On the Threshold

A Presentation to the Edmonton Mennonite-Catholic Dialogue

Glen Argan | 30 November 2018

‘Morning by morning I will destroy all the wicked in the land.’ (Psalm 101.8)

‘Do not resist an evildoer. But if anyone strikes you on the right cheek,
turn the other also.’ (Matthew 5.39)

Although the death penalty is no longer employed in the vast majority of the once-Christian nations of North and South America, Europe and Central Asia, capital punishment remains a matter of lively debate among Catholics in the United States where twenty-three people were executed in 2017. Belarus was the only other country in those regions to carry out executions last year. In Canada, the last state-sanctioned execution took place almost sixty years ago. Worldwide, 993 executions occurred in 2017 in twenty-three countries with China, Iran, Saudi Arabia, Iraq and Pakistan carrying out the largest numbers. As well, Amnesty International reports that 21,919 people were known to be on death row at the end of 2017.[i]

The advice the Catholic Church has given to government authorities on capital punishment has undergone a 180-degree shift over the last century, particularly within the last 40 years. From an easy permissiveness toward use of the death penalty, the Church has moved to Pope Francis’ unequivocal statement of October 2017 that the death penalty is “contrary to the Gospel.” That papal statement led to changes to the Catechism of the Catholic Church, announced in August 2018. “The death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,” the Catechism now states, adding that the Church “works with determination for its abolition worldwide.” (n. 2267)[ii]

It was not always thus. Yet, a look at the history of Catholic reaction to the death penalty supports the notion that the Church did not so much formally “teach” support for capital punishment as accept it as an unquestioned reality. When the Church began to seriously examine the ethics of the death penalty in the mid-twentieth century, it moved somewhat quickly to a denunciation of the practice.

Although the Catechism claims that, in relation to torture, “the Church always taught the duty of clemency and mercy,” (n. 2298) the truth of that statement depends on one’s definition of “teaching.” The Catholic Church made no formal pronouncements on the death penalty per se prior to the Roman Catechism of 1566, but freely engaged in the execution of “heretics” and advised secular rulers of their duty to execute certain types of criminals for centuries prior to the Reformation. The pope himself served as ruler over the Papal States – where the death penalty was carried out – until they were surrendered to Italy in 1870. If the Church “taught” clemency, it did not always follow that teaching. Restricting the Church’s teaching to its formal pronouncements seems too narrow a definition of “teaching,” and so I will expand the definition to include the Church’s own actions and its encouragements to secular rulers. Unfortunately, the Catholic Church’s actions favouring and complicity with the death penalty were so widespread that I can here only give a sketchy overview of the Church’s manifold involvements in the execution of criminals and religious dissidents. Further, this paper borrows heavily from one source and is intended for discussion purposes only.

Early Church

Prior to the Christian Church becoming the state religion of the Roman Empire, churches were often used to provide sanctuary for criminals and dissidents fleeing from enforcers of the law. As well, prior to Constantine, Christians were the primary victims of capital punishment. Jewish Law, however, listed a long line of capital offences, including murder, blasphemy, idolatry, incest, pederasty, witchcraft and violation of the Sabbath. Despite that list, Jewish rabbis a century after the destruction of Jerusalem advocated the abolition of the death penalty. They apparently saw the Law as issuing an extreme warning about the seriousness of crime, a warning that need not be implemented.[iii] Still, once Christianity became the state religion, Gospel values were soon overwhelmed by Roman law, with Scripture used to buttress Roman legal provisions.

James Megivern, noting the Church’s long reliance on biblical literalism, sees the Bible as the most influential factor in creating widespread support for the death penalty. The two passages most frequently cited were Genesis 9.6: “Whoever sheds the blood of a human, by a human shall that person’s blood be shed,” and Romans 13.5: “If you do what is wrong, you should be afraid, for the [ruling] authority does not bear the sword in vain.”[iv]

It did not take long for Christians to revel in their new-found stature after the Edict of Milan (AD313) legislated religious toleration and returned stolen Church property, and Emperor Constantine’s subsequent patronage of the Christian Church. In 385-86, Priscillian of Avila and his followers were executed for their doctrinal differences despite the opposition of Pope Siricius, Martin of Tours and Ambrose of Milan. Sixty years later, Pope Leo the Great looked back on the executions and gave them his stamp of approval.[v] Augustine of Hippo, the greatest of the Church Fathers, accepted the use of coercion against dissidents and non-believers, but also advocated tempering the rigour of justice with clemency. While he opposed Christians killing others in self-defence, Augustine allowed for the state’s use of the death penalty. His views were influential throughout the Middle Ages, although his emphasis on clemency was rarely cited.[vi]

