Death Penalty & Retributive Justice

The key point which is at the heart of every debate on capital punishment is that of justice. What is just? Both those who argue for an broader application of the death penalty as well as those who argue for its abolition do so from motives of justice. The former typically argues that such-and-such a crime "deserves" death and hence capital punishment is just; the latter usually say that a criminal cannot be executed by the state because it would be "unjust." Part of the problem is semantics; there is more than one kind of justice, and proponents of the various positions are often arguing in favor of different types of justice. To make it more complicated, it can happen that multiple forms of justice come together in a single issue, as in the case of capital punishment. In this article we will examine retributive justice, a concept that was once at the heart of the West's understanding of punishment but which is increasingly misunderstood or ignored by modernity.

Penal Justice in the Teaching of John Paul II

It is, of course, Catholic teaching that the State has the right to punish offenders, not excluding the death penalty. This - in theory - is settled doctrine. The question is how broadly or narrowly this right should be exercised. Those Catholics opposed to the death penalty will typically say "never." What is the reason for this opposition?

In his 1995 encyclical Evangelium Vitae, John Paul II made the following observation:


"[T]here is evidence of a growing public opposition to the death penalty, even when such a penalty is seen as a kind of "legitimate defense" on the part of society. Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform" [1].


Here the pope introduces the death penalty as a kind of "legitimate defense" that is exercised on the part of society. Just as a man may justly kill an aggressor who threatens his life personally, society may justly kill and aggressor who threatens the society's life collectively. The pope understands this societal self-defense as one of the primary reasons for the death penalty.

However, he goes on to say that modern society now has the "means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform." In other words, because of the wonders of our modern penal system - which incarcerates numbers of individuals unknown in the pre-democratic West - it is now possible to keep society safe in non-lethal ways.

Later on he elaborates this argument:


"Unfortunately it happens that the need to render the aggressor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor whose action brought it about, even though he may not be morally responsible because of a lack of the use of reason.

This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God's plan for man and society. The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offence". Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated.

It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought 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" [2].


The key phrase from this excerpt is the pope's teaching that "the primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offence'". But what does it mean to "redress the disorder?" John Paul says "Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom." Since the pope stipulates that punishment is a condition for the offender "to regain the exercise of his or her freedom", it may be supposed the nature of this punishment is expiatory - what is sometimes called corrective or restorative justice. This is inferred by the linking of "adequate punishment for the crime" with the ability to "regain the exercise" of freedom.

This corrective justice has an added benefit, according to the pope: that of defending society. In fact, John Paul II says that the needs of society to be defended can be adequately met by this kind of corrective justice, which has as its goal the rehabilitation of the offender. This is why he says the authority behind the modern correctional system "also fulfills the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated."

Thus, in the thinking of John Paul II, punishment is essentially deterrent in purpose. The reason the authority punishes is to deter criminal behavior, both in the sense that criminals are locked away and thus prevented from harming society again, and in the sense that the justice system "rehabilitates" criminals so that they will be less likely to offend repeatedly. This is how punishment fulfills its role in protecting society - by deterring crime through protecting society while the criminal is rehabilitated.

Now, if this deterrence can be effected without recourse to the death penalty, then according to John Paul II, the death penalty has lost its purpose. In the same section quoted above, John Paul II makes it crystal clear that he sees the protection of society as the only purpose for punishment:

"[The State] ought 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" [3].


This citation demonstrates that John Paul II believes that the only time it would ever be necessary to inflict death would be to "defend society." Essentially, punishment is only just to the degree that it is necessary to "defend society", and anything that is not strictly necessary for this defense becomes unjust.

John Paul's teaching in Evangelium Vitae is the source cited for the Catechism's statement on capital punishment, which repeats John Paul's assertion that the safety of society is the only conceivable purpose for capital punishment:

"Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor. If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person" [4].


Again, note the connection between the death penalty and "defending human lives against an unjust aggressor" and the duty of the State to "defend and protect people's safety." Thus, it is safe to say that the Catechism of the Catholic Church adopts John Paul II's view that the defense of society/deterrence of crime is the only possible rationale for the death penalty. And - as this deterrence can be achieved without capital punishment - the CCC goes on to quote John Paul's conclusion that in the modern world there is practically no justification for exercising the death penalty. It is interesting that, while the current edition of CCC cites Evangelium Vitae for this conclusion, Evangelium Vitae itself cites the CCC; no other ecclesiastical source is cited.

