Capital Punishment: I’ve Changed My Mind

My position for as long as I can remember has been against the death penalty, except in the case of mass murderers and terrorists. I was more generally in favor of it in the past (not sure how long ago that was). Thus, in more recent years I have been basically opposed to it, with only relatively rare and extraordinary exceptions to the “rule.”

As a result of wonderful group discussion with Dr. Robert Fastiggi (professor of systematic theology at Sacred Heart Seminary in Detroit), at my house last night, I have now changed my opinion to being totally against capital punishment.

I’ve expressed my past opinion in three separate articles on my blog, dated 2011, 2014, and 2017. I wrote on 10-14-11:

I agree (apart from rare exceptions) with the general papal opinion now, that the death penalty should not be carried out, for the sake of providing a witness to the sanctity of human life.

It’s not an absolute, though. The Church recognizes that states have the power of the sword (Romans 13:1-7; also the analogy to Just War Theory). I myself believe, accordingly, that the death penalty is quite justified (is not inherently and always wrong) and can and should still be carried out in the case of the most heinous crimes (mass murderers, terrorists, etc.), without any slightest hint of reasonable doubt whatever as to guilt, as determined by a jury trial. . . .

The death penalty is not an absolute contradiction to pro-life, either, because the two scenarios aren’t analogous. The state has no right to murder an innocent child. But in capital punishment, it is a question of application of criminal justice, since the state has the power of the sword and the right to coerce in enforcing its laws (police can sometimes shoot to kill). . . .

I completely reject the attempted failed disanalogy of (pro-) capital punishment vs. (anti-) abortion, while agreeing with the popes and the Mind of the Church in our time that execution should be almost non-existent.

On 1-9-14, I reiterated:

Of course, a death penalty should require profound eyewitness evidence and many other indisputable evidences. Cut-and-dried.

The Church has not denied states the prerogative to impose the death penalty.

I cited on my behalf: “Worthiness to Receive Holy Communion — General Principles,” by Cardinal Ratzinger (2004), “Catholicism & Capital Punishment” (Avery Cardinal Dulles, First Things, April 2001), “Justice, Mercy, and Capital Punishment,” by the Most Reverend Charles J. Chaput, O.F.M. Cap., March 2005, USCCB), and “Capital Punishment: Drawing the Line Between Doctrine and Opinion”: (Jeff Mirus, Catholic Culture, 6-7-04).

Dr. Fastiggi has written two published articles recently about the issue:

“Capital Punishment and the Papal Magisterium: A Response to Dr. Edward Feser” (The Catholic World Report, 10-24-17)

“Is there really a definitive teaching of the Church on capital punishment? A second response to Prof. Edward Feser” (The Catholic World Report, 11-10-17)

Here are nine of orthodox Catholic philosopher Ed Feser’s writings on the death penalty, up till March 2017: one / two / three / four / five / six / seven / eight / nine. There have been many more since, as well as now a book on the topic. See his voluminous blog for more (and also more listed links below) .

See also Dr. Eduardo Echeverria’s article in favor of capital punishment: “Pope Francis, the Lérinian legacy of Vatican II, and capital punishment” (The Catholic World Report, 10-15-17) and four replies from Dr. Fastiggi in the combox (one / two / three / four).

Here are six more in-depth articles opposing capital punishment:

“Is this bloodshed really necessary? A book review by David McClamrock” (Today’s Catholic, 9-27-17)

“Capital Punishment Is Intrinsically Wrong: A Reply to Feser and Bessette” (E. Christian Brugger, Public Discourse, 10-22-17)

“Catholic Tradition, St. John Paul II, and the Death Penalty” (E. Christian Brugger, Public Discourse, 10-23-17)

“Christians & the Death Penalty” (David Bentley Hart [Greek Orthodox], Commonweal, 11-16-17)

“The Death Penalty and the Development of Doctrine” [+ Part 22] (Matthew Shadle, Catholic Moral Theology, 11-27-17)

I don’t intend to do a “complete” analysis of this complex issue at this time (the eight “anti” articles above plus Dr. Feser’s and Dr. Echeverria’s opposing opinions are quite sufficient for that purpose), but I’d like to highlight differences between Dr. Feser’s position on two key scriptural passages, and recent popes’ and/or St. Thomas Aquinas’ and/or [a consensus of] modern biblical exegetes’ interpretations. These were important in swaying my opinion, but not the only reasons. Another important influence on my decision was the fact that popes for almost a hundred years now have spoken out more and more against the death penalty. This expresses the “Mind of the Church” which is always developing in a certain direction, to the exclusion of others. The Bible and the development of doctrine (as readers of my writing are well aware by now) are two of my favorite fields of inquiry.