 

Middle Ages

The first instance of heresy being treated as a capital offence came in 1022 against a French group which claimed direct inspiration from the Holy Spirit. However, as other heresies arose, the Church emphasized sparing the lives of the dissidents in case they might repent. In some instances, heretics were slain by mob violence against the expressed will of the local bishop.[vii] In other cases, the rise of zealous movements for spiritual renewal in the Church also included violent suppression of those with unorthodox views. Another more worldly concern – the defence of Church-owned lands from Norman invaders – led to Pope Leo IX raising his own militia and leading them into battle in 1053. The rise of the “warrior-pope” helped set the stage for the First Crusade (1095-99) in which the traditional Christian reluctance to shed blood was seriously eroded. For centuries afterward, Christians uncritically accepted the Crusades as a morally acceptable response to Muslim occupation of the Holy Land.[viii]

The first statement that the Church might favour the use of capital punishment in some instances came in response to the Waldensians, a group which arose in the 1170s practising penance and voluntary poverty. Early pronouncements against them made no mention of opposition to capital punishment on their part, but when provision was made for them to rejoin the Church in 1210, Pope Innocent III required them to sign an oath which accepted the right of secular justice to impose the death penalty.

By the time Thomas Aquinas wrote his defence of capital punishment in the mid-thirteenth century, the issue was no longer open for debate. Opponents of capital punishment were treated as heretics, and violence was extensively used by both Church and state. St. Thomas’ own brother had been executed along with several others for conspiring to kill the emperor. Whether these factors had a chilling effect on Aquinas’ own teaching is unknown, but his faulty arguments were nevertheless uncritically accepted and widely dispersed for the next seven centuries.

Aquinas taught that sin disturbs the order within the self, society and with God. This called for three forms of punishment – one inflicted by the person (remorse), another by society and the third by God. While he maintained that punishment is defensible only to the extent that it restores some violated order, he viewed the criminal as analogous to a human limb filled with gangrene which can infect the rest of the body. The solution to this problem is amputation. Aquinas’ analogy, according to Megivern, said nothing about due proportion, limits and the possibility of abuse in the application of punishment nor about using the death penalty as only a last resort. The gangrene model implied that the common good always takes precedence over individual rights.[ix]

 

Post-Reformation

Pope Pius V (1566-72) was zealous in implementing the reforms of the Council of Trent which followed the Protestant Reformation. He campaigned against witchcraft, adultery and the sheltering of criminals. He abolished the right of sanctuary, stating, “justice must be able to lay its hands upon the guilty everywhere.” Pius also served as judge in at least one trial, convicting the accused of bribery, deception and possible heresy and sentencing him to death, a penalty which was promptly carried out.[x]

Under Pope Pius’ watch, the Roman Catechism was approved, which described capital punishment as a form of “lawful slaying [which] belongs to civil authorities.” The death penalty was treated as an act of obedience to the Fifth Commandment as it helped to preserve human life. As well, the tradition had been long established that clergy were not to be involved in carrying out the death penalty.

In the same period, Robert Bellarmine wrote his book, The Art of Dying Well, in which he maintained that the condemned man’s suffering and repentance served to rehabilitate him. His piety transformed his execution into a form of expiation which would win him a place in heaven. Bellarmine’s so-called celestial-security argument gave the horrendous outpouring of blood in the sixteenth century an exalted meaning and perhaps helped to salve the consciences of secular rulers who found the death penalty distasteful. Odd as it may seem, Bellarmine’s argument became a standard fixture in Catholic theology manuals until the mid-twentieth century.[xi]

The sixteenth century was notable, along with the massive bloodshed of the so-called wars of religion, for the Church’s unrestrained use of the death penalty. In but one example, when Pope Sixtus V resolved to end the plague of banditry in Rome and the Papal States, more than 7,000 bandits were executed in 1585 with their heads left exposed on a Roman bridge. As well, the killing of witches by both Catholics and Protestants reached its height in the sixteenth century, with estimates of the number of dead ranging from 200,000 to 500,000 and higher over several centuries. Over a seven-year period (1587-93), 368 people were burned to death for sorcery in 27 villages in the Trier Diocese. The Spanish Inquisition put roughly three thousand people to death between 1550 and 1800. The general acceptance of the death penalty readied the way for its export to Spanish colonies where thousands of Aztecs who committed human sacrifices were executed to demonstrate that human sacrifice was morally wrong.[xii]

