Progressive Catholics and capital punishment

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The debate
over capital punishment between conservative and progressive Catholics
typically exhibits the following dialectic. 
The conservative will set out a case from natural law, scripture and
tradition, and social science for the thesis that capital punishment is at
least in principle licit and in practice still needed in some circumstances –
as Joseph Bessette and I do at length in our book <a href="https://www.amazon.com/Man-Shall-His-Blood-Shed/dp/1621641260/ref=pd_sim_14_6?_encoding=UTF8&pd_rd_i=1621641260&pd_rd_r=9SQGPQ0HAX9Y392GRR12&pd_rd_w=yz0mr&pd_rd_wg=zFiiQ&psc=1&refRID=9SQGPQ0HAX9Y392GRR12" rel="nofollow">By
Man Shall His Blood Be Shed</a>. 
The progressive will reply with an impassioned but vague appeal to human
dignity, a cherry-picked statement from the recent magisterium, and a
tendentious empirical claim (for example, that capital punishment does not
deter, or is implemented in a racist manner), and top things off with in an ad hominem attack (such as accusing the
conservative of being bloodthirsty or having a political motive).  The conservative will then complain that the
progressive has attacked a straw man and simply ignored rather than answered
his key points.  The progressive will at
this point either ignore the conservative or simply repeat his original,
question-begging reply at higher volume.

The latest
iteration of the progressive’s routine is Jack Hanson’s <a href="https://www.nybooks.com/online/2024/10/20/last-rites-death-penalty-catholic-church/" rel="nofollow">article
on Catholicism and capital punishment</a> in The New York Review of Books. 
A recent execution provides the occasion for the article, but there is
otherwise nothing new in it.  And though
it cites me as the Exhibit A “hard-liner” among Catholic academics who defend
capital punishment, it offers no response to the key arguments Bessette and I
develop in our book.

The conservative’s case

Because so
many of our critics ignore rather than respond to those arguments, we’ve had to
reiterate them many times in the seven years since our book appeared.  It is tiresome to have to do so yet again,
but at least a brief summary is necessary for context.  There are three relevant sets of
considerations, deriving from natural law, scripture and tradition, and social
science.

The
traditional natural law rationale for the death penalty is straightforward.  Wrongdoers deserve punishment, and what they
deserve, specifically, is a punishment that is proportional to the
offense.  And governmental authorities
have the right to inflict such punishments. 
Now, some offenses are so extremely grave that nothing less than
execution would be a proportional punishment. 
So, such offenders deserve the death penalty, and the state has a right
to inflict it on them.

This is not
to say that the state must inflict
the death penalty whenever it is deserved, only that it may do so, at least in principle. 
And there may in some cases be good reasons why it should not do
so.  As Aquinas teaches, perfect justice
is not attainable in this life, and when inflicting punishments, governments
need to focus primarily on what is essential to preserving public order.  But though considerations of retributive
justice are not sufficient to
determine what punishments should be inflicted, they are necessary.  An offender can
deserve death as a matter of retributive justice, so that if the state inflicts
death on him, it does no injustice –
even in cases where there are considerations other than justice that should
lead it to refrain from inflicting this penalty.

The point is
that the death penalty cannot be regarded as intrinsically wrong.  It does
not amount to murder, any more than arresting and imprisoning a bank robber
amounts to kidnapping, or any more than fining someone caught speeding amounts
to stealing.  A murderer has forfeited
his right to life, just as a robber has forfeited his freedom and someone who
violates traffic laws has forfeited the money that goes to paying the
fine.  If the death penalty is ever
wrong, it can only be wrong because of the circumstances
under which it is inflicted, and in particular because there is insufficient
reason under the circumstances to give the offender what he deserves.