The above articles will be referred to as “Fastiggi 1 [or] 2”, “Brugger” (his first article of two parts), “Hart”, and “McClamrock”. All material below (except my bolded Scripture verses) is from these six articles (I won’t bother to indent them).

Genesis 4:15

St. John Paul II singles out Genesis 4:15 as a sign that even the life of a murderer is sacred and worthy of protection from death. As he writes in Evangelium Vitae, 9:

… God, who is always merciful even when he punishes, “put a mark on Cain, lest any who came upon him should kill him” (Gen 4:15). … Not even a murderer loses his personal dignity, and God himself pledges to guarantee this. … As Saint Ambrose writes: “God, who preferred the correction rather than the death of a sinner, did not desire that a homicide be punished by the exaction of another act of homicide.”

Contrary to St. John Paul II, Professors Feser and Joseph Bessette argue that Genesis 4:15 “was not meant to be a teaching against capital punishment” (By Man Shall His Blood Be Shed, p. 298). Genesis 4:15, however, shows God’s wish to preserve and protect the life of a murderer before “the creation of organized society” (cf. Howard J. Bromberg, “Pope John Paul II, Vatican II, and Capital Punishment” Ave Maria Law Review 6, no. 1 [2007]: 115). Just as Jesus pointed to God’s original affirmation of the indissolubility of marriage “from the beginning” (Mt 19:4–9), so St. John Paul II sees in Genesis 4:15 God’s original wish to preserve the life of even a murderer. (Fastiggi 2)

Genesis 9:6

But what about the command expressed in the book’s title, “By Man Shall His Blood Be Shed,” to which the authors refer in no fewer than 18 passages of the book? This was one of God’s commands to Noah and his family after the flood, recorded in Genesis 9:6: “Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.” Feser and Bessette maintain that “[t]he solemn affirmation in Genesis 9:6 of both human dignity and capital punishment alike is as relevant today as it was to earlier generations.” This is true as to human dignity, but false as to capital punishment. Here’s why.

The precepts of the Old Law were divided into “moral,” “judicial,” and “ceremonial” precepts (ST I-II, Q99). The moral precepts are still in force (Q100), but the judicial and ceremonial precepts are not (Q103, 104). The prescription of specific penalties for offenses in the Old Law, including the death penalty, was a function of the judicial precepts, not of the moral precepts (Q105). God’s command to Noah, recorded in Genesis 9:6, existed before the Old Law but was later included in the Law (cf. Q103), and is identical in substance to the corresponding precept of the Old Law in Exodus 21:12, “Whoever strikes a man so that he dies shall be put to death.” As the judicial precept of Exodus 21:12 is no longer in force, neither is that of Genesis 9:6, even though it was first instituted before the Law. (McClamrock)

As for Feser’s repeated appeals to Genesis 9:6 and Roman 13:4 in favor of the death penalty, he does not present any magisterial affirmations of his interpretation of these passages that qualify as definitive and infallible judgments. Moreover, Genesis 9:6 is a problematical passage to cite in favor of the State’s right to execute criminals because there was no State at that time in the biblical narrative. There was simply Noah and his family.

Feser ignores Pope Benedict XVI’s citation of Gen 9:6 against the killing of those who kill. He also ignores my citation of Pius XII who reminds us that “there are but few [Scriptural] texts whose sense has been defined by the authority of the Church; nor are those more numerous about which the teaching of the Holy Fathers is unanimous” (Divino Afflante Spiritu, n. 47). These two citations, however, argue against Feser’s position on the conclusive scriptural evidence in favor of capital punishment’s legitimacy. Perhaps this is why he ignores them. (Fastiggi 1)

Pope Benedict XVI, however, in his 2012 Post-Synodal Exhortation, Ecclesia in Medio Oriente, n. 26 cites Genesis 9:6 as evidence that God forbids the killing of even those who commit murder:

God wants life, not death. He forbids all killing, even of those who kill (cf. Gen 4:15-16; 9:5-6; Ex 20:13). (Fastiggi 2)

What about the very early passage in Genesis 9:6? Feser and Bessette argue that “it is absurd to deny that . . . [it is] intended precisely as a divine sanction of the penalty of death.” Let us look at the passage. In the ninth chapter of Genesis, God is blessing Noah, who has just departed the ark. The biblical author has God say:

“For your lifeblood I will surely require a reckoning; of every beast I will require it and of man; of every man’s brother I will require the life of man. Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.”

