FACULTY COLLOQUIUM: THE DEATH PENALTY
"Glorious things are spoken of you, O City of God" (Ps 87:3)
Since Pope John Paul II"s 1995 encyclical Evangelium Vitae
(The Gospel of Life) taught that societies"ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society," there's been a healthy discussion on the meaning of these words and the moral status of the death penalty. This St. Anselm Institute Colloquium will continue this discussion with Justice Antonin Scalia by focusing on several interrelated questions:
* What has and does the Church teach about the morality and permissibility of the death penalty?
*Is the death penalty a moral good that we are obligated to pursue and to support? If so, under what conditions and for what end? If not, why not?
* Is the death penalty a necessary form of punishment when alternative punishments are available?
* Is the death penalty neither necessary nor a moral good, but an action of a civil authority Christians neither participate in or object to?
* What are the foundations in Scripture, sacred Tradition, and the ordinary and extraordinary Magisterium of the Church for answering these questions?
As preparation of our discussion, colloquium participants are encouraged to become familiar with the following common "required" texts. As time and interest permit, additional supplemental texts also are included below for further reading.
I. Required Readings
2. Catechism (1997) #2258-2330 [esp. 2266-2267, 2298)
II. Scriptural Texts
Jn 7:53 - 8:11
Matt. 26:52--"Then Jesus said to him, “Put your sword back into its sheath, for all who take the sword will perish by the sword."
Romans 12: 17-21
Romans 13: 1-6
III. Supplemental Texts: Historical Overview
*Davison M. Douglas, "God and the Executioner: The Influence of Western Religion on the Use of the Death Penalty
," William & Mary Bill of Rights Journal (2000).
**Howard Bromberg, "Pope John Paul II, Vatican II, and Capital Punishment
," Ave Maria Law Review, 6(1): 109-154.
*** Christian Brugger, "The Patristic Consensus," in Capital Punishment and Roman Catholic Moral Tradition
**** Brad Gregory, Salvation at Stake, ch. 3 "Willingness to Kill"
[c. mid-late first century]
"Chapter 1. The Two Ways and the First Commandment. There are two ways, one of life and one of death, but a great difference between the two ways. The way of life, then, is this: First, you shall love God who made you; second, love your neighbor as yourself, and do not do to another what you would not want done to you. And of these sayings the teaching is this: Bless those who curse you, and pray for your enemies, and fast for those who persecute you."
Chapter 5. The Way of Death. And the way of death is this: First of all it is evil and accursed: murders, adultery, lust, fornication, thefts, idolatries, magic arts, witchcrafts, rape, false witness, hypocrisy, double-heartedness, deceit, haughtiness, depravity, self-will, greediness, filthy talking, jealousy, over-confidence, loftiness, boastfulness; persecutors of the good, hating truth, loving a lie, not knowing a reward for righteousness, not cleaving to good nor to righteous judgment, watching not for that which is good, but for that which is evil; from whom meekness and endurance are far, loving vanities, pursuing revenge, not pitying a poor man, not laboring for the afflicted, not knowing Him Who made them, murderers of children, destroyers of the handiwork of God, turning away from him who is in want, afflicting him who is distressed, advocates of the rich, lawless judges of the poor, utter sinners. Be delivered, children, from all these.
Tertullian (160-225), On Idolatry
, Chapter XVII.—The Cases of Servants and Other Officials. What Offices a Christian Man May Hold.
