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Friday, December 29, 2006

Capital Punishment, Cardinal Martino and the Catholic Church

I had said I would be taking a break from blogging during the holiday season, but having returned from vacation I couldn't help but take an interest in an ongoing debate on Evangelical Catholicism, beginning with " A Catholic response to the sentencing of Saddam" (Dec. 28, 2006), being in part a rebuttal to Jimmy Akin's criticism of Cardinal Martino (November 09, 2006).

In his original criticism of Cardinal Martino, Jimmy Akin asserts that "The death penalty is not a crime legally, nor is it one in principle morally," and that "even if we assume that "killing for vindication" is a crime -- an assumption that can be subject to extreme challenge -- it does not follow that Saddam's execution is simply killing for vindication."

Michael disagrees, and charges Jimmy with "negligence" in presenting the Church's teaching on the issue:

Akin . . . neglected to note the important fact that clear and crisp sections of John Paul II's Evangelium vitae were interpolated into the 1997 Latin edition of the Catechism, which is the definitive and authoritative version of the Catechism. Nor did Akin notice the insightful commentary on the Catechism published by the general editor of the Catechism himself, Cardinal Christoph Schönborn.
The crux of Michael's dispute with Jimmy is as follows:
The Church provides theoretical situations in which the death penalty can be used: "if this is the only possible way of effectively defending human lives against the unjust aggressor." However, given this theoretical situation, we must next ask whether such a situation actually, historically and practically exists: "such cases are very rare, if not practically non-existent." The distinction between what is theoretically possible and what is practically the case is essential to the Catholic evaluation of the death penalty, not to mention to a plethora of moral and social questions. This is why John Paul II and Cardinal Schönborn use terms such as "practically" and "in practice" when they vocally oppose the death penalty. The possibility of a situation where the death penalty may be necessary is not denied in their teachings. However, there is strong skepticism expressed as to whether there are actual present conditions for the use of the death penalty. During the pontificate of John Paul II, not once were these conditions determined to exist anywhere in the world. This important distinction between the theoretical/possible and the practical/actual is not made by Akin, who instead conflates the two and privileges the theoretical teaching over the practical throughout his post on Saddam. Yet, is it not telling that he accuses Martino of being "sloppy" and "misleading", and describes Martino's analysis as below the "standard of high moral clarity that should be found in the public utterances of an official of the Vatican"? The misleading comments in actuality do not belong to Martino.
I expect Jimmy will respond to Michael's charges in his own time. However, on behalf of Jimmy I think his post was rightly motivated: not by a personal animus against Cardinal Martino, not "an attempt to make Martino look foolish" but rather a challenge to Martino's rendering (distortion?) of the Church's teaching on the death penalty by his characterization of the sentence of Saddam Hussein:
"For me, punishing a crime with another crime, which is what killing for vindication is, would mean that we are still at the point of demanding an eye for an eye, a tooth for a tooth. Unfortunately, Iraq is one of the few countries that have not yet made the civilized choice of abolishing the death penalty."
(Source: Vatican opposes Saddam’s death sentence Catholic News Agency Nov. 6, 2006).

You don't have to bear a grudge against Martino to recognize that there is gross potential for misunderstanding of the Church's position on the death penalty in that single comment -- the conflation of the death penalty with the desire for revenge and the intimation that the only "civilized choice" a country may have is to seek the wholesale abolition of capital punishment. (Suffice to say I agree with Jimmy's criticism here).

Is there Legitimate Room for Disagreement?

May one in fact disagree with the teaching of John Paul II on the death penalty (in Evangelium Vitae and later conveyed in the Catechism and the Compendium? -- Perusing the comments on Evangelical Catholicism, the hosts and their readers appear to be divided on this very question. Michael responds to a readers' characterization of the Pope's argument as a "personal prudential judgement" and insistence that one may disagree with John Paul II's opposition to the death penalty and yet remain "a Catholic in good standing":

