A guest post by commenter Greg Mockeridge:
To say that confusion about what the Church really teaches about the death penalty is a real problem in Catholic circles today is an understatement of biblical proportions. This confusion has been fostered by the oft-repeated opposition of the US. Conference of Catholic Bishops (USCCB) as a whole, individual bishops and, to a lesser extent, Pope St. John Paul II and Pope Benedict XVI. Pope Francis has compounded the problem even further with some of his recent statements.
The recently published book, “By Man Shall His Blood be Shed, A Catholic Defense of Capital Punishment” by Dr. Ed Feser and Joseph Bessette makes a significant contribution in the much-needed effort to dispel this confusion.
Dr Edward Feser is Associate Professor of philosophy at Pasadena College in Pasadena, CA. Joseph Bessette is the Alice Tweed Tuohy Professor of Government and Ethics at Claremont College Prior to that he worked for nine years in criminal justice, on the staff of Cook County, Ill. State Attorney Richard M. Daley (1981-1984) and then as Deputy Director and Acting Director of the Bureau of Justice Statistics in the U.S. Department of Justice (1985-1990).
As the credentials of the two authors seem to imply, this book approaches the issue of capital punishment from both the perspective of Catholic teaching and secular jurisprudence and makes what I believe is an airtight case on both grounds. In the interest of full disclosure, I am coming to this with a decidedly pro-death penalty viewpoint. But if my judgment is clouded as a result of that, it should be plain to any objective observer. However, I, like the authors, believe it is legitimate for a Catholic to oppose capital punishment as a matter of policy, but not in principle.
Among those who give words of praise to the book are well-known Catholic figures like Frs. James Schall, Gerald Murray, and Robert Sirico, as well as canonist Dr. Ed Peters. Not one bishop is included amongst the names. Gee, why am I not surprised?
The introduction on page 12 states: “Yet traditional natural law reasoning is simply not widely understood today even among most Catholics. Moral thinking about capital punishment, even among Catholics, is often guided instead by what amounts to little more than platitudes lacking any clear content or rational foundation or by ethical theories that are incompatible with Catholic teaching.” In my experience, not only is this true, but it understates the problem. For example, about two years ago, I had a brief e-mail exchange with a priest friend of mine on capital punishment. This priest has formal training in Rome in moral theology, but yet he exhibited the same platitude-laden thinking devoid of both rational foundation and understanding of traditional Catholic teaching decried by the aforementioned quote. When someone like myself, who barely graduated high school in the Detroit public school system, displays a better grasp of how both the natural law and traditional Catholic morality approaches this issue than a priest educated in Rome, we have a serious problem!
In this light, it is only proper that the first chapter deals with the natural law. While I personally think the chapter could have been shorter and its language simplified, it is well worth the somewhat laborious read. In this chapter, the authors go to significant lengths to criticize the so-called New Natural Law Theory (NNLT) whose proponents include Drs. Germain Grisez, William May, E. Christian Brugger, Robert P. George, and others. In general, they posit, per the authors, that capital punishment not only shouldn’t be administered in practice, but that it is not even morally permissible in principle. This view puts them at odds with what the Church has traditionally taught regarding the death penalty. And yet these men all have established reputations for Catholic orthodoxy! Strange orthodoxy!
In the following chapter,”Church Teaching and Capital Punishment” they continue their criticisms of the NNLT. On page 143, they state: “Indeed, in our view it is surprising that the new natural law position on capital punishment has not generated more vigorous opposition among Catholics concerned with faithfulness to tradition and to the Magisterium.” While I would wholeheartedly agree that lack of opposition to this on the part of faithful Catholics is a problem, it is not at all surprising when you consider that the NNLT proponents are feted by many American bishops. This includes bishops who are considered heroes by many orthodox Catholics like, for example, Archbishop Charles Chaput of Philadelphia. Chaput endorses Dr. Brugger’s work. Brugger also was Cardinal Francis J. Stafford Chair of Moral Theology at St John Vianney Seminary in Denver from 2008 (while Archbishop Chaput was still the Ordinary in Denver) to around 2016. I would not be surprised if Chaput was instrumental in Brugger’s hiring at SJV. What I find surprising is that the authors are unaware of this. This is a significant problem I have with this book. The authors downplay the scandalous conduct of the bishops (although such accusations can be deduced from their treatment of the bishops’ position) on this issue. I will have more to say about this later. But I have to wonder if this is the decision of the authors or the powers-that-be at Ignatius Press.