"But what shall believing servants or children do? officials likewise, when attending on their lords, or patrons, or superiors, when sacrificing? Well, if any one shall have handed the wine to a sacrificer, nay, if by any single word necessary or belonging to a sacrifice he shall have aided him, he will be held to be a minister of idolatry. Mindful of this rule, we can render service even “to magistrates and powers,” after the example of the patriarchs and the other forefathers, who obeyed idolatrous kings up to the confine of idolatry. Hence arose, very lately, a dispute whether a servant of God should take the administration of any dignity or power, if he be able, whether by some special grace, or by adroitness, to keep himself intact from every species of idolatry; after the example that both Joseph and Daniel, clean from idolatry, administered both dignity and power in the livery and purple of the prefecture of entire Egypt or Babylonia. And so let us grant that it is possible for any one to succeed in moving, in whatsoever office, under the mere name of the office, neither sacrificing nor lending his authority to sacrifices; not farming out victims; not assigning to others the care of temples; not looking after their tributes; not giving spectacles at his own or the public charge, or presiding over the giving them; making proclamation or edict for no solemnity; not even taking oaths: moreover (what comes under the head of power), neither sitting in judgment on any one’s life or character, for you might bear with his judging about money; neither condemning nor fore-condemning; binding no one, imprisoning or torturing no one—if it is credible that all this is possible."
Tertullian, On Patience, Chapter X.—Of Revenge.
"There is, too, another chief spur of impatience, the lust of revenge, dealing with the business either of glory or else of malice. But “glory,” on the one hand, is everywhere “vain;” and malice, on the other, is always odious to the Lord; in this case indeed most of all, when, being provoked by a neighbour’s malice, it constitutes itself superior in following out revenge, and by paying wickedness doubles that which has once been done. Revenge, in the estimation of error, seems a solace of pain; in the estimation of truth, on the contrary, it is convicted of malignity. For what difference is there between provoker and provoked, except that the former is detected as prior in evil-doing, but the latter as posterior? Yet each stands impeached of hurting a man in the eye of the Lord, who both prohibits and condemns every wickedness. In evil doing there is no account taken of order, nor does place separate what similarity conjoins. And the precept is absolute, that evil is not to be repaid with evil. Like deed involves like merit. How shall we observe that principle, if in our loathing we shall not loathe revenge? What honour, moreover, shall we be offering to the Lord God, if we arrogate to ourselves the arbitrament of vengeance? We are corrupt—earthen vessels. With our own servant-boys, if they assume to themselves the right of vengeance on their fellow-servants, we are gravely offended; while such as make us the offering of their patience we not only approve as mindful of humility, of servitude, affectionately jealous of the right of their lord’s honour; but we make them an ampler satisfaction than they would have pre-exacted for themselves. Is there any risk of a different result in the case of a Lord so just in estimating, so potent in executing? Why, then, do we believe Him a Judge, if not an Avenger too? This He promises that He will be to us in return, saying, “Vengeance belongeth to me, and I will avenge;” that is, Leave patience to me, and I will reward patience. For when He says, “Judge not, lest ye be judged,”does He not require patience? For who will refrain from judging another, but he who shall be patient in not revenging himself? Who judges in order to pardon? And if he shall pardon, still he has taken care to indulge the impatience of a judger, and has taken away the honour of the one Judge, that is, God. How many mischances had impatience of this kind been wont to run into! How oft has it repented of its revenge! How oft has its vehemence been found worse than the causes which led to it!—inasmuch as nothing undertaken with impatience can be effected without impetuosity: nothing done with impetuosity fails either to stumble, or else to fall altogether, or else to vanish headlong. Moreover, if you avenge yourself too slightly, you will be mad; if too amply, you will have to bear the burden. What have I to do with vengeance, the measure of which, through impatience of pain, I am unable to regulate? Whereas, if I shall repose on patience, I shall not feel pain; if I shall not feel pain, I shall not desire to avenge myself.
