Death penalty not allowed

TL;DR

For centuries, the Catholic Church was tolerant of the death penalty. In 2018 that position changed, and the penalty became inadmissible. Some have complained that this was an illegitimate reversal of teaching. Some Catholics think the penalty is still reasonable. I will instead show that the change was a simple development of teaching, consistent with fundamental and long-accepted Principles, was made in reaction to changed circumstances, and should not have been surprising. Any current use of the death penalty is surely a case of state-inflicted murder.

Overview

For long centuries, the Catholic Church was tolerant of the death penalty. An 1885 Catechism said:

Human life may be lawfully taken […] by the lawful execution of a criminal, fairly tried and found guilty of a crime punishable by death, when the preservation of law and order and the good of the community require such execution.

In recent decades, the Church has moved firmly against the death penalty. The current Catechism now says:

the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person

This change has created much contention. Some say the later teaching cannot possibly be legitimate because it contradicts what was taught earlier. And a sizable percentage of Catholics somehow still see the death penalty as acceptable.

Church teaching can develop and improve over time. But directly contradicting an earlier authoritative teaching about the same action in the same circumstances would be highly problematic.

So, is the most recent teaching on the death penalty actually a 180° turn from older positions? I will show that it is not, and is actually, a change made in response to modern circumstances, and that this change is a thoroughly consistent and rational development of Principles already held for millennia by the Church. The later teaching has introduced no new Principle, and so opposition to the death penalty is the only fully Catholic position that Catholics can have today.

Q. What are the Principles that underpin the change in teaching?

There are two Principles that have long been fundamental:

Principle 1: The Commandment, “You shall not kill”

Principle 2: We may not choose to perform an evil act in order that some good should come about (Romans 3:8): “And why not do evil that good may come? — as some people slanderously charge us with saying. Their condemnation is just.”

Q. Isn’t the Commandment “You shall not murder”?

The Commandment is sometimes translated as “You shall not murder” because that wording seems to better contain the idea that some types of killing are permissible — for example, in self defense. The difficulty with this choice is that it leaves no good idea for deciding which killings are permitted. It makes the Commandment look as though it says “You shall not kill, except the killings that are allowed”, which would not be much of a Commandment.

It is necessary to read the Commandment in the sense, “You shall not intentionally kill”. And then take that formulation as having no exceptions. Of course, we then must examine what “intention” is. But that guides us in productive directions of thought.

Q. How does the second Principle work?

A simple example of the second Principle, in the case where a bad act precedes the good one: Someone steals money in order to give it to the poor. The evil act is the theft: the good is helping the poor. The thief has intentionally stolen so that he has the possibility of afterwards giving to the poor. But this donation to the poor is an intention that follows after the intention to steal. Hence the theft contravenes the second Principle, since the good act can only come about afterwards because of the preceding evil act.

▶▶ Note that most of people’s plans to accomplish some task will involve several steps. Each and every step of a plan must be consistent with the second Principle. ◀◀

A more important example, for the case where both good and bad follow from the same single act: A plague has broken out, and is killing many. A doctor has developed a vaccine that will prevent the disease. A reasonable estimate is that the vaccine will save the lives of about a million people. Unfortunately, there is an occasional unrelated and deadly side-effect of the vaccine, which is expected will randomly kill about a thousand people. It’s not possible to predict who will be affected by this side-effect. Is it permissible to use the vaccine?

Yes. Since the good is sufficiently large, and provided the doctor has made every effort to reduce the bad side-effect — so that it would be ludicrous to say that in any way they intended or chose to have the side-effect — then the second Principle is not violated.

▶▶ Note that this important example shows how to obey the Second principle when some particular step of a plan has two effects directly caused by a single action. ◀◀

This second example is an application of double-effect.

Q. What is double-effect?

In Catholic moral theology, the second example just given immediately brings to mind the idea of double-effect. Double-effect helps us decide when a single action that simultaneously causes both good and bad effects can be morally permissible. For a detailed explanation, see the Stanford Encyclopedia of Philosophy.

A common example (originally from Aquinas) for double-effect is the act of self-defense against an attacker who is aiming to kill you. If it is unavoidable in the circumstances, the same act of choosing to strike your attacker may both save your life and kill your attacker. The intended good is that your life is saved. The unintended bad is that the attacker is killed. By satisfying the conditions for double-effect, the unavoidable death of an attacker can be morally permissible. The second Principle is not violated. And in this way, it is also not disobeying the Commandment, which forbids intentional killing.

That this killing in self-defense mustn’t be intentional can sound paradoxical. It is important to understand that the sense of “intended” in double-effect is that it is something wanted or wished-for or desired. To qualify as unintended, the bad effect must be minimized as much as is possible, so that it can’t reasonably be described as something wanted.

There are other situations where actions may unavoidably be followed by deaths, or other grave evils, that are unintended side-effects. For example, in an act of a defensive just war, or in a police action against someone using deadly force. The death penalty is also an example where double-effect is involved.

Q. Is the death penalty an allowed killing?

An application of the death penalty plainly involves a death. This must not be intentional, as this would obviously be against the Commandment. So, an explanation must be given as to why it is nevertheless allowed. (The necessity for such an explanation was emphasized long ago in the Roman Catechism of 1566 — a catechism that was widely used for four centuries.)

As shown earlier, double-effect does allow a death to occur that is not intentional, provided some other greater good of that act is the thing that is actually desired and aimed at.

The good intention of the death penalty is to protect the common good of society against a threat. If the guilty party presents a sufficient threat to the life of society, then removing that threat is a legitimate and desirable intention. Depending on the circumstances, the inflicted death may be the least bad effect that goes along with the good effect. This has to be decided by a prudential calculation. (This is very similar to the same calculation that permits deadly self-defense by an individual.)

