Earlier this year in an address to the International Commission Against the Death Penalty, Pope Francis told the Commission that, “[T]oday capital punishment is unacceptable, however serious the condemned’s crime may have been.” He went on to quote Dostoyevsky who said that , “[T]o kill a murderer is a punishment incomparably worse than the crime itself. Murder by legal sentence is immeasurably more terrible than murder by a criminal.” The Pope added by way of comment that “[J]ustice is never reached by killing a human being.” Given Dostoyevsky’s last second commutation of a death sentence by Czar Nicholas I, his position is not surprising. What is surprising is that the Holy Father appears to be equating all capital punishment with state-sanctioned murder. If this is true then capital punishment would represent an intrinsic evil that could never be used by the State. If that is in fact what he was saying then this would represent a significant change in the Church’s Tradition with respect to the death penalty. Little wonder then why his recent episcopal appointment in Chicago, Archbishop Cupich, deemed abortion and capital punishment morally equivalent in an Op-ed piece for the Chicago Tribune. As with many things the Holy Father has said, we need to examine the context in order to avoid any confusion. Once we do this a certain amount of clarity emerges.
To begin, it is important to mention the magisterial “weight” that applies to an address made by the Pope. In general, the Pope as the Universal Teacher has a unique charism related to teaching on faith and moral. His office affords him an abundance of the gift of prophecy and so we ought to take everything he says very seriously. But this does not mean that everything that comes out of his mouth is a reflection of this gift or that it is correct, especially when it is counter to the Ordinary Magisterial teaching of the Church (which we call Tradition—more on this in a moment). The audience he is addressing also matters. In this case if he was attempting to further refine Tradition he would be addressing the entire Church and not simply the Commission Against the Death Penalty. In short, while these addresses can help us see the direction the Holy Father is looking to take his teachings in a particular area, this does not mean that we need hold them as binding, especially when they constitute extended development of doctrine.
Francis concedes that “[I]n certain circumstances, when hostilities are underway, a measured reaction is necessary in order to prevent the aggressor from causing harm, and the need to neutralize the aggressor may result in his elimination; it is a case of legitimate defense (cf.Evangelium Vitae, n. 55),” but then says that “when the death penalty is applied, people are killed not for current acts of aggression, but for offences committed in the past. Moreover, it is applied to people whose capacity to cause harm is not current, but has already been neutralized, and who are deprived of their freedom.”
In citing John Paul II’s Evangelium Vitae, he is affirming the Church’s constant teaching that the Death Penalty represents a legitimate form of self-defense applied by the State. He says that at times it is necessary to “render the aggressor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor whose action brought it about, even though he may not be morally responsible because of a lack of the use of reason.” (EV, 55). Furthermore, the Saintly Pontiff says the State “ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent” (EV, 56). He then goes on to conclude the section on the death penalty by saying that “[I]n any event, the principle set forth in the new Catechism of the Catholic Church remains valid: ‘If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person’(CCC 2267)” (EV, 56).
Summarizing then the Church’s position we would say that when the State cannot reasonably neutralize the threat that a violent offender poses to society as a whole, then they may execute a prisoner. Given the current security of most penal systems, it is rare that someone still poses a threat to society. The emphasis is on the word rare which means that there may be times even now when it is still necessary.
Returning now to Francis’ statement, he seems to be removing the exception clause that John Paul II included in his discussion. He says that when the death penalty is applied, “people are killed not for current acts of aggression, but for offences committed in the past. Moreover, it is applied to people whose capacity to cause harm is not current, but has already been neutralized, and who are deprived of their freedom.” So, on the one hand he is clearly affirming the unchanging principles of the Church, but on the other he is questioning when those principles should be applied. I think the Holy Father is greatly misunderstanding the current situation.
What Pope Francis is advocating is an unqualified abolition of the death penalty. The Church is very far from supporting that and quite frankly may never do so. Assuming we are not operating under a totalitarian regime and the State justly tries the condemned, the justification for the death penalty is one of self-defense. Certainly if the threat of a given offender can be fully neutralized then the death penalty should not be employed. But there are many cases in which (even today) that is not the case. Prisoners can still have access to the outside world and still harm society through others. Think of the recent prison escape in Mexico. A drug kingpin escaped from Mexico’s most secure prison in July and now represents a great threat to society. He had already escaped in 2001 and resumed his activity. One would be hard-pressed to argue that the death penalty should not have been used. How many people did he order to be killed while in prison and how many will die while he is out?
Second, you cannot speak of the dignity of the convicted murderer without also speaking of the dignity of the other convicts imprisoned with them. Do they have right to a safe environment that does not include other violent offenders who are likely to kill again? In the United States there is a relatively high incidence of “lifers” who kill in prison because there is no fear of punishment (because there is none). They may also attempt to make a name for themselves by attacking unarmed prison employees.
Pope Francis also mentions an often used Christian argument against the Death penalty namely, “[W]ith the application of capital punishment, the person sentenced is denied the possibility…of contrition, the means of repentance and atonement…” This argument could go either way. There is nothing like staring your own mortality in the face to trigger conversion. To know your time of death can also be a great grace because it brings clarity that might not have otherwise been available for someone in a prison environment. For those of us who have done prison ministry in Maximum Security Prisons and know that it is quite possibly the closest place to hell on earth, we all wonder what kind of people that environment might turn us into. Again, I am not saying this is an argument for the Death penalty, only that to say they are denied the possibility of conversion is to somehow pigeon hole God’s grace to some sort of slow evolutionary standard.
The reason why the death penalty should only be applied in extreme cases is because of the great dignity of the human person. Not because it does or does not give them time for conversion. St Thomas thought this argument frivolous asking how many innocent people should have to suffer death while waiting for the guilty to repent. He thought you could never justify the death penalty as an act of vengeance but it could be an act of justice.
Finally, violent offenders may never actually kill again, but they can find “trigger” men to do it for them. This is especially the case with radical Islam. The number of Islamic converts in the prison system is greatly on the rise and upon release many men become “radicalized.” A recent FBI bulletin warned that “[P]risons literally provide a captive audience of disaffected young men easily influenced by charismatic extremist leaders.” So while these leaders may remain behind bars, their spirit extends outside the prison walls. Can we justly take the Death penalty off the table for terrorists when they may help to form new ones?
To be clear, I am not saying that there are cases (and there will be more of them) where the death penalty is applied unjustly. But this does not mean we should remove it as a form of punishment altogether. Any form of punishment risks being abused or wrongly applied but this does not mean we should cease punishing. The point is that we must work to apply the Death penalty only when absolutely necessary and to take extra precautions to make sure no mistakes are made (this is why biblically speaking 3 witnesses were needed before the Death penalty was applied). We can all hope for a time when violent prisoners can be housed in a facility where they are a threat to no one, but we are nowhere near that yet. Quite frankly that may never happen, but until it does the Death penalty will remain a viable, even though rare, moral option in the Church’s eyes.