Lactantius (c.240-c.320) Divine Institutes, VI.20
"For he who reckons it a pleasure, that a man, though justly condemned (ob merita damnatum), should be slain in his sight, pollutes his conscience as much as if he should become a spectator and a sharer of a homicide which is secretly committed. And yet they call these sports in which human blood is shed. So far has the feeling of humanity departed from the men, that when they destroy the lives of men, they think that they are amusing themselves with sport, being more guilty than all those whose blood-shedding they esteem a pleasure. I ask now whether they can be just and pious men, who, when they see men placed under the stroke of death, and entreating mercy, not only suffer them to be put to death, but also demand it, and give cruel and inhuman votes for their death, not being satiated with wounds nor contented with bloodshed.... For when God forbids us to kill, He not only prohibits us from open violence, which is not even allowed by the public laws, but He warns us against the commission of those things which are esteemed lawful among men. Thus it will be neither lawful for a just man to engage in warfare, since his warfare is justice itself, nor to accuse any one of a capital charge, because it makes no difference whether you put a man to death by word, or rather by the sword, since it is the act of putting to death itself which is prohibited. Therefore, with regard to this precept of God, there ought to be no exception at all; but that it is always unlawful to put to death a man (quia occidere hominem sit semper nefas), whom God willed to be a sacred animal (Deus sanctum animal esse voluit).
Lactantius, On the Wrath of God
"But in what can the action of God consist, but in the administration of the world? But if God carries on the care of the world, it follows that He cares for the life of men, and takes notice of the acts of individuals, and He earnestly desires that they should be wise and good. This is the will of God, this the divine law; and he who follows and observes this is beloved by God. It is necessary that He should be moved with anger against the man who has broken or despised this eternal and divine law. If, he says, God does harm to any one, therefore He is not good. They are deceived by no slight error who defame all censure, whether human or divine, with the name of bitterness and malice, thinking that He ought to be called injurious who visits the injurious with punishment. But if this is so, it follows that we have injurious laws, which enact punishment for offenders, and injurious judges who inflict capital punishments on those convicted of crime. But if the law is just which awards to the transgressor his due, and if the judge is called upright and good when he punishes crimes—for he guards the safety of good men who punishes the evil—it follows that God, when He opposes the evil, is not injurious; but he himself is injurious who either injures an innocent man, or spares an injurious person that he may injure many."
For some there are, although out of the pale of the Church, who will not admit to the divine Mysteries those who have deemed it right to pass sentence of death on any man. Many too abstain of their own accord, and are commended, nor can we ourselves but praise them, although we so far observe the Apostle's rule as not to dare to refuse them Communion.
3. You see therefore both what power your commission gives you, and also whither mercy would lead you; you will be excused if you do it, and praised if you do it not. Should you feel unable to do it, and are unwilling to afflict the criminal by the horrors of a dungeon, I shall, as a priest, the more commend you.
"When the criminal is put to death, it is the person rather than the trangression which is punished, but when the transgression is forsaken, the absolution of the person becomes the punishment of the sin. What is the meaning then of, Go, and sin no more? It is this; Since Christ hath redeemed thee, suffer thyself to be corrected by Grace; punishment would not reform but only afflict thee."
"... that when [the monks] drew near to the magistrates themselves, they spoke to them with boldness on behalf of the accused, and were all ready to shed their blood, and to lay down their heads, so that they might snatch the captured from the terrible events which they expected. They also declared that they would not depart until the judges should spare the population of the city, or send them themselves together with the accused to the Emperor. "
"One of [the monks] is also reported to have uttered another saying, full of wisdom, to this effect: The Statues which have been thrown down are again set up, and have resumed their proper appearance; and the mischief was speedily rectified; but if you put to death the image of God, how will you be again able to revoke the deed! Or how to reanimate those who are deprived of life, and to restore their souls to their bodies? Many things too they said to them of the Judgment."
St. Augustine (354-430), On Order
"What is more hideous than a hangman? What is more cruel and ferocious than his character? And yet he holds a necessary post in the very midst of laws, and he is incorporated into the order of a well-regulated state; himself criminal in character, he is nevertheless, by others' arrangement, the penalty of evildoers." (2.4.12)
Pope Innocent I to Bishop Exuperius of Toulouse (405)
“It must be remembered that power was granted by God [to the magistrates], and to avenge crime by the sword was permitted. He who carries out this vengeance is God’s minister (Romans 13:1-4). Why should we condemn a practice that all hold to be permitted by God? We uphold, therefore, what has been observed until now, in order not to alter the discipline and so that we may not appear to act contrary to God’s authority " (Epist. 6, C. 3. 8, ad , 20 February 405, PL 20,495).
