CAPITAL PUNISHMENT
By Fr. L. Abello, S.J.
a) Definition of Capital Punishment
Besides abortion and euthanasia, another form of so-called “legalized” killing of human beings is capital punishment. It is defined as ‘the direct killing of someone who, virtually always, has been convicted of a crime by the state authority that orders the execution as per the provision of a law allowing capital punishment, and who is always under arrest when he is killed’.
Capital punishment is necessarily direct killing because it is always a means to an end, i.e., unlike indirect (collateral) killing that is not a means to an end.
The definition states that capital punishment is the direct killing ‘of someone who, virtually always, has been convicted of a crime by the state authority that orders the execution as per the provision of a law allowing capital punishment’. This clause distinguishes the death penalty from non-defensive direct killing of someone who is under arrest but who was not convicted. The latter is the case in ‘extra judicial’, or ‘custodial’ (in custody) killings whether ordered by the state authorities, or not. The words ‘virtually always’ have been added because in the extremely rare case, to be discussed below, when capital punishment is morally justified as defense, there is no possibility either of a formal conviction or of a formal ordering of the execution by a state authority.
Finally, the definition specifies that the one who is executed ‘is always under arrest when he is killed’. This clause distinguishes capital punishment from killing someone who is ‘at large’. Unlike the previous clause in the definition that contains the words ‘virtually always’, this clause specifies the essential element — execution is always inflicted on someone under arrest. Since the belligerent is under arrest, the intended victim(s) can, virtually always, be defended by less destructive ways than execution and, hence, capital punishment is virtually never killing in defense.
Why can direct killing in defense be morally justified? When an attacker posits an act that, by its very nature, has as its intent the death of a victim, by his act the attacker places an incompatibility between his own right to life and the right to live of the intended victim. In this incompatibility, the right to life of the one attacked takes precedence over the right to life of the attacker. Thereby, the attacker has lost his right to life.
In other words, just as the right to private property is limited and does not extend to possessing hoarded goods, so also the right not to be harmed is limited and does not extend to someone who, by a belligerent act, is about to harm someone else. Consequently, since someone attacking someone else’s life has lost his own right to life, directly killing him is not perpetrating an injustice against him if it is the only way to defend the life of the intended victim.
Many people favor execution as a punishment for the most heinous kinds of murder only. Even in this strongest case to be made for capital punishment, which is the only one we shall consider, it is virtually never morally justifiable. The reason is that, as stated above, in the more modern penal systems, one can hardly imagine a case in which execution (killing someone under arrest) is defense, i.e., is the only way to prevent the captive from murdering someone.
b) In an Extremely Rare Case, Capital Punishment Justifiable as Defense
What could be a case in which killing someone under arrest (capital punishment) would be defense? A concrete, but most rare case could be the following: Suppose that, during the war in Bosnia, Muslims had arrested a group of Serb soldiers who had been practising “ethnic cleansing” (genocide). Let us further suppose that, with the Serb army approaching fast, these Muslim captors do not have enough time to wound their Serb prisoners sufficiently to prevent them from practising further “ethnic cleansing” but have only enough time to spray them with bullets, and then to escape. If they do not execute the prisoners, it is morally certain that the latter will return to the practice of “ethnic cleansing” right after their release that is imminent. In this case, so rare as to be practically non existent, the Muslims could execute their Serb captives as defense, that is, as the only way to prevent them from committing further acts of genocide, which are imminent if the Serb army rescues these prisoners.
It is to be noted again that, since these Serbs are killed while they are still captives, this is capital punishment even though these prisoners were not officially sentenced to death. Consequently, capital punishment is justified as defense only in extraordinary emergencies that do not lend themselves to conducting a trial and passing an official sentence of condemnation to death before executing the captives. Since, in this unusual set of circumstances, there is no possibility of conducting legal procedures before execution, such exceptional cases do not justify “legalizing” capital punishment in today’s societies with their more organized penal systems.