Pope Benedict XVI and Pope Francis

While John Paul II laid out the classical argument against the death penalty from an assumption of the deterrent value of punishment, we should also mention the comments of Pope Benedict XVI and Pope Francis on the question. 

In a general audience on November 30, 2011, Benedict called said he “will encourage the political and legislative initiatives being promoted in a growing number of countries to eliminate the death penalty” and praised “the substantive progress made in conforming penal law both to the human dignity of prisoners and the effective maintenance of public order.” Like John Paul before him, Benedict connects the punishments of the state with "effective maintenance of public order." If this order can be maintained without recourse to the death penalty, Benedict can see no rationale for capital punishment [5].

Pope Francis has spoken out against the use of the death penalty on several occasions. On October 23, 2014, he made an address to the International Association on Penal Law in which he stated that "It is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor" [6].

Pope Francis again spoke out against the death penalty again in March, 2015 in a letter to the President of the International Commission Against the Death Penalty. In this letter, Francis said that capital punishment is "inadmissible, no matter how serious the crime committed." He stated that it "is an offense against the inviolability of life and the dignity of the human person, which contradicts God's plan for man and society, and his merciful justice, and impedes the penalty from fulfilling any just objective. It does not render justice to the victims, but rather fosters vengeance." While Francis acknowledged society's need to protect itself from aggressors, he said, "When the death penalty is applied, it is not for a current act of aggression, but rather for an act committed in the past. It is also applied to persons whose current ability to cause harm is not current, as it has been neutralized -- they are already deprived of their liberty." He also addressed questions of methods of execution, saying, “There is discussion in some quarters about the method of killing, as if it were possible to find ways of 'getting it right'. But there is no humane way of killing another person” [7].

When he visited the United States Congress in September, 2015, Pope Francis called for the "global abolition of the death penalty." He said:

"The Golden Rule also reminds us of our responsibility to protect and defend human life at every stage of its development.This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation" [8].


Francis's statements are quite astonishing; in his comments of October, 2014, he expresses disbelief that there is no other way to protect society besides capital punishment, placing him in the same school of thought as Benedict XVI and John Paul II on the deterrent rationale for punishment. Francis explicitly suggests there can be no other rationale for criminal punishment. In his comments of March, 2015, he said capital punishment "impedes the penalty from fulfilling any just objective" specifically because by the time an aggressor has been sentenced to death, he has already been neutralized and rendered "safe"; the death penalty "is not for a current act of aggression, but rather for an act committed in the past." Again, the death penalty makes no sense to Francis because he sees no deterrent value in it. This is again made clear in his comments to Congress, which teach that for a punishment to be just it must never exclude the possibility of rehabilitation. These comments, more than those of John Paul II or Benedict, establish a connection in papal thinking between punishment and keeping society safe - in other words, that criminal punishment's only value is deterrent.

But Francis' most astounding statement is that capital punishment "contradicts God's plan for man and society, and his merciful justice, and impedes the penalty from fulfilling any just objective. It does not render justice to the victims, but rather fosters vengeance." Because it has no deterrent or corrective value, is has no just objective. He goes further: If it has no corrective-deterrent value, the only thing it can possibly result in is vengeance. This is a milestone; while John Paul II and Benedict emphasized the primary role of punishment is deterrent, Francis goes further by suggesting this is the absolute only rationale for punishment, such that any punishment that cannot be justified in defense of society must always be mere vengeance. Francis also notes that capital punishment can only ever be imposed "for an act committed in the past." For those who understand punishment as truly punitive and not just corrective, this might simply elicit a shrug and "Yeah. So what?" But Francis, who sees punishment as only existing for the purpose of stopping current aggression, sees absolutely no value in punishments meted out for past actions.

It is interesting to note that if the only possible reason for any criminal punishment is deterrent or defensive, then not only capital punishment but also life imprisonment must also be considered unjust. After all, a man imprisoned for life who lives to the end of his natural life will cease to be a threat to society long before he dies. Therefore, a "seamless garment" life ethic should also object to life imprisonment. This is, in fact, the logical connection Pope Francis makes. In his address to the International Association of Penal Law, Francis said:

"All Christians and people of good will are thus called today to struggle not only for abolition of the death penalty, whether it be legal or illegal and in all its forms, but also to improve prison conditions, out of respect for the human dignity of persons deprived of their liberty. And this, I connect with life imprisonment...Life imprisonment is a hidden death penalty" [9].


