Revisiting the Death Penalty

With the election of Leo XIV, we may soon hear where St. Peter’s new successor stands on the question of the death penalty. Two of the last three of his immediate predecessors have caused a bit of stir on the matter, raising concerns that the Church may have changed her moral doctrine. But has she? And is the death penalty immoral?

3 Arguments for Capital Punishment

There seem to be three basic religious arguments in support of capital punishment (CP): 1) God’s ordinance in the Noahic covenant being universal and permanent, 2) the need for historical consistency of doctrine, and 3) natural law ethics demand it. Let’s take a quick look at each to discern their plausibility.

The first argument goes something like this: Since the death penalty was commanded by God as part of the Noahic covenant (Gn 9:6), which pre-dated the people of Israel, the directive is universal and permanent in scope and is still in force today.

At first glance, this argument sounds plausible. However, if its reasoning is sound, it would logically necessitate further reasonable explanations for the acceptability of Christians eating blood within animal flesh (Gn 9:4) and observing the Sabbath on Sunday rather than Saturday (Gn 2:3) – both of which contradict similar universal norms established by God that predate the people of Israel.

Although these examples weaken historical consistency arguments that have their roots deep into the Old Testament, still the apparent inconsistency within the new Covenant period should be addressed. It’s evident that support for CP harkens back to the early Church. Did Pope St. John Paul II’s denunciation of CP, and Pope Francis’ admonition of its use break from Catholic tradition?

John Paul II’s formulation allows for CP at least in principle, if there are no other reasonable alternatives to protect the innocent, which is a basic tenet of natural law. However, he questions whether there is anywhere in the world that still needs CP for this purpose. Francis uses the word ‘inadmissible’, which is an ambiguous non-theological term. Nonetheless, neither man declared the death penalty to be intrinsically evil, which would render it absolutely forbidden regardless of circumstances. Unlike abortion and euthanasia, CP has never been taught as being a moral absolute.

The development of this doctrine has taken into consideration new technology and spiritual maturity in moving the trajectory from strict justice to justice tempered with mercy. As Jesus demonstrated with the woman accused of adultery (Jn 8:11), strict justice is not always the best or most preferred way to respond to injustice.

Lastly, does natural law demand that strict justice be applied to certain criminals? Not necessarily. It certainly demands that no one commit grievous injustices, but it does not demand a particular kind of retribution be applied for any of the various evils that can be committed. As rape is not a fitting penalty for rapists, death may not be a fitting punishment for killers. Additionally, as mentioned above in John Paul II’s formulation, natural law does demand the protection of the innocent from an unjust aggressor whose grave injustices cannot be stopped by any other means.

In short, some of God’s ordinances in the Old Testament were meant for the old creation of fallen humanity and not for the redeemed world of the ‘eighth day’ inaugurated by Christ’s resurrection (1 Cor 15:20-23). In other words, when the incarnate Son proclaims the Kingdom of God (Mk 1:15), He was pointing to a new moral order, one that is no longer bound by every divine ordinance of the old post-Eden order subject to sin and death. Rather, He wins the divine grace to establish a new way that takes humanity back to how it was “in the beginning” before sin tainted the world (Mt 19:8). Secondly, the practical application of the death penalty has come to be seen in a new light with historical and technological changes; yet, moral principles with regard to the fifth commandment have not essentially changed. Lastly, as long as unjust aggressors are kept from doing grave harm to the innocent, it is not necessary to put capital criminals to death. It may be just to do so, but not necessary. When mercy better expresses love of neighbor and human solidarity more than strict justice does, the former should be applied.

Speculative Theological Considerations

An added theological consideration may be proposed. In the new covenant in Christ, the second and third Persons of God have been called by the Father to reform the fallen world into one that closer aligns with the natural order of creation, when awareness of Emmanuel (God with us) was the norm (Gn 3:8). Through Christ and His body the Church, the Holy Spirit has the power to nullify dietary restrictions when no longer needed, and even move the Sabbath day and transform its meaning. Hence, He has the power to rescind or transform divine positive laws promulgated as far back as Noah, and beyond – for the sake of deepening our experience of God’s unchangeable truth and love.

Furthermore, as compared to Mosaic law, the new dispensation of grace in Christ has rendered immediate death after committing grave sin no longer necessary to satisfy justice and purify the community. That has been ultimately satisfied by the death of Christ. No longer is “an eye for an eye, a tooth for a tooth” always the way God deals with us, and the way we need to deal with each other. Between His first and second comings, Christ has established a time of mercy that allows for reconciliation and penance. Still, this does not mean CP is always unnecessary in every possible scenario, as mentioned above. Prudential judgments of legitimate authorities remain part of the equation.

Having said all that, despite strong ecclesial language against CP in our day, it was none other than Pope Benedict XVI who stated Catholics in good conscience may legitimately disagree on the need and application of the death penalty.

Conclusion

So, after a brief exploration of this social-moral doctrine, four pertinent questions have risen to the surface: 1) Is the Church against the death penalty in general? 2) Has she changed essential moral principles on the fifth commandment? 3) Is CP intrinsically evil and immune to development of doctrine? 4) Can there be legitimate disagreement on this issue among Catholics? Simply put, the answers to these questions appear to be: 1) yes, 2) no, 3) no, and 4) yes. We may soon see what language Pope Leo XIV utilizes to bringing further clarity to this issue.