Whenever I read stories like this

Pope Benedict: End the Death Penalty

And watch American Catholics who are death penalty maximalists labor with might and main to ignore it as “Benedict’s prudential judgment” while also laboring to ignore the fact that he is simply applying the normative teaching of the Church here:

CCC 2267: “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 are more in conformity to 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 definitely 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.”

…I am reminded of Zippy Catholic’s sound summary of how huge numbers of American Catholics function whenever the Church teaches something they don’t want to hear or think about:

Prudential judgement is to right-liberals what primacy of conscience is to left-liberals.”

When it comes to Evangelium Vitae on the death penalty, an awful lot of Catholics on the right sound uncannily like Catholics on the Left discussing Humanae Vitae on contraception.

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  • Except for the fact that contraception appears to be an actual sin, while up until very recently, allowing for the death penalty was, well, allowed, even if it was heavily restricted. So those saying it should be allowed are simply saying it should be allowed, which appeared to be what was taught.

    BTW, I’ve asked this before. But do we have any data to support:

    ” 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”?

    I mean, do we know this is a fact? And since when did it become a fact? Is it true everywhere? In America only? Does it account for violence against prison workers or fellow inmates? What does it mean?

    • These are my concerns as well.

      There may be those death penalty maximalists out there, but they’re not speaking for me. I don’t care for their arguments. So, it’s not so much that I don’t want to listen to Pope Benedict XVI or blessed Pope John Paul II, but rather, I need to be able to intellectually see the truth that they’re speaking. That is, I need to be able to make the argument my own. And frankly, if a person like Dave G. asked these questions, I cannot merely rely on the authority of Pope Benedict or any other pope. My interlocutor may not be Catholic or Christian.

      Recently, Mark posted an email from a reader, Dan C. In it, Dan asked that we should be open to the thoughtfulness of Michael Sean Winters. I had a temptation to be snarky then, but it’s appropriate to post it now. Mr. Winters claimed to be opposed to the death penalty, but he cheered the death of Osama bin Laden. Up to this point, I had encountered quite a few people who would say, “I’m ordinarily opposed to the death penalty, but …” as rhetorical point to express a magnitude of evil that MUST CERTAINLY justify death. Of course, these are merely vague memories of being browbeaten by someone claiming to be __absolutely__ opposed to the death penalty, and then watching them turn around to express an exception. With Michael Sean Winters, the generalization of all these observations became concrete. So, I may nod politely when someone expresses that they are absolutely opposed to the death penalty, but I don’t believe them.

      Don’t get me wrong. I do not necessarily doubt the sincerity of a person who claims to be absolutely opposed to the death penalty. Most people don’t think these things through. Many people seem happy and content living their lives with contradictory principles. Some people are intellectually dishonest. Some people may have thought it through, but later encountered an emotional shock from which they express the exception. The motives don’t matter much. They’re all saying the same thing, “I’m absolutely opposed to the death penalty, but I have exceptions which will be determined later.”

      So when the authority of Pope Benedict or the CCC is brought up — “rare or none” — I agree. Rare the death penalty should be. It’s not a failure to listen closely. I am paying close attention, and I do want to be able to see things as the Church sees it.

      • MarylandBill

        I would point out that the killing of Osama Bin Laden was not an execution, it was by any reasonable definition, a state sponsored assassination.

        And I am against the death penalty in every case. I agree there might be cases where I would make an exception, which is why I would like it banned completely to remove that temptation.

    • MarylandBill

      Do people, who really argue for the Death Penalty, really argue that it should simply be allowed? In general it appears they are arguing that it should be used which is very different from saying it should be allowed.

      • It’s hard to say. Possibly both? In any event, if everyone argues to use the DP rather than just allow, it still doesn’t answer the questions about just where is the evidence that our prisons are suddenly perfect in protecting the innocent, and that includes the innocent’s ability to make peace with the Almighty before a sudden and unexpected violent death?