Thus we have summarized the teaching on John Paul II and his successors on the question. It is important to stress that our purpose here is not to critique the popes' teaching or offer rebuttals to their rationale, but merely to note the tendency in papal thinking since John Paul II to ground the rationale for criminal punishment in its value as a deterrent for keeping society safe. They can envision no other purpose for criminal punishment other than corrective-restorative - and hence, restorative justice is the only type of justice criminal punishment serves.

We should also note that the comments of Benedict and Francis all come from letters, addresses and homilies, which are helpful in revealing the minds of these pontiffs but are of nugatory Magisterial value. The last Magisterial statement on the question remains St. John Paul II's Evangelium Vitae of 1995.

Deterrence and Retribution

St. John Paul II and his successors believe that deterrence is the only reason why the State punishes offenders. And - if this premise is granted - then there is no rationale for the death penalty in the modern world because the modern State, with its cold efficiency, is able to meet the needs of defending society and deterring crime without recourse to the death penalty.

But what if deterrence is not the only reason why the State punishes offenders? What if there is another rationale for punishment beyond merely keeping society safe? What if capital punishment is meant to serve another type of justice beside restorative justice? If so, then the papal arguments against the exercise of capital punishment must be acknowledged to be, not wrong, but incomplete.

Deterrence is an important aspect of criminal punishment, but it was not until the modern age that it has come to be viewed as its sole rationale. Until relatively recently, it was generally admitted that there was another sort of justice served by punishment: retributive justice. Retributive justice can be summarized as the idea those who commit certain kinds of wrongful acts, especially serious crimes, morally deserve to suffer a proportionate punishment; and that it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve. Essentially, it is the aspect of justice that focuses on what the guilty party deserves to suffer as a result of his crimes. A truly just punishment should keep people safe and give the offender the punishment his crime has merited.

Retributive justice has been practically ignored in the thought of modern opponents of the death penalty. Pope John Paul II and Pope Benedict accord it no place in their thinking; Francis's statement that it is "impossible to imagine states today cannot make use of another means than capital punishment to defend peoples' lives" suggest he is absolutely ignorant of the existence of retributive justice. Francis seems to view retributive justice as no justice at all, but mere "vengeance."

Let us return to the Sacred Scripture, where the teaching of retributive justice is very plainly laid out. As we shall see retributive justice takes pride of place in Scripture.

If its non-necessity for keeping the public safe is invoked as the "practical" argument against the death penalty, it should also be noted that John Paul II, Francis and other opponents of the death penalty have also appealed in the abstract to the dignity of the human person. In other words, man's intrinsic dignity as a being made in the image of God makes it an offense against that dignity to have to endure execution.

In Genesis 9:6, the practice of capital punishment is instituted by God Himself. Note that He does not simply tolerate and permit capital punishment (as he tolerated polygamy and divorce in the Old Testament), but He actually institutes it by a positive decree. From a theological standpoint, this tells us that it cannot be an absolute moral evil, otherwise He could not positively will it. But anyhow, look the rationale God gives for instituting capital punishment:

"Whosoever shall shed man's blood, by man shall his blood shall be shed: for man was made to the image of God" [10].


In other words, the very rationale God gives for instituting the death penalty is the same rationale now given to abolish it! Those who argue against capital punishment based on man's intrinsic dignity as an imago dei are appealing to the same principle God did when He instituted the practice. How ironic!

But the passage is quite simple to understand if we see it as an appeal to retributive justice. If we believe man is made in the image of God and has an immeasurable human dignity, how do we treat those who violate it? The Book of Genesis says murderers deserve death because life is precious, because man is an imago dei. How convincing is our reverence for life if its mockers are suffered to live? Because man is so unique, so unrepeatable, to remove one of them from the universe by willful murder merits the death penalty - regardless of whether or not a murderer repents, regardless of whether or not society is thereby kept safer, etc. The crime itself merits this punishment, which is intrinsic to it and without reference to any other good.

