Religion and the Death Penalty: A Call for Reckoning

by John D. Carlson (Editor), Erik Owens (Editor), Eric P. Elshtain (Editor)

Overview

Foreword by Jean Bethke Elshtain

This important book is sure to foster informed public discussion about the death penalty by deepening readers' understanding of how religious beliefs and perspectives shape thiscontentious issue. Featuring a fair, balanced appraisal of its topic, Religion and the Death Penalty brings thoughtful religious reflection to bear on current challenges facing thecapital justice system.

One look at the list of contributors reveals the significance of this book. Here are recognized leaders from the academy, government, and public life who also represent a wide range offaith commitments, including Jewish, Christian, and Muslim. Like many people of faith and goodwill, the authors disagree with one another, variously supporting retention, reform, orabolition of capital punishment. As a result, the book presents the most comprehensive and well-rounded religiously oriented discussion of the death penalty available.

Contributors:
Khaled Abou El Fadl
Victor Anderson
Jeanne Bishop
J. Budziszewski
John D. Carlson
Mario M. Cuomo
E. J. Dionne Jr.
Avery Cardinal Dulles, S. J.
Eric P. Elshtain
Richard W. Garnett
Stanley Hauerwas
Frank Keating
Gilbert Meilaender
David Novak
Erik C. Owens
George H. Ryan
Antonin Scalia
Paul Simon
Glen H. Stassen
Michael L. Westmoreland-White
Beth Wilkinson

Product Details

ISBN-13:	9780802821720
Publisher:	Eerdmans, William B. Publishing Company
Publication date:	08/06/2004
Series:	The Eerdmans Religion, Ethics, and Public Life Series (EREPLS)Series
Pages:	318
Product dimensions:	6.14(w) x 9.21(h) x 0.44(d)

Read an Excerpt

RELIGION AND THE DEATH PENALTY

A Call for Reckoning

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William B. Eerdmans Publishing Company

Copyright © 2004 Wm. B. Eerdmans Publishing Co.
All right reserved.
ISBN: 0-8028-2172-3

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Chapter One

Catholic Teaching on the Death Penalty: Has It Changed?

AVERY CARDINAL DULLES, S.J.

Until at least the middle of the twentieth century it was generally agreed in the Catholic Church that the state had the right, and sometimes the duty, to impose the death penalty for certain heinous offenses. This teaching seemed to have an adequate foundation in Scripture and was the common doctrine of the Fathers and Doctors of the Church, including the two great Doctors of the West, Augustine and Thomas Aquinas. Pope Innocent III, early in the thirteenth century, made acceptance of this doctrine a condition of reconciliation with the Church for certain heretics, who denied the doctrine. They were required to subscribe to the following proposition: "The secular power can, without mortal sin, exercise judgment of blood, provided that it punishes with justice, not out of hatred, with prudence, not precipitation." After the Second World War, Pius XII clearly supported the death penalty in addresses to jurists and doctors. The same position was affirmed by the Catechism of the Council of Trent (the Roman Catechism) and many other catechisms, manuals of theology, reference works, and the like. The view that capital punishment was legitimate was clearly dominant.

The death penalty was judged to fulfill the purposes of punishment, which were often enumerated as the following four:

1. Retribution. When the justice has been grossly violated, the restoration of due order may require that the offender be deprived of the good of life itself. The primary biblical texts referred to were Genesis 9:5-6 and Romans 13:1-4, both of which emphasize this retributive aspect.

2. Defense of society against the criminal. The death of criminals is the surest guarantee that they will not be able to commit further crimes.

3. Deterrence. Where administered in a timely fashion and on a regular basis, the death penalty appears to deter others from committing serious crimes.

4. Rehabilitation. Although execution does not of course reintegrate offenders into society, it prevents hardened criminals from spiritually harming themselves by further sin. The prospect of imminent execution is a powerful inducement to repentance and reconciliation with God, as many accounts of ministry to convicts on death row attest.