First, if it was a personal judgment, then why would John Paul II circulate his opinion to the worldwide Church by means of an encyclical (Evangelium Vitae)? Second, I am sure that you are aware that papal encyclical letters carry a firm authority that demands the assent of the Catholic faithful . . .
Michael reiterates Lumen Gentium 25 ("This loyal submission of the will and intellect must be given, in a special way, to the authentic teaching authority of the Roman Pontiff, even when he does not speak ex cathedra in such wise, . . .") and Pope Pius XII's in Humani Generis 20 ("Nor must it be thought that what is contained in encyclical letters does not of itself demand assent, on the pretext that the popes do not exercise in them the supreme power of their teaching authority. Rather, such teachings belong to the ordinary magisterium . . ."). During the 2004 presidential elections, the candicacy of Senator John Kerry -- a self-identified "pro-choice Catholic" -- was the source of much controversy. Liberal supporters often responded to criticisms by suggesting that Catholic legislators who supported the death penalty also dissented from Church teaching. In an oft-quoted letter to Cardinal McCarrick in 2004 ("Worthiness to Receive Holy Communion - General Principles"), then-Cardinal Ratzinger as Prefect of the Congregation for the Doctrine of the Faith clarified the difference by affirming:
3. Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.

Now, if the present Pope of the Catholic Church has affirmed the possibility of disagreement among Catholics over the application of the death penalty, we should take this as an invitation to examine this issue further.

Church or State -- Who decides?

A related question in this debate: whether the 'locus of authority' reside in determining the application of the death penalty resides in the Church or the duly constituted civil authority? -- Michael concludes from his analysis of the conditions in Iraq:

The death penalty is not the only option available for dealing with Saddam, and so, de facto, the execution of Saddam Hussein is not a moral option under CCC 2267. Saddam's death sentence does not meet the criteria of Catholic social and moral teaching, and Martino has correctly noted that fact.

In a recent post, Michael takes a jab at "those who purport to understand issues of justice and peace better than the Cardinal" and "desk chair bloggers will likewise claim an expertise in the areas of Catholic social doctrine and global socio-poltical conditions from the limits of their laptops." While I agree with Evangelical Catholicism that any Catholic expressing their disagreement with Martino should do so with the respect that should be accorded to a Cardinal of the Church, I am concerned about the assumption that if a member of the Vatican curia pronounces this practical application of the death penalty to be "a crime," his doing so effectively rules out any disputation to the contrary.

In mounting his own case for clemency, Michael himself appeals in part to "global socio-political conditions." from his own laptop. In claiming, for instance, that "During the pontificate of John Paul II, not once were these conditions [for use of the death penalty] determined to exist anywhere in the world" -- I think you would encounter a number of legal prosecutors and officials with years of experience in law enforcement, who would beg to differ, and may even be more qualified to make that judgement than a member of the Vatican, even a President of the Pontifical Council for Justice and Peace.

In Capital Punishment: Drawing the Line Between Doctrine and Opinion ( June 7, 2004), Dr. Jeff Mirus contends that:

In matters governing social stability and public safety, prudential judgement is inevitable. Moreover, the authority for judgement in this sphere is not given to the Church. It is the province of the secular arm -- the legitimately constituted civil authority -- to decide what is and is not sufficient to protect public safety.

Now, since the Church teaches that non-lethal means of punishment must be used whenever they are sufficient, no Catholic politician or ruler worthy of the name will attempt to impose the death penalty in cases where he does not believe it necessary to protect the public safety. But politicians, rulers, States and, indeed, the man in the street, may reasonably differ over whether capital punishment is necessary to protect the public safety in our time and under our circumstances.

* * *

Development or Reversal of Doctrine?

In The Purposes of Punishment (CHRISTIFIDELIS Sept. 14, 2003), Michael Dunnigan provides a helpful summary of the theological debate (and controversy) over the inclusion of John Paul II's prudential judgement in Evangelium Vitae in the 1997 revision of the Catechism of the Catholic Church, including the positions of those who have weighed in (Cardinal Schonborn, Cardinal Dulles, Fr. Rutler) in the pages of Catholic Dossier and National Catholic Register. According to Dunnigan:

Catholic teaching on capital punishment is in a state of dangerous ambiguity. The discussion of the death penalty in the Catechism of the Catholic Church is so difficult to interpret that conscientious members of the faithful scarcely know what their Church obliges them to believe. Although the constant teaching of the Church has been that the state has a right to impose the death penalty, the Catechism declares that the actual circumstances in which capital punishment is legitimate are practically nonexistent. Moreover, the Catechism weaves doctrine so tightly together with prudential and factual judgments that it is not at all clear how much of its discourse on capital punishment actually is being put forward as binding Catholic teaching. [. . .]