▶▶ Note that the exact same act of inflicting the death penalty both removes a threat to the common good, and causes the death of the guilty party. This is what allows double-effect to be used legitimately. ◀◀

For many, many centuries, prudential calculations like this were made in numerous different kinds of cases, and the death penalty was inflicted. Sometimes in seemingly obvious cases, and sometimes not so obvious. Sometimes those entrusted with protecting the common good made reasonable and prudential choices, sometimes they surely did not. Prudential decisions were left up to the state, or others in charge of the common good. Over a very long time, it seemed like using the death penalty was adequately supportable, and it became a settled thing.

▶▶ MODERN PRISONS THEN CHANGED THE CIRCUMSTANCES ◀◀

Q. What were the changed circumstances?

The modern prison system that supports long-term incarceration began in the late 1700s, and gradually became more common in the USA and Europe through the 1800s and beyond. Over time, the prison system functioned reliably, and showed that it actually was capable of securely holding prisoners indefinitely.

After perhaps too long a time, it was eventually realized that the modern prison system dramatically changed the calculus for the death penalty. There was now a different way of preventing a threat to the common good — by keeping offenders securely away from being able to harm society for an indefinite time in prison.

One of the conditions for a legitimate use of double-effect is that the bad effect must be limited as much as possible. So, with the arrival of the modern prison system, it became possible to avoid harm to society by choosing to place the guilty party in prison indefinitely, rather than using the death penalty. This reduces the harm inflicted, compared with causing a death, and so prison MUST be used.

Q. What has changed then, from before modern prisons, to after?

▶▶ Before modern prisons existed it was possible to make a prudential decision that the death penalty could be inflicted. With the arrival of the modern prison system, the death penalty cannot be chosen, because it is less harmful to put the guilty party in prison — but equally protective of the common good. ◀◀

Q. How should we read teaching prior to modern prisons?

A difficulty with interpreting prior teaching is that it could not consider the possible effect of having a modern prison system. Teaching usually cannot take into account things and circumstances that don’t exist yet. When these things do come into existence, earlier conclusions can change. The number of persons in the Trinity must always be fixed at three. But the appropriateness of the death penalty is not of that fixed nature.

In numerous cases, this means that pre-modern teaching (and theological investigations) might simply assume that the death penalty could be legitimately enacted. This can affect all kinds of arguments and conclusions, which must now be extensively re-examined in the light of changed circumstances.

▶▶ Without such a re-examination because of changed circumstances, it could be all too easy to fall into the trap that because prior generations assumed that the death penalty was legitimate, therefore we must even now also consider it legitimate. This is fallacious reasoning. ◀◀

Q. Isn’t deterrence a reason to allow the death penalty?

Any effect that follows on after executing a death penalty isn’t something that can be used to provide a reason in favor of the death penalty.

Deterrence, after executing a death penalty, is an effect that follows later, but not directly (since it requires the extra act of communicating the fact of execution to others), so it is irrelevant to evaluating the permissibility conditions of double-effect.

Note that this applies specifically to the death penalty, because it has the possibility of contravening the Commandment, which can only be permitted because of double-effect. Deterrence, in modern times, can be used as a reason for other kinds of punishments, just not the death penalty.

Q. Isn’t the design of a prison a prudential choice, to be made by the state?

It might be objected that the design of a safe prison is a prudential matter, to be made by those in charge of the common good (states and governments etc.), and that authoritative teachers of the Catholic Church have no special expertise in selecting and building sufficiently safe prisons, and that consequently the possibility of using the death penalty still ultimately belongs to states and governments.

But it is an ordinary and simple matter of observation that safe long-term prisons do actually exist — ones that have existed for a century without any escape. It does not require any special expertise to rely on their existence for the purposes of confining offenders indefinitely. These safe prisons exist, so they can be built and used.

Q. Mustn’t prisons be guaranteed 100% escape-proof?

It might be objected that no prison can be guaranteed perfectly secure, so the safety of society cannot be guaranteed. That is true. However, the only way of guaranteeing safety from the escape of the dangerous is to execute all those prisoners. And that runs into a problem pointed out by the Catholic philosopher Elizabeth Anscombe. If you intentionally desire to kill some set of people in order to make sure that a subset consisting of legitimate targets are killed, then you have committed intentional killing of those in the set that are not legitimate targets — and that is murder.

An example, to make it clearer: Suppose at some point in the middle of a war, the opposing general seeks to escape capture by disguising himself as a non-combatant. Ten non-combatants are captured, and we are sure that the general is one of them, but we are not sure which one. The general is an important and legitimate target, so we make sure of his death by choosing to kill all ten. That is an intentional killing of the nine non-combatants, which makes it murder.

A similar problem lies in executing all the dangerous prisoners, because some of them might escape or kill other prisoners. The subset who will not escape are also intentionally killed, and that is murder.

Q. What about inalienable dignity?

Recently, there has been the teaching in Dignitas Infinita that:

Here, one should also mention the death penalty, for this also violates the inalienable dignity of every person, regardless of the circumstances.

That is consistent with the Commandment, “You shall not kill”. So it doesn’t alter any of the arguments I make here. (Dignitas Infinita is important for many reasons.)

Q. What if circumstances were to change in the future?

If it were to happen that the modern prison system, or some suitable alternative, were circumstantially no longer available at some points in the future, the death penalty, as a defense of the common good, would become possible again — until circumstances changed again.

Summary

I have shown that the inadmissibility of the death penalty follows from the Commandment “You shall not kill” and the Principle that we cannot do evil so that good follows. So, any use of the death penalty in current times cannot be acceptable.