The teaching here pertains to the covenant with Noah, and so should be regarded as having permanent validity. The question is: What was the human author of that passage asserting to be God’s will and command? For whatever it was, that also was asserted by the Holy Spirit, and so cannot have been erroneous.

James Megivern argues that the passage should be classified under the genre of proverb, not strict divine-command moral instruction. (This does not imply, pace Feser and Bessette, that the passage is devoid of moral significance, only that it should not be taken as a timeless—or any—biblical warrant for state-sanctioned intentional killing.) The passage makes no reference to public authority or its prerogatives, or to state punishment. Nor does it distinguish between intentional and unintentional killing, or between blood vengeance and punishment. It also includes animals within the scope of those from whom God will require a reckoning. Moreover, if taken as a principle of action, verse 6 would require a strict lex talionis for homicide, which neither the Church, nor any credible Catholic or non-Catholic author—save Kant—has ever argued for. And God himself seems to contradict the pro-capital punishment reading when he spares the life of the first murderer and fratricide, Cain.

Reading Genesis 9:5-6 as a proverbial instruction is thus very plausible. The life of man is sacred because “man is made in God’s own image.” Shedding man’s blood is an offense against God whose image must be respected. God will require a reckoning from those who disregard the sacredness of human life (vs. 5). Then verse 6: “whoever sheds the blood of man, by man shall his blood be shed.” Rendered as a strict prescriptive divine command, “shall be shed” means “ought to be shed” and “by man” implies that responsibility to carry out God’s bloody reckoning is delegated to man. But read as a proverbial instruction, “by man shall his blood be shed” means “this is what happens to murderers; their blood shall be shed by men.” In other words, “shall be” should be read descriptively, not prescriptively. Jesus says something very similar in the Garden: “All who take up the sword shall die (αποθανουνται) by the sword”; Matthew 26:52). The biblical author is stating a fearsome consequence of disregarding the sacredness of human life. (Brugger)

Romans 13:4 (“for he [governing authority] is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer. “)

Feser and Bessette believe that Romans 13:4 provides the locus classicus of the Christian doctrine on capital punishment. They criticize various episcopal statements on capital punishment for not citing this text or for misunderstanding it. They cite Pope Innocent I referring to Romans 13 in A.D. 405 on the death penalty, but his interpretation is not conclusive. Pius XII, in his Feb. 5, 1955 Address to the Italian Association of Catholic Jurists, cites Rom 13:4, but he does not see it as directly endorsing capital punishment. Instead, he says that this text and other sources “do not refer to the concrete contents of individual juridical prescriptions or rules of actions, but to the essential foundation itself of penal power and its immanent finality’ . . . (Fastiggi 2)

St. Paul doubtless believed the death penalty was legitimate. But did he teach it in Romans 13?

Before I reply, I need to respond to an accusation. Feser and Bessette charge me with denying “the divinely appointed power of the state.” If by this they mean I deny that the authority of the state—and all rightful authority—has been instituted by God to defend the community in accordance with God’s law, the charge is false. I state the opposite in my book (see page 69). In addition, I say St. Paul “clearly means to identify the origins of earthly authority with the purpose of God.” But does he mean “to propose a doctrine of the nature of state authority which includes the right of the state to execute malefactors?” I conclude that the propositions asserted in Romans 13 leave quite open the question of how far civil authority’s divinely instituted power extends. And I quite deny that St. Paul means to assert that it extends to intentional killing.

