An Intelligent Catholic’s Guide to the Death Penalty Debate

The Problem in Brief

In recent years, the death penalty has stirred considerable controversy among Catholics, for the simple reason that what seems to be taught by the Church today appears to conflict with what was taught by the Church throughout most of her history. The issue—if we’re to cut straight to the point—is not so much about the moral legitimacy of the death penalty as it is about the genuine credibility of the Catholic Magisterium, or teaching office.

It is, as almost everyone knows, a core claim of Catholicism that the Church, when teaching with her full authority, cannot err in matters of faith or morals. If, then, the Church once definitively taught that the death penalty was not intrinsically evil and now teaches that it is, it seems we have a genuine reversal on our hands—of the sort the Church says cannot happen. Which is to say, a falsification event.

It should be obvious—indeed, painfully obvious—that Catholics who raise concerns about the Church’s current position on the death penalty are not doing so out of bloodlust or a desire to dissent. Despite what some social media commentators might claim, most do so out of love for their faith and a deep concern for what is ultimately at stake: the credibility of the Catholic Church herself. It is no small matter.

What I aim to propose in this (hopefully brief) article is not a definitive position on the death penalty issue, but a simple mapping of the terrain. That is, I want to lay out the possible ways Catholics, in good faith, can think about this issue. Then I’ll leave it to the individual reader to decide how they wish to make up their mind on the matter—if at all.

So, let’s start by understanding the problem in a bit more detail. Here’s an extended quotation from Edward Feser, a Catholic philosopher who has commented intelligently on this issue at some length over the years:

… 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 in even stronger terms, 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.

So, that is the problem before us. And assuming one does not want to accept an outright falsification event of Catholicism—nor, of course, should they, since the conditions for an infallible pronouncement certainly have not been met by the recent statements—here, I believe, are the main ways one can think through this issue.

Broadly, we can seek resolution through either an incompatibility thesis or a compatibility thesis. As the terms imply, the first maintains that what was taught previously by the Church is now denied, whereas the second maintains that what was taught previously is not, in fact, denied.

The Incompatibility Thesis

Option 1: The Church’s historical teaching was mistaken but not definitively taught. Feser himself contends the traditional teaching really is irreformable (hence he says there is no other possible conclusion than the one he draws), but there are others who argue it’s not (also, see Feser’s response). Still, if one maintains the historical position was wrong, one must also maintain that it was never taught with sufficient authority to be definitive.

Option 2: The recent statements are mistaken.
This seems to be Feser’s preferred approach. Popes can and have erred when not teaching with their full authority. While such instances are rare and often scandalous, they can happen—and Feser thinks this is one of them. On this view, the historical position is correct, while the recent pronouncements are mistaken (though hopefully, they’ll be clarified and corrected in the future).

Out of these two options, the latter—while not without cost—seems the less costly, at least to me. It’s hard to see how the Church could have consistently taught and endorsed something intrinsically evil for so long. Nor is this issue—because I’ve seen people make this comparison—like slavery, where one might accuse members of the Church of not acting forcefully or quickly enough against it, yet still find ample evidence of her condemning it. Capital punishment is entirely different: historically, it was not treated as a tolerated evil but as a deserved punishment—a good, in fact, not a mere concession.

Actually, I want to make another point here… just a small one for now, to avoid getting too diverted, and only to add a little nuance. For the matter of slavery is itself complicated by the fact that not all forms of slavery are the same. In some sense, prisoners are slaves, yet we do not regard this as inherently unjust. In fact, we think it is often perfectly just and necessary to imprison people—and this is because rights are inherently bound up with duties, and a failure to discharge those duties can indeed cause one to forfeit their rights.

Traditionally speaking, rights are not inviolable claims, but moral powers or permissions ordered toward the fulfillment of one’s duties within the moral order. Put differently, a right is always relational to the good and conditioned by one’s proper role as a rational creature under divine law. Understood this way, one can plausibly forfeit not only the general right to liberty—being justly coerced into confinement, labor, or both—but also, at least traditionally speaking, even the right to life through certain heinous crimes. (Aquinas himself says that certain acts cause a person to fall away from the dignity proper to rational creatures and effectively demote themselves to the order of beasts.)

All of this is simply to say that if one understands slavery narrowly as chattel slavery—the capturing, confining, and forcing into labor of an innocent person—then, of course, that is and always will be inherently wrong. But there are plausibly other instances of “slavery”—such as penal servitude, indentured labor, or forced labor as punishment for crime—not of this kind, where people are justly confined and required to work as a consequence of crimes they have committed. (Of course—and it pains me even to have to make this qualification—but this is not to defend historical abuses committed under the name of slavery; it is simply to note that not every form of coerced labor is, by definition, unjust or intrinsically evil.)

These complications aside, I do not think any proponent of the current position on the death penalty makes a serious intellectual advance by comparing it to a development on an issue like slavery. The Church rightfully condemns—and has long condemned—chattel slavery, and perhaps that is indeed a genuine development, since there is a legitimate distinction between different forms of slavery. But with respect to capital punishment, either someone can truly deserve to be put to death for heinous crimes, or they cannot.