[R]ecent pronouncements of the Magisterium — Evangelium vitae and the Catechism — affirm the Church’s traditional teaching that, in appropriate circumstances, the State may have recourse to capital punishment. However, the same statements circumscribe very narrowly the ambit in which this recourse is legitimate. In the words of the director of the commission that prepared the Catechism, the official version “leaves the door to the death penalty theoretically open . . ., while closing it practically" [C. Schönborn, “Brief Note on the Revision," Catholic Dossier 4, no. 5 (1998), 10]. This unprecedented restriction on the imposition of the death penalty raises the question of the legitimate ends or purposes of punishment. The key issue in the debate over the death penalty is whether the recent statements of the Magisterium contradict the Church’s previous teaching on the purposes of punishment.

The confusion that characterizes the death penalty debate among Catholics is in part due to the fact that the Catechism gives the impression that the Church has indeed eliminated retribution as a legitimate purpose of punishment:

The preliminary version of the Catechism said, “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should limit itself to such means . . .” [CCC prelim. vers., 2267 (emphasis added)]. Thus, this passage described as justifications for capital punishment not only the safety of persons, but also the protection of public order. The ordinary meaning of public order is sufficiently broad to encompass the traditional purposes of punishment, namely retribution and deterrence.

However, in the revision of the Catechism, the reference to public order was deleted, so that a sole justification for the death penalty remained in the official version, namely physical safety. “If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means . . .” [CCC off. vers., 2267 (emphasis added)].

Even Supreme Court Justice Antonin Scalia was led to "dissent" against the Magisterium, protesting in the National Catholic Register that "to eliminate retribution as a legitimate purpose of capital punishment is to depart from “the (infallible) universal teaching of the past 2,000 years." Scalia further voiced his argument in a First Things article God’s Justice and Ours (First Things 123 (May 2002): 17-21).

Responding to Scalia (Antonin Scalia and His Critics: The Church, the Courts, and the Death Penalty First Things 126 (October 2002)), Cardinal Dulles makes the distinction between the prudential judgement of the Pope and the teaching of the Church. And, while he himself agrees with the prudential judgement of the Pope, he likewise reaffirms the right of Catholics to disagree:

As to the Pope’s assertion that the death penalty should today be rare, I would reaffirm, against Justice Scalia, that this is to be understood as an exercise of the Pope’s prudential judgment. “Prudential” has a technical theological meaning with which Justice Scalia seems not to be familiar. It refers to the application of Catholic doctrine to changing concrete circumstances. Since the Christian revelation tells us nothing about the particulars of contemporary society, the Pope and the bishops have to rely on their personal judgment as qualified spiritual leaders in making practical applications. Their prudential judgment, while it is to be respected, is not a matter of binding Catholic doctrine. To differ from such a judgment, therefore, is not to dissent from Church teaching.

Dunnigan goes on to examine the doctrinal treatment of the death penalty in the Catechism. He believes that a "development of doctrine" has indeed occurred in John Paul II's choice to ground his teaching on the death penalty in the context of legitimate defense, rather than the traditional teaching on punishment (with narrow restrictions on when the sentence may be employed). However, he concurs with Professor Gerald Bradley (The Teaching of the Gospel of Life Catholic Dossier Vol. 4, No. 5), that analyzing the death penalty in this manner "renders the recent teaching of the Magisterium obscure" and is in need of "authoritative clarification."