What, then,
of the circumstances that prevail in a country like the United States?  Is there sufficient reason to inflict on some
offenders the penalty of death?  Bessette
and I argue in our book that there is. 
We argue that some offenders remain so dangerous even when locked up for
life that governing authorities ought to retain the option of execution.  For example, without the prospect of capital
punishment, some offenders facing life imprisonment have no incentive not to
murder fellow prisoners or prison guards. 
Or, if they escape, they will have no incentive not to murder innocent
people in the course of trying to evade police, if the worst they face is a
return to life imprisonment.  In general,
we argue, capital punishment does have significant deterrent effect.  It is necessary for governments to keep it on
the books and utilize it at least in the case of the very worst offenders, in
order to protect society from them.

This is just
a summary in a few paragraphs of a natural law line of reasoning that Bessette and
I develop and defend in detail in the book. 
As we argue, in order to deny that the death penalty can be licit at
least in principle, one would have to give up the principle that offenders
deserve punishments proportional to the offense.  One problem with doing so is that divorcing
punishment from desert has implications that by anyone’s lights would be
unjust.  Another problem is that there is
no way to give up the principles of desert and proportionality consistently with
Catholic orthodoxy.  For these principles
are deeply embedded in scripture and tradition, informing both the Church’s
understanding of punishment and her teaching on salvation and damnation.  

This brings
us to the second set of considerations in favor of capital punishment, which
have to do with the teaching of scripture, the Fathers and Doctors of the
Church, the popes prior to Francis, and tradition in general.  As Bessette and I show in detail, there are
many passages in scripture, in both the Old and New Testaments, that sanction
the death penalty, and that have always been understood by the Church (and
indeed by everyone else, such as Jewish interpreters) to sanction the death
penalty.  This includes the Fathers of
the Church, some of whom pleaded for clemency and thought it better for the
state not to exercise its right to inflict the death penalty, but none of whom
denied that scripture did indeed give the state that right.  The Church teaches that neither the Fathers
nor the tradition of the Church can be mistaken when they agree on some matter
of scriptural interpretation.  Since the
Fathers and the Church have always agreed that scripture allows for capital
punishment at least in principle, there is no way to interpret scripture any
other way consistent with orthodoxy.  A
Catholic is free to hold (as some of the Fathers did) that it is better in
practice not to utilize capital punishment. 
But a Catholic is not free to deny that scripture teaches that the death
penalty can at least in principle be just.

This has for
2,000 years been the consistent teaching of the Church and of the popes who
have addressed the issue.  Popes such as
St. Innocent I, Innocent III, Leo X, St. Pius V, St. Pius X, and Pius XII not
only upheld the legitimacy of the death penalty, but in some cases (such as
Innocent I, Innocent III, and Leo X) condemned as heterodox the view that
capital punishment is always wrong.  St.
John Paul II too explicitly taught that the death penalty can in some cases be
justifiable, and held only that it is the taking of innocent life that is inherently
wrong.  Here too, Bessette and I back up
our claims with a detailed presentation and analysis of the relevant texts.

The main
reason Pope Francis’s change to the Catechism and his other many remarks on the
death penalty have been so controversial is not because of his opposition to
it, but because of the way he has
expressed his opposition to it – namely, in a manner that seems to imply that
capital punishment is intrinsically
or of its very nature wrong.  The language of the change to the Catechism,
which states flatly that the death penalty “is an attack on the inviolability
and dignity of the person,” implies this, certainly on a natural reading.  The recent CDF document Dignitas Infinita condemns capital punishment <a href="http://edwardfeser.blogspot.com/2024/04/two-problems-with-dignitas-infinita.html" rel="nofollow">in
even stronger terms</a>, claiming that it “violates the inalienable
dignity of every person, regardless of
the circumstances” (emphasis added).  This clearly implies that it something about
the act of execution in itself, and
not just its circumstances, that makes it immoral.  

