Capital Punishment: A Personal Statement (Chuck Colson)

Prison Fellowship By Charles W. Colson Chuck Colson's spiritual pilgrimage reaches yet another point of significant change

As we Christians grow and cultivate the disciplines of reading and study, we sometimes alter our views. Sometimes these views even change dramatically. No one knows this better than I, having been dramatically converted to Christ and, subsequently, having my entire worldview turned upside-down.

There was a time, for example, when I thought John Locke's understanding of social contract was the ultimate theory of government. I now see that government draws its authority less from the consent of the governed than from a sovereign God. I have come to another of those points in my spiritual pilgrimage in which my views have undergone significant change.

I owe it to those who have followed my work and to the constituency of Prison Fellowship to give the reasons. For as long as I can remember, I have opposed capital punishment. As a lawyer I observed how flawed the legal system is, and I concluded, as Justice Learned Hand once remarked, that it was better that a hundred guilty men go free than one innocent man be executed. I was also influenced by very libertarian views of government; I distrusted government too much to give power to take a human life to the judicial system.

Then as I became a Christian, I was confronted with the reality of Jesus' payment of the debt of human sin. I discovered that the operation of God's marvelous grace in our lives has profound implications for the way we live. Naturally, as I came to deal increasingly with ethical issues, I found myself seriously questioning whether the death penalty was an effective deterrent. My views were very much influenced by Deuteronomy 17 and the need for two eye-witnesses. I questioned whether the circumstantial evidence on which most are sentenced today in fact measures up to this standard of proof. I still have grave reservations about the way in which capital punishment is administered in the U.S., and I still do question whether it is a deterrent. (In fact, I remain convinced it is not a general deterrent.)

But I must say that my views have changed and that I now favor capital punishment, at least in principle, but only in extreme cases when no other punishment can satisfy the demands of justice.

The reason for this is quite simple. Justice in God's eyes requires that the response to an offense - whether against God or against humanity - be proportionate. The lex talionis, the "law of the talion," served as a restraint, a limitation, that punishment would be no greater than the crime. Yet, implied therein is a standard that the punishment should be at least as great as the crime. One frequently finds among Christians the belief that Jesus' so-called "love-ethic" sets aside the "law of of the talion." To the contrary, Jesus affirms the divine basis of Old Testament ethics. Nowhere does Jesus set aside the requirements of civil law.

Furthermore, it leads to a perversion of legal justice to confuse the sphere of private relations with that of civil law. While the thief on the cross found pardon in the sight of God ("Today you will be with me in Paradise"), that pardon did not extend to eliminating the consequences of his crime ("We are being justly punished, for we are receiving what we deserve for our deeds").[1]

What about mercy? someone is inclined to ask. My response is simple. There can be no mercy where justice is not satisfied. Justice entails receiving what we in fact deserve; we did in fact know better. Mercy is not receiving what we in truth deserve. To be punished, however severely, because we indeed deserve it, as C.S. Lewis observed, is to be treated with dignity as human beings created in the image of God. Conversely, to abandon the criteria of righteous and just punishment, as Lewis also pointed out, is to abandon all criteria for punishment.[2]

Indeed, I am coming to see that mercy extended to offenders whose guilt is certain yet simply ignored creates a moral travesty which, over time, helps pave the way for collapse of the entire social order.[3] This is essentially the argument of Romans 13. Romans 12 concludes with an apostolic proscription of personal retribution, yet St. Paul immediately follows this with a divinely instituted prescription for punishing moral evil. It is for eminently social reasons that "the authorities" are to wield the sword, the ius gladii: due to human depravity and the need for moral-social order the civil magistrate punishes criminal behavior. The implication of Romans 13 is that by not punishing moral evil the authorities are not performing their God-appointed responsibility in society.

Paul's teaching in Romans 13 squares with his personal experience. Testifying before Festus, the Apostle certifies: "If...I am guilty of doing anything deserving death, I do not refuse to die."[4]

Perhaps the emotional event that pushed me over the (philosophical) edge was the John Wayne Gacy case some years ago. I visited him on death row. During our hour-long conversation he was totally unrepentant; in fact, he was arrogant. He insisted that he was a Christian, that he believed in Christ, yet he showed not a hint of remorse. The testimony in the trial, of course, was overwhelming. I don't think anybody could possibly believe that he did not commit those crimes, and the crimes were unspeakably barbaric. What I realized in the days prior to Gacy's execution was that there was simply no other appropriate response than execution if justice was to be served.

