Four Catholic journals--the National Catholic Register, America, The National Catholic Reporter, and Our Sunday Visitor--have decided to press for the total abolition of the death penalty in the United States in a shared editorial, making only faintly veiled suggestions that it is essentially evil, "abhorrent". Their joint editorial may be found, among other places, here. The editorial manifests a wondrously positivistic indifference to, and disregard for, distinctions in doctrine. That all the Doctors and Fathers of the Church--with the exception of Tertullian who died outside the faith-- have taught the essential validity of capital punishment; and that it is the teaching of the Council of Trent that where all the Fathers and Doctors hold one interpretation of Scripture as the proper one, Catholics are to accept it, are two propositions that signify very little in the oppressive culture of mutationist accounts of doctrinal development.
Wholly unobserved is the high theological note characterizing the profession required of the Waldensians in 1210 in order to re-establish ecclesial communion. The Waldensians were required to acknowledge among other things the essential justice of the death penalty for grave crime. Cf. Denzinger, #425—“Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.” Clearly to require this oath for the re-establishment of ecclesial communion at one moment, and then to imply the absolute necessity of the opposite—where what is at stake is not prudential application and limit but the principled possibility of just penalty of death—would constitute not a development of doctrine, but rather a mutation. Note, again, that the oath required of the Waldensians directly refers to the death penalty in principle and that it indicates that as such it cannot be a malum in se. Nor is it listed as such in Evangelium Vitae, which provides a list of such intrinsic evils from which the death penalty is omitted.
Are the editors of the journals involved--or the bishops who so commonly describe the death penalty as contrary to human dignity as though it were a malum in se--familiar with the work of the late Eminence Cardinal Avery Dulles on this question? Or the teaching of the Fathers and Doctors of the Church? Hundreds of years of Catholic teaching in conformity with the teaching of the Fathers and Doctors has acknowledged that implementing the penalty is a prudential matter and that the penalty is essentially valid. Pope Piux XII taught that the penalty is valid across cultures. The wisdom of applying this penalty is essentially a prudential matter. But as prudential there is no such thing as "de facto abolition" since circumstances change, and--again, contrary to the journals and the new enthusiasm--deterrence is a necessary and essential part of criminal justice. The reason for this last is that we are not free to impose penalties in this life without considering the common good, and an essential part of this consideration is (contrary to Kant who thought that the justice of the death penalty made its application to be absolutely necessary) the issue of deterrence. The same place at different times may require different penalties; and different places at the same time may require different penalties. Many penalties might be essentially just that in particular circumstances do not conduce to the common good and so ought not be applied. Thus it is altogether fitting that--given the overriding circumstance of the rejection of higher law and the widespread determining circumstance of the culture of death--there be a prudential reservation in applying this penalty. But this is an entirely different thing from the joint editorial's barely concealed anathematization of the penalty, which itself proceeds from a failure to understand, and a lack of due theological regard for, the transcendence of the common good.
The editorializing journals fail to understand that Evangelium Vitae does not reduce penalty to defense, but adverts to defense largely because of the failure of states to subject themselves to higher law and to acknowledge their subjection to the common good, In the presence of the widespread circumstance of the failure of the penalty to manifest a transcendent norm of justice owing to the omnipresent culture of death, the other medicinal aspects of penalty--in particular deterrence (which includes keeping the particular criminal from killing again)--become even more important inasmuch as the major medicinal purpose of punishment (manifesting a transcendent norm of justice) is impeded. Yet the journals fail to acknowledge that deterrence is essential to criminal justice, a remarkable view simply contrary to Catholic tradition. But we are not free to impose penalty without care for the common good, and the consideration of deterrence is part of such care. Enthusiasm suppresses such distinctions.
The journals use the language of "violence" to describe the penalty. But just penalty does not "violate" the rights of the guilty. And there is no absolute "right" of the guilty to immunity from justice for grave crime. It may be better not to impose some penalties, and this is largely true of the death penalty today. But contrary to the formulations of the journals in question it is precisely not a universal truth, nor is the penalty as such "abhorrent". That is the language of the Waldensians, language which they were required to renounce to re-establish ecclesial communion with the Roman Catholic Church. Those who embrace such language should realize that they are crossing over from the Church's prudential reservations regarding the penalty--which then-Cardinal Ratzinger as prefect of the CDF insisted that no Roman Catholic was obligated to share--toward assumption of the Waldensian view of the matter (prior to their return to the Church, that is).
Emeritus Pope Benedict the XVI, in a letter to the Cardinal McCarrick in 2004 when he was merely His Eminence Cardinal Ratzinger and prefect of the CDF, made it very clear that the death penalty was not an intrinsic evil and ought not be depicted as one. Indeed, he made clear that regarding the death penalty, questions of war and peace, and so on, laymen had a just claim to exercise their prudential judgment and that disagreement among Catholics on such issues ought not be compared to dissent on matters such as abortion and euthanasia.The letter of then-Cardinal Ratzinger may be found here. To quote it:
"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."
One can understand how these points seem not to matter, however, in a doctrinal climate in which what matters is rhetorical posturing to catch progressive winds rather than doctrinal rectitude. The journals take a general prudential inflection of the Church and, with an impatient spasm of imprudence, describe the penalty as an evil in itself--"abhorrent". The seeming willingness of some in the Church to entertain any change that may be marketed as "progressive" is certainly a factor in the development of such an attitude. The market for mutationist views of doctrinal development--for the proposition that the Church can absolutely contradict what it has solemnly proclaimed as true, whether about contraception, or abortion, or capital punishment--is a growing market in the antinomian first world.
The difficult issue of the death penalty will remain with us, because penalties are determinationes, determinations of prudence in the light of the common good. The death penalty is not essentially unjust, and circumstances change. The threat of Islamist terror was largely invisible at the time of the composition of Evangelium Vitae. It is not impossible that in the future the use of the penalty may be required. Surely there is no warrant to be found in either the recorded words of Christ, or the teaching of the Fathers and Doctors, for the proposition that the death penalty is "abhorrent". But then, these authoritative sources are seldom matter for Media Carnival and immediate popularity.
Need one observe that the journals' appeal for the US Supreme Court further to ignore the US Constitution will have further implications for the deterioration of our legal system? The founders, who provide for the death penalty in the US Constitution, cannot coherently be thought to have promulgated in that document anything that could warrant the judgment that it is of its nature "abhorrent" or inconsistent with legal justice. Thus the journals' insistence that the court once more ignore the Constitution seems to imply a memory lapse that normative reference to that document in its integrity is necessary to several ongoing legal cases of Catholic institutions attempting to preserve their just right to operate as such without being coerced to cooperate in triggering financing for essentially vicious action. The four journals that published this editorial would have done better to join in a statement defending these endangered institutions. Certainly urging the US Supreme Court toward further deconstruction of the US Constitution serves neither the just interests of the common good nor the evangelical mission and liberty of the Roman Catholic Church.
The journals publishing the shared editorial achieve an apotheosis of that special mix of enthusiasm, ignorance of doctrine, distinerest in distinction, and willingness to speak with "abhorrent" rhetoric to prove their wholeheartedness, which are part of the legacy of the sixties. When in doubt, always amp up the rhetoric and suggest that those who differ with you are guilty of being bloodthirsty. That is the true path of dialogue. "All we are saying, is give doctrinal antinomianism a chance." But: it has had its destructive chance, and we are still reeling from the damage. The misbegotten application of categories of speech appropriate in regard to the murder of innocents to the vastly different application of just penalty for grave evil, is symptomatic of a society that can garner more support to spare the guilty than to save the innocent. The crowd still wants Barrabas.