From the March 5, 2015 issue of the Thomistica Blog comes this great article by Stephen Long.
Four Catholic journals–the National Catholic Register, America, The National Catholic Reporter, and Our Sunday Visitor–have decided to press for the total abolition of the death penalty in the United States in a shared editorial, making only faintly veiled suggestions that it is essentially evil, “abhorrent”. Their joint editorial may be found, among other places, here. The editorial manifests a wondrously positivistic indifference to, and disregard for, distinctions in doctrine. That all the Doctors and Fathers of the Church–with the exception of Tertullian who died outside the faith– have taught the essential validity of capital punishment; and that it is the teaching of the Council of Trent that where all the Fathers and Doctors hold one interpretation of Scripture as the proper one, Catholics are to accept it, are two propositions that signify very little in the oppressive culture of mutationist accounts of doctrinal development.
Wholly unobserved is the high theological note characterizing the profession required of the Waldensians in 1210 in order to re-establish ecclesial communion. The Waldensians were required to acknowledge among other things the essential justice of the death penalty for grave crime. Cf. Denzinger, #425—“Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.” Clearly to require this oath for the re-establishment of ecclesial communion at one moment, and then to imply the absolute necessity of the opposite—where what is at stake is not prudential application and limit but the principled possibility of just penalty of death—would constitute not a development of doctrine, but rather a mutation. Note, again, that the oath required of the Waldensians directly refers to the death penalty in principle and that it indicates that as such it cannot be a malum in se. Nor is it listed as such in Evangelium Vitae, which provides a list of such intrinsic evils from which the death penalty is omitted.
Are the editors of the journals involved–or the bishops who so commonly describe the death penalty as contrary to human dignity as though it were a malum in se–familiar with the work of the late Eminence Cardinal Avery Dulles on this question? Or the teaching of the Fathers and Doctors of the Church? Hundreds of years of Catholic teaching in conformity with the teaching of the Fathers and Doctors has acknowledged that implementing the penalty is a prudential matter and that the penalty is essentially valid. Pope Piux XII taught that the penalty is valid across cultures. The wisdom of applying this penalty is essentially a prudential matter. But as prudential there is no such thing as “de facto abolition” since circumstances change, and–again, contrary to the journals and the new enthusiasm–deterrence is a necessary and essential part of criminal justice. The reason for this last is that we are not free to impose penalties in this life without considering the common good, and an essential part of this consideration is (contrary to Kant who thought that the justice of the death penalty made its application to be absolutely necessary) the issue of deterrence. The same place at different times may require different penalties; and different places at the same time may require different penalties. Many penalties might be essentially just that in particular circumstances do not conduce to the common good and so ought not be applied. Thus it is altogether fitting that–given the overriding circumstance of the rejection of higher law and the widespread determining circumstance of the culture of death–there be a prudential reservation in applying this penalty. But this is an entirely different thing from the joint editorial’s barely concealed anathematization of the penalty, which itself proceeds from a failure to understand, and a lack of due theological regard for, the transcendence of the common good.
The editorializing journals fail to understand that Evangelium Vitae does not reduce penalty to defense, but adverts to defense largely because of the failure of states to subject themselves to higher law and to acknowledge their subjection to the common good, In the presence of the widespread circumstance of the failure of the penalty to manifest a transcendent norm of justice owing to the omnipresent culture of death, the other medicinal aspects of penalty–in particular deterrence (which includes keeping the particular criminal from killing again)–become even more important inasmuch as the major medicinal purpose of punishment (manifesting a transcendent norm of justice) is impeded. Yet the journals fail to acknowledge that deterrence is essential to criminal justice, a remarkable view simply contrary to Catholic tradition. But we are not free to impose penalty without care for the common good, and the consideration of deterrence is part of such care. Enthusiasm suppresses such distinctions.
The journals use the language of “violence” to describe the penalty. But just penalty does not “violate” the rights of the guilty. And there is no absolute “right” of the guilty to immunity from justice for grave crime. It may be better not to impose some penalties, and this is largely true of the death penalty today. But contrary to the formulations of the journals in question it is precisely not a universal truth, nor is the penalty as such “abhorrent”. That is the language of the Waldensians, language which they were required to renounce to re-establish ecclesial communion with the Roman Catholic Church. Those who embrace such language should realize that they are crossing over from the Church’s prudential reservations regarding the penalty–which then-Cardinal Ratzinger as prefect of the CDF insisted that no Roman Catholic was obligated to share–toward assumption of the Waldensian view of the matter (prior to their return to the Church, that is).