Another interesting text comes from the Book of Numbers. When discussing murder and its punishment, God tells Moses:

"And these things shall be for a statute and an ordinance to you throughout your generations in all your dwellings. If anyone kills a person, the murderer shall be put to death on the evidence of witnesses; but no person shall be put to death on the testimony of one witness. Moreover, you shall accept no ransom for the life of a murderer who is guilty of death; but he shall be put to death. And you shall accept no ransom for him who has fled to a city of refuge, that he may return to dwell in the land before the death of the high priest. You shall not thus pollute the land in which you live; for blood pollutes the land, and no expiation can be made for the land for the blood that is shed in it, except by the blood of him who shed it. You shall not defile the land in which you live, in the midst of which I dwell; for I the Lord dwell in the midst of the sons of Israel" [11].


This passage touches on a number of subjects that are beyond the scope of this article. But for our purpose, it is sufficient to note that the passage indicates that murder "pollutes" the land; it becomes "defiled." This pollution or defilement requires a purification; Scripture states that the only acceptable purification is the death of the murderer: "[N]o expiation can be made for the land for the blood that is shed in it, except by the blood of him who shed it." What is the purpose for this? "For I the Lord dwell in the midst of the sons of Israel."

In the above-quoted passage from Numbers, willful murder merits death as a sort of expiation or purification of the land. Exactly what is meant by "the land" is an interesting question; it could be understood in a strictly literal sense, or perhaps in the sense of the entirety of Israelite culture - the people in the land - similar to what we mean when we refer to our own country. People who talk about "fixing America" aren't speaking of literally repairing a crack in the ground. Similarly, "the land" may mean the people of Israel in the land of Israel.

At any rate, whatever "the land" means, the fact remains that the death penalty is seen as a kind of expiation, a kind of purification - and it is necessary because of God's holiness. Murder introduces great disorder into society, and according to retributive justice, this disorder is rectified by a proportionate punishment of the offender - in this case, death. While modern opponents of the death penalty call for non-lethal means of punishment whenever possible, God Himself makes the opposite case. He specifically orders that no ransom or payment be accepted for the life of the murderer. "You shall accept no ransom for the life of a murderer who is guilty of death; but he shall be put to death. And you shall accept no ransom for him who has fled to a city of refuge...for blood pollutes the land, and no expiation can be made for the land for the blood that is shed in it, except by the blood of him who shed it." According to the Law, a man who commits murder not only can, but must be put to death. God does not offer the principle that non-lethal means are sufficient if society can be kept safe without recourse to death. Rather, a murderer must be executed, even if he offers to redress his wrongs in other ways. This purifies the land and restores harmony. And the classical definition of justice, at least going back to Plato, is various parts of a whole working in harmony such that every one receives what is due to it.

At this point it should be made clear that the argument is not that Old Testament legal proscriptions from the Law of Moses should be incorporated into Christian legal codes; the point is that in two pivotal biblical texts on capital punishment, the reason for its institution is retributive justice, not restorative.

St. John Paul II's Omission

It is of particular interest that, as far as this author is aware, none of the modern popes have addressed these biblical texts when giving their teaching on the subject. Benedict omits any mention of them; it may be questioned whether Francis is even aware of their existence. St. John Paul II mentions the Old Testament norms, but omits any mention of the pivotal text of Genesis 9:6. Let us review his comments. After discussing the murder of Cain in Evangelium Vitae, he goes on to acknowledge the practice of capital punishment as understood by Old Testament Israel:

"The sacredness of life gives rise to its inviolability, written from the beginning in man's heart, in his conscience. The question: "What have you done?" (Gen 4:10), which God addresses to Cain after he has killed his brother Abel, interprets the experience of every person: in the depths of his conscience, man is always reminded of the inviolability of life-his own life and that of others-as something which does not belong to him, because it is the property and gift of God the Creator and Father.

