1. Introduction
2. The New Teaching
3. Charity
4. Justice
5. The Permanence of Human Dignity
6. Retributive and Restorative Punishment
7. Communal Self-Defense
8. Efficiency of Modern Detention Systems
9. Past Teaching and Practice

1. Introduction

In 2018, Pope Francis approved a revision to the Catechism of the Catholic Church, teaching that the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person, in consequence of an increasing awareness that the dignity of the person is not lost even after the commission of serious crimes a new understanding… of the significance of penal sanctions imposed by the state, and more effective systems of detention. An accompanying letter to the world’s bishops from Luis Cardinal Ladaria, Prefect of the Congregation for the Doctrine of the Faith, elaborated the reasons for this revision, and how it is to be construed as a development of Catholic doctrine that is not in contradiction with prior teachings of the Magisterium. Although the Church had previously taught that the death penalty was acceptable, changes in moral circumstances (more efficient detention systems), and recognition of moral facts (the retention of human dignity by criminals) have led to the present inadmissibility of the death penalty.

To date, this teaching has been accepted by all 5000 Catholic bishops, without so much as a letter of dubia in protest. Indeed, if anything, it has been considered long overdue, being in conformity with the consensus of modern bishops and the teachings of recent popes. This has not prevented some lay Catholic commentators from raising some heated opposition, ranging from a denial that this is an authentic teaching of the Magisterium to an outright accusation of material heresy. Such attacks come mainly from political conservatives in the United States, the last bastion in the West where there is any strong support for capital punishment. The thrust of their argument is that past Catholic teaching had already authoritatively established the liceity, even the rectitude, of capital punishment, so it is contradictory of this teaching to affirm its present inadmissibility. These arguments cite the substance of past teachings, without adequately describing the underlying principles and implied suppositions under which they held.

A review of past Catholic teaching will show that even the medieval and Tridentine Church was remarkably restrained in its admission of the death penalty. Unlike modern American conservatism, Catholic teaching has always recognized that we are bound by charity as a precept or law, not merely as an option or counsel, and even justice must be interpreted in light of the Gospel precepts of charity. Further, the precepts of charity bind men acting in society, not just as individuals. If capital punishment is to be administered, it must be in conformity with the demands of charity, not merely those of retributive justice abstracted from charity.

St. Thomas Aquinas, recognizing the need to reconcile capital punishment with the Christian precept of charity to all men, posited that a criminal utterly loses his human dignity by his crime, so that we are no longer bound to treat him with charity. This rationale was never adopted by the universal Magisterium, and in modern times it has taught the opposite premise, namely that human dignity is never completely lost in this life, even by the most serious crime. Thus the opposition between homicide and the precept of charity remains even when applied to criminals. The only remaining justification for capital punishment compatible with charity is communal self-defense. Under the rule of double effect, homicide (the killing of a human being) may be lawful if it is not the intended (desired) outcome, being an unavoidable side effect of taking action to restrain violence or protect the innocent. We should never want to kill a man, and if this lack of intention is authentic, we should exhaust every other available recourse before resorting to such a deed.

It seems superfluous to have to argue that there should be no such thing as a homicidal Christian, i.e., someone who actually desires to see the killing of another man for any reason. At most, killing should be an unavoidable evil, necessary to secure the common good. This view of the matter best comports with early Patristic testimonies. The religion of the Master who forbade His disciples to raise a sword even in His defense, and who prevented the stoning of an adulteress, ill suits the zeal with which some seek to avenge society upon criminals.

2. The New Teaching

The revised number 2267 to the Catechism of the Catholic Church is a model of succinctness and clarity.

2267. Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.

Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.

Consequently, the Church teaches, in the light of the Gospel, that the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person, and she works with determination for its abolition worldwide.

Here we are briefly told what the Church has historically taught, what it now teaches, and the reasons for the change. The three reasons are:

1. Increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes.
2. A new understanding of the significance of penal sanctions imposed by the state.
3. More effective systems of detention.

The first reason asserts a moral principle that was not authoritatively defined by the Church until the modern era. Before the twentieth century, it was held by some, notably St. Thomas, that a serious crime might cause a person to lose his human dignity completely, so he was not owed any charity. We should emphasize that charity, in Catholic moral theology, does not mean an undeserved gift from one man to another, but a love or friendship that man has toward God, or toward other men out of love of God. Modern Catholics, now having the Magisterium’s unambiguous teaching that human dignity is never completely lost in this life, cannot avail themselves of any argument for capital punishment that supposes such a loss.

The second reason refers to the meaning of punishments imposed by human governments. As Cardinal Ladaria explains in his letter, sanctions applied by the modern State should be oriented above all to the rehabilitation and social reintegration of the criminal. There is now an appreciation that civil punishment of crime should heal damage to society not by retributively injuring the criminal, but by rehabilitating and reintegrating him with society to the maximum extent possible. This cultural development is not something extraneous to Christianity, but in fact was historically driven by Christians, especially Catholics, in the early modern period. This emphasis on rehabilitation does not deny the higher priority of protecting society, for it remains the duty of public authorities to defend the life of citizens. Rather, rehabilitation presupposes that public safety has first been secured by the apprehension and incarceration of the criminal.

The third reason refers to a change in concrete circumstances. Given that every nation on earth now has a sufficiently developed prison system without serious risk of escape, there is no longer any situation where guaranteeing public safety requires the execution of criminals. Since we can no longer avail ourselves of justifications depending on total loss of human dignity or a purely retributive justice, we are left only with the protection of the public as a possible justification for capital punishment. Yet this possibility is taken away by the universal existence of non-lethal penalties that allow us to protect society by restraining violence and deterring crime without eliminating the possibility of rehabilitation.

The three reasons follow a certain logical order. The first reason, the permanence of human dignity, imposes constraints on justifications for capital punishment, so that the mere advantage of society cannot suffice to justify killing, for depriving someone of life for the utility of others implies a total denial of human dignity. Increased recognition of human dignity has caused states to adopt a primarily rehabilitative rather than retributive penal system. The primary aim of civil justice is to remedy a disorder caused by an offense, and repaying harm with harm is just a means to that end. If the restoration of public order can be achieved without retributive bloodshed, the non-retributive method is to be preferred as more consonant with human dignity. Lastly, the physical facts of modern society have established an environment where the aims of state penalties, namely the protection of society and rehabilitation of criminals, can be achieved without killing. Since the purely retributive justification is no longer available, this leaves no situations in modern society where the death penalty could be applied in conformity with the precept of charity.

All three reasons given have been moral realities for decades, if not longer, so, if anything, the modern popes have been extremely slow and cautious in updating Catholic teaching on the death penalty to reflect these realities. The first reason has always been true, but was unambiguously taught only in the modern era. The second reason has always been true as an ideal, but past historical circumstances did not make it realizable in practice. The third reason has been true for most of the twentieth century, even longer in some countries. Now it is true of even the poorest countries, save those in anarchy or civil war where there is no stable government to impose lawful penalties.

3. Charity

The Church’s teaching on this matter can be profitably discussed only if there is a prior understanding of Christian duty under charity and justice. In English, charity commonly denotes a gratuitous generosity to the poor or needy, and does not necessarily imply an obligation or duty. In Christian moral theology, however, caritas translates the agape or love that Christ preached as the supreme commandment for His followers. St. Thomas rightly interprets it as the noblest and truest friendship (amicitia), motivated not by utility or pleasure, but by virtue. [ST, II-ii, 23]

There are two precepts of charity given by Christ. First, to love God with our whole heart, whole soul and whole strength, and second, to love our neighbors as ourselves. The righteousness and obligation to love God who is all-good is self-evident; indeed St. Thomas regards the hatred of God as the most irrational and most evil of sins. [ST, II-ii, 34, 2] The duty to love our neighbors, as revealed by Christ, extends to all men on earth, regardless of whether they are Jew or Gentile, believer or unbeliever, good or wicked. This last consideration distinguishes Christian charity from the virtuous friendship of Aristotle and other pagans, for clearly we cannot love the wicked on account of their virtue. Rather, we are to love sinners for God’s sake, because they belong to Him.