There are some cases like this - the Oklahoma bombing a case in point - when no other response is appropriate, no other punishment sufficient for the deliberate savagery of the crime. The issue in my mind boils down ultimately to just deserts. Indeed, just punishment is a thread running throughout the whole of biblical revelation. Moreover, there is divinely instituted tension that exists between mercy and justice - a tension that, ethically speaking, may not be eradicated. Mercy without justice makes a mockery of the sacrifice of the Lamb of God. It ignores the fundamental truth of biblical anthropology: the soul that sins must die; sin incurs a debt that must be paid. Punitive dealings provide a necessary atonement and restore the moral balance that has been disturbed by sin.

Purification, one of the most central of biblical themes, reveals to us both the temporal and eternal perspectives on mankind. Purification comes by way of suffering; it prepares the individual to meet His Maker. God's redemptive response to the sin dilemma did not - and does not - eradicate the need to bear the consequences of our actions.

Which leads me to a second observation. The death penalty ultimately confronts us with the issue of moral accountability in the present life.

Contemporary society seems totally unwilling to assign moral responsibility to anyone. Everything imaginable is due to a dysfunctional family or to having had our knuckles rapped while we were in grade-school. Ours is a day in which "abuse excuses" have proliferated beyond our wildest dreams. We really have reached a point where the Menendez brothers plead for mercy - and get it! - because they are orphans, after acknowledging that they made themselves orphans by killing their parents.

Non-Christians and Christians alike are not absolved from the consequences of their behavior. Whether or not faith is professed, penalties for everything from speeding to strangulation apply to all. In American society today, people are literally getting away with murder, and the moral stupor that has descended over our culture reflects a decay, an utter erosion, of time-tested moral norms - norms that have guarded generation after generation. Can anyone really wonder why evidence of a moral dry-rot is everywhere?

I come to this view with something of a heavy heart, as some of the most blessed brothers I've known in my Christian walk were on death row. I think of Richard Moore in particular and, of course, Rusty Woomer, about whom I've written in The Body. I think of Bob Williams in Nebraska and Johnny Cockrum in Texas.

I have a heavy heart as well because I do not believe the system administers criminal justice fairly. It is merely symbolic justice to execute twenty-five people a year when 2,000 are sentenced. (Obviously, the system needs to be thoroughly revamped. Nevertheless, revamping the system, in order that punishment be both swift and proportionate, would accord with biblical guidelines and demands the Christian's engagement.)

But in spite of the flaws of the system, I have come to believe that God in fact requires capital justice, at least in the case of premeditated murder where there is no doubt of the offender's guilt. This is, after all, the one crime in the Bible for which no restitution was possible.[5] Lest we believe the Old Testament was characterized by indiscriminate capital justice, Old Testament law painstakingly distinguished between premeditated murder and involuntary manslaughter; hence, the function of the cities of refuge. Israel's elders, we can be assured, would have adjudicated well at the gate. In the case of involuntary manslaughter, deliverance out of the hand of the avenger occurred. In the case of murder, the convicted criminal was put to death.

Personally, I still doubt that the death penalty is a general deterrent - and strong evidence exists that it is not likely to be a deterrent when it is so seldom invoked. But I have a hard time escaping the attitude of the biblical writers, that judgment - both temporal and eschatological - is a certain reality for those who disobey or reject God's authority. We'll never know how many potential murderers are deterred by the threat of a death penalty, just as we will never know how many lives may be saved by it. But at the bare minimum, it may deter a convict sentenced to life from killing a prison guard or another convict. (In such a case no other punishment is appropriate because all lesser punishments have been exhausted.) And it will certainly prevent a convicted murderer from murdering again. In this regard, I find wisdom in the words of John Stuart Mill:

So in spite of my misgivings, I've come to see capital punishment as an essential element of justice. On the whole, the full range of biblical data weighs in its favor. Society should not execute capital offenders merely for the sake of revenge, rather to balance the scales of moral justice which have been disturbed.

The death penalty is warranted and should be implemented only in those cases where evidence is certain, in accordance with the biblical standard and where no other punishment can satisfy the demands of justice. In the public debate over the death penalty, we are dealing with values of the highest order: respect for the sacredness of human life and its protection, the preservation of order in society, and the attainment of justice through law. The function of biblical sanctions against a heinous crime such as murder is to discourage the wanton destruction of innocent life. Undergirding the biblical sanctions against murder[7] is the utter sacred character of human life.