        • MarylandBill

          Asking our prison systems to be perfect is, in my opinion, a specious argument. Even criminals who have never committed a murder are potential murderers, so should we expand the death penalty to include all criminals? Just to make sure the justice system is “perfect” in protecting the innocent?

          As for your reference to innocents, that is an appeal to emotionalism. Murder is murder whether it involves an innocent or a drug kingpin.

  • ivan_the_mad

    One of the harder teachings of the Church to which I conformed myself recently was that of the legitimate use of deadly force regarding self-defense. As it turns out, the Church’s teaching is much more restrictive than many state laws. When you consider the Church’s teaching on war, an absolute last resort, the teaching on the death penalty seems, well, unsurprisingly consistent with everything else.

    • Mercury

      Ivan, can you please elaborate? I’m just curious – what part is so hard? I’m not at all being sarcastic, just wondering.

      • ivan_the_mad

        The part about necessary force. See, in Catholic teaching, when defending yourself, you can’t purposefully use lethal force. You use enough force to repel the attack. If that requisite force proves lethal, it’s double-effect – you weren’t trying to kill them, but it happened while using the necessary force to stop the attack. This is different than my state law, in which, as long you could reasonably show your life to be in danger, lethal force is justified, i.e. brandishing a knife at you was enough.

        • Mercury

          Are you saying a person can never shoot to kill? What if te only way to stop the attack is to shoot to kill? What if a woman, faced with a man trying to force himself on her, cannot run or beat him back, but has a gun? Where is the teaching on this, because I have read that if the only way someone can be stopped is to shoot and intentionally kill (aiming at the heart, for example), then the death is unfortunate but is legitimate.

          Are we to say that catching a man raping a woman, the only option is to try to remove him, then risk fighting him, at risk of both self and the woman? Or that if someone holds a knife in my face, I cannot use lethal force? If someone has a knife to someone’s throat, a policeman cannot shoot him in the head?

          What about soldiers? Can they only aim for the knees?

          • ivan_the_mad

            2263 The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing. “The act of self-defense can have a double effect: the preservation of one’s own life; and the killing of the aggressor. . . . The one is intended, the other is not.”65

            2264 Love toward oneself remains a fundamental principle of morality. Therefore it is legitimate to insist on respect for one’s own right to life. Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow:

            If a man in self-defense uses more than necessary violence, it will be unlawful: whereas if he repels force with moderation, his defense will be lawful. . . . Nor is it necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one’s own life than of another’s.66

            It seems pretty clear to me that in defending myself (or others, as the following sections of the CotCC go on to address) I am not to have as my goal the death of the other, much like the ectopic pregnancies. The reason the teaching was hard for me to accept was because I had led myself to accept a much lower standard for dealing a lethal blow, and that it was all right to have their death as a goal.

            As for soldiers in war, I think that’s covered under jus in bello, and is beyond my ken.

            • Mercury

              No, always regret the death, but in self-defense direct killing IS allowed if necessary (shooting at the heart in order to stop an assailant, cutting at an attacker’s throat with a knife), even if it is regrettable. The analogy to abortion is no good, since the fetus can never be directly killed for whatever reason, even when it would be regrettable.

              To say “I shot at his chest/slashed at his neck, but didn’t intend to kill him (as opposed to “I regret having to kill him, but I couldn’t otherwise save myself/someone else) seems to be mental gymnastics. Also, again, directly lethal force is legitimate in certain legitimate cases – shooting at the chest, for example. Lethal force can NEVER be used on a fetus, so the ectopic pregnancy analogy doesn’t fit, since that procedure does not strike at the child in any way.

              • Mercury

                And the catechism seems to make no room for the various situations that may involve firearms.

                • Mark Shea

                  Are you asking these questions for any purpose beyond (again) burdening yourself with a load of scruples and time-wasting worries about issues that don’t affect you in the least?

                  • Mercury

                    Perhaps. Thanks for calling me on it, though. 🙂

                    Some of it really is just really wondering. I’ve seen opinions all over the board on this, from “you can’t shoot someone trying to kill you with a knife” to “you can kill of he looks menacing”, to the contortionist position of “you can aim to kill as long as you don’t intend to kill.”