The Compatibility Thesis

Here—this is the more common modern approach—one can read the relevant Catechism section as not condemning capital punishment as intrinsically evil but rather making a prudential judgment that it simply ought not to be used under present conditions. If, indeed, this is merely a prudential statement about the application of the death penalty, and not a declaration about its inherent moral status, then the conflict dissolves (whether or not one agrees with that prudential judgment), since the Church would not be saying now that the death penalty is intrinsically evil, whereas she previously said it wasn’t.

This is a tidy solution, but it comes with costs—two, in fact. First, it’s almost certainly not the plain, natural reading of the Catechism’s text. Second, it has to ignore other statements—particularly the one Feser highlights from Pope Francis—that the death penalty “violates the inalienable dignity of every person, regardless of the circumstances.” So this approach must adopt a somewhat strained reading of the Catechism and, realistically, must still hold that at least some of Pope Francis’s other statements were mistaken. In other words, even here, some degree of the incompatibility thesis creeps back in.

Where This Leaves Us

So that, as I see it, is the general lay of the land. Of course, I haven’t exhausted the space of logical options—only, I think, the plausible ones.

For example, it would hardly be plausible to maintain that the issue at hand does not relate to faith or morals.

Nor—and this take, honestly, is probably the worst—can one claim that this represents some genuine development of doctrine, which seeks only to refine and unfold what has already been taught. No development can be an obvious reversal. It is, if I may, a complete joke to suggest that the Church once teaching that the death penalty is morally licit and later declaring that it isn’t could somehow count as “development.” That would be no more a development of doctrine than if the Church were suddenly to proclaim that there are only two persons in the Godhead instead of three. No amount of verbal contortion can disguise the fact that such a move would not be a fuller understanding or a deeper implication of what was once taught—it would simply be an outright negation of it.

So, for example, some try to appeal to a “development in understanding human dignity” as a way to reconcile the two positions. But this obviously doesn’t help—like, at all. If capital punishment is now judged to violate the inviolable dignity of the human person, then it always did—since that dignity is rooted in human nature itself, not in our (or the Church’s) historical awareness of it. A better grasp of dignity can’t make what was once morally permissible now intrinsically evil. If such dignity is inherent to human nature that the death penalty is never morally licit, then that has always been the case—whether we recognized it or not.

Finally—and I’m not entirely sure where this point fits in this essay, so I’ll just drop it here—and forgive me if I sound unusually catty, but please don’t get me started on the whole “if you’re pro-life, you can’t be pro–death penalty” slogan.

“Pro-life” is an American political term that, in practice, simply means “anti-abortion.” Obviously, people who identify as pro-life aren’t pro–all life—many eat animals, spray Roundup on weeds, and so on. And it’s perfectly consistent (even if you think it’s mistaken) to believe that one should not kill an innocent human being—which the babe in the womb clearly is—but that some guilty human beings, particularly those guilty of heinous crimes, may merit capital punishment.

So, right.

To finish up, then, I should like to make a few brief remarks about the traditional natural law view of capital punishment.

As already hinted at, the use of capital punishment was, of course, never appealed to as a potential corrective—by its nature, it obviously cannot be. Rather, it was considered licit as a proportionate (or at least not wholly disproportionate) means of retributive punishment.

As Austin Fagothey puts it, “In receiving its authority from God through the natural law, the state also receives from Him the right to use the necessary means for attaining its end. The death penalty is used as such a means. It fulfills the retributive function of punishment by re-establishing, as far as possible, the balance of outraged injustice, and is thought to be the only effectual punishment against the most serious crimes, especially those committed by criminals already under life sentence.”

Importantly, however, Fagothey later adds this: “Though the state has the right of capital punishment, it need not exercise the right if it can protect itself from criminals in another way. In former ages, life imprisonment for all major criminals was impossible because the jails did not exist. If the state can prove that it can effectively handle crime without the death penalty, it may be argued that it not only need not, but should not, use it.”

That final line is interesting, though unfortunately Fagothey does not expand upon it. Clearly, it cannot be the case that the state should refrain from using the death penalty because it is inherently unjust—he has just contended that it isn’t (and, after all, nobody, including the state, can ever have a right to commit a wrong). The case for why it shouldn’t be used must therefore rest on other grounds—perhaps because it is so fraught with potential abuse, or what have you. And this would, of course, be the beginning of a basis for the Church making a prudential decision against its admissibility in contemporary times: maintaining, with Fagothey, that it is not evil in principle, but simply off the table for now.

That would solve the apparent tension between previous and current teachings. And if, indeed, Feser is right about the historical teaching being irreformable, then perhaps the Catholic is obligated to understand the current pronouncement along those lines—even if the reading, in some cases, is strained. At the moment, perhaps that is simply the best we can do, while praying for further clarity to come, whenever it may.