The shedding of blood in ancient Israel polluted the land - a pollution for which there was no substitute - and thus required the death penalty. This is the significance of the sanctions in Genesis 9 against those who would shed the blood of another. It is because humans are created in the image of God that capital punishment for premeditated murder was to be a perpetual obligation. To kill a person was tantamount to killing God in effigy.[8]

The Noahic covenant recorded in Genesis 9 antedates Israel and the Mosaic code; it transcends Old Testament law per se and mirrors ethical legislation that is binding for all cultures and eras. The sanctity of human life is rooted in the universal creation ethic and thus retains its force in society. Any culture that fails to distinguish between the criminal and the punitive act, in my opinion, is a culture that cannot survive. In this way, then, my own ethical thinking has evolved.

I'm well aware that sincere Christians stand on both sides of this issue. One's views on the death penalty are by no means a test of fellowship. While we take no pleasure in defining the contours of this difficult ethical issue, the Christian community nevertheless is called upon to articulate standards of biblical justice, even when this may be unpopular. Capital justice, I have come to believe, is part of that non-negotiable standard. A moral obligation requires civil government to punish crime, and consequently, to enforce capital punishment, albeit under highly restricted conditions.

Fallible humans will continue to work for justice. But fallible as the system might be, part of the Christian's task is to remind surrounding culture that actions indeed have consequences - in this life and the life to come.

-------------------------------------------------------------------------------- [1]Luke 23:39-43. (back) [2]"The Humanitarian Theory of Punishment," God in the Dock (Eerdmans, 1970), pp. 287-94. (back) [3]Carl Henry states the matter with characteristic clarity: "Where the state considers the life of a deliberate murderer to have greater value than the life of an innocent victim, it demeans the imago Dei in mankind and weakens the supports of social justice" (Carl F.H. Henry, "Perspectives on Capital Punishment," in Twilight of a Great Civilization [Westchester: Crossway, 1988] 71). (back) [4]Acts 25:11. (back) [5]Num. 35:31,33. (back) [6]J.S. Mill, Hansard's Parliamentary Debate (3rd Series; London, April 21, 1868). (back) [7]The prohibition against murder applied to premeditated murder, self-murder, accomplices to murder, and to those who possessed legal authority to punish murderers. (back) [8]W.C. Kaiser, Jr., Toward Old Testament Ethics (Grand Rapids: Zondervan, 1983) 91. (back)

Sorry it took me so long, but here it is.

God’s Justice and Ours

Antonin Scalia

Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a “living document”—that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.

In recent years, that philosophy has been particularly well enshrined in our Eighth Amendment jurisprudence, our case law dealing with the prohibition of “cruel and unusual punishments.” Several of our opinions have said that what falls within this prohibition is not static, but changes from generation to generation, to comport with “the evolving standards of decency that mark the progress of a maturing society.” Applying that principle, the Court came close, in 1972, to abolishing the death penalty entirely. It ultimately did not do so, but it has imposed, under color of the Constitution, procedural and substantive limitations that did not exist when the Eighth Amendment was adopted—and some of which had not even been adopted by a majority of the states at the time they were judicially decreed. For example, the Court has prohibited the death penalty for all crimes except murder, and indeed even for what might be called run–of–the–mill murders, as opposed to those that are somehow characterized by a high degree of brutality or depravity. It has prohibited the mandatory imposition of the death penalty for any crime, insisting that in all cases the jury be permitted to consider all mitigating factors and to impose, if it wishes, a lesser sentence. And it has imposed an age limit at the time of the offense (it is currently seventeen) that is well above what existed at common law.

If I subscribed to the proposition that I am authorized (indeed, I suppose compelled) to intuit and impose our “maturing” society’s “evolving standards of decency,” this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul–wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse–thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for “evolving standards of decency,” but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.

But while my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.

Capital cases are much different from the other life–and–death issues that my Court sometimes faces: abortion, for example, or legalized suicide. There it is not the state (of which I am in a sense the last instrument) that is decreeing death, but rather private individuals whom the state has decided not to restrain. One may argue (as many do) that the society has a moral obligation to restrain. That moral obligation may weigh heavily upon the voter, and upon the legislator who enacts the laws; but a judge, I think, bears no moral guilt for the laws society has failed to enact. Thus, my difficulty with Roe v. Wade is a legal rather than a moral one: I do not believe (and, for two hundred years, no one believed) that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter.

With the death penalty, on the other hand, I am part of the criminal–law machinery that imposes death—which extends from the indictment, to the jury conviction, to rejection of the last appeal. I am aware of the ethical principle that one can give “material cooperation” to the immoral act of another when the evil that would attend failure to cooperate is even greater (for example, helping a burglar tie up a householder where the alternative is that the burglar would kill the householder). I doubt whether that doctrine is even applicable to the trial judges and jurors who must themselves determine that the death sentence will be imposed. It seems to me these individuals are not merely engaged in “material cooperation” with someone else’s action, but are themselves decreeing death on behalf of the state.