The chapter does do an excellent job at decoding what the Catechism of the Catholic Church says regarding capital punishment. I say decoding because it mixes the prudential judgment of the Church hierarchy with doctrinal imperatives in such a way that can be difficult to distinguish. I have personal experience with this very thing in trying to explain to fellow Catholics what the Church actually teaches on the subject. It is a necessary task fraught with frustration.
One of the claims made by anti-death penalty activists is that it devalues human life. On the surface, this claim sounds plausible. And it would be true if the death penalty were carried out in an unjust or in a careless way. But such is certainly not the case in the U.S. On page 65, the authors give a brilliant response:
The opponent of capital punishment might acknowledge that the murderer has forfeited his right to life but argue that even if murderers deserve to die, we only perpetuate the “cycle of violence” if we kill them. Once again, though, if this were a good objection to capital punishment, it would be a good objection to any other punishment. It is like saying that imprisoning kidnappers further erodes respect for human freedom, or that fining thieves perpetuates the cycle of theft. Of course, no one speaks of a “cycle of theft” or a “cycle of kidnapping”, precisely because everyone knows there is a crucial moral difference between the innocent and the guilty, and thus a crucial moral difference between the way criminals treat the innocent and the way public authorities treat the guilty. When we punish, we simply are not, from a moral point of view, doing the same thing to offenders that they did to their victims and thus are not furthering any morally problematic “cycle”. But this is as true of the penalty of death as it is of any other punishment. Talk of a “cycle of violence” papers over the crucial moral difference between the innocent and the guilty and thereby falsely insinuates that execution is morally on a par with murder. In fact, just as incarcerating kidnappers affirms the value of human freedom and fining thieves affirms the value of property rights, so too does executing murderers affirm the value of human life.
As far as the “cycle of violence” claim goes, Archbishop Chaput makes this claim in language that is suggestive of moral equivalence: “What the death penalty does achieve is closure through bloodletting and violence against violence—which is not really closure at all, because murder will continue as long as humans sin, and capital punishment can never, by its nature, strike at murder’s root. Only love can do that.”
In fact, stronger arguments can be brought forth that opposition to the death penalty has often been motivated by a devaluing of innocent human life. Most opponents of the death penalty are pro-abortion and have effectively used that issue to drive a wedge between pro-lifers. On page 206, the authors quote the late Cardinal Avery Dulles: “The mounting opposition to the death penalty in Europe since the Enlightenment has gone hand in hand with a decline of faith in eternal life.” And there is no greater attack on human life than the attack on faith in life eternal.
No book written making a Catholic defense of the death penalty by American authors would be complete without an extensive treatment of the opposition to it by the USCCB. Chapter 4 is entitled “The American Bishops Campaign Against the Death Penalty”. The authors point out how markedly different the U.S. bishops position nowadays is from that of what American Catholics were taught less than sixty years ago. It is also different from what many American bishops held less than two generations ago. On page 284 the book points out:
The American bishops first addressed the subject in a general meeting in 1974. Philosopher-theologian Germain Grisez (the founder of new natural law theory and a prominent Catholic opponent of the death penalty) was commissioned to write a background study. He submitted a fifty-one-page document, from which a committee produced a seven-page brief against the death penalty, including scriptural, theological, and practical arguments for its abolition. The statement proved to be highly controversial. Some bishops objected that it “implied rejection of the teaching of the church regarding the limited right of the state to take life”. Others objected to the interpretation of scriptural passages. A cardinal questioned “whether the reference to capital punishment being discriminatory was sufficiently compelling” and “whether there was sufficient evidence to say that capital punishment was not being applied in an even-handed application”. The next day, after the document was revised, the same cardinal “noted that the reference to deterrence in the statement ignored the legitimate vindictive aspect of punishment”.