The precepts of charity express what God requires of all Christians; for a precept implies the notion of something due. Charity is due not for the sake of anything else, but for its own sake, since the end of the spiritual life is that man be united to God, and this union is effected by charity, while all things pertaining to the spiritual life are ordained to this union, as to their end. [ST, II-ii, 23, 1] Our duty of charity is not just one principle among many, but is foremost among all principles governing human acts, as repeatedly taught by Christ and His Apostles. St. Thomas expounds the relation of charity to other virtues:

Now the rule of human acts is twofold, as stated above, namely, human reason and God: yet God is the first rule, whereby, even human reason must be regulated. Consequently the theological virtues, which consist in attaining this first rule, since their object is God, are more excellent than the moral, or the intellectual virtues, which consist in attaining human reason: and it follows that among the theological virtues themselves, the first place belongs to that which attains God most. [ST, II-ii, 23, 6]

Thus all the moral virtues, including justice, must be regulated by the supreme precepts of charity. The precepts of the Decalogue are precepts of justice, but charity is included in all of them as they are directed to the love of God and neighbor. [ST, II-ii, 23, 1] Indeed, there can be no true virtue without charity, which is the form of all other virtues. [ST, II-ii, 23, 7-8]

The precepts of charity do not demand that we should love all equally, and indeed other duties require us to give priority first to God, then to oneself (i.e., the good of our own soul), then to our neighbor (for self-love is presupposed by Christ’s precept), then to our body. Among our neighbors, which includes all men, we should love first those who are more virtuous or more closely united to us. [ST, II-ii, 44, 8]

4. Justice and Law

Justitia, as used by the Scholastics, has a broader meaning than the ordinary English sense of justice. Justitia is the moral virtue by which we respect the jus or right of others, i.e., what is due from us to others. Thus justitia may be considered the righteousness or virtue that has the common good as its proper object. In a sense, it encompasses all other moral virtues, insofar as these may all be subordinated to the common good, helping us become good members of society. As the common good transcends individual good, and justice alone among moral virtues treats the common good, so is justice foremost among moral virtues. Nonetheless, it is subordinate to charity, whose proper object is the divine good.

Law is a kind of command or precept that acts as a binding rule on a society for the attainment of the common welfare. The object of the law is to help men be just or righteous in their relations with each other and with the community as a whole, hence the classical maxim that the object of the law is to make men good. Insofar as all other virtues may direct us to the common good, the law may prescribe regarding them as well. Thus a society may forbid soldiers to desert their posts, or prohibit public drunkenness, for such acts of cowardice or intemperance adversely affect public order.

There are two types of perfect or complete societies on earth: the Church and the state. Each prescribes its own set of laws, yet for different purposes. The laws of the Church are directed to man’s supernatural good, i.e., matters affecting his eternal salvation, though the Church may also have laws for the temporal relations of its persons and property insofar as these affect the good order of the Church as a society. The laws of the state are directed toward the temporal good of man, which means not only his material wealth but his moral well-being, i.e., his natural happiness. Since the temporal good is subordinate to the spiritual, Christians cannot follow the law of the state where it commands transgression of ecclesiastical law.

Divine law, natural and positive, reigns supreme over all earthly laws, and it is only out of respect for what is God’s that we are bound to respect what is man’s, for man’s right and dignity comes from being made in the image of God. Thus not even the Church can ever prescribe anything prohibited by divine law, nor can she prohibit what divine law requires.

The relation between justice and charity is seen in the Ten Commandments. The precepts of the decalogue pertain to charity as their end, according to 1 Timothy 1:5, ‘The end of the commandment is charity’: but they belong to justice, inasmuch as they refer immediately to acts of justice. [ST, II-ii, 122, 1] Although justice is immediately concerned with the common good, its ultimate end, as with all virtue, is in the divine good which is realized by charity.

Since justice is directed to the common good, and law is an expression of jus, it follows that any decree by a human government commanding something objectively evil for society, or prohibiting the fulfillment of an objectively good duty, would be no law at all, being contrary to jus. Moreover, since the common good is not an end in itself, but regulated by the divine good, the same may be said of any human law that is contrary to the precepts of charity.

Justice in the general sense encompasses all virtue directed to the common good, yet we ordinarily intend the term in a more particular sense, as regulating the particular goods of individuals in relation to each other or to the commonwealth. Justice in this specific sense, known as particular justice, may be subdivided into commutative justice and distributive justice. Commutative justice attempts to rectify an inequality created by an act that caused involuntary loss to a person. Distributive justice attempts to determine how benefits and burdens should be apportioned to individuals or classes according to merit or capability. Both forms of justice attempt to establish an equal proportionality between each person and some external thing. As people are unequal in merit and ability, distributive justice may require an unequal distribution of benefits and burdens, but there should always be the same proportion between each person’s merit and the external object distributed.

We are concerned mainly with commutative justice, also called rectificatory justice, for it attempts to rectify a wrong, applying a remedy to an inequality or disorder created by an act. When possible, this remedy should involve direct restitution, restoring to the victim what was unjustly taken. If this is not possible, the victim may accept an equivalent compensation, at least equal to the value of what was lost. Alternatively, we may restore equality by imposing an equivalent loss or harm on the offender, which we call retribution, a kind of punishment. The harm done by the offense need not be limited to the loss caused, for it can have the additional effects of endangering society, creating public disorder, and encouraging further offenses by others. Thus the penalty imposed by compensation or retribution may justly exceed the nominal value of the loss, to account for these additional harms.

In this light, we may see how the lex talionis of eye for eye, tooth for tooth, hand for hand, foot for foot… [Ex. 21:24] in the Mosaic Law and other ancient legal systems was a valid principle of commutative justice, and in fact was a merciful principle, insofar as it forbade retribution beyond the value of the loss. Even in pre-Christian antiquity, the injured party often accepted equivalent forms of compensation instead of retributive punishment. This forgoing of retribution was also valid, since the primary purpose of commutative justice is to rectify the inequality brought about by the offense.

Capital punishment may be considered a form of retributive punishment, since the killing of a criminal does nothing to undo the loss suffered by another. Instead of restitution or compensation, it balances the victim’s suffering with a counter-suffering (contrapassum) of the offender.

Justice among free citizens also demands reciprocity, so that the punishment for when A offends B is the same as if B should commit the same offense against A. If it were otherwise, one would feel himself to be the slave of the other. [Aristotle, Nicomachean Ethics, v, 5]

5. The Permanence of Human Dignity

All acts of justice, like any other truly virtuous act, must be in conformity with the precepts of charity. Among Jews and pagans, the duty of fraternity or fellow-feeling (the naturalistic analog to the supernatural virtue of charity) generally did not extend to criminals. Those who committed serious offenses were utter social outcasts, so retributive justice did not need to be circumscribed by any principle besides that of equality or proportionality. With the revelation of the Gospel, however, Christians are bound to show charity to all men, regardless of nationality or social status. Thus the question of retributive pains, even for criminals, needs to be reconciled, if possible, with the precept of charity toward neighbor, from which no man is excluded.