The same is true of appellate judges in those states where they are charged with “reweighing” the mitigating and aggravating factors and determining de novo whether the death penalty should be imposed: they are themselves decreeing death. Where (as is the case in the federal system) the appellate judge merely determines that the sentence pronounced by the trial court is in accordance with law, perhaps the principle of material cooperation could be applied. But as I have said, that principle demands that the good deriving from the cooperation exceed the evil which is assisted. I find it hard to see how any appellate judge could find this condition to be met, unless he believes retaining his seat on the bench (rather than resigning) is somehow essential to preservation of the society—which is of course absurd. (As Charles de Gaulle is reputed to have remarked when his aides told him he could not resign as President of France because he was the indispensable man: “Mon ami, the cemeteries are full of indispensable men.”)

I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the “living Constitution,” who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the “living Constitution” has such attraction for us judges.)

It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic—and being unable to jump out of my skin—I cannot discuss that issue without reference to Christian tradition and the Church’s Magisterium.

The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual. In my view, the major impetus behind modern aversion to the death penalty is the equation of private morality with governmental morality. This is a predictable (though I believe erroneous and regrettable) reaction to modern, democratic self–government.

Few doubted the morality of the death penalty in the age that believed in the divine right of kings. Or even in earlier times. St. Paul had this to say (I am quoting, as you might expect, the King James version):

Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake. (Romans 13:1–5)

This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government—however you want to limit that concept—derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” And in this world the Lord repaid—did justice—through His minister, the state.

These passages from Romans represent the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies. It is much more difficult to see the hand of God—or any higher moral authority—behind the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will. How can their power to avenge—to vindicate the “public order”—be any greater than our own?

So it is no accident, I think, that the modern view that the death penalty is immoral is centered in the West. That has little to do with the fact that the West has a Christian tradition, and everything to do with the fact that the West is the home of democracy. Indeed, it seems to me that the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post–Christian Europe, and has least support in the church–going United States. I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” And when Cranmer asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to Him.” For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!

Besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will—the ability of man to resist temptations to evil, which God will not permit beyond man’s capacity to resist—is central to the Christian doctrine of salvation and damnation, heaven and hell. The post–Freudian secularist, on the other hand, is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.

Of course those who deny the authority of a government to exact vengeance are not entirely logical. Many crimes—for example, domestic murder in the heat of passion—are neither deterred by punishment meted out to others nor likely to be committed a second time by the same offender. Yet opponents of capital punishment do not object to sending such an offender to prison, perhaps for life. Because he deserves punishment. Because it is just.

The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law—even if it does not compel him to act unjustly—need not be obeyed. St. Paul would not agree. “Ye must needs be subject,” he said, “not only for wrath, but also for conscience sake.” For conscience sake. The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible. We have done that in this country (and continental Europe has not) by preserving in our public life many visible reminders that—in the words of a Supreme Court opinion from the 1940s—“we are a religious people, whose institutions presuppose a Supreme Being.” These reminders include: “In God we trust” on our coins, “one nation, under God” in our Pledge of Allegiance, the opening of sessions of our legislatures with a prayer, the opening of sessions of my Court with “God save the United States and this Honorable Court,” annual Thanksgiving proclamations issued by our President at the direction of Congress, and constant invocations of divine support in the speeches of our political leaders, which often conclude, “God bless America.” All this, as I say, is most un–European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as “the minister of God,” to “execute wrath” upon the evildoer.

A brief story about the aftermath of September 11 nicely illustrates how different things are in secularized Europe. I was at a conference of European and American lawyers and jurists in Rome when the planes struck the twin towers. All in attendance were transfixed by the horror of the event, and listened with rapt attention to the President’s ensuing address to the nation. When the speech had concluded, one of the European conferees—a religious man—confided in me how jealous he was that the leader of my nation could conclude his address with the words “God bless the United States.” Such invocation of the deity, he assured me, was absolutely unthinkable in his country, with its Napoleonic tradition of extirpating religion from public life.

It will come as no surprise from what I have said that I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong. That, by the way, is how I read those documents—and not, as Avery Cardinal Dulles would read them, simply as an affirmation of two millennia of Christian teaching that retribution is a proper purpose (indeed, the principal purpose) of criminal punishment, but merely adding the “prudential judgment” that in modern circumstances condign retribution “rarely if ever” justifies death. (See “Catholicism & Capital Punishment,” FT, April 2001.) I cannot square that interpretation with the following passage from the encyclical:

It is clear that, for these [permissible purposes of penal justice] to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and 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. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically nonexistent. (Emphases deleted and added.)