On Page 285: “As Archbishop Francis Furey of San Antonio, Texas, an outspoken proponent of the death penalty, wrote in 1977: ‘It is a divisive issue in the Church in this country. Perhaps that is as it should be. There are arguments on both sides. However, to say that the U.S. hierarchy, as such, is opposed to capital punishment, is just a plain lie.'” It would be unimaginable today for an American bishop to speak the way Archbishop Furey did a mere forty years ago.
It would be practically impossible for any honest reader to read this chapter as well as what the bishops say about capital punishment that the bishops’ statements are an affront to the traditional teaching of the Church. For instance, on page 310-311 we read:
Consider these passages, quoted above, from the USCCB’s Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice (2000), the bishops’ most extensive treatment of criminal justice in the United States:
We seek justice, not vengeance. We believe punishment must have clear purposes: protecting society and rehabilitating those who violate the law. . . . [Jesus] rejected punishment for its own sake, noting that we are all sinners (Jn 8). Jesus also rejected revenge and retaliation and was ever hopeful that offenders would transform their lives and turn to be embraced by God’s love. . . Punishment for its own sake is not a Christian response to crime. Punishment must have a purpose. It must be coupled with treatment and, when possible, restitution. . . . We ask all Catholics—pastors, catechists, educators, and parishioners—to join us in rethinking this difficult issue and committing ourselves to pursuing justice without vengeance.
Apart from the unjustified inference that Christ’s refusal to countenance the stoning of the adulteress (Jn 8:1-11) was a biblical teaching about punishment (see our earlier discussion), what does it mean to say that Christ rejected “punishment for its own sake” or that “punishment for its own sake is not a Christian response to crime” because “punishment must have a purpose”? What kind of punishment, exactly, was Christ supposedly rejecting in the
Apparently, he was, in their view, rejecting purposeless punishment, which Christians should always reject. When the bishops formally address the matter (most fully in their first systematic treatment of the death penalty in 1980), they identify three key justifications for punishment: “retribution, deterrence, and reform”.63 These are the purposes that punishment is meant to serve, all of which the bishops accept as legitimate. What, then, counts as punishment without a purpose, and who has ever urged that criminals be punished for no purpose? Who today calls for punishing criminals—whether with the death penalty, prison, or fines—for no reason at all? Surely, those in ancient Israel who wished to stone adulterers had a very specific purpose in mind: to discourage adultery. Perhaps the key to understanding the force of the bishops’ point is the sentence that follows “Punishment must have a purpose” in the document we cite: “It must be coupled with treatment and, when possible, restitution.” Retribution has seemingly disappeared from view, even though, as we have seen, the bishops themselves elsewhere acknowledge retribution as one of the legitimate purposes of punishment, and, as we showed in earlier chapters, it is in the Catholic tradition the chief purpose.
The current Catechism of the Catholic Church reaffirms this traditional view: those responsible for “safeguarding the common good” have “the right and the duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense” (CCC 2266). We should not be surprised if most readers interpret the bishops’ phrase “punishment for its own sake” as code for retributive punishment. Unfortunately, then, the bishops’ statements strongly imply that Christ was simply opposed to retributive punishment, a position quite contrary to traditional Catholic teaching.
Absolutely correct, but the authors follow that up with this: “We hasten to emphasize that we do not believe that the bishops intend in statements like this to contradict the Church’s traditional teaching. Rather, we think that, in their zeal to rally others to the abolitionist cause, they have too frequently resorted to making statements that have rhetorical and emotional force, but that are theologically highly imprecise and misleading.” (emphasis in original.)