A small but increasing number of Catholic theologians have opposed the death penalty, especially since World War II, perhaps because of the notorious abuses of criminal justice in the death camps of Nazi Germany and Stalinist Russia. Nevertheless the first edition of the Catechism of the Catholic Church, published in 1992, reiterated the classical position. It stated:

... the traditional teaching of the Church has acknowledged the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty. (2266)

The next article added a cautionary note:

If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should 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. (2267)

Pope John Paul II in his encyclical Evangelium vitae (1995) expressed a slightly different point of view. After stating that public authority must impose adequate penalties for the purposes of defending public order, ensuring people's safety, and offering the offender an opportunity to be rehabilitated, the Pope added:

It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not to 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. (56)

As a result of this statement the Catechism of the Catholic Church was revised. Paragraph 2266 was amended in the 1997 edition by omitting the phrase "not excluding... the death penalty." The next paragraph was altered to read as follows:

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 with 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 definitively 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 non-existent." (CCC 2267, quoting EV 56)

On a visit to St. Louis in January 1999, the Pope went even beyond his previous statements by characterizing the death penalty as "both cruel and unnecessary."

In accordance with the Pope's declarations and the new wording of the Catechism, the American bishops have published a number of statements advocating a moratorium on, if not the total abolition of, the death penalty. In November 2001, the United States Conference of Catholic Bishops issued a lengthy "Pastoral Plan for Pro-Life Activities," containing three paragraphs against the death penalty, in which a number of quotations were made from Evangelium vitae and the Catechism of the Catholic Church. Besides making doctrinal pronouncements, the Pope and the U.S. bishops have regularly pleaded for clemency in the case of criminals being executed, including the notorious case of Timothy McVeigh in the spring of 2001.

Prima facie, then, it would seem that the Catholic teaching on the death penalty has changed from approval in the past to disapproval in the present. What was previously seen as licit or even mandatory is now seen as forbidden.

The reversal of a doctrine as well established as the legitimacy of capital punishment would raise serious problems regarding the credibility of the magisterium. Consistency with Scripture and long-standing Catholic tradition is important for the grounding of many current teachings of the Catholic Church; for example, those regarding abortion, contraception, the permanence of marriage, and the ineligibility of women for priestly ordination. If the tradition on capital punishment had been reversed, serious questions would be raised regarding other doctrines.

It might be contended that the tradition on capital punishment, unlike some of the other subjects just mentioned, is not infallible and is therefore reversible. Granting but not conceding this point, one might ask what would be needed to reverse it. I believe that competent authority would have to declare that the previous teaching was in error and to show by arguments from reason or revelation why the new doctrine is superior. But Pope John Paul II and the bishops have not said a word against the tradition. In fact, they have appealed to the tradition in proposing their doctrine on capital punishment. From this I conclude that their teaching ought to be understood, if possible, in continuity with the tradition, rather than as a reversal.

If, in fact, the previous teaching had been discarded, doubt would be cast on the current teaching as well. It too would have to be seen as reversible, and in that case, as having no firm hold on people's assent. The new doctrine, based on a recent insight, would be in competition with a magisterial teaching that has endured for two millennia - or even more, if one wishes to count the biblical testimonies. Would not some Catholics be justified in adhering to the earlier teaching on the ground that it has more solid warrants than the new? The faithful would be confronted with the dilemma of having to dissent either from past or from present magisterial teaching.

It may not be necessary, however, to choose between the classical doctrine and the contemporary teaching. In the theological literature, there seem to be at least three interpretations of the current teaching in relation to the tradition. The first school, which may be called abolitionist, maintains that the Church has reversed its earlier teaching, since it now forbids public authorities from ever inflicting the death penalty as a punishment. Commentators of a second school hold that the Pope and the revised Catechism are developing and refining Catholic teaching. They admit the power of the state to execute dangerous criminals, but only in cases in which the physical protection of society requires it. A third school of interpretation contends that the encyclical and the Catechism, while leaving the traditional doctrine unchanged, express the prudential judgment that it would be better not to practice capital punishment in countries like the United States today, for reasons that I shall later attempt to summarize.

The first school of interpretation is exemplified by E. Christian Brugger, a professor at Loyola University of New Orleans. He declares that the Catechism is laying the theoretical ground for a change (not "development" precisely understood) in the Church's teaching. Although the Church previously taught that the state could and even should intentionally inflict death as a punishment, this teaching is now seen to be invalid. The death penalty is acceptable only under the rubric of self-defense. Brugger maintains, in fact, that in defending itself society may not intend to kill the malefactor, but only to render the malefactor incapable of causing harm. On this theory, the death of the aggressor would only be an unintended consequence of self-defensive action. It would not be intended as a punishment.