        • Mercury

          Actually, do you know of any sources written by professional moral theologians that treat this issue in detail? Germain Grisez gets into it a little, but he is vague, an in any event he is often at odds with other moralists, especially traditional Natural Law Thomists.

          On a semi-related note: Are we to believe Judith was a murder in the eyes of God for killing Holophernes?

        • Mercury

          Or what I no attack is actually in progress? Do you have to wait til a man shoots you or an innocent before firing back? When a cop says “put down the weapon” and is ignored, does he have to wait until the person actually fires? If someone is charging me with a blunt object, do I have to wait for him to swing? What if someone is merely aiming a gun or pointing a knife menacingly (in the latter we can assume the victim is weaker physically and would risk his life by trying to fight off te attacker)?

  • Mike

    Our prison and justice system is more than capable of protecting society (including other prisoners) from dangerous criminals. The fact that the system doesn’t always choose to do so is not an argument for the death penalty any more than “it might break down someday” is an argument against buying a new car.

    • So what you’re saying is it can be, but chooses not to be. How does that mean anything? We’re back to the innocent person not being protected, and it’s the ability to protect the innocent person that is the main reason that the death penalty is no longer needed, according to the passage above. Not to mention that such an argument would be scant reassurance to the family of a youngster killed by a criminal who just happened to fall through those cracks. A little more problematic than a car breaking down, wouldn’t you say? The question isn’t if in some ideal world of the sixth heaven all prisons are perfect so the death penalty isn’t needed. The question is, are the prisons perfect now? If not, then what does it even mean?

      • DTMcCameron

        I’m less concerned about prison’s being perfectly inescapable than I am…early parole and recidivism.

        • Anon

          In death penalty cases, I believe the choices for punishment are either death or life without chance of parole (correct me if there is an exception though) so parole and recidivism don’t apply to them really. To all other cases yes, a thousand times yes. But not with capital punishment.

        • Not even that, but what about violence done to other inmates? What about violence done to prison workers? What about cases where someone may get out through a loophole, or break out? I’m sure it’s happened. Did we get to a point where it no longer happens? Where is the evidence for that? Those are the questions I have because of the strong emphasis on this all being based on our system’s ability to perfectly protect the innocent.

    • “Our prison and justice system is more than capable of protecting society (including other prisoners) from dangerous criminals.” I do not believe that this is, in fact, true. When you have 10% of the prison population suffering sexual assault/rape by prisoners and staff, I think that you really need to provide evidence of your statement. It is in the lack of actual evidence that the statement above is true when the popes say very similar things that is at the heart of my wariness regarding their position. If a pope is factually wrong, his moral prescription for a world that does not actually exist is not binding. The problem is not in papal pronouncements on Christianity, but the accuracy of papal understanding of the US criminal justice system. When the latter is in error, the former will lead to poor policy that is not necessarily moral.

  • Michelle

    Just because something once was allowed is no argument that it should continue to be allowed for all time, despite the pleas of not just practically all Catholic bishops and many Catholic priests and religious, but also just about every human-rights activist around the world. After all, concerning another moral issue where a certain course of action was allowed for a while on God’s sufferance and then stopped, on the say-so of God himself, Jesus said, “For your hardness of heart Moses allowed you to divorce your wives, but from the beginning it was not so” (Matt. 19:8).

  • Chris

    My biggest issue with the elimination of capital punishment is that it ignores the expiatory dimension of suffering such a consequence for capital crimes. “Nothing focuses the mind like the scaffold”, or so it goes, and nothing atones for the crime of murder like offering God your own life as payment for that sin. I admit, I’ve gone back and forth on this issue. In general, I think capital punishment is unnecessary, but knowing the time and date of your own death can be a gift.

    Still, I must continue to try and conform my conscience to what Benedict and John Paul II have said about this issue.

  • jimby

    “When it comes to Evangelium Vitae on the death penalty, an awful lot of Catholics on the right sound uncannily like Catholics on the Left discussing Humanae Vitae on contraception.”