With the Reformation, voices of dissent against the death penalty began to arise. Mennonites on the continent repudiated violence and bloodshed in their efforts to restore the New Testament Church. Later, Quakers in England came to oppose all forms of violence, including capital punishment. Their stances troubled other Christians who felt the acceptance of the death penalty compromised the Gospel.[xiii]

The rejection of religion during the Enlightenment included a rejection of the death penalty. The erosion of belief in an after-life put an added value on life in this world; capital punishment was not seen as having redemptive power, and atheistic thinkers rejected the penalty for its cruelty. Within the churches, however, support for the death penalty was seen as implied by one’s belief that death does not have the final word.[xiv]

 

Twentieth Century

The loss of the Papal States in 1870 meant the Catholic Church was no longer involved in temporal government, including the administration of punishment. It temporarily opened the door for theologians to rethink the death penalty, a door that was slammed shut with the repression of Modernism beginning in 1907. The door reopened a crack in 1943 with Pope Pius XII’s encyclical Divino Afflante Spiritu which allowed for limited use of historical-critical methods of studying the Bible. Catholic biblical experts were freed from the fundamentalism which had constrained them to understand Old Testament texts supporting the death penalty as though they were statements of eternal truth. A second 1943 encyclical, Mystici Corpus Christi, raised questions about the nature of the Church and made it possible for Catholics and Protestants to dialogue and learn from each other.[xv]

Pope John XXIII’s encyclical Pacem in Terris (1963) affirmed the dignity of the human person and inviolable human rights. Those affirmations undermined the legitimacy of Aquinas’ argument that human beings could be amputated from society as though they were a form of gangrene. The Second Vatican Council (1962-65) taught that the Church is a sign of and an instrument for the unity of humanity. (Lumen Gentium) These points were central in another council document (Gaudium et Spes) where the Church was also seen as a witness to human dignity and defender of the human person. Such affirmations did not square with the Church’s support for capital punishment. Nor did the teaching of the Declaration on Religious Freedom that the Church has always (?) taught that no one can be coerced into believing.[xvi]

Following the council, Church leaders had to confront new realities which challenged the longstanding support for capital punishment:

• The new emphasis on inalienable human rights.
• The inconsistency of the Church’s strong opposition to abortion with its support for the death penalty.
• Empirical studies which found little, if any, credibility to the long-accepted belief that the death penalty was an effective deterrent to crime.
• The clear bias in the United States toward executing murderers who were poor and black.

 

American Influence

U.S. bishops increasingly began to call for or hope for an end to the death penalty, and their statements dropped all references to the right of the state to kill. In 1972, the bishops of Indiana became the first bishops’ conference to state clearly that it opposed capital punishment. In 1974, the National Conference of Catholic Bishops considered and rejected a lengthy statement opposed to capital punishment. But the conference did approve a one-sentence motion opposing use of the death penalty.[xvii]

Two years later, the Pontifical Commission for Justice and Peace responded to a U.S. request to clarify Church teaching. The commission stated that the Church has never directly addressed the right of the state to carry out the death penalty and that recent popes had emphasized the rights of the person and the medicinal role of punishment.

Finally, in 1980, the NCCB issued a statement, urging all Americans to support abolition of capital punishment, even while it continued to recognize the right of the state to take the life of a person convicted of an extremely serious crime. Abolition, they argued, would promote values important to Christians and to secular society:

• It would send a message that the cycle of violence can be broken and that violent crime can be more effectively dealt with by means other than execution.
• It would manifest a belief in the unique worth and dignity of each person.
• It would witness to the belief that God is the Lord of life.
• It would reflect the example of Jesus who taught and practised the forgiveness of injustice and who came to give his life as a ransom for many.[xviii]

Such reasons would seem to imply that the state does not have the right to execute criminals.

 

Recent History

In 1983, Pope John Paul II became the first pope to speak in favour of clemency and mercy for those condemned to death. On numerous occasions, he and his successor, Pope Benedict XVI, directly intervened in particular cases, asking that the death penalty not be carried out. However, in 1992, the Catechism of the Catholic Church was released with a section on the death penalty which replayed many of the arguments used in favour of capital punishment. Yet, its key paragraph, 2267, did state that bloodless forms of punishment should be employed if they are sufficient to protect public order and human life.

Three years later, Pope John Paul issued his encyclical Evangelium Vitae which turned the tide on Church teaching. Growing public opposition to the death penalty is a sign of hope, he wrote. (EV 27) Further, punishment “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, the pope said, “such cases are very rare if not practically existent.” (EV 56)

The papal encyclical and later revisions to the Catechism do not suggest that the death penalty is intrinsically wrong, only that modern states should not employ it. As such, the changes are often understood in the Catholic context as a development of doctrine, rather than a full-scale “change.” Whether that position can still be held with the most recent changes called for by Pope Francis is another matter.