I personally believe that this is an extreme and erroneous interpretation of the encyclical and the Catechism. Neither rules out all intentional killing. The Pope in Evangelium vitae lays down the principle: "The direct and voluntary killing of an innocent human being is always gravely immoral" (57). If he had wanted to teach the doctrine proposed by Professor Brugger, he would have omitted the word "innocent" in that sentence. It is also important to distinguish between the object and the motive of an act. One will not find in the teachings of the Pope or the Catechism the idea that it is never legitimate to kill another human being intentionally. Whenever capital punishment is warranted, however rarely this may be the case, the intention of the executioner is certainly to kill the criminal, who has lost the right to life.

The second school of doctrinal revisionism proposes a more moderate thesis. It contends that whereas several ends of capital punishment were previously acknowledged, only one end (the physical protection of society against the criminal) is now admissible. The other ends (retribution, deterrence, and rehabilitation) do not by themselves warrant the death penalty. This is indeed a plausible reading of the two documents I have cited but, if correct, it would involve a partial reversal. Besides, it may not take sufficient account of the retributive aim of punishment. In Evangelium vitae the Pope approvingly quotes the Catechism as saying, "The primary purpose of the punishment which society inflicts is to redress the disorder caused by the offense" (EV 56, quoting CCC 2266). On this basis the Pope asserts: "Public authority must redress the violation of personal and social rights by imposing on the offender adequate punishment for the crime" (EV 56). Punishment, he then says, is not adequate unless it defends public order and ensures people's safety, while at the same time offering the offender the opportunity to change for the better.

Since the documents we are examining say that punishment, to be adequate, must defend the public order, it is necessary to inquire what they mean by public order. The Catechism answers the question to some extent when it states, in another context, that public order ought not to be conceived in a positivist or naturalist manner as mere physical protection but as including legal principles in conformity with objective justice (CCC 2109). A careful interpreter of Evangelium vitae, Professor Steven A. Long, draws the conclusion that when the Pope speaks of the protection of society as legitimizing capital punishment, he has in mind much more than the mere physical safety against the criminal's behavior, but includes what Long calls "the somber efficacy of transcendent moral sanctions in social life," which may require execution as a penalty proportionate to the wickedness of the crime. To interpret the Pope as meaning only defense of the community against bodily harm, according to Long, is a "reductionist reading." Thus the second school of interpretation, as well as the first, may be contested.

Let us turn, therefore, to the third school of interpretation, with which I associate myself. It holds that the Pope and the revised Catechism, without rejecting the traditional doctrine, render a prudential judgment that, under present circumstances in countries like the United States, cases in which the death penalty is justified are extremely rare, if not non-existent. But it can be legitimate if required to defend society either physically or morally against the dangers that would arise if capital punishment were not used. Although the classical teaching of the Church was correct, the application of the death penalty is held to be undesirable in a society like our own, because of circumstances that would render the application harmful. As reasons for militating against capital punishment one might list the following:

1. The inequitable application of the death sentence by courts and juries that are prejudiced against blacks and other minorities.

2. The inability of poor and uneducated clients in many cases to obtain adequate legal counsel.

3.

Continues...

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Table of Contents

	Series Foreword	viii
	Foreword	x
	Preface	xiii
	Contributors	xvi
	Religion and Capital Punishment: An Introduction	1
I	Faith Traditions and the Death Penalty
1.	Catholic Teaching on the Death Penalty: Has It Changed?	23
2.	Can Capital Punishment Ever Be Justified in the Jewish Tradition?	31
3.	The Death Penalty: A Protestant Perspective	48
4.	Punishing Christians: A Pacifist Approach to the Issue of Capital Punishment	57
5.	The Death Penalty, Mercy, and Islam: A Call for Retrospection	73
II	Theological Reflections on the Death Penalty
6.	Categorical Pardon: On the Argument for Abolishing Capital Punishment	109
7.	Biblical Perspectives on the Death Penalty	123
8.	Christian Witness, Moral Anthropology, and the Death Penalty	139
9.	Human Nature, Limited Justice, and the Irony of Capital Punishment	158
10.	Responsibility, Vengeance, and the Death Penalty	195
III	Personal Commitments and Public Responsibilities
11.	The Death Penalty: What's All the Debate About?	213
12.	Reflections on the Death Penalty and the Moratorium	221
13.	God's Justice and Ours: The Morality of Judicial Participation in the Death Penalty	231
14.	Why I Oppose Capital Punishment	240
15.	Capital Punishment: Is It Wise?	248
16.	Facing the Jury: The Moral Trials of a Prosecutor in a Capital Case	254
17.	The Problem of Forgiveness: Reflections of a Public Defender and a Murder Victim's Family Member	264
	Afterword: Lifting New Voices against the Death Penalty: Religious Americans and the Debate on Capital Punishment	277
	Index	283

