Mark Shea: The Church wants the death penalty abolished – The development of doctrine, Part II

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Deacon John Flanigan holds a sign during a vigil outside St Louis University College Church on 28 January 2014 ahead of the 29 January execution of Missouri death-row inmate Herbert Smulls of St Louis. PHOTO: CNS

Whenever the doctrine of the Church develops, there are always those who struggle with it. As we saw last time in this space, the reaction to the Council of Jerusalem crystallised in the hostility of the Judaisers (or as Paul called them, the “circumcision party”) – a hostility that is remarkably contemporary if you transpose the controversy into the language of today’s culture warriors. And, indeed, we see much the same thing down the history of the Church and on into the present. Case in point: the death penalty.

The death penalty is a useful example of development of doctrine in this space for a number of reasons. My audience here is a mixture of Australians and Americans mostly. For Aussies, the death penalty is already a thing of the past. Your last execution was in 1967 and you outlawed it in all your states by 1984. This is how it is in the entire civilised world with one exception: the United States of America, which labours to keep itself on a list with Communist China, North Korea, Saudi Arabia and sundry other Islamic despotisms to keep killing people on death row. During Holy Week this year, the Islamic Republic of Arkansas sought to slaughter eight men as quickly as possible for the highly principled reason that the chemicals used to kill men on death row were reaching their expiration date and needed to be use up so that good money did not go to waste. The executions were successfully blocked in court. But the struggle goes on. And in America, some of the biggest champions of the death penalty are Catholics, and the more devout and “prolife”, the more ardent in their support they are.

Despite the moral nature of the death penalty as a political issue, with teachings on it differing among the various faiths, Gallup finds virtually no difference in support for it on the basis of respondents’ religious background. Two-thirds of Protestants and Catholics, alike, are in favour of the death penalty as a punishment for murder, as are at least six in 10 adults regardless of whether they attend church weekly, monthly, or less often.

In other words, if you are “devout”, a regular Mass-goer, and “serious” about your faith (including, most notably, opposed to abortion), you are among the two-thirds (66%) who are slightly over the national average of 63% in supporting the death penalty. If you are less devout, your likelihood of supporting it drops down to about 60%. Still more embarrassing:

Only among those who say they have no religious preference, which would include atheists and agnostics, is there a difference, with a slightly smaller 56% in favour of the death penalty.

In short, the less you are a “good Catholic” in America, the more likely you are to support the Church’s actual teaching on the death penalty: namely, that it should be abolished. The more “prolife” you are (in the sense of “voting for Republicans in the hope of overturning Roe v. Wade and outlawing abortion as much as possible”) the more likely it is you oppose and even work to undermine the teaching of the Magisterium on the death penalty and call it an error and even a heresy. And because the US is such a powerful, wealthy and influential country, the arguments against the Magisterium made by my countrymen concerning the death penalty (or any other issue) tend to circle the globe and influence the conversation elsewhere. So, for instance, even in Australia, there are still situations in which a majority of people would favour the death penalty. And American Catholic arguments against the Magisterial teaching tend to form the foundation for Catholic arguments around the world. It is therefore wise for Catholics who are interested in understanding and defending the development of the Church’s teaching on the death penalty (and the development of doctrine in general) to have a grasp of what has happened in this area.

Brazilian prisoner Rodrigo Gularte, one of the ‘Bali 9,’ was executed in Indonesia on 1 May 2015 for drug trafficking. A priest assigned as his spiritual adviser said Gularte had been diagnosed with schizophrenia and bipolar disorder and did not understand what was happening to him until his final moments. Brazil had made repeated pleas for Indonesia to commute his sentence on humanitarian grounds, citing his mental illness. PHOTO: Tapera TV

The Church developed its doctrine on capital punishment in the late 20th century as it developed its understanding of circumcision in the first, arriving at a counter-intuitive conclusion that, seen in the overall light of the Tradition, makes sense. But for a relatively small number of people (primarily located on the extremely influential American Right) a faulty grasp of what Tradition and development is about has made it appear as though the Church has contradicted Tradition just as it looked to the Judaisers as though the Church had contradicted Tradition. Studying the dynamic of this struggle in the American Church may be useful to those in the larger global Church, if only to avoid the mistakes we Yankees are making.

The problem is this in a nutshell: For centuries, the Church affirmed the power of Caesar to execute capital criminals. But since Evangelium Vitae, the Church has called for the abolition of the death penalty. Ergo (say traditionalists) the post-concilliar Magisterium is contradicting the Tradition. For this reason, the three popes (Pope St John Paul II, Benedict XVI and Francis) and the global Magisterium who affirm this development can be legitimately ignored in favour of retaining the death penalty.

For some extremist Reactionaries, this supposed “contradiction of the Tradition” means the very legitimacy of those three popes and the post-concilliar Magisterium are now in serious jeopardy. But for the majority of critics of this development, the solution is not wholesale rejection of the post-concilliar Magisterium, but a sort of limited modified hangout argument that this development is a “prudential judgment” and we are thereby freed to just ignore it and even lobby against it with “Catholic defences of the death penalty” while affirming that the Magisterium is still authoritative and not utterly discredited. After all (goes the argument), the Magisterium has made other bad prudential judgment calls (such as Peter not eating with Gentiles at Antioch) and not thereby been utterly discredited.

So, for instance, we are told that the teaching of Evangelium Vitae on the death penalty, summarised in CCC 2267, is just John Paul’s “personal opinion” and is not “binding”. That teaching, just as a reminder, is this:

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.”

First things first: That’s not just “John Paul’s personal opinion”. Evangelium Vitae is an encyclical, the highest form of teaching document a pope can publish. In an encyclical, the pope is teaching as the Supreme Pontiff of the Church, not hanging out in a bar and popping off about his private views. It is, make no mistake, the teaching of the Church that “[i]f… 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”. Moreover, it is the teaching of the Church that the practical upshot of the “practical non-existence” of the need to execute is this: abolish the death penalty. That is the express demand of three popes and all the bishops of the world.

“But what about the centuries the Church approved of capital punishment? Aren’t these popes and bishops saying our ancestors were in error? Is this not a flat contradiction of all previous revealed teaching?” We shall consider this question next time.

Prayer To End The Use Of The Death Penalty (United States Conference of Catholic Bishops)