Edward Feser, Joseph Bessette By Man Shall His Blood Be Shed A Catholic Defense Of Capital Punishment Ignatius Press

2017·2.2 MB·English

by  Edward Feser

BY MAN SHALL HIS BLOOD BE SHED
EDWARD FESER
JOSEPH M. BESSETTE
By Man Shall His
Blood Be Shed
A Catholic Defense of Capital Punishment
IGNATIUS PRESS SAN FRANCISCO
Unless otherwise noted, Scripture quotations (except those within citations) have been taken from the Revised Standard Version
of the Holy Bible, Second Catholic Edition, © 2006 by the Division of Christian Education of the National Council of the
Churches of Christ in the United States of America. All rights reserved.
Excerpts from the Catechism of the Catholic Church, second edition, © 2000 by Libreria Editrice Vaticana-United States
Conference of Catholic Bishops, Washington, D.C. All rights reserved. Used with permission.
Quotations from English translations of papal documents are from the Vatican website (w2.vatican.va), © Libreria Editrice
Vaticana. All rights reserved. Used with permission.
Cover image:
Lady Justice
Robert Wilson / us.fotolia.com
Cover design by Carl E. Olson
© 2017 by Ignatius Press, San Francisco
All rights reserved
ISBN 978-1-62164-126-1 (PB)
ISBN 978-1-68149-768-6 (EB)
Library of Congress Control Number 2016934525
Printed in the United States of America
CONTENTS
Preface
Introduction
1: Natural Law and Capital Punishment
2: Church Teaching and Capital Punishment
3: Serving Justice in This World and Salvation in the Next
4: The American Bishops’ Campaign against the Death Penalty
Conclusion
Bibliography
Notes
PREFACE
We launched this project several years ago, not long after we first met. One of us (Feser), trained
in philosophy and theology, had defended capital punishment from a Catholic and natural law
perspective in several articles. The other (Bessette), trained in political science and with nine
years of full-time experience in criminal justice, regularly taught the death-penalty debate in the
classroom (mostly from a secular perspective) and was working on a large empirical study of the
death penalty in the United States. Both of us strongly supported the death penalty and were
deeply troubled by the growing opposition to it among Catholics—and by the ignorance among
many Catholics of what the Church has traditionally taught on this subject. We agreed that there
was an urgent need for a full-length defense of capital punishment, written from a Catholic point
of view, that treated in detail every aspect of the question—philosophical, theological, and social
scientific. A collaboration naturally suggested itself, and the result is this book.
Though we are equal contributors to what follows, Feser was primarily responsible for
chapters 1 and 2 and Bessette for chapters 3 and 4. Despite this broad division of labor, each
individual chapter benefited from our very close collaboration.
We would like to thank the following individuals who read one or more chapters of the draft
and provided helpful comments, insights, suggestions, and corrections: Barry Latzer, Steven
Long, Fr. Gerald Murray, and Edward Peters. We also thank the tutors of Thomas Aquinas
College in Santa Paula, California, for their feedback during a presentation on our project given
at the college during the summer of 2013 and the participants at two workshops on criminal
justice and capital punishment hosted by the Salvatori Center at Claremont McKenna College in
2013. Any errors of fact or interpretation remain our sole responsibility.
Feser would also like to thank David Oderberg, for the insights he offered during a long
discussion of the traditional natural law defense of capital punishment; Christopher Tollefsen, for
the vigorous criticisms he has put forward during several public exchanges with Feser on the
subject of capital punishment; and audience members at a lecture Feser gave on the natural law
case for capital punishment in the spring of 2013 at the California State University at San
Bernardino.
Bessette would like to thank the students at Claremont McKenna College for their insights in
his crime class for the past twenty-five years; the dedicated staff at the Bureau of Justice
Statistics, where Bessette worked as deputy director and acting director from 1985 to 1990, who
have been compiling data on capital punishment for half a century; and the felony prosecutors in
the Cook County, Illinois, State’s Attorney’s Office from whom he learned the realities of
murder and its punishment in the United States while serving on State’s Attorney Richard M.
Daley’s staff from 1981 to 1984. He also thanks his friend and colleague Eric Helland for
reviewing some of the data and interpretations of chapter 4, and he gratefully acknowledges the
research assistance of Jennifer Lee, a student at Scripps College, Dan Carpenter, then a student at
the Claremont Graduate University, and Hugh O’Donnell of St. Monica Academy in Montrose,
California.
INTRODUCTION
Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.