Editorial Reviews

Journal of the American Academy of Religion
"Religion and the Death Penalty: A Call for Reckoning is a welcome chorus of voices informed by religious faith on one of the most important questions of our time."

The Christian Century
"Offers much to extend and challenge thinking about capital punishment. . . I brought away . . . the humbling realization that Christians hardly have the last word in terms of complex moral reasoning."

Thomas C. Berg
"The deepest issues about the morality of capital punishment are religious in nature, and anyone seeking to understand the debate should consult this book. It contains a wide-ranging set of reflections from a remarkable group of contributors — leading theologians of America's three major faiths, prosecutors and defense attorneys, governors on both sides of the debate, and a Supreme Court justice."

Richard Cizik
"Every evangelical in America should read this extraordinary and compelling contribution to the death penalty debate. I recommend this book without reservation. It challenged my own thinking in ways that nothing else has in years."

Bill Delahunt
"Searching for the truth is a fallible process. The criminal justice system relies on human beings as judges, jurors, police officers, eyewitnesses, defense attorneys, and prosecutors — and all are liable to making mistakes. As a prosecutor for over twenty years, I have long pondered these issues and believe that our society must continue pursuing all efforts to minimize the possibility of error. The thoughtful and provoking essays in this book challenge us to reflect on the death penalty and to consider how we, as citizens, form our ideas of justice; they bring new insight into arguments that span a broad range of views, regardless of profession, politics, or faith. Collectively, these distinguished voices suggest that the debate over capital punishment reflects a broader societal demand to restore public confidence in the integrity of the American justice system as a whole."

Peter J. Gomes
"Informed public discussion of America's obsession with the death penalty is urgently needed, and particularly so among people of religious conviction. This collection goes a very long way toward meeting this need. We cannot afford to be without this resource in this critical conversation."

Robin W. Lovin
"Few issues engage both moral reflection and political choice as directly as the death penalty.Religion and the Death Penalty speaks clearly to both areas in the context of American religious diversity. At a time when the implementation of the death penalty is under intense scrutiny and public attitudes are rapidly changing, these essays focus the moral, legal, and religious questions in the words of people who are familiar with the hard choices."

James J. Megivern
"Religion and the Death Penalty: A Call for Reckoning is a truly unusual book that more than lives up to its title. Its seventeen essays present a fuller spectrum of ideas and positions on religion and the death penalty than can be found anywhere else today. Its special value is that it turns the spotlight on so many of the central issues and lets articulate protagonists and antagonists calmly lay out their arguments at length. For anyone seriously struggling with the religious implications of the complex problems involved with capital punishment, this book presents a unique intellectual challenge. Incompatible positions are argued back-to-back, forcing honest readers to sharpen their own reasons for accepting or rejecting basic points. Wherever one comes out personally, working through the content of this book is bound to leave one with a more nuanced and a better-informed appreciation of what the debate is all about and why it is so important. If this volume were made required reading for all who addressed the issue publicly, the level of discourse would be much elevated. This is indeed 'a call for reckoning' well worth answering. Both the contributors and the publisher are to be commended for promoting a deeper discussion of the intersection of religion and the death penalty, freeing the debate from many of its irrelevancies, and thus bringing more sharply into focus the real issues. It could hardly arrive at a more timely moment in the national conversation."

Viginia E. Sloan
"In my many years of experience fighting the injustices of the death penalty, I have worked closely with people who support capital punishment and with those who oppose it. This book thoroughly captures the complexity of this contentious and emotional issue. Its fascinating and compelling essays move the conversation beyond the usual political rhetoric. Through their religious dimension, these essays pose urgent questions that policy experts, legislators, and citizens alike must grapple with. This is essential reading for anyone who cares about justice in our society."

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