Just Punishment and the Death Penalty

A hermeneutic of continuity or a hermeneutic of rupture

In a 2014 address to representatives of the International Association of Penal Law, Pope Francis announced his crusade for abolishing capital punishment world-wide. His march would continue until August of this year when he ordered a revision to Catechism paragraph 2267 deeming the death penalty “inadmissible.” While a change to the changeable Catechism cannot constitute a formal change to unchangeable Tradition, it does change the teaching in an informal way. An informal change can be just as effective as a formal change because many Catholics come to believe it and live according to it. Contraception is a good example of this in practice. While the Church formally teaches that contraception is intrinsically evil, rarely is this truth proclaimed — leading to fewer of those who believe it and live it. The death penalty issue is likely to see a similar fate.

The Pope did not stop with a call for an end to capital punishment but went even further, declaring that life imprisonment is a “hidden death penalty” and should likewise be abolished. One might be inclined to dismiss this as unrealistic, thinking that the Pope simply got carried away. But in truth it follows as a logical consequence from the abolition of capital punishment. And more importantly, albeit in a negative way, the call shows why abolition of the death penalty, at least as a possibility, is impossible.

To grasp why this is so, we must first examine why punishment in general is necessary. The primary purpose of punishment is the re-establishment of justice. Justice is restored when an offender “pays his debt” through the currency of a proportionate punishment. The other two ends, both of which are subordinate to the primary end, are medicinal and societal. The punishment must be chosen such that it is ordered to the correction of the offender. Likewise, it also serves a social function by acting as a deterrent and isolating the offender to protect the common good (c.f. CCC 2266).

Despite the shift in rhetoric away from “capital punishment” towards the “death penalty,” capital punishment should serve these three ends. Its primary purpose is not, as the Pope seems to imply, protection of the common good. The primary purpose is to serve retributive justice through the imposition of a proportional punishment. The reason why this principle trumps protection of the common good is because among those goods that comprise the common good, justice is included (perhaps even primary). The state, whose role it is to protect and promote the common good, is the competent authority to determine what constitutes a proportional punishment.

The principle of proportionality is key to understanding why the Church has always taught that the state should, at least in principle, even if circumstantially rare in practice, have recourse to the death penalty. To remove it as a possible punishment ultimately destroys the principle of proportionality. This is best grasped by looking at an example. Suppose two prisoners have confessed to their crimes—one a serial killer who meticulously killed dozens of people and the second a repeat rapist. Both crimes are heinous but do not carry the same moral gravity. Yet, both receive a life sentence despite the obvious difference in gravity. When the mass murderer gets only life imprisonment, then this suggests that the rapist, who “at least didn’t kill someone,” should get less. This tends towards an arbitrariness in punishment as the logic plays out and punishments are no longer proportional.

Now we see why the Pope’s push to also abolish life imprisonment is a logical consequence of his push to abolish the death penalty. Once that is taken off the table, proportionality as a principle is destroyed, which leads to injustice and ultimately harms the common good — the very principle he claims should remain untouched by the change. In effect, he advocates abolishment of just punishment. The “revised” paragraph 2267 now contradicts paragraph 2266 paraphrased above by admitting that punishment no longer need be proportional. The “Seamless Garment” approach to Catholic morality ends up unraveling the seamless garment of the Faith.

To say that the Pope is wrong might, at least at first, seem like the height of hubris. Until, that is, we remember that the Pope, as the Vicar of Christ, speaks with one voice throughout history. Either way, the Pope is wrong. Either Christ’s Vicars throughout history (including Pius V and his Catechism of the Council of Trent, Pius XII, John Paul II, Benedict XVI, and all the popes who, as head of the Papal States, exercised their right and duty in executing criminals as a means of retributive justice) are wrong or this pope is wrong. It is simply a matter of subscribing to the hermeneutic of continuity or the hermeneutic of rupture.

And now we see why this issue is about more than simply whether or not capital punishment should be applied. It ends up being an attack against the Faith, and for that reason it is important that we fully grasp the implications of a change, not just in practice but in principle.

 

 

Rob holds an MA in Theology from Holy Apostles College and Seminary, with a concentration in moral theology. He has a passion for spreading the joy of the Catholic Faith through teaching and writing.

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