    I am glad you left this at the level of insinuation, Mark. I think actually making this case would be unfair.

    Considering your opinions on party spirit (we are discussing in above posts), it is especially ironic that you will not admit a host of more nuanced, less actionable party-marching-order arguments on the death penalty. For instance, one argument I have heard is to keep it on the books for emergencies, and have the judicial and executive branches do what they do, namely prevent and don’t ask for it except in such cases as they earnestly fear for the defense of the community. That seems to conform with the teaching very nicely, but yet it does not afford the look-at-me-I-am-consistent public notice that is so satisfying in the forum.

    • Mark Shea

      The Church already allows for keeping it on the books for emergencies. See the link on death penality maximalism. Dissenters don’t want that. They want the most executions possible and they actively dissent from the Magisterium on this. I’m not insinuating anything. I’m *saying* that maximalists are every inch the dissenters that contracepting Catholics are.

      • Yes, maximalists are dissenters if what they are attempting to do is create a maximum number of executions. It’s a little more complicated than that, however, because the current death penalty has been so tied up due to lawfare that its criminal signaling aspect is no longer optimally protecting the community.

        The idea that if you do a horrific crime then some time a couple of decades down the road you will be strapped to a gurney and killed via painless injection does not accomplish much in the way of scaring gang bangers who believe they won’t be alive in five years into not committing such crimes. Creating a fear of execution in the high propensity for crime population is a legitimate aspect of criminal justice. Let us call them the fear mongers. Fear mongers are not dissenters in the same way that maximalists are in my opinion.

        How would you tell the difference between fear mongers and actual maximalists? I confess that I can’t.

      • jimby


        You are *saying* but not *proving* your point, so forgive me if I conflate insinuation and unproven accusation. Who among Catholics is a maximalist? You cite links etc., but not Catholics, right?

        You are comparing crazies on the right to crazy cafeteria Catholics on the left. Do you have some proof, specifics, examples, links, to show that it is indeed a comparable group of cafeteria Catholics who are these maximalists. Since you spoke of them as cafeteria Catholics, I assumed you meant the Catholic “right wingers” who have some fairly nuanced and measured positions (in my experience–so please more details, names, links to Catholic maximalist cafeteria types), but my experience of Catholic right-wingers is more the attempt to secure some wiggle room (asking in obedience) for not fully eradicating the death penalty. Seems a far cry from the outright rebellion on life issues on the left.

        I did, in fact follow all of the links you listed, and they are either out of date (it was an older post) or obtuse. Here is a round up of my impressions:
        1) A link to people talking about you talking about maximalists.
        2) A link to a google search of some combox troll whose credentials as a Catholic are unverified–and my condolences if he has been one of your trolls. Dudley something was his name.
        3) A blog asking whether or not the Church teaching definitely condemned a particular case of capital punishment, with comboxers of various stripes and undemonstrated Catholic origin, mostly anonymous per force.
        4)A link to a Bible verse.
        5) A repeat of the previous link (#1 above) of someone talking about you talking about maximalism.

        My point is that you are drawing moral equivalencies between left and right within Catholicism in a ridiculous and unfounded manner. Please verify and fairly compare the left and right as equally rebellious in kind and number with facts, specifics, names, groups etc. Otherwise, beg off on the slap-dash generalities which allow you to avoid having to say one side is worse than the other and suffer the wrath that comes with that. Prove they are equally bad or stop slamming the conservative faithful Catholics.

        You claim the maximalists are just as bad as the rebels on the left, but you do not demonstrate their faith, their number, and you conflate the tenor of the so-called dissent, which I have ever seen in serious circles as asking questions for verification for certain wiggle room prudence like keeping it on the books or, the strongest I’ve seen, the likes of Scalia asking about the old tradition in First Things etc. But none of these people are maximalits in the mold of the caricature you’ve draw of people wanting minors to fry etc.–and that was your most misleading link, one that implied Catholics being all for minor-frying but which was merely some psycho of unknown faith tradition.

