Catholic Moral Teaching and the Problem of Capital Punishment

The Thomist 68 (2004): 41-67 CATHOLIC MORAL TEACHING AND THE PROBLEM OF CAPITAL PUNISHMENT E. CHRISTIAN BRUGGER Loyola University New Orleans New Orleans, Lousiana I. THE PAPAL TEACHING INTERPRETED ESPONSESTO THE PRESENT papal teaching on the problem of apital punishment have been varying and even conflicting. teven Long, whose ideas I consider in the second part of this essay, argues that the papal teaching cannot say what it appears to be saying because the Church has never said such a thing; it therefore must be interpreted as saying what the Church has always said. Avery Cardinal Dulles, S.J., tends to agree, arguing that what is new is not the underlying principle regarding the legitimacy of capital punishment but the application of that principle to changing conditions.1 Gerard Bradley, on the other hand, says the treatment is novel; capital punishment, once justified as a means of retribution, is now being assessed in terms of civil society's right to defend itself.2 Mark Latkovic agrees but says the novelty does not go so far as to render capital punishment intrinsically evil.3 Janet Smith suggests the pope might be leaning 1 See Avery Dulles, "The Death Penalty: A Right to Life Issue?" Laurence J. McGinley Lecture, Fordham University (17 October 2000), reprinted as "Catholicism and Capital Punishment," in First Things 112 (April 2001): 30-35. 2Gerard V. Bradley, "The Teaching of the Gospel of Life," Catholic Dossier 4 (Sept.-Oct. 1998): 43-48. 3Mark S. Latkovic, "Capital Punishment, Church Teaching, and Morality: What is Pope John Paul II Saying to Catholics in Evangelium vitae?" Logos 5, no. 2 (Spring 2002): 82 41 42 E. CHRISTIAN BRUGGER precisely in that direction.4 James Hitchcock thinks the pope is trying to elevate the social conversation "to a higher plane ... by affirming the sacredness of human life in all situations."5 Charles Rice agrees and thinks the papal teaching has made "obsolete" the traditional view that death is the only fitting punishment for certain very grave crimes.6 Justice Antonin Scalia thinks that Charles Rice and the pope are flat wrong.7 And so on. I think the papal teaching is saying something new.8 Catholic tradition has argued that legitimate public authority rightly inflicts the death penalty for very grave crimes, and that its infliction-insofar as it serves to redress the disorder introduced by a criminal's crime, protects the community from a dangerous influence, and deters others from committing similar crimes-is not only justified, but good. This is not something the present pontificate has taught, nor in my estimation would it be willing to teach. The papal teaching as articulated in the 1997 edition of the Catechism of the Catholic Church (CCC) (which includes the morally relevant elements of the death penalty account of Evangelium vitae) is unprecedented for a magisterial document. A careful examination justifies the conclusion that a theoretical foundation is being laid for a substantive revision in the Church's teaching on the morality of capital punishment. That revision would teach that capital punishment as punishment is no longer legitimate; that the state rightly uses lethal force only for purposes of self-defense, which means that inflicting death could not be justified as a means of retribution; that in using lethal force against a dangerous criminal, the state is justified only in using •Janet E. Smith, "Rethinking Capital Punishment," Catholic Dossier4 (Sept.-Oct. 1998): 49-50. 5 James Hitchcock, "Capital Punishment and Cultural Change in American Life," in Capital Punishment: Three Catholic Views (Washington, D.C.: Faith and Reason Institute, 2003), 13 6 Charles Rice, "Avery Cardinal Dulles and His Critics: An Exchange on Capital Punishment," First Things 115 (August/September 2001): 9 7 Antonin Scalia, "Justice Scalia's Letter to the Editor," National Catholic Register (24-31 March 2002). • 8 Catechism ofthe Catholic Church 2263-67; Evangelium vitae 55-56. CAPITAL PUNISHMENT 43 force proportionate to render him incapable of causing harm; and that if he dies as an consequence, his death would have to remain praeter intentionem (i.e., unintended). This is not the explicit teaching of the Catechism, but the conclusions follow neatly from a fair reading of the text. I...