This
position flatly contradicts the consistent teaching of scripture and
tradition.  If Pope Francis is right,
every previous pope who has spoken on the matter is wrong – wrong about capital
punishment, wrong about scriptural interpretation, wrong about the nature and
implications of human dignity.  On the
other hand, if all those previous popes were right, then it is Pope Francis who
is wrong.  Either way, we are in a
situation where some pope or other has
erred.  Catholic theology leaves open the
possibility that this can happen when a pope is not speaking ex cathedra.  And since, as the Church teaches, the main
job of a pope is faithfully to hand on traditional teaching, the most obvious
way this might happen is if he were to contradict traditional teaching.

Now, the
very idea that scripture could be mistaken about a matter of faith or morals,
or that the Church could for two millennia have consistently been
misinterpreting scripture and teaching a grave moral error, is flatly
incompatible with the Church’s claims about her own indefectibility.  But a single pope teaching error in some of
his non-ex cathedra pronouncements it
is not contrary to those claims –
indeed, it has happened before, albeit only very rarely (as in the cases of
Pope Honorius and Pope John XXII).  The
logically unavoidable implication of this is that IF Pope Francis really does
mean to teach that the death penalty is intrinsically
wrong, then he is in error.  There is
simply no other possible conclusion, consistent with the Catholic Church’s
claims about her own indefectibility. 

The third
set of considerations relevant to the debate about Catholicism and capital
punishment derives from social science. 
Catholic opponents of the death penalty routinely make a series of
empirical claims, to the effect that modern prison systems suffice to protect
society without ever having to resort to execution, that the death penalty has
no deterrence value, that it is applied in a racially discriminatory way, that
there is a significant risk of innocent people being executed, and so on.  Usually these claims are just asserted, without supporting
argument.  And usually, the
counterarguments are simply ignored rather than rebutted.

But in our
book, Joseph Bessette and I address these arguments too, systematically and in
depth.  We show that there is in fact
strong evidence that the death penalty has deterrence value, that there are
cases where life imprisonment is not sufficient to protect others from the
offender, that the death penalty is not in fact implemented in a racially discriminatory
way in the U.S., that there is not in fact a significant risk of innocent
people being executed, and so on.  (As it
happens, the claim that there is such a risk of executing the innocent is one
that Bessette has rebutted also in https://www.thepublicdiscourse.com/2024/10/96181/
.)

The key
questions in the debate over Catholicism and capital punishment, then, are
these: Can the view that capital punishment is always and intrinsically immoral
be reconciled with a sound philosophical theory of punishment?  Can it be reconciled with scripture, the
Fathers and Doctors of the Church, and two thousand years of consistent
magisterial teaching?  Are there strong
social scientific arguments for the judgment that capital punishment is never
necessary today in order to protect society? 
In our book, Bessette and I present a detailed case that the correct
answer to each of these questions is No.

Hanson’s case

Now, Hanson,
as I have said, cites me as representative of Catholic academics who defend
capital punishment.  So, what does he
have to say in response to the arguments Bessette and I develop in our
book?  Nothing.  He tells his readers only that those
arguments have been “refuted by more capable theologians like David Bentley
Hart and Paul J. Griffiths.”  Hanson does
not tell us what makes Hart and Griffiths more capable.  (One suspects that “agreeing with Jack Hanson”
has something to do with it.)  He also
does not tell his readers that <a href="https://www.catholicworldreport.com/2017/11/28/hot-air-versus-capital-punishment-a-reply-to-paul-griffiths-and-david-bentley-hart/" rel="nofollow">I
have replied to Hart’s and Griffith’s objections</a>, and demonstrated
that in fact those objections are intellectually dishonest and notable more for
their vituperative excess than for scholarly rigor.

Hanson does
have some arguments of his own.  First,
he suggests that there is a significant risk of executing innocent people.  In fact there is not, as Bessette, who is a
social scientist with special expertise in these matters, shows in <a href="https://www.thepublicdiscourse.com/2024/10/96181/" rel="nofollow">the
Public Discourse article</a>
referred to above (which addresses, among other cases, the specific one Hanson
puts special emphasis on).