It is also to be noted that, because capital punishment can be morally justified as defense in such rare cases, it is not intrinsically evil as are acts of abortion, extramarital sex, and contraception (a self-manipulation that militates against conjugal love). Intrinsically evil acts are those that, by their very nature, are always a violation of natural law (i.e., of the divine order) and inherently militate against love.
c) When not Defense, Capital Punishment not Morally Justified
Would those who favor capital punishment, when it is not justified as defense, i.e., when it is not the only way to prevent an arrested criminal from committing murder in the future, accept as moral the practice of cerebral mutilation of dangerous prisoners by the state? This latter practice, also, could be one hundred percent effective in rendering a criminal totally harmless.
Many people, who rightly reject mutilation of a prisoner as immoral, inconsistently accept capital punishment as morally justified even when it is not defense. Yet, in the sense of depriving the victim of temporal gifts, capital punishment, when it is not defense, is a far greater injustice than any mutilation could ever be. Moreover, killing is a greater invasion of the person and more radically plays God with the victim’s eternal destiny than any mutilation. That killing is more radical than mutilation is confirmed by the well established moral principle that killing is not justifiable as defense when it is possible to prevent the aggressor from committing a murder by wounding him.
Nor can capital punishment be justified as a restoration of order when the moral law has been violated. For other crimes like theft, etc., the appropriate punishment can restore order. For example, for crimes like tax evasion, fraud, etc., fines may be levied that go beyond the amount fraudulently retained or appropriated because the criminal not only has to make restitution, but he must also pay for the cost society incurs in tracing down and reclaiming the swindled amount. By helping to restore the order of justice, an appropriate punishment, such as a fine, promotes respect for honesty, possibly even in the criminal’s mind.
In sharp contrast to a punishment such as a fine for embezzling money, capital punishment does not in the least redress the injustice perpetrated against the murdered victim or against anyone else. Furthermore, capital punishment is entirely negative as far as the criminal’s rehabilitation is concerned. Thus it does not restore the order that has been violated and, so, it does not promote respect for the sacredness of human life. On the contrary, capital punishment desecrates human life even more and promotes the very mentality of the murderer. Like a murderer, the executioner is committing an act of violence to the extent of killing someone who, at the time of the execution, is a non belligerent rendered totally helpless, for example, by being strapped to an electric chair.
Since execution promotes the mentality of the murderer, it is not surprising that, considering a whole society and not only individual cases, capital punishment has never been shown to be a deterrent from violent crime, whereas, life imprisonment is such a deterrent. Besides, like any moral issue, the morality of capital punishment must be determined by examining the act itself. Deterrence is only a goal or end that execution can achieve and, like other reasons adduced in favor of capital punishment to be considered below, it does not affect the inherent moral nature of the death penalty. In other words, whenever execution is morally unjustified, which is virtually always, it may not be used as a means to any end, such as deterrence. One may not commit an injustice against one person as a means to deter someone else. Even a murderer is a human being and may not be used as a means or chattel to deter others. Those in favor of “legalized” capital punishment would do well to examine whether it is the desire for revenge that motivates their stand.
d) Further Considerations
One must keep in mind that purely materialistic considerations, like the cost factor in maintaining prisoners, must not be allowed to prevail when considering the sacredness of human life, which is a God-given time to prepare for the ‘destiny beyond death’. Bringing in external considerations to justify capital punishment, such as the socio economic problems of life imprisonment, would be to play right into the hand of abortionists and euthanasists who argue that their practices, also, are necessary to solve socio economic problems. In short, the end never justifies the means.
Furthermore, one cannot justify capital punishment by the fact that often courts are corrupt and/or laws are flawed, whereby, sentences of “life” imprisonment (to keep the criminal incarcerated as long as he is dangerous) either are not handed down or are not carried out by granting premature parole. Two wrongs do not make a right. The answer is to draft and/or enforce effective laws to ensure imprisonment for as long as the prisoner, if released, could pose a threat to society. Moreover, this imprisonment must be under sufficiently tight security to reduce the probability of the prisoner escaping to an acceptably low level. Accordingly, in present-day penal systems, an arrested murderer must be imprisoned for as long as he could pose a threat to society, but he may not be executed.
Then the question arises regarding what degree of certainty a society may expect that such a prisoner is actually prevented from murdering again. The probability that a jailed murderer repeats the crime after having escaped or after having been released prematurely must be reduced to as low a level of probability as the probability, say, that a somewhat disturbed person on the street could commit a murder. It is unreasonable to demand one hundred percent certainty that a dangerous murderer does not escape from jail and commit murder again or repeat the crime after being released prematurely. Nothing in the practical order of life is one hundred percent certain. Which one of us can be one hundred percent certain of never committing murder!