On the question of whether it is lawful to kill a sinner, St. Thomas answers that

…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… [ST, II-ii, 64, 2]

Certainly the protection of the community is a worthy aim, but the treatment of the individual person as a mere part existing for the whole is problematic, for it does not regard the individual as valuable for his own sake. A person cannot be fully subordinated to the advantage or utility of the community without loss of human dignity. St. Thomas recognizes this, by way of an objection under the precept of charity:

Further, it is not lawful, for any good end whatever, to do that which is evil in itself, according to Augustine (Contra Mendac. vii) and the Philosopher (Ethic. ii, 6). Now to kill a man is evil in itself, since we are bound to have charity towards all men, and we wish our friends to live and to exist, according to Ethic. ix, 4. Therefore it is nowise lawful to kill a man who has sinned.

The quotation from Aristotle is relevant because Christian charity is the truest form of friendship, yet unlike pagan friendship, it extends even to the worst sinners. The objective evil of killing any man, regardless of his degree of wickedness, seems to follow directly from the Christian precept of charity. How do we address this objection? St. Thomas replies:

By sinning man departs from the order of reason, and consequently falls away from the dignity of his manhood, in so far as he is naturally free, and exists for himself, and he falls into the slavish state of the beasts, by being disposed of according as he is useful to others.… Hence, although it be evil in itself to kill a man so long as he preserve his dignity, yet it may be good to kill a man who has sinned, even as it is to kill a beast. For a bad man is worse than a beast, and is more harmful, as the Philosopher states (Polit. i, 1 and Ethic. vii, 6).

The conclusion that killing a criminal is intrinsically evil is avoided by supposing that a criminal utterly loses his human dignity and has the rank of a beast, at least to the point that he may be disposed of according to the utility of others. If the criminal should retain his dignity, St. Thomas concedes that killing him might be intrinsically evil: although it be evil in itself to kill a man so long as he preserve his dignity… In Latin, this phrase is under a subjunctive verb (quamvis… sit; although it be), expressing only a possibility, not a definite assertion.

Does a criminal in fact preserve any of his human dignity? If not, then capital punishment may be applied rather broadly, even for non-violent crimes such as major theft, for the mere advantage of the community. If, however, he does retain his human dignity, no matter how black his crime, then it could well be the case that killing him is intrinsically evil. An intrinsically evil act must never be performed intentionally, though it might be lawful as a second effect where the primary, intended effect is protection of the lives of the innocent, as in private self-defense. This severely restricts the applicability of capital punishment, since an execution would have to be practically necessary for the protection of lives. The mere advantage of society would not suffice, for this would be to deny human dignity utterly, subjecting a person’s entire life to the utility of others.

Manifestly, the commission of a serious crime does entail at least some loss of dignity, or we could not be justified in depriving the criminal of his liberty or other natural rights. Nonetheless, in recent centuries, in no small part due to horror at abuses committed by modern states, there has come to be a better appreciation that human dignity is never utterly extinguished in anyone. We may deprive prisoners of their liberty, but they are still human beings, and it is far from the case that anything goes in their treatment. In the late Middle Ages, Europeans recognized that prisoners needed to be moved out of prisons that were unacceptably dilapidated. Today even non-Christians recognize the permanence of human dignity; it is inexcusable for modern Christians to fail to do likewise. This heightened awareness of human dignity, learned through centuries of painful experience, is something to be added to the Church’s wisdom, and to be invoked in the application of her unchanging principles.

The Magisterium never adopted St. Thomas’ argument that a criminal can lose his human dignity, and it is even arguable that St. Thomas himself never understood this loss of dignity to be total, though that would vitiate the force of his argument. After all, if someone has even a modicum of human dignity, he is to be accounted as human, and thus is a subject of the precept of charity. At any rate, the Catechism of St. Pius V makes no mention of any supposed loss of dignity, instead justifying capital punishment insofar as it aims for the preservation and security of human life… by repressing outrage and violence. [Roman Catechism, Fifth Commandment] This is to take the position that capital punishment is a sort of communal self-defense, which is consistent with the human dignity of the criminal, for the liceity of killing in self-defense does not depend on a denial of the intrinsic evil of homicide.

It is true, nonetheless, that many popes and other prelates, by their practice, effectively adopted the principle that criminals lose their dignity utterly. This is proved by the deeply degrading punishments they countenanced as temporal lords, and by their application of capital punishment to crimes that did not endanger innocent lives, thereby subjecting the condemned to the mere utility of the community. A pope’s actions as sovereign of the Papal States cannot be considered a universal teaching act, however, since his temporal authority is local, not universal.

In the modern era, the Church has consistently and explicitly taught that human dignity, which comes from being created in the imago Dei, is not only inalienable and universal, but is a supreme value to which all other human laws and ethics are subject.

No man may with impunity outrage that human dignity which God Himself treats with great reverence, nor stand in the way of that higher life which is the preparation of the eternal life of heaven. [Pope Leo XIII, Rerum Novarum (1891), 40]

Man has a spiritual and immortal soul. He is a person, marvelously endowed by his Creator with gifts of body and mind. He is a true microcosm, as the ancients said, a world in miniature, with a value far surpassing that of the vast inanimate cosmos. God alone is his last end, in this life and the next. By sanctifying grace he is raised to the dignity of a son of God, and incorporated into the Kingdom of God in the Mystical Body of Christ. In consequence he has been endowed by God with many and varied prerogatives: the right to life, to bodily integrity, to the necessary means of existence; the right to tend toward his ultimate goal in the path marked out for him by God; the right of association and the right to possess and use property. [Pope Pius XI, Divinis Redemptoris (1937), 27]

The first of these pernicious errors, widespread today, is the forgetfulness of that law of human solidarity and charity which is dictated and imposed by our common origin and by the equality of rational nature in all men, to whatever people they belong… [Pope Pius XII, Summi Pontificatus (1939), 35]

He who would have the Star of Peace shine out and stand over society should cooperate, for his part, in giving back to the human person the dignity given to it by God from the very beginning; should oppose the excessive herding of men, as if they were a mass without a soul… [Pope Pius XII, Christmas Message of 1942]

Any human society, if it is to be well-ordered and productive, must lay down as a foundation this principle, namely, that every human being is a person, that is, his nature is endowed with intelligence and free will. Indeed, precisely because he is a person he has rights and obligations flowing directly and simultaneously from his very nature. And as these rights and obligations are universal and inviolable so they cannot in any way be surrendered. [Pope St. John XXIII, Pacem in Terris (1963), 9]

There is a growing awareness of the sublime dignity of human persons, who stand above all things and whose rights and duties are universal and inviolable. [Gaudium et Spes (1965), 26]

…man’s creation in the image of God, a datum which gives rise to the inviolable dignity of the human person… [Pope Benedict XVI, Caritas in Veritate (2009), 45]

This inviolability is not absolute for most rights, for even the basic rights of moral and religious freedom are to be honored only within the limits of public order. [Dignitatis Humanae, 2-4, 7] Yet such repression of rights must be driven by genuine necessity for the effective safeguard of the rights of all citizens… adequate care of genuine public peace… and… a proper guardianship of public morality. [Ibid., 7]

No such justification exists for more direct assaults on personal dignity, such as attacks on bodily integrity; thus the Church teaches that torture is neither necessary for public order, nor in conformity with the legitimate rights of the human person. [CCC (1994 ed.), 2298] An even higher standard prevails for the foremost right of human dignity, namely life, so Pope St. John Paul II taught that great care must be taken to respect every life, even that of criminals and unjust aggressors. [Evangelium Vitae (1995), 56] After all, human dignity is an aspect of our being, not our deeds. In effect, beyond the rights which man acquires by his own work, there exist rights which do not correspond to any work he performs, but which flow from his essential dignity as a person. [Centesimus Annus (1991), 11] During this life, even the most wicked never cease to be persons in the divine image, so their human dignity is never entirely lost. If you can take away a man’s life, you can do anything to him, and if you can do this for mere utility, you have completely reduced him to a use-object of others, a means rather than an end, which is to deny his status as a human.