        You are being reckless. Why? Could it be that it is easier to condemn all alike rather than remain silent on certain subjects or have to go through the laborious task of admonishing people in a more orderly and fair way or having to risk the censure of those who, as you attempted to parse these matters out, might hate you for “taking sides”?

        • Mark Shea

          Yes. Catholics. In the link I provide, the arguments for death penalty maximalism were all quoted from dissent “faithful conservative Catholics”[TM] reader I have argued with who reject the Church’s teaching on the death penalty.

          • jimby

            One reader you’ve argued with who says he’s Catholic viz. a huge cafeteria Catholic establishment with enormous political and religious influence…and you call those two the “Right” and the “Left”.

            The specifics, once revealed, don’t–at least so far–add up to a just appraisal of the situation, Mark.

            If you make the case, and I am open to hearing it, you’ll need to do much more than generalized slamming and arguments about Left and Right both being equally bad. It is misleading, dispiriting, and an indulging in waxing rhetorical wrath.

  • tz

    Prudential Judgment typically applies when there can be a conditional evil to prevent a greater, typically intrinsic evil, which under a very narrow navigation between the Charybdis of commission and the Scylla of omission can be licit. It can err, but requires obtaining as much data as possible, and honestly analyzing it so as to decide whether the commission will be less evil than the omission.

    Instead, we are often treated to things like “The smoking gun will be a mushroom cloud”. Or we have to pass the PATRIOT Act to find out what’s in it. Or police can do cardiac arrests: http://www.youtube.com/watch?v=W-bPUVN-XVE since we can’t question them about that or body cavity searches of those with warrants for unpaid parking tickets. Remember – it’s not torture if it doesn’t leave a mark!

    Contraception is intrinsically evil (to clarify the sinfulness above). Capital punishment is a conditional evil. The latter to be licit requires a reasonable expectation that the (unequivocally guilty) person in question will end up causing further evils if anything less than his execution occurs. This is improbable even with the full protections in the Magna Charta and Constitution. In the era of GITMO, indefinite detention, and (touchless http://solitarywatch.com/) torture, it is hard to argue it can be licit.

    • 1 in 10 prisoners will be sexually assaulted in US prisons during their stay. This environment is hardly a properly controlled space where prisoners are generally not going to cause crime in future. It would be very helpful to get some sort of guidance on how well controlled humane prisons should be to merit the status as good enough that the residual crimes committed by inmates are an acceptable tradeoff for the prospect of eliminating the risk of the death penalty.

  • Mercury

    I hope no one here jumps to conclusions, because I am not a death penalty maximialist, and I know people around here have VERY strong feelings often coupled with a triumphalist hand-wringing (not Mark, though), so please, please, please take this as simply an honest question:

    I am well aware of the traditional sources on the death penalty, and right up until Pius XII, popes and moralists always and everywhere defended the legitimate use of the DP not only as a means of self-defense but also as a means to retributive justice (If anyone thinks retributive justice = “revenge” then please bow out of this conversation now because it simply is not, and no moralist would ever say it is). Why has this line of thought, which has a LONG history, been completely abandoned? We seem to focus ONLY on the “protect society” part of the issue and forget that punishment by the state has other functions and purposes – namely, retribution against the wrongdoer for the harm he has inflicted – punishment.

    To me, it seems we argue against punishment itself , to the point that if it were simply possible to keep mass murderers under house arrest and make sure they wont get out to murder more people, then there is no reason to inflict further punishment. If a man only kills his ex-girlfriend, her husband, and children for a very specific reason,but has no desire to kill anyone else, why even lock him up at all then, since he is no longer a danger to other people? And if inflicting physical pain or deprivation of comfort is also wrong, then what is the point anyway?

    Anders Behring Breivik killed 76 people in cold blood, feels no remorse, and will spend the rest of his life locked away so as not to harm others, but he will spend them in conditions most poor people in the world would give anything for, and with freedoms to read and entertain himself that many people would also love to have. So where is justice being done? Sure, he can’t kill anyone else, but is that justice, or does punishment serve another purpose? And is this good for his soul? To simply let him go on being that way indefinitely, with no reason to sober up and get ready to face God?

