community.”

That’s it. This is the reason why the death penalty, and life imprisonment is immoral. God is a forgiving God, and thus both the elongation of life and the hope of forgiveness is mandated of society in keeping with the economy of the Gospel. This is also why the Pope can condemn his predecessors who supported the death penalty:

Even in the Papal State, this inhuman form of punishment was resorted to, ignoring the primacy of mercy over justice.

In conclusion, this catastrophic news will not be easy for Catholics. Some Catholics will no doubt defend a sort of Recognize-Resist paradigm, some will say that this is not ex-cathedra and so we are not obliged to assent (of course, even on Ex-Cathedra Papal teaching is ordinarily binding), some will say that we just need to await the Church to identify the possible heresy, and others will simply defend Pope Francis’s theology on this point. For now, I recommend the wonderful work of Dr. Ed Feser and Dr. Joseph Bessette in By Man Shall His Blood Be Shed.


10 thoughts on “Right and Reason: Capital Punishment

  1. A bit tangential, but I find it interesting how “punishment” has become a dirty word over the past several decades. Even (especially?) in upbringing children it seems to be mostly frowned upon. Punishment seems to have been defined as something purely negative. In recent children’s programmes I’ve noticed a trend: Someone does something wrong (steals, lies, etc.) and are then found out. The offended party forgives them, but then there is no punishment/consequence to make amends for the wrong done.

    • Brother Gregory,

      I notice the same. Unfortunately, folks who are radical about this tend not to be consistent. They want to be forgiving of everything, except to those who believe that corporeal punishment is a God send for the good of human institutions. Oh on, those people are baddie, and deserve to be stoned!

    • If I made it seem I thought it was ex-cathedra, please forgive me. I don’t think it is. Although, I do think that Pope Francis has flexed his biceps a bit when he puts in the new CCC revision (para 2267):

      “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”

      By saying “the Church teaches”, he means this to be somewhat authoritative.

      However, it is clear that this is not an ex-cathedra statement

  2. “In conclusion, this catastrophic news will not be easy for Catholics. Some Catholics will no doubt defend a sort of Recognize-Resist paradigm, some will say that this is not ex-cathedra and so we are not obliged to assent (they would be wrong), some will say that we just need to await the Church to identify the possible heresy, and others will simply defend Pope Francis’s theology on this point.”

    Okay, but what is your position?

    Also, “(they would be wrong)”–so, you’re saying that Pope Francis’ statement *is* ex cathedra and we *are* obliged to assent?

    • I see how this can be interpreted. All I mean is that it is wrong that this teaching is intended to be “binding” in the ordinary sense. I will have to edit this. I do not believe it is ex cathedra, but that does not mean Papal ordinary magisterium is not binding in any sense, is what I’m saying. But this issue raises too much concern to add that in parentheses.

  3. Hi Eric,

    Maybe i missed it but there is no mention of the guilty and his repentance? If a prisoner is sentenced to death and then repents, should we rob him of the opportunity to deepen his repentance over time? Or is it, that once the prisoner has truly repented he would willingly accept the death penalty to complete his repentance fully? Are we robbing him of his only way ‘to make things right with God?

    These are genuine questions which i don’t know the answers to but i wouldn’t lean either way if it were not for the office of the Papacy, though not Ex Cathedra, its still ‘binding’ (how binding and not excathedra i don’t know…I’m not so well versed in these things…)

    So with this particular issue, it is just a microcosm of a macrocosm with this Papacy. If he is deemed a heretic it may be after our life time. So this minute, right now we ascend? or we walk out?

    Thanks Brother!

    • Dear Mr. Ybarra,

      So all in all, do you believe that every Catholic is at the present point bound to give assent of will and faith to this teaching? Is there no room for having reservations in light of the considerable tradition and arguments against this view?

      Similarly, is the pope’s demand to organize massive immigration to developed countries (in Fratelli tutti) to be considered as magisterial and binding on Catholics? Or is this one not an authoritative teaching?

  4. Mr. Ybarra:

    Thank you for this very insightful and well though-out article. First of all, I’m happy that you referenced Fr. Faothy’s book. It’s an excellent source for ethics. If anyone has not read, do so. It’s thorough, clear and covers a wide variety of ethical topics. However, be sure to get the first (original) edition. There is at least a second edition however it’s not nearly as good as the first edition.

    Now to get more the crux of this “dilemma”, my thoughts are these. There is a VAST difference in stating (as in the original version) that while the death penalty is a legitimate option, in current circumstances it is unnecessary, vs. it is BY ITS NATURE inherently wrong. Those are totally different things. The state has not only the right BUT A DUTY to defend itself (and by extension), its citizens from aggressors. Failure to do so is a shirking of responsibility. Now, one can argue, and I think legitimately, that from a practical view point, the penal system is such that the death penalty doesn’t per se have to be a punishment. If we can reform someone in another way, that’s fine. But sometimes that just isn’t possible. In that case the state does have that right to use it. Should the state carefully discern this? Of course. But that is vastly different from saying the death penalty by its nature has been, is now, and ever shall be, so to speak “wrong”.

    Also, to say that the life sentences are simply “death penalty in disguise” is, for me, really pushing things. Pope Francis argues that someone can’t “reform”. Why not? How does a life sentence deny the possibility of redemption? To me, that’s saying that redemption can only take place in a location outside of a prison.

    Also, what would Francis suggest as punishments? If someone commits homicide, or multiple homicides, or acts of terrorism, what SHOULD happen? Do we do an actuarial evaluation of the person at the time the crimes were committed then figure out how much longer he has to live and then say, penalize the person 10% of his remaining life span for each murder? What about repeated offenders? What should happen then?

    OK, I’ve said enough. Thank you again for your article.

    • I think that what pope Francis means is that there should always be an at least theoretical possibility of parole after some time if it can be proved that the convict has reformed himself.

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