The permanence of human dignity has sweeping implications for all aspects of social and economic life, as the Magisterium has expounded at length in various teachings. In particular, we cannot kill anyone just for the advantage of others, though it might still be necessary to kill criminals in protection of society. Only innocent human life is absolutely inviolable. [Evangelium Vitae, 57] Still, the human dignity of the guilty, under the precept of charity, requires that we 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 non-existent. [CCC (1997 ed.), 2267]

Already the teaching of Pope John Paul II explicitly contains the principle that capital punishment is justifiable only when it is absolutely necessary to defend society. Centuries earlier, the Roman Catechism taught that capital punishment is not prohibited by the Fifth Commandment, for indeed it may be used in service of that commandment, i.e., for the protection of human life. It remains to be shown, however, why capital punishment might not be justified as a purely retributive punishment, even if not strictly necessary to protect human life.

6. Retributive and Restorative Punishment

The applicability of capital punishment is affected by a modern understanding of the meaning of punishments inflicted by the state. All commutative justice, divine and human, is ordered toward a redress of the disorder created by crime or sin. Yet it is now appreciated that justice as administered by the state ought to be retributive only insofar as this is consonant with the possible rehabilitation of the criminal. It is reserved to divine justice to punish the reprobate after death, when rehabilitation is no longer possible. The distinctions between sin and crime, divine and human justice, religious and civil law are not extraneous to Christianity, but on the contrary, they constitute a unique cultural contribution of the Christian West.

In antiquity and in the early Christian era, there was no sharp distinction between sin and crime. This can be seen even today in the more traditionalist forms of Judaism and Islam, where there is a single legal code for all temporal and spiritual affairs. After the collapse of the Roman Empire, bishops were often the only judges available, even for temporal affairs. The distinctions between a temporal power and a spiritual power, and between civil law and canon law, with respective sanctions of each, were not fully developed until the eleventh and twelfth centuries. Even then, it was not always clear which penalties were what we now call penances as opposed to punishments, a confusion that occasioned some famous controversies in the Reformation era.

Poena in Latin and poine in Greek did not just mean punishment in a retributive sense, but could refer to pains, penalties, or payments of debts as compensation or expiation. When bishops prescribed poena, this could be taken as what we would today call a penance, i.e., an expiatory penalty undertaken voluntarily, or as a punishment, i.e., a retributive penalty imposed against the will of the offender. Both penances and punishments aim to satisfy the demands of justice. Satisfaction means performing a deed (factum) that is enough (satis) to offset the inequality brought about by an offense. Satisfaction pertains to vindicative justice (justitia vindicativa), which restores righteousness, whether man punishes himself or the judge punishes him. [ST, II-ii, 12, 2]

Retributive punishment applies primarily to commutative justice, but the state may impose punishment beyond the value of private loss, to remedy the harm done to public order and to discourage further crimes. Thus retributive punishment may be considered to extend to general or legal justice.

Justice aims not only at removing inequality already existing, by punishing the past fault, but also at safeguarding equality for the future, because according to the Philosopher (Ethic. ii, 3) punishments are medicinal. Wherefore satisfaction which is the act of justice inflicting punishment, is a medicine healing past sins and preserving from future sins: so that when one man makes satisfaction to another, he offers compensation for the past, and takes heed for the future. Accordingly satisfaction may be defined in two ways, first with regard to past sin, which it heals by making compensation, and thus it is defined as compensation for an inflicted injury according to the equality of justice. The definition of Anselm amounts to the same, for he says that satisfaction consists in giving God due honor; where duty is considered in respect of the sin committed. Secondly, satisfaction may be defined, considered as preserving us from future sins; and as Augustine (cf. Obj. 1) defines it. [ST, II-ii, 12, 3]

Aristotle calls punishment a kind of cure because it always intends to remedy some disorder. St. Thomas still treats crime as a kind of sin, yet he recognizes a distinction between the divine punishment objectively due to sin and the penalties imposed by human societies.

All who sin mortally are deserving of eternal death, as regards future retribution, which is in accordance with the truth of the divine judgment. But the punishments of this life are more of a medicinal character; wherefore the punishment of death is inflicted on those sins alone which conduce to the grave undoing of others. [ST, II-ii, 108, 3]

Retribution must be limited to repairing the harm done to public order by bad example. It is not the task of man to demand full retribution of the malice of sin. For this reason, among others, purely interior sins are not punished by the state.

It may be objected that any retribution beyond simple compensation is an act of vengeance, and therefore is incompatible with charity.

I answer that, Vengeance consists in the infliction of a penal evil on one who has sinned. Accordingly, in the matter of vengeance, we must consider the mind of the avenger. For if his intention is directed chiefly to the evil of the person on whom he takes vengeance and rests there, then his vengeance is altogether unlawful: because to take pleasure in another’s evil belongs to hatred, which is contrary to the charity whereby we are bound to love all men. Nor is it an excuse that he intends the evil of one who has unjustly inflicted evil on him, as neither is a man excused for hating one that hates him: for a man may not sin against another just because the latter has already sinned against him, since this is to be overcome by evil, which was forbidden by the Apostle, who says (Romans 12:21): Be not overcome by evil, but overcome evil by good.

If, however, the avenger’s intention be directed chiefly to some good, to be obtained by means of the punishment of the person who has sinned (for instance that the sinner may amend, or at least that he may be restrained and others be not disturbed, that justice may be upheld, and God honored), then vengeance may be lawful, provided other due circumstances be observed. [ST, II-ii, 108, 1]

The state is the avenger of the public good (Rom. 13:4), but even its vengeance must conform to the precept of charity. Contrary to some modern commentators, it is not compatible with charity to justify retributive punishment by pointing out the evil of the criminal as an object deserving evil in return. Our primary intention must be toward some good, such as the maintenance of public order. If that is the case, then we should pursue remedies that are less harmful to the criminal when these are also available for obtaining the same good. After all, we do not desire harm upon the criminal for its own sake, but only insofar as it is conducive to the common good. Indeed, vengeance is virtuous only insofar as we show such just moderation: But the virtue of vengeance consists in observing the due measure of vengeance with regard to all the circumstances.

It may be that the good of preventing or deterring crime can only be achieved by punishments that threaten sufficient harm or loss to make men fear to commit crimes.

Vengeance is lawful and virtuous so far as it tends to the prevention of evil. Now some who are not influenced by motive of virtue are prevented from committing sin, through fear of losing those things which they love more than those they obtain by sinning, else fear would be no restraint to sin… [ST, II-ii, 108, 3]

In principle, this could extend even to the threat of loss of life. Yet even this principle of deterrence must be subject to the precept of charity, so such a threat must be genuinely necessary for the public good, without any viable alternative.

It may be asked whether a convicted criminal may choose this punishment for himself as an expiatory penalty. We are not speaking here of suicide, which would actually be a crime against the common good, being contrary to the right rule of life. [Aristotle, Nicomachean Ethics, V, 11] Yet if it is contrary to human dignity for the state to administer capital punishment without genuine need, then not even the criminal himself can grant such a power by his consent. As Pope Leo XIII says regarding outrages against human dignity:

Nay, more; no man has in this matter power over himself. To consent to any treatment which is calculated to defeat the end and purpose of his being is beyond his right; he cannot give up his soul to servitude, for it is not man’s own rights which are here in question, but the rights of God, the most sacred and inviolable of rights. [Rerum Novarum, 40]

Here Pope Leo intends primarily the rights of laborers; the same argument holds even greater force for the most fundamental right of life.