—Genesis 9:6
If a Catholic were to be at odds with the Holy Father on the application of capital punishment. . . he would not for that
reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil
authorities. . . to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible. . . to have
recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about. . . applying
the death penalty.
—Cardinal Joseph Ratzinger,
“Worthiness to Receive Holy Communion:
General Principles” (2004)
Between 1796 and 1865, Giovanni Battista Bugatti executed 516 condemned criminals, more
than four-fifths for murder. Some of them were hanged, some guillotined, some decapitated with
an ax. In the case of especially heinous crimes, the methods of execution were harsher. Some
criminals had their heads crushed with a mallet, after which their throats were cut. Some were
drawn and quartered.
Who was Bugatti? He was the official executioner of the Papal States, a devout Catholic who
carried out his work as a loyal servant of the Holy Father.1 Indeed, the popes and the Church
were active participants in the process of execution, which was highly ritualized and freighted
with spiritual significance. On the morning of the execution the pope would say a special prayer
for the condemned. A priest would hear Bugatti’s confession and administer Holy Communion
to him in advance of the event. In the hours before the execution, a special order of monks would
cater to the spiritual needs of the criminal, urging confession and repentance while there was still
time and offering the sacraments. They would then lead him to the site of execution in a solemn
procession. Notices in local churches would request that the faithful pray for his soul. As the
sentence was carried out, the monks would hold the crucifix up to the condemned, so that it
would be the last thing he saw. Everything was done to ensure both that the criminal received his
just deserts and that the salvation of his soul might be secured.2 When asked in 1868 to stay an
execution, Blessed Pope Pius IX, though he certainly had the legal power to do so, apparently
thought he morally ought not to, replying: “I cannot, and I do not want to.”3
Many contemporary Catholic readers will find all of this surprising. They are used to hearing
churchmen—including popes, most famously Pope John Paul II—call for the abolition of the
death penalty; and they are used to hearing this abolitionist position defended precisely on moral
and theological grounds. Capital punishment, they are told, does not sit well with man’s dignity
as a creature made in God’s image. Yet Pius IX and his many predecessors who authorized
executions in the Papal States were no less Catholic, no less devout, no less infallible than John
Paul II. Moreover, in defense of capital punishment Pius IX could call upon a vast wealth of
arguments that no faithful Catholic can take lightly—arguments from natural law, from
Scripture, from the Fathers and Doctors of the Church, and from the consistent teaching of
previous popes. For example, he could appeal to Genesis 9:6, quoted above, which sanctions the
execution of murderers precisely in the name of the victim’s dignity as a creature made in God’s
image. He could also appeal to the fact that previous popes taught that Catholics must, on pain of
heterodoxy, acknowledge that the state has a right to inflict capital punishment on those guilty of
grave offenses. So what is going on here?
What is going on, as we will demonstrate in this book, is that capital punishment is, and in the
nature of the case must always be, an issue about which faithful Catholics may, within certain
limits, legitimately disagree. The Church has certainly never taught that the state must in all cases
execute those guilty of the most serious crimes. She has never insisted on applying the death
penalty. But she has with equal certainty always taught that the state may in some cases
legitimately execute those guilty of the most serious crimes. She has insisted that no Catholic is
permitted to deny that the state has this right, at least in principle. On the question of whether
resort to capital punishment is in practice appropriate under specific, concrete historical and
cultural circumstances, she has left things to the free discussion of Catholics, and different
attitudes have tended to prevail at different times. For most of the history of the Church, from
about the fourth century until the 1970s, the attitude of churchmen and other Catholics toward
the use of capital punishment tended to be positive. In the earliest centuries of Christian history,
when the Church was subject to severe persecution by the state, the attitude of churchmen and
other Catholics toward the use of capital punishment tended to be more negative, as it has in
more recent decades.
Some Catholics believe that Pope John Paul II altered Catholic teaching on this subject at the
level of principle. As we will also demonstrate, that is simply not the case. Pope Pius IX’s
positive attitude toward the use of the death penalty was what theologians call a prudential
application of moral and theological principle to concrete circumstances, something Catholics
must respectfully consider but with which they are not obliged to agree. Pope John Paul II’s
hostile attitude toward the use of the death penalty also reflected a prudential judgment that
Catholics must respectfully consider but with which they need not agree. That is why Cardinal
Joseph Ratzinger—then the head of the Congregation for the Doctrine of the Faith under Pope
John Paul II, and later Pope Benedict XVI—could say, in the passage quoted above, that “there
may be a legitimate diversity of opinion even among Catholics about. . . applying the death
penalty” and that a faithful Catholic could even be “at odds with the Holy Father on the
application of capital punishment”.