It is true enough that the paragraph of the encyclical that precedes this passage acknowledges (in accord with traditional Catholic teaching) that “the primary purpose of the punishment which society inflicts is ‘to redress the disorder caused by the offense’” by “imposing on the offender an adequate punishment for the crime.” But it seems to me quite impossible to interpret the later passage’s phrase “when it would not be possible otherwise to defend society” as including “defense” through the redress of disorder achieved by adequate punishment. Not only does the word “defense” not readily lend itself to that strange interpretation, but the immediately following explanation of why, in modern times, “defense” rarely if ever requires capital punishment has no bearing whatever upon the adequacy of retribution. In fact, one might say that it has an inverse bearing.

How in the world can modernity’s “steady improvements in the organization of the penal system” render the death penalty less condign for a particularly heinous crime? One might think that commitment to a really horrible penal system (Devil’s Island, for example) might be almost as bad as death. But nice clean cells with television sets, exercise rooms, meals designed by nutritionists, and conjugal visits? That would seem to render the death penalty more, rather than less, necessary. So also would the greatly increased capacity for evil—the greatly increased power to produce moral “disorder”—placed in individual hands by modern technology. Could St. Paul or St. Thomas even have envisioned a crime by an individual (as opposed to one by a ruler, such as Herod’s slaughter of the innocents) as enormous as that of Timothy McVeigh or of the men who destroyed three thousand innocents in the World Trade Center? If just retribution is a legitimate purpose (indeed, the principal legitimate purpose) of capital punishment, can one possibly say with a straight face that nowadays death would “rarely if ever” be appropriate?

So I take the encyclical and the latest, hot–off–the–presses version of the catechism (a supposed encapsulation of the “deposit” of faith and the Church’s teaching regarding a moral order that does not change) to mean that retribution is not a valid purpose of capital punishment. Unlike such other hard Catholic doctrines as the prohibition of birth control and of abortion, this is not a moral position that the Church has always—or indeed ever before—maintained. There have been Christian opponents of the death penalty, just as there have been Christian pacifists, but neither of those positions has ever been that of the Church. The current predominance of opposition to the death penalty is the legacy of Napoleon, Hegel, and Freud rather than St. Paul and St. Augustine. I mentioned earlier Thomas More, who has long been regarded in this country as the patron saint of lawyers, and who has recently been declared by the Vatican the patron saint of politicians (I am not sure that is a promotion). One of the charges leveled by that canonized saint’s detractors was that, as Lord Chancellor, he was too quick to impose the death penalty.

I am therefore happy to learn from the canonical experts I have consulted that the position set forth in Evangelium Vitae and in the latest version of the Catholic catechism does not purport to be binding teaching—that is, it need not be accepted by practicing Catholics, though they must give it thoughtful and respectful consideration. It would be remarkable to think otherwise—that a couple of paragraphs in an encyclical almost entirely devoted not to crime and punishment but to abortion and euthanasia was intended authoritatively to sweep aside (if one could) two thousand years of Christian teaching.

So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for Governor had to promise commutation of all death sentences (most of them would never reach the Governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.

I find it ironic that the Church’s new (albeit nonbinding) position on the death penalty—which, if accepted, would have these disastrous consequences—is said to rest upon “prudential considerations.” Is it prudent, when one is not certain enough about the point to proclaim it in a binding manner (and with good reason, given the long and consistent Christian tradition to the contrary), to effectively urge the retirement of Catholics from public life in a country where the federal government and thirty–eight of the states (comprising about 85 percent of the population) believe the death penalty is sometimes just and appropriate? Is it prudent to imperil acceptance of the Church’s hard but traditional teachings on birth control and abortion and euthanasia (teachings that have been proclaimed in a binding manner, a distinction that the average Catholic layman is unlikely to grasp) by packaging them—under the wrapper “respect for life”—with another uncongenial doctrine that everyone knows does not represent the traditional Christian view? Perhaps, one is invited to conclude, all four of them are recently made–up. We need some new staffers at the Congregation of Prudence in the Vatican. At least the new doctrine should have been urged only upon secular Europe, where it is at home.

Antonin Scalia is a Justice of the Supreme Court of the United States. This article is adapted from remarks given at a conference sponsored by the Pew Forum on Religion and Public Life at the University of Chicago Divinity School.