Capital punishment, in virtually all cases, is very much akin to executing war prisoners who have been engaging in an unjust war, but who can be prevented from returning to fight the unjust war by detention. By fighting an unjust war, the soldiers have committed the same kind of (objective) injustice as the murderer and imponderable (subjective) differences, such as the greater likelihood that the soldiers were inculpably ignorant and/or under pressure, do not affect the accuracy of the parallel. The reasons for executing war prisoners, who can be kept in detention, are similar to the reasons usually adduced to justify “legalized” capital punishment. These reasons are to ensure, with one hundred percent certainty, that the prisoners of war cannot escape back to the enemy’s ranks and/or to deter their compatriots still in the enemy’s ranks from continuing to fight the unjust war. (A case apart is the one, discussed above, of Muslims who are holding Serb soldiers as prisoners but who have no way to prevent their prisoners from returning to the practice of genocide except by executing them. This is a most rare case in which capital punishment becomes morally justifiable as defense.)
Moreover, in the case of most punishments, if the wrong person is punished by mistake, the punishment can be discontinued and/or restitution can be made, whereas, capital punishment is absolutely final and leaves no possibility of restitution to the victim. This last consideration is not inherent to the morality or nature of capital punishment because it does not apply to all cases of it. Yet it is a very serious counter indication to the “legalization” of capital punishment — a punishment that, moreover, is meted out much more readily to the marginalized than to tycoons. The latter have a position of strength in society and are usually well placed to conceal their involvement in a murder and, at times, even to have someone else falsely accused.
So far we have considered the issue of capital punishment purely on the philosophical level, i.e., based on what can be derived from natural law. As regards theology, which draws its data from revelation, one should not overrate the authority of theologians who, for many centuries, held that capital punishment can be morally justified (even in societies that had provision for life imprisonment). For many centuries, theologians also upheld the belief in limbo. Some theologians even taught that burning witches and heretics at the stake can be morally justified.
Recently the popes have been interceding with civil authorities to spare prisoners scheduled for execution. Pope John Paul II did not call for the execution of his would be assassin who had already committed murder before attempting to assassinate the Pope. Instead of seeking revenge, the Pope forgave his attacker.
e) Catholic Teaching on Capital Punishment
Note that, before the teaching of the ‘Catechism of the Catholic Church’, the Church had never officially taught anything as binding on the whole human race about capital punishment. Papal or ecumenical council directives, not addressed as ‘binding on all’, never have the guarantee of inerrancy.
We conclude this article on capital punishment by considering the development of the Church’s doctrine on this issue during and after the writing of the ‘Catechism of the Catholic Church’, culminating with Pope John Paul II’s declaration on capital punishment in ‘The Gospel of Life’. In No. 2266 of the initial publication, this Catechism stated that “...the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty”. Note that the words “not excluding” are not equivalent to ‘including’. If the teaching of the Church had been that the right of civil authority to punish ‘includes’ the right to execute criminals, to exclude such a right now would contradict previous doctrine. However, the words “not excluding” allow for a development of doctrine, whereby, the Church now virtually excludes the right to inflict execution as a punishment.
In the encyclical, titled ‘The Gospel of Life’, No. 56, the Pope restricts, more than did the original version of the Catechism, the right to inflict capital punishment. These are his words: “...the nature and extent of punishment must not go to the extreme of executing the offender except in cases of absolute necessity; in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non existent.” The Pope’s statement can be illustrated by an example. In a nomadic society execution may be the only way to prevent a murderer from repeating the crime because such a society has no provision for imprisonment. Since the murderer is killed while under arrest, such killing is a kind of capital punishment but, in this case, it is morally justified because “it would not be possible otherwise to defend society”. However, since nomadic societies have no jails, there is no question of legalizing the death penalty and, thereafter, executing prisoners who are on death row.
In short, every society that is sufficiently established to “legalize” capital punishment is also sufficiently organized to set up a penal system that provides for adequate incarceration. Therefore, “legalizing” capital punishment is never the only way to defend society and, accordingly, “legalizing” it is never morally justified.