I believe that these recent pronouncements contain a legitimate development of doctrine, namely that, to a certain extent, it is proper to analyze capital punishment in light of Church teaching on legitimate defense and that, in this light, it becomes clear that capital punishment is legitimate only when non-lethal means are insufficient to vindicate legitimate societal interests. However, my opinion also is that these pronouncements are “not free from all deficiencies.” That is, they define too narrowly the interests that society legitimately may vindicate through imposition of the death penalty. These legitimate interests are not limited to the protection of physical safety, but, consistent with the Church’s traditional teaching on the purposes of punishment, they also include retribution or the reparation of the disorder created by the crime.
The Analysis of Avery Cardinal Dulles

Another instructive article I've read on this topic -- probably the best survey of what Catholic tradition actually teaches on capital punishment -- is Avery Cardinal Dulles' Catholicism and Capital Punishment First Things 112 (April 2001): 30-35.

Despite what Dulles refers to as its "tempting simplicity," there is no basis for a strictly abolitionist position on the death penalty either in the scriptures or Christian tradition:

The Catholic magisterium does not, and never has, advocated unqualified abolition of the death penalty. I know of no official statement from popes or bishops, whether in the past or in the present, that denies the right of the State to execute offenders at least in certain extreme cases. . . .

Pope John Paul II spoke for the whole Catholic tradition when he proclaimed in Evangelium Vitae (1995) that “the direct and voluntary killing of an innocent human being is always gravely immoral.” But he wisely included in that statement the word “innocent.” He has never said that every criminal has a right to live nor has he denied that the State has the right in some cases to execute the guilty.

It is thus the obligation of Catholics to discern when the death penalty ought to be applied. Here Dulles then examines the fourfold purpose of punishment -- "rehabilitation, defense against the criminal, deterrence, and retribution" and the effectiveness of the death penalty in achieving these ends. He concludes:
The death penalty . . . has different values in relation to each of the four ends of punishment. It does not rehabilitate the criminal but may be an occasion for bringing about salutary repentance. It is an effective but rarely, if ever, a necessary means of defending society against the criminal. Whether it serves to deter others from similar crimes is a disputed question, difficult to settle. Its retributive value is impaired by lack of clarity about the role of the State. In general, then, capital punishment has some limited value but its necessity is open to doubt.
Cardinal Dulles ends his study with a 10-point summary encapsulating the Church's teaching:
  1. The purpose of punishment in secular courts is fourfold: the rehabilitation of the criminal, the protection of society from the criminal, the deterrence of other potential criminals, and retributive justice.

  2. Just retribution, which seeks to establish the right order of things, should not be confused with vindictiveness, which is reprehensible.

  3. Punishment may and should be administered with respect and love for the person punished.

  4. The person who does evil may deserve death. According to the biblical accounts, God sometimes administers the penalty himself and sometimes directs others to do so.

  5. Individuals and private groups may not take it upon themselves to inflict death as a penalty.

  6. The State has the right, in principle, to inflict capital punishment in cases where there is no doubt about the gravity of the offense and the guilt of the accused.

  7. The death penalty should not be imposed if the purposes of punishment can be equally well or better achieved by bloodless means, such as imprisonment.

  8. The sentence of death may be improper if it has serious negative effects on society, such as miscarriages of justice, the increase of vindictiveness, or disrespect for the value of innocent human life.

  9. Persons who specially represent the Church, such as clergy and religious, in view of their specific vocation, should abstain from pronouncing or executing the sentence of death.

  10. Catholics, in seeking to form their judgment as to whether the death penalty is to be supported as a general policy, or in a given situation, should be attentive to the guidance of the pope and the bishops. Current Catholic teaching should be understood, as I have sought to understand it, in continuity with Scripture and tradition.

Retribution - a Valid Basis for Execution?

The dispute with Martino has largely focused on deterrence -- whether Saddam's presence constitutes a threat and whether "non-lethal means are sufficient to defend and protect people's safety from the aggressor." This has been the chief basis of Michael's criticism of the Iraqi verdict and bloggers who support the verdict (or at any rate, disagree with Martino's characterization of the verdict as "a crime").

I do not feel particularly qualified to discuss the legitimacy of the execution based on deterrence -- to do so would require specific knowledge of the Baathist resistance in Iraq, the threat posed by those who would hope to restore Saddam to power, and other societal factors which are beyond my competence. (I don't think Martino is especially privy to this kind of information either, hence I question his judgement).