Your Honor! Your Verdict on Evangelium Vitae and Church Teaching on the Death Penalty is Wrong

In the March 19, 2002 issue of The National Catholic Register, U.S. Supreme Court Justice Antonin Scalia responded to letter to the editor that appeared in the February 17-23 2002 issue that took him to task regarding his dissent from the teaching on the death penalty contained in Pope John Paul II's encyclical Evangelium Vitae.

I found his response shocking in that it demonstrates a fundamental ignorance of not only the teaching of Evangelium Vitae on capital punishment and traditional Church teaching on capital punishment as a whole, but also (and I think most importantly) the degree of assent that the faithful owe to magisterial teaching.

Below is a point by point analysis of some of his comments.

I wish to say from the outset that I do not enjoy making such criticism of someone who I think is the most eminent Justice on our nation's most august court. He, Justice Clarence Thomas and Chief Justice Rehnquist have done much to fight the judicial activism that has infected the court. But when someone who is not only regarded as a great Justice, but also as a great Catholic, publicly errs on such fundamental points of Catholic theology, it cannot go by without comment.

"I am being a jurist when I ask whether the performance of my job (I participate in imposition of the death penalty) is forbidden by authentic Catholic doctrine."

Here, Justice Scalia is absolutely correct. One does not check his Catholic faith at the door of his workplace, especially when that workplace is the most powerful legal institution in the world whose decisions have real impact on real lives.

"Or do you think that authentic moral imperatives announced by the Church have no real-life consequences?"

Here again he is correct. As I myself am wont to say, if one does not see the truth of the Catholic faith in real life circumstances, he doesn't see it all.

"Perhaps so, because I cannot imagine any other explanation for your acknowledging that disagreement with Evangelium Vitae is permissible, while simultaneously criticizing me for voicing such dissent...."

Before we can determine to what extent, if at all, we can dissent from this encyclical, we have to understand what it really says. As we will soon see, Justice Scalia doesn't.

"...in response to a student at Georgetown who asked (quite reasonably) "How, as a Catholic judge, can you participate in the process of imposing the death penalty, which the Church says is immoral?"

The question may have been asked in a reasonable tone and the questioner may have been sincere, but its premise is erroneous.

"You say that my response - to the effect that I do not believe immorality of the death penalty to be authentic Catholic doctrine - was "an example of a powerful man persuading a crowd of people that the Church is wrong."

He is right again when he says that the immorality of the death penalty (at least in the abstract) is not authentic Catholic doctrine. Thus far, he is in agreement with Evangelium Vitae.

"What was I supposed to say? "I am a judge, not a theologian"?

Given the lack of understanding Justice Scalia demonstrates in this letter of basic moral theological principles, particularly in regards to this issue, such a response would have saved him a lot of face.

"(In any case, I was of course not asserting that the Church was wrong, but that the Church in fact teaches the opposite of what recent, non-ex cathedra, pronouncements have said.)"

This parenthetical remark fails "Theology 101" on two grounds. The first of which is that there is a conflict between the teaching in Evangelium Vitae and perennial Church teaching. Evangelium Vitae in no way teaches that the State does not have the right to impose Capital Punishment on those guilty of the most serious crimes commensurate with its grave duty to protect the common good. I will explain this necessary condition more fully when I expose Justice Scalia's misunderstanding of St. Paul.

He then blunders badly when he falls for the "if it is not defined ex-cathedra it is not binding" error. He would do well to read the following from Vatican II's Dogmatic Constitution on the Church:

In matters of faith and morals, the bishops speak in the name of Christ and the faithful are to accept their teaching and adhere to it with a religious assent. This religious submission of mind and will must be shown in a special way to the authentic magisterium of the Roman Pontiff even when he is not speaking ex cathedra; that is, it must be shown in such a way that his supreme magisterium is acknowledged with reverence, the judgments made by him are sincerely adhered to, according to his manifest mind and will. (Lumen Gentium 25 Emphasis Added)

Also Pope Pius XII taught:

Nor must it be thought that what is expounded in Encyclical Letters does not of itself demand consent, since in writing such Letters the Popes do not exercise the supreme power of their Teaching Authority. For these matters are taught with the ordinary teaching authority, of which it is true to say: "He who heareth you, heareth me" (Luke 10:16); and generally what is expounded and inculcated in Encyclical Letters already for other reasons appertains to Catholic doctrine. (Encyclical Letter Humani Generis #20 August 12, 1950)

"Perhaps you do not appreciate the moral dilemma that the new teaching has forced upon Catholic judges, prosecutors and jurors because you do not understand the new teaching."