 

Development of Doctrine

In an August 3, 2018 article by the Catholic News Agency,[xix] Father Thomas Petri, a moral theologian and the vice president and academic dean of the Pontifical Faculty of the Immaculate Conception at the Dominican House of Studies in Washington, D.C., asked what doctrine has developed or changed. The Church’s prior teaching on state authority, punishment, the dignity of the human person and mercy all remain in place, Petri stated. What has changed is that Pope Francis has made mercy and human dignity the guiding principles for examining the legitimacy of capital punishment.

Edward Feser, a proponent of the death penalty, maintains that the pope has changed the Church’s teaching and that the change is illegitimate. “In a move that should surprise no one, Pope Francis has once again appeared to contradict two millennia of clear and consistent scriptural and Catholic teaching,” he acidly remarked.[xx] The Church’s previous support for capital punishment is an “infallible and irreformable teaching,” Feser wrote. “If capital punishment is wrong in principle, then the Church has for two millennia consistently taught grave moral error and badly misinterpreted scripture. And if the Church has been so wrong for so long about something so serious, then there is no teaching that might not be reversed.”

If Feser is correct, it will be the obligation of the next pope to reverse Pope Francis’ teaching on the death penalty.

However, decades ago, a prominent conservative moral theologian and abolitionist, Germain Grisez, anticipated Feser’s argument and maintained that Catholic support for the death penalty has not been infallibly presented. In fact, “the received position” seems to have been taken for granted, rather than proposed as one to for the faithful to accept as certain. “It is hardly possible to see how the use of the death penalty can be reconciled with Christian conceptions of human dignity and the sanctity of every human life,” Grisez wrote.[xxi] “It seems that Catholic teaching on capital punishment can develop, just as Catholic teachings on coercion in matters of religion and on slavery have.”[xxii]

Megivern’s history would seem to support Grisez’s contention. Catholic “teaching” on the death penalty is something that the Church unthinkingly stumbled into as a result of forces at work at various points in history. Once the Church began to become free of its cultural captivity and started to discern what stand it ought to take on the morality of the death penalty, it moved inexorably toward the position so recently stated by Pope Francis.

Endnotes

[i] All figures are taken from Amnesty International, The Death Penalty in 2017: Facts and Figures, https://www.amnesty.org/en/latest/news/2018/04/death-penalty-facts-and-figures-2017/. (Accessed November 8, 2018.)

[ii] New Revision of Number 2267 of the Catechism of the Catholic Church on the Death Penalty, http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20180801_catechismo-penadimorte_en.html. (Accessed November 8, 2018.)

[iii] James J. Megivern, The Death Penalty: An Historical and Theological Survey, (New York: Paulist Press, 1997), 11. The historical portions of this paper rely almost exclusively on Megivern’s thorough account of the history of the death penalty in the Catholic Church.

[iv] Megivern, 14-19.

[v] Megivern, 30.

[vi] Megivern, 45, 53.

[vii] Megivern, 56-59.

[viii] Megivern, 62-67.

[ix] Megivern, 112-18.

[x] Megivern, 150-51.

[xi] Megivern, 160.

[xii] Megivern, 178-92.

[xiii] Megivern, 197-98.

[xiv] Megivern, 211-14.

[xv] Megivern, 255-89.

[xvi] Megivern, 290-93.

[xvii] Megivern, 340-49.

[xviii] Bishops’ Statement on Capital Punishment, 1980, http://www.usccb.org/issues-and-action/human-life-and-dignity/death-penalty-capital-punishment/statement-on-capital-punishment.cfm. (Accessed November 8, 2018.)

[xix] Catholic News Agency, “Pope Francis and the death penalty: a change in doctrine or circumstances?” https://www.catholicnewsagency.com/news/pope-francis-and-the-death-penalty-a-change-in-doctrine-or-circumstances-39898. (Accessed November 8, 2018.)

[xx] Edward Feser, “Pope Francis and Capital Punishment,” First Things, August 3, 2018. https://www.firstthings.com/web-exclusives/2018/08/pope-francis-and-capital-punishment. (Accessed November 8, 2018.)

[xxi] Germain Grisez, The Way of the Lord Jesus, Vol. 2, Living a Christian Life, (Quincy, Il., Franciscan Press, 1993), 893.

[xxii] Grisez, 894.