Second, Hanson
suggests that given “the notion of the ‘sanctity of life,’ which guides [the
Church’s] hard-line stance against abortion,” it is “hypocrisy” for a Catholic
to oppose abortion but support capital punishment.  Though this sort of objection is common, the
problem with it is so obvious that I am continually amazed that death penalty
opponents need it pointed out to them. 
The problem is that there is (as everyone acknowledges in every other
context) a crucial difference between the innocent
and the guilty.  Is it hypocrisy or an assault on human
freedom to condemn kidnapping while supporting the imprisonment of
kidnappers?  Is it hypocrisy or an
assault on private property to condemn theft while supporting the imposition of
fines for certain offenses?  Of course
not.  The reason is that the kidnapper
takes away the freedom of an innocent person,
whereas imprisonment is about taking away the freedom of a guilty person.  Similarly, the
thief takes the property of an innocent
person, whereas an offender who is forced to pay a fine is a guilty person.  Punishments like imprisonment and fines uphold rather than undermine freedom and
private property, because they protect the freedom and private property rights
of innocent people from those who would violate those rights.

For exactly
the same reason, there is no hypocrisy whatsoever in opposing abortion while
supporting capital punishment, because abortion involves taking the lives of
the innocent while capital punishment
involves taking the lives of the guilty.  And insofar as the death penalty protects society
from those who have murdered before, and deters others from committing murders,
it upholds the sanctity of life.  This is a point the Church herself has
emphasized in the past.  The Roman
Catechism promulgated by Pope St. Pius V teaches that for the state to
implement the death penalty is precisely for it to obey the commandment against murder:

Another kind of lawful slaying belongs to the civil
authorities, to whom is entrusted power of life and death, by the legal and
judicious exercise of which they punish the guilty and protect the innocent.
The just use of this power, far from involving the crime of murder, is an act
of paramount obedience to this Commandment which prohibits murder. The end of
the Commandment is the preservation and security of human life. Now the
punishments inflicted by the civil authority, which is the legitimate avenger
of crime, naturally tend to this end, since they give security to life by
repressing outrage and violence.

Third, Hanson
argues that “by sanctioning the taking of a life, we prevent any possibility
that the condemned might someday reconcile with the world and with God.”  As Bessette and I discuss in our book, this
is an objection Aquinas considers in Summa
Contra Gentiles III.146, and he dismisses it as “frivolous,” for two
reasons.  For one thing, says Aquinas, we
have to balance the potential repentance of the offender against the very real
harm the innocent may suffer if we do not protect them from evildoers by means
of capital punishment.  For another thing,
the prospect of execution in fact often prompts
evildoers to repent and get themselves right with God while there is still
time.  If an offender is so hardened in
evil that even knowledge of his imminent death will not lead him to repent, then,
Aquinas argues, it is likely that he would never repent anyway.

In a fourth
line of argument, commenting on Genesis 9:6 (which famously states that
“whoever sheds the blood of man, by man shall his blood be shed”), Hanson
writes:

For one thing, the Genesis passage stands in some tension
with the Gospel’s teachings on sin and casting stones. For another, Roman
Catholicism typically emphasizes allegorical, rational, and, above all,
ecclesial interpretations of the Bible; direct appeals to the literal inerrancy
of Biblical texts are rather a hallmark of Protestant theology in general and
Reformation polemics against the Roman Magisterium in particular.

There are
many problems with this, starting with the fact that Hanson does not explain
exactly how Genesis is in “tension” with what the Gospel says about sin and
casting stones.  Is he saying that we
should never punish criminals, since none of us is without sin?  Presumably not.  But in that case, if we can punish them with
fines or imprisonment, why not with execution, if that is necessary to protect
society?  There is also the fact that
Genesis 9:6 is by no means the only scriptural passage that sanctions capital
punishment.  Many other such texts can be
found, not only in Old Testament books such as Exodus, Leviticus, Numbers,
Deuteronomy, and Psalms, but also in New Testament passages such as Romans
13:4, which tells us that the governing authority “does not bear the sword in
vain; he is the servant of God to execute his wrath on the wrongdoer.”  Obviously, then, the New Testament writers,
who were in the best position to know, did not regard capital punishment as at
odds with the Gospel.