We have mentioned that capital punishment is permissible as a kind of communal self-defense, but all self-defense, whether in private matters or in war, requires a proportionality of means to benefit. For capital punishment, this implies that there ought to be a proportionality between taking the life of the criminal and the benefit to public good. This proportionality alone does not justify capital punishment as self-defense, but it is one of the necessary conditions for its justification. (This is not to be confused with the proportionality of equality between punishment and offense, presupposed in all commutative justice.)

The precept of charity extends to all men (capable of eternal happiness) and even to our enemies… Therefore we must:

1. avoid hatred of enmity and all desire of revenge;
2. offer our enemy at least the ordinary signs of love;
3. seek reconciliation in so far as that is within our power [D.M. Prummer, Handbook of Moral Theology, 5th ed. (1956), p.98.]

It is in light of this last condition, combined with an increasing appreciation that the precept of charity applies even to the worst criminals, that the Christian West has pursued greater emphasis on rehabilitation and reconciliation in its penology over the last several centuries. It was the Catholic Church that had taken the lead in this development.

Since the fourth century, ecclesiastical courts regularly prescribed penal incarceration, a practice that was mostly abandoned by civil authority after the fall of Rome. Life in prisons, located in monasteries and episcopal palaces, followed monastic penitential discipline of fasting, prayer and solitude. Since crime and sin were strongly identified under ecclesiastical law, the emphasis was on repentance and reconciliation, in keeping with Christianity. With the rise of the Roman Inquisition in the thirteenth century, imprisonment of laymen was practiced on a larger scale, so the association of imprisonment with spiritual rehabilitation was more widely assumed. By the late Middle Ages, such prisons were known as penitentiariae or penitentiaries.

In the late medieval period, secular authorities began to use penal incarceration as well; this was not an Enlightenment innovation. Up until that time, secular penal imprisonment (e.g., in castle dungeons) was used only occasionally on an ad hoc basis. Otherwise, secular prisons were just places to await trial or hold debtors. The first purpose-built prisons in Europe appeared in fourteenth-century Italy. Medieval prisons were far from secure, allowing a free flow of visitors, while prisoners could go outside to beg or attend family events. Despite this lack of security, escapes were rare, showing that conditions, if far from comfortable, were at least tolerable to most. Prisons were used mostly for debtors, but also for punishing a variety of minor crimes or failure to pay the fine for such crimes. [Guy Geltner. Medieval Prisons: Between Myth and Reality, Hell and Purgatory. History Compass, 4 (2006): 10.1111/j.1478-0542.2006.00319.x]

Nonetheless, the dominant legal opinion, following the Theodosian code, was that incarceration was insufficient punishment for guilty criminals. Thus most serious crimes, including all but the most petty thefts, were punished by death or bodily pains. The use of penal imprisonment in late medieval Europe was nowhere near the scale it would attain in the eighteenth and nineteenth centuries.

Secular prisons in the late medieval and early modern periods were not penitentiaries, but they did offer a credible alternative to the cruel punishments that were steadily falling into disrepute. As the English legal code still prescribed the death penalty even for relatively minor thefts, juries would refuse to convict rather than permit an excessive sentence. Thus penal incarceration came to be more broadly applied even for more serious crimes. Accordingly, the security at prisons was increased and conditions were made more severe, so that imprisonment could credibly punish and deter such crimes.

Nonetheless, there was a counter-movement to emphasize rehabilitation, drawing upon the idea of a penitentiary already established by Catholic, Anglican and Quaker practices. In 1829, Eastern State Penitentiary in Philadelphia offered a secular implementation of this Christian idea, focusing on the rehabilitation of prisoners, and creating conditions in solitary cells that would encourage reflection and remorse over one’s crimes, followed by repentance. This new mode of penology became highly influential in America and Europe, though not always with the overtly Christian overtones of the Pennsylvania system. Rehabilitation was not exclusive of punishment, for prisoners were still punished for bad behavior, and imprisonment itself was a punishment. Still, the purpose of these punishments was to induce the prisoner to reform, so even retribution is subordinate to rehabilitation. Thus the purpose of civil punishments in this life is similar to that of ecclesiastical punishments. Instead of emphasizing the absolute authority and power of the state over the individual, civil punishments are oriented toward restoring the broken relationship between the criminal and society.

What we have here, as the Catechism teaches, is a new understanding of the significance of civil punishments, not a mere change in physical conditions. The basis of this new understanding comes from two emphases: (1) an enhanced appreciation of human dignity, and (2) the subordination of the state to the good of all its members, not just the majority. The first emphasis led to the abandonment of cruel bodily punishments that violated human dignity for the mere advantage of society. Imprisonment could credibly protect society and be made sufficiently severe to act as a deterrent. Yet imprisonment was not to be made into just a different form of indignity, where abuses are committed out of public sight. While the state certainly has full power and authority over prisoners, the right use of this authority is for the good of everyone, including the prisoner who, as long as he lives, is capable of penitence and some form of rehabilitation. If even the Church exercises such restraint and charity in her temporal punishments for sins, the state should do no less for the punishment of crime, as long as this is consistent with its duty of protecting the public good.

It may be objected that this involves prudential judgment; i.e., that imprisonment is a sufficient deterrent, and that rehabilitative punishment can be administered while protecting the public good. This is true enough, but all human law is prudential, for as St. Thomas says, a law is nothing else but a dictate of practical reason emanating from the ruler… [ST, II-i, 91, 1] The practical reason is concerned with practical matters, which are singular and contingent… [ST, II-i, 91, 3] Nonetheless, no Catholic can deny that it is within the authority and competence of the Magisterium to pronounce on the morality of human law. Such a judgment is not irreformable, for an evaluation of the morality of a human law may change if circumstances change. This does not excuse Catholics from the assent of obedience, especially as the Church’s teaching has been consistently moving in this direction for the better part of a century. This is not some accident or whim, likely to be reversed in the near future.

This conclusion is reached taking into account the new understanding of penal sanctions applied by the modern State, which should be oriented above all to the rehabilitation and social reintegration of the criminal. [Letter to bishops from the CDF, 2 Aug 2018, 7] Obviously, execution would be contrary to these aims. We may still admit a retributive aspect to state penalties, but it is not the province of human authority to demand the full retribution of divine justice. The authority of the state is subordinate to the common good, and even the common good must respect the dignity of the individual, except under the necessity of protecting innocent lives. The past teaching of the Magisterium never gave any other reason than the defense of human life for the use of the death penalty. Thus the CDF finds:

…that the new formulation of number 2267 of the Catechism expresses an authentic development of doctrine that is not in contradiction with the prior teachings of the Magisterium. These teachings, in fact, can be explained in the light of the primary responsibility of the public authority to protect the common good in a social context in which the penal sanctions were understood differently, and had developed in an environment in which it was more difficult to guarantee that the criminal could not repeat his crime. [Ibid., 8]

It has always been true that the public authority is duty-bound to protect the common good through penal sanctions, yet the emphasis has shifted from the retributive to the rehabilitative purpose of sanctions, as the latter is more directly conducive to the restoration of the common good. Purely retributive punishments were previously favored in part because this was the only practical way to prevent repetition, i.e., the penal sanctions were developed in accordance with practical considerations. This is not mere revisionist history, for even the ancients showed awareness of the limitations of their justice. St. Augustine, for example, recognized that the practice of compelling testimony by torture often led to unjust results, even the killing of innocent, but nonetheless held that judges in such cases were to be excused, for they acted out of ignorance and were actually trying to save the life of the innocent. While we may recoil in horror at any defense of torture, the ancients, lacking modern investigative tools, faced the alternative of letting crime go unpunished. Even today, we must accept the practical necessity of some wrongful convictions due to our limited knowledge. If we refused ever to convict on less than perfectly certain evidence, the alternative of unpunished crime would lead to far greater injustice for all. Now, however, due to the enhanced capabilities of the modern state, a rehabilitative emphasis for penal sanctions has become possible, without detriment to public safety, with the added benefit of granting more opportunity to identify and reverse wrongful convictions.