Well, I would say the authors are being hasty themselves in the above statement. These are Catholic bishops. How can they not know that at the very least the upshot of their statements run afoul of Church teaching? And the USCCB statement they cite above is far from the only statement from the bishops conference as a whole as well as individual bishops that, practically speaking, is contrary to Church teaching. For instance, Archbishop Chaput, while acknowledging that capital punishment is not intrinsically evil, uses phrases like “Church teaching against the death penalty” . Archbishop Chaput said this about the late Supreme Court Justice Antonin Scalia’s position on the death penalty: “Second, if we say we’re Catholic, we need to act like it. When Catholic Supreme Court Justice Antonin Scalia publicly disputes Church teaching on the death penalty, the message he sends is not so very different from Frances Kissling (of “Catholics for a Free Choice” fame) disputing what the Church teaches about abortion. I don’t mean that abortion and the death penalty are equivalent issues. They’re not. They clearly do not have equal moral gravity. But the impulse to pick and choose what we accept in Church teaching is exactly the same kind of “cafeteria Catholicism ‘in both cases.'”
Now, it would have been one thing if he took issue with the way the late Justice Scalia portrayed St. Pope John Paul II’s statements in the encyclical Evangelium Vitae as an attempt on the pope’s part to change traditional Church teaching, as Cardinal Dulles did. But to paint Scalia as dissenter from Church teaching in the way he did by comparing him to Francis Kissling of the hideous Catholics for Free Choice is both calumnious and mean spirited.
As far as John Paul II’s stated opposition to the death penalty is concerned, while I think he didn’t go nearly as far as many American bishops as he didn’t smear the pro-death penalty viewpoint like the bishops have and still do, it was rather irresponsible considering the kind of confusion it caused. Based upon what the authors say about JPII and the death penalty, they couldn’t credibly take issue with me on that. I have often wondered if Cardinal Ratzinger’s explicit inclusion of there being “legitimate diversity of opinion” with regard to the death penalty in the 2004 official CDF letter to Cardinal McCarrick on the Worthiness to Receive Holy Communion wasn’t an attempt at damage control.
During the Nov. 2016 election cycle, there were two ballot measures having to do with the death penalty in California, Prop. 62, which would have put a moratorium on the death penalty and Prop. 66 which called for a speeding up of the process between sentencing and execution. Thankfully, the former failed and the latter passed. To whip up support for Prop. 62, Archbishop Jose Gomez of Los Angeles, another darling of the “orthodox” Catholic establishment, made a video where he claims that the Church teaches the death penalty is no longer acceptable. The Church teaches no such thing and Archbishop Gomez knows it. It is much more plausible in light of what the authors themselves say that “zeal for the abolitionist cause” is more important to the bishops than clearly conveying what the Church teaches on this matter. And the authors do their cause no favors by sugar coating the culpability of the bishops on this issue. Again, is this their idea or that of the powers-that-be at Ignatius Press? Certainly the latter is very plausible particularly in the case of Archbishop Chaput. Catholic World Report, which is published by Ignatius, ran a disgusting puff piece on Chaput penned by George Weigel. Weigel somehow forgot to mention how those orthodox Catholics who take a pro-death penalty and/or anti-illegal immigration view, both legitimately Catholic, are treated by the Archbishop.
Another startling, but all too common, act of episcopal malfeasance is the dutiful parroting of the fraudulent claims put forth by anti-death penalty activist groups like the Death Penalty Information Center (DPIC) and the ACLU, and several others. They often make the claim that the death penalty does not deter, is used in a racist manner against minorities, and that it is used unjustly toward the poor. For starters, all these claims should a least be met with enough skepticism to merit further investigation. But if you were to read only the claims repeated by the USCCB, you would be misled into believing that there are no valid arguments being made to the contrary. First of all, the prospect of the more extreme punishment is going to have a deterrent effect at least in general is just human nature. And you don’t get much more extreme than death. And the authors cite several peer reviewed studies that seem to support this idea. Surprisingly, there are two studies the authors do not mention, the 2005 AEI/Brookings Institute Study and one conducted by the University of Colorado in 2007. In the latter study, Naci Mocan, a participant in the study and death penalty opponent makes a key admission:
” ‘Science does really draw a conclusion. It did. There is no question about it,’ said Naci Mocan, an economics professor at the University of Colorado at Denver. ‘The conclusion is there is a deterrent effect.’A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. ‘The results are robust, they don’t really go away,’ he said. ‘I oppose the death penalty. But my results show that the death penalty (deters) — what am I going to do, hide them?’ “
However the authors (Feser and Besette) do acknowledge that “As this brief review demonstrates, from the perspective of quantitative social science, the deterrent effect of the death penalty is very much an open question.” (page 320) Given the very truncated application of how the death penalty is carried out, it would seem to me that the social science means of determining its deterrent effect is extremely limited.