 ...."But surely the Law shouldn't be fulfilled in having her punished, by men who deserve punishment themselves? Each one of you should reflect upon yourself, should enter within yourself, should mount the tribunal of your own mind, should arraign yourself before your own conscience, and should force yourself to confess. You know who you are; for no man knows what belongs to him, except the spirit of the man which is within him [1 Cor 2.11]. Each one of us discovers that he's a sinner when he attends to himself. It is clear, then: either release the woman, or else accept the penalty of the Law along with her."…."This is Justice speaking: the sinful woman should be punished, but not by sinners. The Law should be fulfilled, but not by those who violate the Law."
 "Those who love the gentleness of the Lord should take note, therefore, and also fear his truth. For your are kind and upright, Lord [Ps 25(24).8] You love him because he is kind; fear him because he is upright. "
[p.121] "Kings, leaders, rules, judges, they judge the earth; each one of them judges the earth in accordance with the office he has been given on earth. …[I]f kings also judge the earth, and anyone under them who receives power from them, then they too ought to be instructed; the earth itself is judging the earth, and when earth judges earth it ought to fear God who is in heaven. It is indeed judging its own equal it ought to fear God who is in heaven. It is indeed judging its own equal, a human judging a human, a mortal judging a mortal, a sinner judging a sinner."
[p.122] "Again, on a similar occasion, they asked him about paying tribute to Caesar, and he took the words out of their own mouths by offering them a coin and asking them in their turn who image and inscription were on it. The questioners themselves answered: the image on the coin was Caesar's. He turned their their own words against them: Give to Caesar's what is Caesar's and to God what is God's. In this was he was able to warn them to restore to God the image of God in the human being, just as the image of Caesar on the coin is restored to him. Similarly in the case of the adulteress he interrogated the interrogators, and thus pronounced judgment on the judges. 'I do not forbid the stoning of whomever the Law order', he said, 'I merely ask who will do it. I am not opposing the Law, but I am looking for someone to execute it.'"
[p. 123] "Listen to these things, and be instructed, all you who judge the earth. It says 'all', because we should understand this passage to refer to the same people as the apostle's words: Every soul is subject to higher authorities. There is no authority except from God; all that there are were established by God. Anyone who resists authority resists what God has established… Rulers do not inspire fear in those who do good, but in those who do evil. Do you want not to fear the authorities? Do good, and you will have praise from them [Rom 13.1-3].
[p.123-24] "If, then, you don't want to exercise your authority unjustly, all you human beings who wish authority over human beings, well, be instructed, so that you avoid judging corruptly, and perishing in your soul before you manage to destroy anyone else in the flesh….But first, for your own sake, act as judge on yourself. Judge yourself first, then you'll be able to leave the inner cell of your conscience in security and go out to someone else."
[p.124] Do not, therefore, when you are attacking the sin, put the human being to death. Avoid the death penalty, so that there's someone left to repent. Don't allow the human being to be killed; then someone will be left to learn the lesson. You are a man judging other men; foster love of them in your heart, and judge the earth. Love to instil fear in them, but do so out of love. If you must be arrogant, be arrogant towards the sin, not the person. Vent your rage on the failing, which you dislike as much in yourself, and not on the person, who is created just as you are. You both came from the same workshop, you both had the same craftsman, the stuff you are both made of is the same clay. Why are you destroying the person you judge by failing to love him? For you're destroying justice, by failing to love the person you're judging. Punishments should be imposed; I don't deny it; I don't forbid it. But this must be done in the spirit of love, in the spirit of concern, in the spirit of reform."