None of this abolishes the fact that the state has the power and right to impose vindictive penalties. Even ecclesiastical law prescribes these: A penalty is vindictive when its primary purpose is the expiation of delinquency and reparation of the harm caused to the social order, e.g. deposition, deprivation of benefice. [Prummer, op. cit., p.338.] Note, however, that the harm inflicted on the offender is not an end in itself, but is ordered toward the purpose of expiation and reparation. If this purpose can be fully attained with less offense to the human dignity of the criminal, such a method is to be preferred. Nonetheless, the state’s duty to redress the disorder caused by the offence [Evangelium Vitae, 56] requires imposition of adequate punishment for the crime before considering a restoration of freedom.

There is no question that the state has the right to inflict painful evils upon a criminal; if punishment were not painful in some way, it would hardly be a punishment. Modern penology moves away from corporal punishments not because the state has no right to inflict pain, but because these are more direct assaults on human dignity, and cannot be justified except when absolutely necessary for the protection of society. The Church, historically, has held that there can be instances where such penalties are necessary. Thus we find in Prummer: the penalty of death is sometimes necessary for safeguarding the common weal… Further: Since the State has the power to put the criminal to death, so it has the power for a sufficient reason to mutilate the criminal… Few modern advocates of the death penalty would dare hold that mutilation can ever be justified today, though that would be a logical consequence of the admissibility of the death penalty. The state’s power to inflict such penalties should not be confused with the liceity of imposing them under all historical circumstances. The modern Church teaches that, under present circumstances, such penalties are never necessary for the protection of the common good.

7. Communal Self-Defense

Given that the precept of charity applies to all men, even criminals, insofar as all retain the dignity of human beings, a purely retributive consideration cannot suffice to warrant capital punishment, unless such retribution is also necessary for the protection of the public good. All past Catholic teachings endorsing the penalty were conditioned on its necessity for protecting innocent lives. Thus capital punishment, then and now, is licit only as a form of communal self-defense. The circumstances of its liceity are similar to those for private self-defense, which Catholics have historically justified using St. Thomas’ rule of double effect. Under such analysis, self-defense is justifiable even if we still admit the objective evil of homicide, for we do not intend the killing as such, but intend only the protection of innocent life, which results in the death of the criminal as an inescapable second effect. Such killing is only indirectly voluntary, [Prummer, op. cit., p.13.] i.e., the physical act by which we kill is voluntary and intended, but its principal aim is not ordered toward killing as such, only toward the protection of life. If our lack of homicidal intent is genuine, then we should seek non-lethal methods of attaining the same result if they are available.

The Church has not explicitly taught that killing the guilty is objectively evil; even today the Catechism mentions only the objective evil of taking innocent human life. Still, as we have seen when discussing St. Thomas, it is a possible inference from the precept of charity and the permanence of human dignity that homicide is objectively evil for men even when dealing with the guilty. We need not pretend to decide this question, however, since in either case we have only to define circumstances under which killing is necessary for the protection of human life, a criterion which has indeed been taught by the Church.

First, we should clear up some common confusions about the application of the rule of double effect and the notion that homicide is objectively evil. Although St. Thomas defined this rule, he used the term intention differently from that of modern Catholic moral theology.

Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. Now moral acts take their species according to what is intended, and not according to what is beside the intention, since this is accidental as explained above. Accordingly the act of self-defense may have two effects, one is the saving of one’s life, the other is the slaying of the aggressor. Therefore this act, since one’s intention is to save one’s own life, is not unlawful, seeing that it is natural to everything to keep itself in being, as far as possible. And yet, though proceeding from a good intention, an act may be rendered unlawful, if it be out of proportion to the end. Wherefore if a man, in self-defense, uses more than necessary violence, it will be unlawful: whereas if he repel force with moderation his defense will be lawful… [ST, II-ii, 64, 7]

For St. Thomas, the intention is what is mentally willed or desired, either as an end in itself or as a means to some other end. When he indicates that killing the aggressor is not intended, he simply means that this was not desired, either as an end or as a means to some other end. It does not mean that the killing was physically accidental or involuntary. Obviously, to strike a lethal blow requires some coordination or deliberation. The distinction is that we voluntarily strike this blow not because we desire the death of the aggressor, but because we desire to save innocent life, and this act is the only available and proportionate means for repelling the aggressor. If we could repel the aggressor without slaying him, we would do so.

To be clear, we are not using the death of the aggressor as means of protecting the innocent, but are using the act of physically repelling the aggressor as such a means. This act also has the effect of killing the aggressor, but that was besides our intended effect (preserving innocent life), so in that sense it is accidental (relative to our intention).

Catholic moral theology since the nineteenth century has applied a conceptually distinct analysis in terms of object, intention and circumstance, which should not be confused with St. Thomas’ usage. There are three elements of a moral act that determine its quality (good or evil).

Object: The thing chosen, which exists outside the willing subject.
Intention: The aim, intention, purpose or end for which the object is chosen; this is inside the willing subject.
Circumstances: Secondary conditions that may enhance or mitigate the goodness or evil of an act.

Object and intention may be distinguished as follows:

The intention is the end chosen by the person who acts (finis agentis). The moral object is the end toward which the chosen act is inherently ordered (finis actus). [Janet E. Smith, The Morality of Condom Use by HIV-Infected Spouses, The Thomist 70 (2006): 27-69]

Whereas the intention of the act concerns the desired goal or sought outcome, the object of the act concerns what one is trying to do by performing that act. While the two may overlap or even be identical in some cases, they are in principle distinguishable… [James G. Murphy, The Principle of Double Effect: Act-Types and Intentions, 2013. Retrieved from Loyola eCommons, Philosophy: Faculty Publications and Other Works, http://dx.doi.org/10.5840/ipq201353220]

Often, the object and intention can coincide. If a certain act A is inherently ordered to a certain end E, and I am aware of this fact, I may simply choose to perform the act precisely because I wish to attain the end E. in this case, E is both the object and the intention.

Sometimes an act can have two effects (E1 and E2). It could be the case that the act is inherently ordered toward the first (E1), but due to circumstantial conditions, it will no less necessarily result also in the second effect (E2), which would be evil if it were willed as an end.

For an act A to be good, the object of the act must be good, the intention must be good, and there must be no circumstance that makes it evil. At first blush, it would seem that the circumstances bringing about the evil second effect make this act evil. However, the act could still be good if all these conditions are met:

1) The act itself must be morally good or at least indifferent.
2) The agent may not positively will the bad effect but may permit it. If he could attain the good effect without the bad effect he should do so. The bad effect is sometimes said to be indirectly voluntary.
3) The good effect must flow from the action at least as immediately (in the order of causality, though not necessarily in the order of time) as the bad effect. In other words the good effect must be produced directly by the action, not by the bad effect. Otherwise the agent would be using a bad means to a good end, which is never allowed.
4) The good effect must be sufficiently desirable to compensate for the allowing of the bad effect. [F.J. Cornell, Double Effect, Principle of, New Catholic Encyclopedia (New York: McGraw-Hill, 1967), v.4, p.1021.]

Condition (1) means that the object of A, in this case E1, must be good (omitting the disputed possibility that a moral object can be morally indifferent). Condition (2) means that our intention, to be good, does not positively will E2, but only permits it. The only thing we positively will is E1, to which A is inherently ordered. Condition (3) excludes any scenario where A results in E2 only as a consequence of E1, but it is permissible if E1 and E2 occur simultaneously in the order of causality. If E1 occurred only as a consequence of E2, then A would be no less inherently ordered to E2 than to E1, in which case we fail to meet condition (1). The last condition (4) is the proportionality criterion, which is difficult to define precisely. Obviously, it would be specious to permit a great evil (E2) in order to attain a small good (E1). Yet it is a matter of prudential judgment exactly how much evil one may tolerate in proportion to the good to be attained. This seems dangerously close to ends justifying the means, except E2 is not a means of attaining E1, but a side effect.

