Moral theology...

Pope John Paul II: author of Evangelium Vitae (The Gospel of Life)

Last week we looked at the church's past teaching on the death penalty, and at the erosion of the theological arguments which supported it. This came to a head in 1995, with the publication of the encyclical Evangelium Vitae, which taught that the death penalty was justified only in cases of "absolute necessity", and these cases are "very rare, if not practically non-existent".

Is this a change?

This looks like a definite change, or development if you prefer, of church teaching on the death penalty, and at a very high level. The teaching in Evangelium Vitae, if not infallible, is certainly authoritative. What are we to make of it?

I think there are three ways to look at this:

• It is a flat reversal of previous teaching
• The previous teaching has been 'focussed', and the church now recognises only self-defence as potentially justifying capital punishment
• This is simply a prudential judgment; the teaching is essentially unchanged, but the application of the teaching in modern conditions produces a different outcome.

Flat Reversal

The outright reversal of a long-established church teaching would be startling. Even leaving aside its implications for the church's claim to infallibility or authority, it would still be surprising. This is not how the church develops its teaching. Popes and bishops do not have flashes of divine inspiration that lead to dramatic reversals or changes of direction. As a church, our process of reflection and discernment is collective, and the starting point for any new teaching is always the teaching that went before. Where teaching is departed from, the reasons for this are always carefully explained.

Furthermore, Evangelium Vitae doesn't present itself as a startling new development. Far from ignoring or repudiating the previous teaching, the encyclical appeals to it in support of the current teaching.

So I think that Evangelium Vitae ought to be understood as a something in continuity with the tradition rather than as a reversal or a sudden change of direction.

Focus on Defence of Society

I think this reading of the encyclical is at least partly correct. As already discussed, to the modern mind it is difficult to justify the death penalty by reference to some of the wider purposes of punishment, such as rehabilitation. And the encyclical does itself discuss the death penalty almost exclusively in the context of the defence of society.

But there's no clear statement to this effect, and in particular there is no express rejection of retribution as a legitimate purpose served by the death penalty. In fact Evangelium Vitae repeats the traditional teaching that the primary purpose of punishment is "to redress the disorder caused by the offence".

A New Application of the Same Teaching

The third view is that the Pope, the Catechism and the various national hierarchies are making a judgment that, in modern conditions, cases in which the death penalty is justified by the traditional purposes of punishment are either extremely rare, or actually non-existent

The American theologian Avery Dulles is of this view. While he states that the death penalty can in principle be justified in a hypothetical world, he marshalls an impressive list of arguments why it isn't justified in the real world that we currently live in. He offers both positive reasons why we shouldn't use it, for example:

• the outcome of research into its effectiveness as a deterrent
• improved understanding of criminal psychology and motivations
• a more realistic perception of the fallibility of the State

He also offers negative reasons:

• inequitable application of the death penalty in practice
• racial and social prejudice
• errors and miscarriages of justice leading to the execution of the innocent
• the tendency of executions to feed an unhealthy appetite for revenge.

The truth, I think, is somewhere between the second view, that deterrence is not the only possible justification for the death penalty, and the third view, that the traditional teaching is unchanged but it is being applied in new circumstances.

Retribution undermined

Evangelium Vitae may not dismiss retribution as a potential justification for the death penalty, but it clearly sees the strongest case for the death penalty — still not strong enough — resting on deterrence, not retribution.

And the reasons for this are probably to be found among in one of the factors that Dulles mentions; the decline in the moral authority of the State.

Killing in return for killing is just tit-for-tat revenge unless it is not only done with the desire and intention of restoring the moral order, but it will actually achieve that purpose. Consequently unless the State is seen as having a superior moral status to discern and assert the moral order, even to the point of killing its own citizens, the execution of convicts, whatever the intention, will not be retributive.

We have increasing difficulty in seeing the State as the agent of a divinely-established moral order. This is partly because, in the modern world, the State does not see itself in that light (and indeed would repudiate the idea), and partly because we are increasingly conscious of the abuse of State power.

Even in a democracy, the State is seen as an expression of the will of the people, and when it comes to discerning and asserting the moral order "the people" are as fallible as any individual person. We simply do not trust the State to refrain from acting from motives of anger or vindictiveness in death penalty cases. But, without that, the State is in no better position to implement retributive executions than you or I.

In the end, true retribution can only be given by God, who alone knows the human heart, and knows the degree of guilt a person has. It seems to me that we take a lot on ourselves by doing God's work for him, so to speak, and killing somebody for purposes of retribution. Our modern understanding of the State simply does not afford the State that degree of authority.

Hence I think that Evangelium Vitae is right to see deterrence having replaced retribution as the most plausible justification for the death penalty.

Deterrence undermined

The discipline of criminology has made enormous advances in the last hundred and fifty years, and claims that the death penalty (or any other punishment) is or is not an effective deterrent are much more easily tested now than they were in the past. We can no longer rely on an assumption that the death penalty has such a terrible finality that it must act as a deterrent, or on an argument that it would deter you and me, and therefore can be assumed to deter most people. We can actually study the effect in various societies of implementing the death penalty, of abolishing or restricting it, of reintroducing it. We can compare outcomes in similar societies which have made different decisions. We can study the psychology and motivation of offenders. And so forth. And the upshot of all this is that actual empirical evidence that the death penalty is, or is likely to be, an effective deterrent is weak.

This is, of course, a judgment on which people can legitimately differ. But an argument that the death penalty is justified for its deterrent value which turns out, on examination, to rest on someone's assumption that it is an effective deterrent, or on his desire that it should be, rather than on any empirical evidence that it is, is not a compelling moral argument.

The bottom line is that executions are real. If we are going to justify them by their deterrent effect, we have to show that the deterrence is real too.

ARTICLE NAVIGATION: PART I
Readers may also be interested in the article by Dr Andrew Thomas Kania
which was triggered by the first of these commentaries by Peregirnus.

What are your thoughts on this commentary? You can contribute to the discussion in our forum.

©2007 Peregrinus

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