Next is the race card. Given that we live a in a culture that is minority-sensetive to a fault, this claim ought to be viewed with suspicion barring solid evidence. Columnist and token conservative at the Boston Globe, Jeff Jacoby once described this claim thus, “The anti-black ‘racism’ of the US death penalty system is like the Abominable Snowman: ugly, alarming, widely believed in, and nonexistent.” Again, the numbers support that quip. Although, as the authors point out, whites are more likely to commit capital crimes at higher per capita rates, blacks commit these crimes at a rate disproportionately higher than their representation in the population. One would think if the bishops were really motivated by a genuine pastoral concern, they would be lamentingly asking why is this so. They might posit the fact that the breakdown of the black family is such that it lays the groundwork for dangerous criminal activity. And they would thus be able to credibly link family breakdown, which in large part is fueled by sexual promiscuity, with the culture of death that murder, not the just imposition of the death penalty, inflicts on black society. But they don’t. And that’s because, once again, their zeal for the abolitionist cause is more important to them than upholding the teaching of the Church on this matter. On pages 354 to 367, the book goes into great detail demonstrating both the racial breakdown of how the death penalty is meted out and how to interpret what the numbers mean. But this pretty much sums up their case “One can read widely in the literature on race and the death penalty and never learn that a federal judge, after extensive review, had found that the most famous of the studies purporting to demonstrate racism in the post-Furman era had not even made a ‘prima facie case of discrimination’.” (page 363)
The accusation that the death penalty discriminates against the poor is one that can, on its face, seem plausible. After all, wealthier people can afford more talented legal representation than those less wealthy. But this overlooks a basic truth as well, namely that this fact in itself doesn’t mean the poor are unjustly treated in capital cases. The truth is the exact opposite. It would be like saying the huge disparity between someone making ten million dollars a year and someone making five hundred thousand dollars a year is an injustice. But that is basically what someone claiming the death penalty unjustly discriminates against the poor would have to say if he were to be consistent. Again we should start out asking what are the causes and conditions of why the poor, like blacks, are disproportionately represented on death row. The authors ask and answer this crucial question thus:
“So, one wonders what kind of unfairness is demonstrated by the mere fact that death row inmates, like prisoners generally, are more likely to be poor than is the nation’s population. If males disproportionately commit more murders than females, we would expect them to be disproportionately represented on death row. Similarly, if the poor disproportionately commit more murders than the nonpoor, we would expect them also to be disproportionately represented on death row. We should not be surprised that violent criminals, and especially the worst among them, do not have stellar work histories. Many have been in and out of prison for much of their adult lives, have been deeply involved in the drug subculture, have drifted in and out of the job market, or have otherwise lived on the fringe of society. They tend to lack the very character traits that have moved tens of millions of Americans from modest beginnings into a solid middle-class life. Thus, it is not that poverty has driven these offenders to crime; rather, the same bad character traits that have led them to crime have also led them into poverty.” (page 368) And the numbers back this up.
Like with the sad fact that blacks are disproportionately represented on death row, the bishops could credibly posit that the breakdown of the family has consequences that pose grave danger to society. But no, they act like loyal leftist ideologues on the issue of capital punishment.
There is more that can be said about this book than I have covered here. The book, “By Man Shall His Blood be Shed” is a must read for anyone who earnestly desires to understand both Catholic teaching on the subject of capital punishment and the wider societal ramifications. But its failure to explicitly call out the bishops conference, as well as individual bishops who have reputations for orthodoxy like Chaput, Gomez, and Wenski by name, for episcopal malfeasance as opposed to being merely misguided significantly undermines the credibility a book of this caliber should have.