This is no "new teaching." It is a fuller explanation of what the Church has always taught and is applied to modern circumstances. If this "new teaching" is a departure from what the Church previously taught infallibly, and by logical extension wrong, as the good Justice asserts, then it should pose no moral dilemma for Catholic judges, jurors, prosecutors, or elected officials for that matter. It is Justice Scalia who doesn't understand this teaching and is perhaps projecting his difficulty here as a moral dilemma for others. If anything, this "new teaching," as he is wont to call it, should actually relieve them of such dilemma (if there is one to begin with) because it sets out more clearly what the Church actually teaches on this matter, thus giving them a better understanding of the moral obligations that weigh on their decisions. Should they not have this clearer understanding as they assume their grave duty as not only as Catholics, but also as citizens?

If the moral imperatives announced by the Church have the real life consequences that Justice Scalia correctly asserts, would not one of those consequences be that their decisions, especially one as weighty as to whether or not to put someone to death, have a significant effect on society? And should not this effect factor into such a decision?

As I am sure the Justice is well aware, the questioning of the morality of capital punishment originated as much in the secular world as the Church. The rather recent development of Church teaching on the matter is, to a great extent, a response to those questions:

On this matter [the death penalty] there is a growing tendency, in both the Church and civil society, to demand that it applied in a very limited way or even that it be abolished completely. The problem must be viewed of the context of a system of penal justice more in line with human dignity and thus, with God's plan for man and society. (Evangelium Vitae #56)

"The encyclical says that the death penalty is only justified - only moral - "in cases of absolute necessity: In other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent." In other words, the death penalty is rarely, if ever, morally permissible."

Here, Scalia is mixing apples and oranges. He apparently cannot distinguish between a doctrinal teaching and an opinion that is not germane to faith and morals per se.

Before we see exactly how this is so, let's look at the pertinent passage from Evangelium Vitae addressing the subject at hand:

The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offense." Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behavior and be rehabilitated. It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and 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. (Evangelium Vitae #56)

Here is the extent of the teaching of Evangelium Vitae viz. that the state's right to inflict capital punishment is dictated by the purpose of punishment, which is delineated by what is necessary "to redress the disorder [which would include alleviating any further threat] caused by the offense." Theologian Cardinal Avery Dulles takes the position that the necessary defense of society includes vindication of the moral order. This would stand to reason, since the wound to the moral fabric of society inflicted by the offense adversely affects its safety proportionately. I agree with his Eminence here and it seems so does Evangelium Vitae:

In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: "If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means..." (ibid emphasis added)

While the public order and the moral order may not be identical, they are interdependent.

Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent. (ibid)

This statement is the Pope's opinion as to the state's ability to protect society without resorting to lethal means, and therefore not part of the teaching itself. Justice Scalia again errs badly by trying to include this statement as part of the teaching of Evangelium Vitae. First of all, it is clear, based upon the way this statement reads, that it is an expression of an opinion, having no necessary connection with the doctrine itself. As a jurist, Justice Scalia should know that the Church has no competence to authoritatively decide whether or not, or to what extent, the state is able to protect society by non-lethal measures. That is left to the competence of those responsible for the administration of criminal justice for any given state or nation. The Pope's authority is restricted to setting the moral parameters within which the state must make its determination.

"This represents a fundamental change from the (infallible) universal teaching of the past 2,000 years, because it proceeds from the premise that the only justifiable purpose of the death penalty is to "defend society" in the manner that prisons defend it - that is, to disable the offender and deter future offenders. "

Here Justice Scalia argues against his own criteria stated above (i.e. ex-cathedra pronouncement) about as to what constitutes binding teaching. You will find no ex-cathedra pronouncements on the death penalty, or any other moral teaching for that matter. These teachings are binding by virtue of the universal ordinary magisterium. Evangelium Vitae is an encyclical. And encyclicals do require assent, as Pope Pius XII points out in the statement I quote above, because they have the character of ordinary teaching authority based on the words of Jesus Himself, "He that hears you, hears me. He who rejects you rejects me and the one who sent me." (Lk. 10:16) Justice Scalia has the same obligation to submit his private judgment as to the correct understanding of Tradition to ecclesiastical authority, especially that of the pope, as any other Catholic. This is a fact that he had better take seriously.

Now in submitting our own judgment to the Church, we do not renounce our right (I would go so far as to say duty) to understand for ourselves, to the best of our ability, how the Church's interpretation is indeed the correct one. Such submission safeguards the private judgment of even the most intelligent among us from being taken in by ideas that are fundamentally unsound--like those adopted by Justice Scalia.

From this we must conclude that since the ordinary teaching authority demands such adherence, it is self-consistent, despite seeming appearances to the contrary. This would put lie to the claim of a fundamental change "from the (infallible) universal teaching of the past two thousand years" posited by Scalia.