"We beseech you, in the name of Jesus Christ, not to act in this manner. For we do not seek to revenge ourselves in this world; nor ought the things which we suffer to reduce us to such distress of mind as to leave no room in our memory for the precepts in regard to this which we have received from Him for whose truth and in whose name we suffer; we love our enemies, and we pray for them. Matthew 5:44 It is not their death, but their deliverance from error, that we seek to accomplish by the help of the terror of judges and of laws, whereby they may be preserved from falling under the penalty of eternal judgment; we do not wish either to see the exercise of discipline towards them neglected, or, on the other hand, to see them subjected to the severer punishments which they deserve. Do you, therefore, check their sins in such a way, that the sinners may be spared to repent of their sins."
St. Augustine to Marcellinus [a Catholic, military commander, and judge] (Letter 133)
"Most of them have confessed to committing the murder of Restitutus, the Catholic priest, and to beating Innocent, another Catholic priest, and to gouging our the latter's eye and cutting off his finger. Consequently, I am deeply stricken by the worry that your exalted self might decide to have them punished so harshly by law that the sufferings they will endure correspond to those they have inflicted. I write, therefore, to beg you by the faith you have in Christ, through the mercy of our Lord Christ himself, neither to do this yourself nor to allow it to be done at all. / Now it might be possible for us to turn a blind eye to their deaths, when they were clearly not summoned to trial because we accused them; rather those responsible for keeping an eye on the preservation of public peace indicted them. However, we do not want a matching punishment to be inflicted because of the sufferings of the servant of God, as if in in retaliation. We do not indeed want to prevent the suppression of a villain's freedom to offend. However, we think this should be enough: if legal coercion can turn them from their present crazy restlessness to the peacefulness of sanity, or assign them away from harmful employment to serve useful work, while leaving them alive and physically unmutiliated."
"(17)....The actions authorities need to take are a different matter. Usually a judge unsheathes his sword only when forced to. When he strikes, he do so unwillingly. Personally, he would have like to have avoided bloodshed when sentencing; but maybe he did not want public order to collapse. He was obliged to act in this way by his office, by his authority, by the demands of the situation. But what are you obliged to do, except to beg God, 'Deliver us from evil [Mt 6.13]? You have said, 'Deliver us from evil.' God deliver you from yourself!"
St. Augustine, City of God:
"The same divine law which forbids the killing of a human being allows certain exceptions, as when God authorizes killing by a general law or when He gives an explicit commission to an individual for a limited time. Since the agent of authority is but a sword in the hand, and is not responsible for the killing, it is in no way contrary to the commandment, "Thou shalt not kill" to wage war at God's bidding, or for the representatives of the State's authority to put criminals to death, according to law or the rule of rational justice." (Bk.1, ch.21)
"We call those Christian emperors happy when they are slow to punish, quick to forgive; when they punish, not out of private revenge, but only when forced by the order and security of the republic, and when they pardon, not to encourage impunity, but with the hope of reform; when they temper with mercy and generosity the inevitable harshness of their decrees." ( Bk.5, ch.24)
"Because you ask whether it is permitted to carry out judgment on the feasts of the saints and whether the person, if he deserves it, should be sentenced to death on this same day, you should know that on those feasts on which, as we have shown, one should cease from all worldly labor, we think that one should abstain all the more from secular offices and especially from killing.