Following a common interpretation of biblical scholars, the passage does not affirm a universal principle about the state’s right to kill criminals. Since the verse “if you do wrong, be afraid, for he does not bear the sword in vain” is in the wider context of an exhortation to Christians in Rome to be obedient to civil authority, especially by paying their taxes (see verse 6)—which some were disinclined to do because of their newfound “liberty” in Christ—these scholars argue that it refers to the general policing authority of the Romans to enforce tax collection. In this case, the metaphor of the sword, a likely reference to the use of lethal force, does not refer to the state’s penal authority (and so a fortiori not to its right to inflict capital punishment), but to the sword’s use in policing, which does not necessitate intentional killing, but rather unintentional killing in the pursuit of rendering aggressors incapable of causing harm in the enforcement of the law. (Brugger)

According to them, Paul’s words have been “traditionally understood as a straightforward affirmation of the right of the state to execute criminals.” This is false (despite the several misrepresentations of patristic sources they later produce). Even if it were true, however, it would constitute nothing more than an unfortunately prevalent error. The passage almost certainly says nothing about capital punishment at all. Feser and Bessette assume that when Paul writes that “[power] does not bear the sword in vain,” he is speaking of something like the Roman ius gladii, a provincial governor’s limited authority for pronouncing a death sentence.

But the Greek word usually translated as “sword” in this passage is μάχαιρα, which was the name for a large dagger or short sword generally carried at the waist in a μάχαιροδέτης, a leather belt. Now, it is true that such a blade could be used to put someone to death; according to Acts 12, that was the means by which Herod had James the brother of Jesus killed. And Paul probably did use the word as a vague term for any sword. But, as a figure for the state’s power to kill, one would properly speak of “τὸ ξίφος”—“the sword”—wielded by an executioner. Thus, for example, Philostratus, when speaking of a magistrate empowered to pronounce the death sentence, describes him as “a judge bearing the sword,” “δικαστοῦ τὸ ξίφος ἔχοντος (Vitae Sophistorum I.25.31).

Again, when Philostratus wants to indicate that Tigellinos possessed the same remit, he says that “Nero’s sword was under his power”: “ὑφ᾽ ᾧ τὸ ξίφος ἦν τοῦ Νέρωνος” (Vita Apollonii IV.42). When, by contrast, Paul speaks of the power that “bears the sword” (τὴν μάχαιραν φορεῖ), the phrase almost certainly refers to a μάχαιροφόρος—a word that usually meant a soldier but could also refer to a military policeman, civil guard, or taxation enforcement officer. This also explains the phrase “οὐ…εἰκῇ” (“not in vain”—or, better, “not as a vanity”). It is rather as if a modern writer were to say, “A policeman doesn’t carry a gun just for show (so, if you create disorder, do not be surprised if he uses it).” . . .

Whatever Paul was referring to, this passage has absolutely no prescriptive content when it comes to how Christians should govern society (a possibility that never even occurred to Paul). So, yes, God may have providentially used the powers ceded to the pagan authorities of the ancient world to discourage sin, but that has no bearing on the question of how Christians should conduct themselves in positions of authority. And no one in the early church imagined that it did. (Hart)

[see also the vigorous friendly discussion on this paper, on my Facebook page]

Addendum: Dr. Edward Feser in the combox complained that I hadn’t linked to his more current papers in reply to others that I linked to. We wrangled about it a bit (see below) and I asked him to provide the ones he wants me to link to. He gave me seven:

Reply to Hart. (“Hart’s review in Commonweal is so rhetorically over-the-top and dishonest that the effect is more comical than offensive.”) This was also a reply to a critique by Paul Griffiths.

Replies to Brugger & Tollefsen (one / two / three).

Reply to McClamrock.

Replies to Fastiggi (one / two).

Christopher Tollefsen also critiqued Feser twice (one / two). See Feser’s replies above.

That makes a total of sixteen links to Dr. Feser’s material, plus four more pro-death penalty articles, whereas I have eleven against the death penalty, for a 20-to-11 ratio fer vs. agin. That should put to rest any complaints of fairness as regards the links I provide. This article was in the nature of a piece explaining my change of mind; it was not an exhaustive survey of both sides of the present debate. As in stories of conversion to Catholicism, the emphasis is on newfound reasons, not older rationales.

Photo credit: Electric chair: display at Texas Prison Museum, Huntsville, Texas [PublicDomainPictures.Net / CC0 public domain license]

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