Theologian E.
Christian Brugger, author of <a href="https://www.amazon.com/Capital-Punishment-Catholic-Tradition-Second/dp/0268022410/ref=sr_1_3?dib=eyJ2IjoiMSJ9.dx-DyO4YdAGjcsMCEPhWHvxf1GuwKIt7Uyifm5zgtAjm4-DqF6UI6C2k6acIqzSd53o5yaYTlVDgaPat56NM7pIq-doh2IYDl1dFaOoxYhV9owYX3HHcNDo1bKGAgDufWNcVujxvyNRZ7QJWsewn2KTN46cBknJyrsZtogcsuy5p8zcwh41KK54VIMyOEwFhdocIvVVgztRHSS4msV7bYMByLC-8aBYljno686ulRbw.AJg1Sg2FjL-kwmaLXmRK1dx1ZmFqxjR7AkWozVWPJlA&dib_tag=se&keywords=christian+brugger&qid=1730070054&sr=8-3" rel="nofollow">the
most systematic Catholic critique of capital punishment</a>, concedes
that Genesis 9:6 is a “problem” for his side, and that there was a “consensus” among
the Fathers of the Church that scriptural passages like Romans 13:4 teach that
civil authorities have the right to inflict capital punishment for sufficiently
grave crimes.  Now, the Council of Trent
and the First Vatican Council teach that where the Fathers are united on some
matter of scriptural interpretation, no Catholic is at liberty to disagree with
them.  Even if there were no other
problems with attempts to reinterpret the relevant scriptural passages (and as
Bessette and I show in our book, there are in fact many such problems), the consensus
of the Fathers would suffice to show that these reinterpretations cannot be
accepted.

Nor is
Hanson correct to dismiss scriptural inerrancy as somehow a Protestant rather
than Catholic notion.  On the contrary, popes
such as Leo XIII and Pius XII emphasized that it is central to Catholic
orthodoxy to hold that scripture is divinely inspired and thus free of
error.  The First Vatican Council teaches
that the scriptures “contain revelation without error…being written under the
inspiration of the Holy Spirit,” and pronounces an anathema on anyone who would
deny that they are divinely inspired. 
The Second Vatican Council teaches that since they are divinely
inspired, “the books of Scripture must be acknowledged as teaching solidly,
faithfully and without error,” and the Catechism
of the Catholic Church incorporates this passage into its own teaching on
scriptural authority (107).

Hanson’s
position on scripture is also self-defeating. 
In order to get around scriptural teaching on capital punishment, he
suggests that such teaching is not free of error, or is incompatible with other
scriptural teaching, or has been misinterpreted.  Yet he also appeals to scripture when it suits
him, as when he refers to Christ’s remark about not casting the first
stone.  But if we are free to reject
scriptural teaching and its traditional interpretation in the one case, then
why not also in the other?  How can
Hanson’s appeal to scripture carry any more weight than the appeals made by
more conservative Catholics?  Here we see
a problem that, <a href="https://edwardfeser.blogspot.com/2021/11/geachs-argument-against-modernism.html" rel="nofollow">as
Peter Geach pointed out</a>, inevitably undermines modernist
theologies.  They claim to preserve the
core of divinely revealed teaching while jettisoning only what is inessential,
but by means of arguments which if followed out consistently would make the whole of the purported revelation
suspect. 