Moving on, I think the strongest argument in favor of Saddam's execution could be made on the basis of retribution, and it is not at all suprising to see a number of other Catholics arguing this as well.

Dulles believes that "the retribution administered by the state is largely symbolic, and instructional [alluding to] an order of divine justice" -- and that preserving "the moral order of society" can be accomplished by other means of punishment than execution. However, he has also recognized that "if the Pope were to deny that the death penalty could be an exercise of retributive justice, he would be overthrowing the tradition of two millenia of Catholic thought, denying the teaching of several previous popes, and contradicting the teaching of Scripture."

I have to wonder if the case of Saddam Hussein isn't just one of those situations, where the gravity and extent of his crimes constitute one of those horrific situations where the death penalty is deserved for the preservation of the moral order?

* * *

The Catholic Church's position on the death penalty is fairly complex, and requires careful study and reflection -- much confusion abounds as to its present position. It is not as permissive as some conservatives hope it would be. But, as Cardinal Dulles demonstrates, neither can it be construed as abolitionist (contrary to the assertions of the American Catholic).

In light of which, I find it entirely understandable that when the head of the Vatican's Justice and Peace calls for clemency for a mass-murdering tyrant guilty of horrific crimes against humanity, characterizes the sentence of the court as itself "a crime," and reasserts the Church's "opposition to capital punishment" without the qualification that is understandably needed, some Catholic bloggers are moved to provide a better explication of what the Church teaches.

Coincidentally, at the time of this blogging, Martino again expressed his opposition to the execution of Saddam Hussein (Vatican cleric hopes for clemency for Saddam Reuters Dec. 28, 2006):

Cardinal Renato Martino, head of the Vatican's Justice and Peace department, was quoted in Italy's Repubblica newspaper on Thursday saying there was a chance for last-minute clemency for Saddam after an appeals court upheld his death sentence.

"There's still a period of 30 days (before the death sentence must be carried out), the president's signature is required, things can happen," Martino was reported as saying.

The former papal envoy to the United Nations said there was "no doubt" that Saddam was responsible for mass murders, but that did not change the Church's opposition to capital punishment.

"You can't think of compensating for one crime with another one," he said. Saddam was sentenced in November for crimes against humanity and the death penalty was upheld on Tuesday.

* * *

250,000-290,000 Iraqis "disappeared" under the reign of Saddam Hussein. A detailed description of this tyrant's crimes against humanity can found in "Justice For Iraq", a policy paper by Human Rights Watch.

Or, you can take a tour with blogger Michael Totten of a "genocide museum" in Suleimaniya, Kurdistan, where 10,725 people were killed in a single building, at the hands of Saddam's torturers, many of them women and children.

According to CNN, Saddam Hussein is expected to be executed "this weekend". I urge all readers to pray for his repentence and conversion.

Related Posts / Articles:

Recommended Reading

There are a number of informative articles / essays on this topic for further reading and consideration. I welcome any further suggestions for inclusion in this roundup:

  • In fairness to Cardinal Martino, his thought on the death penalty and understanding of the Church's teaching is developed at length in an article Death Penalty Is Cruel and Unnecessary L'Osservatore Romano February 24, 1999. If one wishes to truly assess Martino's position on the death penalty and understanding of the contemporary Church's position, it would be better to begin with this particular address than his "off the cuff" remarks to the press which are the cause of much controversy. (Michael may be kind enough to provide other articles by Martino as well on this matter).
  • Cardinal Avery Dulles has written extensively on this subject, and when it comes to an explication of John Paul II's thought, I find Dulle's characteristically nuanced approach preferable to Martino. See for instance:
  • God's Justice and Ours, by Supreme Court Justice Antonin Scalia First Things 123 (May 2002): 17-21:
    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.
  • Antonin Scalia and His Critics: The Church, the Courts, and the Death Penalty First Things 126 (October 2002): 8-18.
  • Death Penalty Symposium: [Correspondence between] Scalia and Dulles National Catholic Register March 24-31, 2002.


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