For although both can perhaps be exercised without fault, nevertheless it is fitting that since a person should cling more tightly to the things which are of God, he completely cut from himself the things which are of the world, especially since a person who comes to divine military service (militia) should not be implicated in secular business. [cf. 2 Tim. 2:4]"
"You claim that it is part of the custom of your country that guards always stand on the alert between your country and the boundaries of others; and if a slave or freeman [manages to] flee somehow through this watch, the guards are killed without hesitation because of this. Now then, you are asking us, what we think about this practice. One should look through the laws concerning this matter. Nevertheless, far be it from your minds that you, who have acknowledged so pious a God and Lord, now judge so harshly, especially since it is more fitting that, just as hitherto you put people to death with ease, so from now on you should lead those whom you can not to death but to life. For the blessed apostle Paul, who was initially an abusive persecutor and breathed threats and slaughter against the disciples of the Lord,[cf. Acts 9:1] later sought mercy and, converted by a divine revelation, not only did not impose the death penalty on anyone but also wished to be anathema for the brethren [cf. Rom. 9:3] and was prepared to spend and be spent most willingly for the souls of the faithful.[cf. II Cor. 12:15] In the same way, after you have been called by the election of God and illuminated by his light, you should no longer desire deaths but should without hesitation recall everyone to the life of the body as well as the soul, when any opportunity is found. [cf. Rom. 7:6] And just as Christ led you back from the eternal death in which you were gripped, to eternal life, so you yourself should attempt to save not only the innocent, but also the guilty from the end of death, according to the saying of the most wise Solomon: Save those, who are led to death; and do not cease freeing those who are brought to their destruction. [Prov. 24:11]"
"Concerning those who have slaughtered their kinsman, i.e. someone related by blood such as a brother, cousin or grandson, let the venerable laws keep their force. But if they have fled to a church, let them in fact be saved from the laws of death and let them submit without hesitation to the penance that the bishop or priest of the place has decided: I do not want the death of the sinner, sayeth the Lord, but rather wish that he be converted and live. [Ez. 33:11]"
"Now every part is directed to the whole, as imperfect to perfect, wherefore every part is naturally for the sake of the whole. For this reason we observe that if the health of the whole body demands the excision of a member, through its being decayed or infectious to the other members, it will be both praiseworthy and advantageous to have it cut away. Now every individual person is compared to the whole community, as part to whole. Therefore if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since "a little leaven corrupteth the whole lump" (1 Corinthians 5:6)." (Part II-II, Q.64, art. 2)
"According to the order of His wisdom, God sometimes slays sinners forthwith in order to deliver the good, whereas sometimes He allows them time to repent, according as He knows what is expedient for His elect. This also does human justice imitate according to its powers; for it puts to death those who are dangerous to others, while it allows time for repentance to those who sin without grievously harming others." (Part II-II, Q. 64, art. 2)
"An individual man may be considered in two ways: first, in himself; secondly, in relation to something else. If we consider a man in himself, it is unlawful to kill any man, since in every man though he be sinful, we ought to love the nature which God has made, and which is destroyed by slaying him. Nevertheless, as stated above (Article 2) the slaying of a sinner becomes lawful in relation to the common good, which is corrupted by sin. On the other hand the life of righteous men preserves and forwards the common good, since they are the chief part of the community. Therefore it is in no way lawful to slay the innocent." (Part II-II, Q.66)
"Now the punishments of this life are sought, not for their own sake, because this is not the final time of retribution, but in their character of medicine, conducing either to the amendment of the sinner, or to the good of the commonwealth whose calm is ensured by the punishment of evil-doers." (Part II-II, Q.68.art.1)
St. Thomas Aquinas, Summa Contra Gentiles
, Bk.III, ch. 146
"The fact that the evil ones, as long as they live, can be corrected from their errors does not prohibit that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement.
They also have at that critical point of death the opportunity to be converted to God through repentance. And if they are so obstinate that even at the point of death their heart does not draw back from malice, it is possible to make a quite probable judgment that they would never come away from evil.”
Catechism (of the Council of Trent) (1566)
"Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord."
St. Alphonsus de Liguori )1696-1787), "Advice for Priests Who Minister to Those Condemned to Death
Pope Pius XII, “The Moral Limits of Medical Research and Treatment,” 1952
“Even when there is question of the execution of a condemned man, the State does not dispose of the individual's right to life … by his crime, he has already dispossessed himself of his right to life."
Pope John Paul II (1920-2005), Mass in St. Louis, MO, January 27, 1999
"The new evangelization calls for followers of Christ who are unconditionally pro-life: who will proclaim, celebrate and serve the Gospel of Life in every situation. A sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil. Modern society has the means of protecting itself, without definitively denying criminals the chance to reform. I renew the appeal I made most recently at Christmas for a consensus to end the death penalty, which is both cruel and unnecessary."
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More Background Readings