I'm curious as to how Scalia would argue how John Paul II's teaching is a departure from the following from the Roman Catechism, published by the Holy See shortly after the end of the Council of Trent in 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. (Roman Catechism Fifth Commandment Execution of Criminals emphasis added)

Notice that the Tridentine Catechism lists two reasons for the just use of the death penalty, to punish the guilty and protect the innocent. Also, in recognizing that the just use of capital punishment is not only not a violation of, but "an act of paramount obedience" to the Fifth Commandment, it states that "preservation and security of life" is the end of the Commandment. John Paul II just takes the next logical step, as popes are wont to do.

Seeing as how Justice Scalia is confused about some of the more elementary points of Catholic doctrine and the degree of assent owed, it is not surprising that he is unable to see how that doctrine develops. While what is taught in a later age may not look identical to what was previously taught, it is organic to it, as the comparison between the Tridentine Catechism and E.V. clearly demonstrates. Such development of doctrine is propelled by the challenges posed to it by a given age, which can take many forms. In the case of the death penalty, the questioning of its use was prompted by the development of modern penal systems that are better able to achieve the purposes of punishment for such crimes without resort to lethal means. To wit, in ages past, the penal systems were not designed and therefore not able to humanely incarcerate offenders long term.

Perhaps I am reading something into Justice Scalia's remarks (i.e. " in the manner that prisons defend it) that is not there, but I think he takes issue with the pope's trust in the ability of modern penal systems to protect society by bloodless means. Such a disagreement, as I pointed out above, is a legitimate position from the perspective of Catholic moral teaching, since the Church has no authoritative competence in deciding this particular issue. As a jurist who holds a seat on the highest court in the most powerful country in the world, this is an area that Justice Scalia can definitely speak competently on. I think that he has a right and a duty to make his views on the effectiveness of penal systems known to Church authorities and Church authorities, likewise, have a duty to listen. But it is unbecoming of a faithful son of the Church to publicly call into question the pope's interpretation, expounded in an encyclical letter, of the traditional Church teaching regarding the moral use of Capital Punishment, whereas an act of obedience here would save much confusion and embarrassment.

"Prior teaching, from St. Paul forward, was that retribution is a valid objective."

Justice Scalia seems to be confused as to everything retribution entails. He seems to be laboring under the idea that it is a "tit-for-tat" "eye-for-an-eye" system of justice. Retribution includes what is needed to heal the wound caused by an offense.

"Whereas, St. Paul says, individual Christians must "give way to wrath," the government "carries the sword" as "the minister of God to execute vengeance upon him that doeth evil."

This playing Scripture off against papal teaching, as Justice Scalia is doing here, reflects not a Catholic way of thinking, but that of a Protestant. It is true that governments "carry the sword," as Justice Scalia, citing St. Paul, points out. It is, of course, within the competence of the state to decide within the moral parameters defined by the Church, whether or not to execute an offender guilty of a serious crime. It is only once those conditions have been satisfied that Christians "must give way to wrath."

The state not only has the right, but the duty, to execute God's vengeance on evil-doers. But the operative word here is "God's," not man's, vengeance. God exercises His wrath for the good of His people, not for the purposes of self-satisfaction. Without understanding this, the God of the Old Testament looks like a bloodthirsty, murderous, and genocidal deity, as opposed to being a God who is "slow to anger abounding in kindness"(Ps.103:8). In other words the state, in deciding whether or not to execute, must do so with a view to good of society, not to satisfy a desire for a payback.

To be sure, a similar flaw in logic exists on the other end with those who call for an end to capital punishment on the basis of a distorted sense of mercy. Such wrongful, albeit understandable, desires for revenge are what motivate many of those who support the death penalty. This is not, however, the criteria by which we can judge whether or not someone should be put to death.

In the days leading up to the execution of Timothy McVeigh, we saw such an emotionalism that smacked of barbarism when his execution was anticipated with glee by those who are otherwise very clear thinking people. This plays right into the hands of those who promote the error that governments need to govern according to popular pushes without regard to moral limits.

But the next time Justice Antonin Scalia wants to publicly take issue with the pope over an interpretation of a traditional Church teaching expounded in an encyclical (which as a Catholic layman, he has no business doing in the first place), he ought to at least better familiarize himself with both the encyclical and previous teaching. His dissenting opinion of Evangelium Vitae on capital punishment shows not only a lack of obedience to divinely established authority, but also an embarrassing lack of understanding of Catholic teaching.

From "The Lidless Eye Inquisition"

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