In what
seems intended as a separate, fifth line of argument, Hanson appeals to the
standard progressive Catholic narrative about how a purportedly arid and
abstract Neo-Scholastic theology gave way, after Vatican II and under the
influence of ressourcement thinkers
like Congar and de Lubac, to a more enlightened and humane modern
theology.  Neo-Scholasticism, he
suggests, is in some vague way linked to capitalism, Vichy France,
fundamentalism, and other things sure to generate a Pavlovian response among
the bien-pensant.  Exactly what all this has to do with whether
capital punishment is intrinsically wrong or still needed today is never made
clear.  The point, though, is obviously
to insinuate that Catholic defenders of capital punishment derive their
arguments from suspect sources and are motivated by a suspect political
agenda.  

Rhetorically, this will no doubt be effective
with some readers, at least those who already agree with Hanson.  Logically,
of course, it is completely worthless, being a crude deployment of fallacies
such as Appeal to Motive and the Genetic Fallacy.  If someone is going to show that the
arguments from natural law, scripture and tradition, and social science that I
summarized above are wrong, then he needs to demonstrate either that they rest
on false premises, or that the conclusions don’t follow from the premises.  The sources
of and motivations behind the
arguments are completely irrelevant, even if they were as Hanson claims they
are (which they are not, since there are, after all, lots of people who support
capital punishment but have no sympathy with or even knowledge of
Neo-Scholasticism).

A sixth and
final objection raised by Hanson is also of a fallaciously ad hominem nature.  Those who
have criticized Pope Francis’s statements on capital punishment, Hanson alleges,
show “evident bad faith” and are really guided by “political preferences”
rather than theological concerns.  The
first thing to say about this is that once again, Hanson is simply diverting
attention from what matters, which is whether the arguments given by Catholic
defenders of capital punishment are cogent. 
The motives they may have for
giving these arguments are irrelevant, even if they were the motives Hanson
attributes to them (which they are not).

The second
thing to say is that here again, Hanson’s position is self-defeating.  For the weapon he deploys against
conservatives can be turned against him. 
That is to say, conservatives could with no less justice (indeed, with
greater justice, I would argue) suggest that it is politics rather than
theology that fundamentally motivates the thinking of progressive Catholics
like Hanson.  In particular, they allow
their progressive political preferences to trump what scripture, the Fathers
and Doctors of the Church, and two thousand years of consistent magisterial
teaching say about the topic of capital punishment.  They praise Pope Francis’s change to the
Catechism, not out of any sincere respect for papal authority, but precisely
because they think it finally undoes the teaching of earlier popes whom they
disliked and had no qualms about criticizing.

To be sure,
I am not presenting this as an argument
against the progressive Catholic position on capital punishment.  That position is easily refutable on other
grounds, namely the arguments I summarized above.  And an Appeal to Motive would be a fallacy
whoever deploys it, conservative or progressive.  The point is rather that if Hanson wants to raise this sort of objection, then it could with
equal justice be flung back at him.  And
if he would object to having it flung at him, then to be consistent he ought
not to fling it at conservatives.

The final
thing to say is that the pope’s critics have in fact been very clear and
consistent about their motives, and they have nothing to do with politics.  They have to do instead with the worry that
in appearing directly to contradict the teaching of scripture, tradition, and
all of his predecessors, Pope Francis is doing grave harm to the credibility of
the Church’s magisterial authority.  The
critics are concerned that the pope is giving aid and comfort to Protestant,
atheist, and other critics of the Church, who allege that her claim to preserve
intact the deposit of faith has been falsified. 
They are concerned that he gives similar aid and comfort to heretics
within the Church who would like to use the change in teaching on the death
penalty as a stalking horse for other and even more radical doctrinal changes.

Hanson is
free to argue that these concerns are overblown, and to rebut the arguments of
the pope’s critics.  But he has no right
to pretend that those concerns and arguments do not exist.  Catholic critics of capital punishment say
that they are moved by respect for human dignity.  But it does not respect the dignity of those
one disagrees with to ignore what they actually say, or unjustly and
uncharitably to attribute bad motives to them.

https://edwardfeser.blogspot.com/2024/10/progressive-catholics-and-capital.html