We will show in this book, we think conclusively, that it is the irreformable teaching of the
Catholic Church not only that capital punishment can in principle be legitimate, but that it can in
principle be legitimate for purposes such as securing retributive justice and deterring serious
crime, and not merely to protect the lives of others in those rare and extreme cases in which an
offender poses a clear and present danger. We fully acknowledge that faithful Catholics may
nevertheless argue that in practice the death penalty ought not to be applied under modern
circumstances, and we certainly would not defend the harsher methods of execution employed in
the nineteenth century. We will show, however, that in fact there are no good arguments for
abolishing capital punishment under modern circumstances and that many of the arguments
commonly deployed are difficult or even impossible to reconcile with Scripture and Catholic
Tradition. We will also show that there are very powerful arguments for preserving capital
punishment and applying it with some regularity. At the very least we will show that the
pendulum has swung too far in the direction of abolishing capital punishment and that the good
both of society and of the Church requires that the traditional Catholic case for capital
punishment be given much more serious consideration than many contemporary Catholics,
including many churchmen, have afforded it.
The plan of the book is as follows. In chapter 1 we set out the traditional natural law
justification for capital punishment and answer all the main objections to that justification. We
do so at some length, for traditional Catholic teaching on this subject, as on other moral issues, is
by no means grounded merely in an appeal to the Bible or Tradition, but also in human nature
and in reason. The rationale of the teaching of Scripture, of the Fathers and Doctors of the
Church, and of the popes simply cannot be understood except in light of this natural law
approach to moral reasoning—an approach that has its philosophical foundations in the thought
of Plato and Aristotle, which was brought to perfection by Catholic thinkers such as Saint
Thomas Aquinas and which the Church has made her own.
Yet traditional natural law reasoning is simply not widely understood today even among most
Catholics. Moral thinking about capital punishment, even among Catholics, is often guided
instead by what amounts to little more than platitudes lacking any clear content or rational
foundation or by ethical theories that are incompatible with Catholic teaching. Hence the
philosophical foundations of traditional natural law reasoning and its implications for questions
about rights and justice, political authority, and punishment in general must be set out with some
care if contemporary readers are to understand the natural law justification of capital punishment
specifically. The deficiencies of rival systems of ethics must also be exposed. We aim to do all of
this in chapter 1.
In chapter 2, we examine in detail what Scripture, the Fathers and Doctors of the Church, and
the popes have said about capital punishment. We show that the consistent teaching of all of
these sources is that capital punishment is legitimate in principle, and for purposes other than
defense against an imminent threat that an offender may pose to others—for example, for
retributive justice and for deterrence. We show that the Church cannot possibly reverse this
teaching consistent with the infallibility of Scripture or with her own indefectibility. We show
that, contrary to what some have claimed, the teaching of Pope John Paul II did not constitute
either a reversal or a development of doctrine on this subject. Along the way we discuss in some
depth what the Church teaches about the authority of Scripture and of the Fathers and Doctors of
the Church, and the different degrees of authority enjoyed by various types of magisterial
statements. We argue that recent papal statements opposing capital punishment cannot plausibly
be interpreted as anything other than prudential judgments of the sort with which faithful
Catholics (including citizens and public officials) are permitted by the Church to disagree.
Many Catholics believe that even if they are only prudential judgments, the statements of
recent popes and other churchmen to the effect that capital punishment ought to be abolished in
modern times are well-founded. In chapters 3 and 4 we respectfully argue that this is not the
case. In particular, in chapter 3 we argue that when the crimes of the very worst offenders are
examined dispassionately and in detail, it cannot reasonably be denied that no punishment less
than death could possibly be proportionate to the offense or capable of upholding the basic
justice of the social order. We also argue in this chapter that there is powerful evidence that, far
from removing the possibility of reform, the penalty of death actually tends to contribute to the
repentance of many offenders (as Saint Thomas Aquinas held that it does). We consider in some
detail many specific examples of crimes for which offenders have in recent years been executed
in the United States, the situations of the families of the victims, and the state of mind of those
on death row. We do this not to play on the reader’s emotions but, on the contrary, precisely to
dissipate the fog of naive sentimentality that too often prevails in contemporary discussions of
capital punishment.
In chapter 4 we address the arguments that the U.S. Catholic bishops have in recent decades