To apply these criteria to personal self-defense, we define E1 as saving our own life, and E2 is slaying the aggressor. The act A, which we call self-defense, can take various forms, but what is essential to self-defense is that we repel the aggressor and render him harmless. This suffices to attain the act’s inherent end of saving our life (E1). Under certain circumstances, however, it may be the case that the only way to repel the aggressor and render him harmless involves killing him (E2) at the same time. This is lawful only if these four conditions hold:

(1) Saving a life (E1) is good.
(2) We do not positively will (desire as an end) slaying the aggressor (E2), but only permit it. The only thing we positively will is saving a life (E1).
(3) Saving a life (E1) cannot be a causal consequence of slaying the aggressor.
(4) The good of saving a life (E1) must be sufficient to permit the evil (E2) of slaying the aggressor.

Condition (4) would prevent us from killing people over petty theft, for instance. Condition (2) does not mean that the slaying must be a physical accident or totally involuntary. It is only indirectly voluntary, i.e., we desire to perform an act that we know will have an evil effect, but we do not desire that evil effect. We perform the act in order to attain its inherent end, not the non-essential second effect, which we would avoid if circumstances made it possible. Condition (3) forbids us to use the killing per se as a means of saving a life, rejecting consequentialism (ends justifying the means). Still, it is often the case that the act of self-defense (repelling the aggressor) is physically identical with the act of killing, so it would seem that we are effectively killing as a means of saving a life. Yet a moral act is something more than a mere physical act, or else even inanimate objects could act morally. The act A of self-defense is not defined by the physical motion we make with our hand or a weapon, but by what we have chosen to do. A moral act is inseparable from choice, or it is not moral at all. Whatever motion we make with our arm or weapon becomes moral insofar as it reflects a choice to do something. If what we have chosen to do is repel an aggressor, then this act is self-defense. Next, we ask what is the intention, i.e., why we are repelling the aggressor. The answer is to save a life (E1). Our object chosen is good in itself, as is our intended end. The unfortunate circumstance that the same physical act will also have an evil effect that we do not desire does not imply that we are using killing as a means. If we do not desire to kill at all, then we certainly do not will killing as a means.

If we assume that the retention of human dignity by criminals implies that killing them is objectively evil—to repeat, the Magisterium has not defined this point—their execution could still be lawful under the rule of double effect. The inherent end of just punishments (P) by the civil authority is the security of human life (E1). In certain circumstances, the act of punishment (P), i.e., the act of repressing outrage and violence, entails killing the criminal (E2). This is lawful only under these four conditions:

(1) The security of human life (E1) is a good object.
(2) We do not positively will to slay the criminal (E2) but only permit this effect. What we positively will is the security of human life (E1).
(3) The security of human life cannot be a causal consequence of slaying the criminal.
(4) The good of the security of human life must be sufficient to permit the evil of killing the criminal.

Repressing outrage and violence, not killing the criminal, is instrumental to saving a life; killing is just a regrettable second effect, due to historical circumstances that make execution the only practicable means of repressing violence while maintaining the security of human life. If conditions (2) and (3) truly hold, then we cannot possibly justify capital punishment under modern circumstances. Today we can repress outrage and violence, render the criminal permanently harmless, and protect human life and the peace of society from him, by secure lifetime imprisonment.

If, on the other hand, killing the guilty is not objectively evil, notwithstanding their retention of human dignity, capital punishment may be licit even in the absence of conditions (2) and (3). Still, the Magisterium has clearly taught that nothing short of necessity for securing innocent life may justify such punishment.

8. Efficiency of Modern Detention Systems

The last factor in the new teaching is that modern penal systems make it possible to achieve the objective of protecting human life without capital punishment. That is to say, capital punishment is no longer necessary for communal self-defense, which is the only legitimate reason for the application of this penalty despite the human dignity of the criminal.

The moral admissibility of an act can be affected by concrete physical circumstances. We are now at a point in human history where even the poorest countries in the world have efficient prisons that can confine criminals securely, protecting the innocent from harm. (Exceptions would be countries in anarchy or civil war, where there is no effective legitimate authority for the punishment of crime.) What we take granted, however, was not the case for most of human history.

Until the modern era (c. 1800), most prisons were woefully insecure and ill-suited for long term detention. Civil governments lacked the degree of organization and economic surplus necessary to develop a prison system in the modern sense. For most of history, prisons were just places to await trial or execution or occasionally to serve short-term punishments (usually a few days, rarely longer than a year). They were not physically secure or even closed institutions; doors were usually unlocked; daily visitors were unrestricted and could bring any items. At the Bastille, prisoners had their own food, furnishings, and even servants brought from the outside, and were not under lock and key. The Old York Gaol in Maine kept its main door unlocked, with only the amusing security measure of unequal stair heights to prevent prisoners from rushing out. The prisons and local jails of today’s most technologically backward countries are impregnable fortresses compared with what was generally available in the Middle Ages and the early modern period.

Some of the saints’ remarks in apparent favor of capital punishment are clearly conditioned by the physical impossibility of long-term mass incarceration. Most notably, St. Thomas says, Insofar as the wicked, while they live, may repent, this does not impede that they can be justly killed, because the danger that ensues if they should keep living is greater and more certain that the good that may be hoped of their repentance. [Summa contra gentiles, III, 146, translation mine] This argument loses all force when modern imprisonment nullifies all danger, while the good of repentance or rehabilitation remains possible. Similarly, St. Augustine endorses capital punishment only when necessary to restrain violence: If there were no other established method of restraining the hostility of the desperate, then perhaps extreme necessity would demand the killing of such people. [Ep. 134, 4] Urging that the Donatists should not be executed, since that would make their victims sullied with their blood, St. Augustine does not allow mere retribution to justify capital punishment. If a milder punishment is available to restrain the violent, we should use it.

Accordingly, the CDF finds: given that modern society possesses more efficient detention systems, the death penalty becomes unnecessary as protection for the life of innocent people. [Letter to bishops from the CDF, 2 Aug 2018, 7] The revision to the Catechism intends, in respectful dialogue with civil authorities, to encourage the creation of conditions that allow for the elimination of the death penalty where it is still in effect. [Ibid., 10] Note that the modern teaching does not accuse governments of committing murder by the death penalty, but envisions a respectful dialogue. The abolition of the death penalty is contingent upon the realization of definite historical circumstances that banish its necessity, and consequently its admissibility.

9. Past Teaching and Practice

There is no question that the Church has taught magisterially that capital punishment can be justified and a morally good act in many contexts. These teachings have not suddenly become false. What has changed is the determinate historical circumstances (modern systems of police, courts, and secure prisons) in which the end of punishment, namely redressing the disorder caused by the offense, can be fully achieved without recourse to capital punishment. This change in circumstance, combined with the recognition that even the gravest crime does not cause the total loss of human dignity in this life, makes capital punishment totally unacceptable under modern conditions. A brief review of some past teachings should make the basic consistency of this position apparent.