    The Council of Trent said “There are some exception to the extent of this prohibition to killing. The power of lifeand death is permitted to certain civil magistrates because theirs is the responsibility under law to punish the guilty and protect the innocent. Far from being guilty of breaking this commandment, such an execution of justice is precisely an act of obedience to it. For the purpose of the law is to protect and foster human life. This purpose is fulfilled when the legitimate authority of the state is exercised by taking the guilty lives of those who have taken innocent life.” – expiation is the reason given, and it was understood that not doing so was a miscarriage of justice.

    Now, I am not advocating we simply stay right there, and that we simply adopt the attitude of the past (we could also burn heretics, but we don’t because of some very important developments). But I am asking why we are to wholly and completely ignore the teachings of popes even as recent as Pius XII, or to ignore the long-standing moral argument that grave crimes against society must face grave punishments for justice to be done.

    It’s unfair to put this together with abortion and contraception, which all serious churchmen have condemned at all times and all places from the very beginning until the modern day. But there are Catholic who are still alive who remember when the pope himself gave a robust defense of the tradition favoring the death penalty as not only a means of protection but of tough retributive justice. Pius XII and others before him pretty much said you’re not Catholic if you believe the DP *must* be abolished.

    So it seems that there has been MAJOR development in a very short time, and that whereas with contraception, sodomy, abortion, etc. people are trying to excuse a pet sin, what’s happening here is that people are honestly grappling with the tradition and wondering how such an apparent about-face could have been made. How can the teaching change so drastically within one century? The 1910 Catholic Encyclopedia foreshadows the current viewpoint and argues that there is a case to be made for allowing mercy to reign and holding off the DP in hopes of eventual conversion, but it also says that a lot of opposition came from secular humanist and not Catholic of Christian movements.

    Sorry this is so long, and I’m sorry if I got anyone angry.

    • That was a great post, and it touches on a host of other issues. For me, I’m mindful of the fact that there are good people who advocate for the possibility of the DP, and do so for sound and thoughtful reasons. And while I realize that some pretty nasty societies still allow the DP, I can’t help but notice that many nations that ban the DP eventually adopt such things as abortion rights or physician assisted suicide. So there’s that. There is the question of justice, and while remembering the potential salvation of a criminal is important, remembering the potential salvation of a possible victim is also important. And as you say, there seems to be a somewhat abrupt turnaround, especially as many are now calling for the DP to be banned once and for all, and since I began looking at Catholicism just 10 years ago. Back then, I was pointed to the Catechism and shown that the Church never had, and doesn’t ban the DP, it simply puts heavy restrictions on it (like just war). But now to simply ban it, that would be a major turn around. And since the primary reason is ‘because we can now prevent criminals from harming people’, I can’t help but think some data to support this would certainly be in line.

      • Mercury

        See, that is what I find so perplexing. “Preventing criminals from harming people” was not the rationale for the death penalty through the centuries, or any other punishment, for that matter, but rather ONE of a few reasons. Another major reason was retributive justice, and this has long been in the tradition – my point is not that the Church is headed in the wrong direction (who am I to say something like that), but I am wondering WHY we seem to have completely abandoned that entire dimension within a few decades, and now pretend like the Church only ever allowed it in order to ensure that murders don’t kill more people.

        A man who has a kill list of ten people, and hunts them down and kills them one by one is finished harming society. He has coolly killed his targets, and now will no longer kill. If our primary purpose for imprisoning or executing such a criminal would be to protect others, then there’s no need to even do so. But at some level, punishment by the state is about justice, isn’t it?

        So what would be justice for someone like Breivik, or Nidal Malik Hassan, or even someone like Saddam Hussein if we had tried him? Even forcing them to do hard labor or making them live in miserable conditions, or any physical punishment is now considered evil. So is it really just live in a prison where they’d enjoy a standard of living most people in the world don’t even have?

        Again, not advocating anything, just wondering how we can simply pretend previous tradition did not exist or is simply irrelevant.