The commandment regarding the inviolability of human life reverberates at the heart of the "ten words" in the covenant of Sinai (cf. Ex 34:28). In the first place that commandment prohibits murder: "You shall not kill" (Ex 20:13); "do not slay the innocent and righteous" (Ex 23:7). But, as is brought out in Israel's later legislation, it also prohibits all personal injury inflicted on another (cf. Ex 21:12-27). Of course we must recognize that in the Old Testament this sense of the value of life, though already quite marked, does not yet reach the refinement found in the Sermon on the Mount. This is apparent in some aspects of the current penal legislation, which provided for severe forms of corporal punishment and even the death penalty. But the overall message, which the New Testament will bring to perfection, is a forceful appeal for respect for the inviolability of physical life and the integrity of the person. It culminates in the positive commandment which obliges us to be responsible for our neighbour as for ourselves: "You shall love your neighbour as yourself" (Lev 19:18)" [12]


We should first note that John Paul goes from Cain and Abel directly to Mount Sinai, skipping over Genesis 9:6 entirely. He mentions the death penalty as applied in the Old Testament, but only in the context of the Mosaic Covenant. In doing so, he lumps capital punishment into the same category as divorce and polygamy - things that were tolerated by the Law of Moses because morality had not reached that level of "refinement" we will see in the New Testament. The implication is that, like divorce and polygamy, the death penalty is associated with the Levitical law, and thus the necessity of capital punishment falls away with the Old Law.

The omission of any mention of Genesis 9:6 is of tremendous import. The command of Genesis 9:6 ("Whosoever shall shed man's blood, by man shall his blood shall be shed") is given in the context of God's covenant with Noah, not the Mosaic covenant. God's covenant with Noah is universal; it was made with the entire human race in the person of Noah. This command to put murderers to death is given in the same passage in which God says "be fruitful and multiply" (v. 7) and when he gives the plants and animals as food for human beings (v. 2-4). In other words, the teaching of Genesis 9:6 is not something specific to the Mosaic covenant that will pass away when the New Testament comes; rather, it is part of God's covenant with mankind. As such, it cannot be superseded by the New Testament. It is not in the same category as divorce or polygamy.

This explains why even though divorce and polygamy faded away with the passing of the Mosaic Law, Christian kingdoms continued to practice capital punishment - and why it is reaffirmed in the New Testament (c. Rom. 13). This historical fact has never been dealt with by the popes either, save for vague assertions that "modern man" is somehow different from his predecessors.

Conclusion

The purpose of this essay has not been to critique the comments of the popes on capital punishment. Rather, it has been to demonstrate that, while biblically and traditionally criminal punishment was seen as an exercise in retributive justice, the modern popes (following John Paul II) have reduced the purpose of criminal punishment to merely corrective-restorative justice, centered on the safety of the community. If the safety of the community from aggression is the sole criteria of what constitutes a just punishment, it is difficult to make a case for capital punishment - and indeed, because they make this assumption, the modern popes argue that the exercise of capital punishment is never justified.

However, given that it is clear the modern popes are speaking in terms of restorative justice only, the concept of retributive justice needs to be reintroduced to the conversation. Punishment was never meant to satisfy only one kind of justice, but multiple. The fact that a violent criminal is apprehended and detained satisfies the need to protect the community from his aggression, while his death at the hands of the State satisfies the demands of retributive justice, which means that certain crimes merit proportional punishments.

A reclamation of a traditional and biblical understanding of criminal punishment - including the death penalty - must take retributive justice into account. Unfortunately, since John Paul II, the modern popes have entirely neglected to address retributive justice. And it is questionable whether our reigning pontiff is even aware of its existence.


NOTES

[1] St. John Paul II, Evangelium Vitae, 27 (1995)
[2] ibid., 55-56
[3] ibid., 56
[4] CCC 2267
[5] "Pope Benedict: End the Death Penalty" http://www.ncregister.com/daily-news/pope-benedict-end-the-death-penalty (accessed 15 Nov. 2015)
[6] F. Rocca, "Pope Francis calls for abolishing death penalty and life imprisonment," Catholic News Service, October 23, 2014 (accessed 15 November 2015)
[7] "Pope Francis:  no crime ever deserves the death penalty," Vatican Radio, March 20, 2015; "Pope Francis: the death penalty is inadmissible," Vatican Information Service, March 20, 2015 (accessed 15 November 2015).
[8] Pope Francis, Address to the Joint Session of the Congress of the United States, September 24, 2015 (https://w2.vatican.va/content/francesco/en/speeches/2015/september/documents/papa-francesco_20150924_usa-us-congress.html) <accessed 15 November, 2015>
[9] F. Rocca, CNS, Oct. 23, 2014
[10] Genesis 9:6
[11] Num. 35:29-34