In early Christianity, there was a strong presumption against killing for any reason, in keeping with the example and teaching of Christ, who forbade taking up the sword even to defend Himself. No one ever suggested that the martyrs ought to be avenged for their deaths; indeed any such vengeance would only taint victims with blood guilt. It might be admitted that capital punishment was in accord with retributive justice, yet nonetheless illicit for a Christian, who is forbidden to kill without strict necessity by Christ’s teaching of charity and mercy. Thus Athenagoras Presbeia (2nd cent.) says Christians cannot endure even to see a man put to death, though justly.… How, then, when we do not even look on, lest we contract guilt and pollution, can we put a man to death? [A Plea for the Christians]

Other witnesses confirm that early Christian communities abstained from capital punishment. The Book of the Laws of Regions, ascribed to Bardesanes (d. 220), says that Christians, following their own law, nowhere stoned thieves to death or committed honor killings, even when they lived in nations where these practices were permitted. In Contra Celsum (c. 240), the widely read and traveled Origen likewise remarks that Christians everywhere were forbidden to stone or burn evildoers, as the Jews did. He even says that God destroyed the Jewish kingdom in part to abolish such bloodshed, in keeping with the Christian consensus that the New Covenant forbids this. The Apostolic Tradition attributed to St. Hippolytus forbids soldiers to execute men, and declares that soldiers who volunteer for service are to be cast out of the Church. [D.W.T. Brattston. Early challenges to capital punishment. The Mennonite, 1 May 2011.]Again, killing is permitted only for necessity in communal self-defense.

The only putative Christian endorsement of capital punishment before AD 250 is that of Clement of Alexandria:

But when [the law] sees any one in such a condition as to appear incurable, posting to the last stage of wickedness, then in its solicitude for the rest, that they may not be destroyed by it (just as if amputating a part from the whole body), it condemns such a one to death, as the course most conducive to health. Being judged by the Lord, says the apostle, we are chastened, that we may not be condemned with the world. [Stromata, I, 27]

Punishment, nonetheless, is subordinate to the rehabilitation of the wrongdoer, not retribution.

But it is the highest and most perfect good, when one is able to lead back any one from the practice of evil to virtue and well-doing, which is the very function of the law. So that, when one falls into any incurable evil—when taken possession of, for example, by wrong or covetousness—it will be for his good if he is put to death. For the law is beneficent, being able to make some righteous from unrighteous, if they will only give ear to it, and by releasing others from present evils; for those who have chosen to live temperately and justly, it conducts to immortality.

The end and purpose of this life is preparation for eternal life in heaven, so punishment should attain this end. For this reason, Christian thought has emphasized rehabilitation and deterrence over retribution in temporal punishment. St. Augustine consistently denied that retribution was a legitimate basis for the death penalty or any other temporal punishment. God alone knows what men truly deserve, so retributive justice is reserved to divine judgment. Even when St. Augustine condones the death penalty, his main concern is to show that the judge is not guilty of murder [De civitate Dei, I, 21], not to advocate the death penalty beyond strict necessity for public safety.

Having already remarked at length on the Thomistic tradition, the first Magisterial teaching seeming to bear directly on the death penalty is found in the bull Exsurge domine (1520), which condemns Luther’s proposition: That heretics be burned is against the will of the Spirit. The condemned view is that the execution of heretics is categorically forbidden to Christians, but the bull does not define the circumstances under which such execution might be licit. As a historical matter, it should be noted that heresy, as a crime, was not merely a matter of private opinion, but often entailed public dissemination of ideas opposed to institutions of public authority (e.g., Hus, Calvin), so the civil authority punished this severely as a threat to public order, as one would revolutionaries. Once again, the liceity of capital punishment entails an assessment of its necessity for maintaining public safety.

As the above example indicates, the Church and governments of the early modern period often favored the defense of public authority over the rights and dignity of individuals, so they assessed the necessity of the death penalty for public order differently than we might when presented with the same set of facts. Pope Francis addressed this issue candidly in a 2017 speech:

Sadly, even in the Papal States recourse was had to this extreme and inhumane remedy that ignored the primacy of mercy over justice. Let us take responsibility for the past and recognize that the imposition of the death penalty was dictated by a mentality more legalistic than Christian. Concern for preserving power and material wealth led to an overestimation of the value of the law and prevented a deeper understanding of the Gospel. Nowadays, however, were we to remain neutral before the new demands of upholding personal dignity, we would be even more guilty. [Address of His Holiness Pope Francis to Participants in the Meeting Promoted by the Pontifical Council for Promoting the New Evangelization, 11 October 2017]

Although the Church never taught that criminals utterly lose their human dignity, it is undeniable that the Popes and other prelates employed such a principle in their practice. This is proved by the degrading punishments that they countenanced in their capacity as temporal lords, especially their application of capital punishment to crimes that did not endanger innocent lives. A pope’s actions as sovereign of the Papal States, however, cannot be considered a universal teaching act, for his temporal authority is local, not universal. Nonetheless, Pope Francis has seen a need to explain this past lack of charity, anticipating charges of papal hypocrisy. Rather than bind himself to the deeds of his predecessors out of mere devotion to consistency, he frankly acknowledges the contradiction in practice and identifies what he believes to be the reasons for the mistakes of the past.

The Pope mentions the primacy of mercy over justice, for mercy is a fruit of charity. It does not consist in mere leniency or falling short of justice, but in having compassion and regard for fellow men. There is an extensive, neglected medieval literature on Christian mercy. [A. Tuckness and J.M. Parrish. The Decline of Mercy in Public Life (New York: Cambridge Univ. Press, 2014)] St. Augustine, in particular, emphasized that human punishment should not aim for full retribution, which is reserved for God when the time for repentance is past. Instead, temporal punishments should be limited by the demands of public order, looking more to the future peace of society than to avenge past wrongs. [Ep. 91; Ep. 134, 4.]

It is not clear what degree of culpability, if any, Pope Francis imputes to past Popes, or whether they are only to be faulted with ignorance. It can hardly be disputed, quite apart from the issue of capital punishment, that much of the penology under their rule would be considered inhumane by today’s standards. Capital punishment was imposed even for property crimes. This would seem to imply a higher esteem for the values of securing property and respecting authority at the expense of recognizing human dignity in the criminal. It is inadmissible to deny all human dignity for the mere advantage or utility of society; this might be done only when necessary to protect human life. With our sharp awareness of the dignity that abides in all men, and our knowledge that capital punishment is no longer necessary for the protection and preservation of life, we would have greater culpability if we persisted in this practice or feigned neutrality as to its present moral admissibility.

As a historian, I do not see much value in holding the people of the past to standards they could not have anticipated. The reasons for their severity, as alluded to in the CDF letter, had less to do with inhumanity and more to do with the difficulty of apprehending criminals and preventing recidivism. The murder rate of medieval Europe dwarfed that of any modern country, even South Africa. One could not travel between two towns without serious danger of being robbed or kidnapped by highwaymen, so people rallied around whichever ruler would impose law and order as forcefully as possible. In 14th-century England, men were hanged for stealing more than 12 1/2 pence. In Ferrara, Italy, men were hanged for stealing more than 10 lire. It is a mistake to look down upon our ancestors for their harshness, because it is only through their severity that we eventually established strong centralized states with the security that we take for granted.

It is only because the modern state is so powerful, far too powerful to be threatened by common criminals, that she can afford to give greater priority to mercy than to justice. This luxury, however, was made possible in the first place by our ancestors’ zeal for justice. Nonetheless, even our ancestors sought justice not for the sake of merely inflicting punishment, but for the peace of the community. Now that we enjoy this peace, we should do our best to preserve it and build on our ancestors’ achievements by further expunging cruelty from our society as much as circumstances permit.

It is the proper duty of the Magisterium to interpret the signs of the times in light of the Gospel, [Gaudium et Spes, 4] not, as some American conservatives think, an intrusion into politics that can be lightly dismissed or ignored. It would be a serious dereliction of duty if the modern Popes failed to take our heightened understanding of human dignity into account when teaching how Catholic doctrine is to be applied in modern life.

© 2019 Daniel J. Castellano. All rights reserved. http://www.arcaneknowledge.org