Jurisprudence that necessarily embodies moral judgment: the Eighth Amendment, Catholic teaching, and death penalty discourse.

Author:Denk, Kurt M.
Position:III. Catholic Death Penalty Teaching through Conclusion, with footnotes, p. 370-393

    As used here, Catholic teaching refers to the "substantial body of literature on social questions" propagated by the Roman Catholic Church. (225) Formally speaking, this teaching is published under the aegis of church officials or official ecclesiastical bodies. Documents comprising it, though, are "the accepted expression of a [broader] social outlook that the Catholic tradition generates." (226) Thus, while official "Catholic teaching refers ... to the texts issued by those who hold an official teaching position within the Church," its "influence comes from how the texts have been 'translated' into sermons, lectures, public programs, social movements, acts of charity, just deeds, and peacemaking." (227) Accordingly, this "historical tradition of Catholic social thought" includes, e.g., medieval philosopher-theologian Thomas Aquinas's Treatise on Law; international law pioneer Francisco Suarez's Laws and God the Lawgiver, English lawyer-saint Thomas More's Utopia; twentieth-century New York social activist Dorothy Day's Catholic Worker editorials; and other literature by "Catholic thinkers who address social questions of their time from the perspective of faith. All of this and more [represents] ... Catholic social thought," as related to but distinct from Catholic social teaching. (228) This Article draws upon both but, for more apposite comparison with Eighth Amendment jurisprudence, emphasizes the latter. (229)

    1. Historical Background

      Professors E. Christian Brugger and James J. Megivern have comprehensively treated Catholic/Christian death penalty teaching's historical and theological arc, some aspects of which were introduced in Part 1. (230) Surveying additional details here facilitates understanding Catholic teaching's present iteration, and the significance of its relatively recent near-abolitionist stance.

      The death penalty in early Christianity was situated within an evolving relationship between religious and secular power. Second-and third-century theologians harmonized biblical warrants for the death penalty with endorsements of the state's right to impose it. (231) Once Christianity became the official religion of the Roman Empire this harmonization gave way, by the fifth century, to a "complex intertwining of Christian creed and Roman law definitively mark[ing] 'Imperial Christianity,'" and a concomitant "lethal combination of the Bible and Roman law." (232) Thus came the Church's official endorsement of capital punishment for crimes against the state or the faith--first with, but eventually without, the proviso that it be imposed by non-Christian authorities. (233) Prominent figures like Saint Augustine (354-430) sought to straddle a fine line, endorsing civil authority's right to inflict the death penalty, while preaching tenets of Gospel faith centered on proportional justice, the practice of mercy, and the hope for repentance. (234) Professor Kuttner's theory of religious-secular interpenetration looms large. So, too, we can observe how themes from Kennedy's coda, just discussed, echo a deep historico-religious tradition.

      The medieval Church's consolidation of power corresponded with an articulation and eventual codification of an explicit pro-death penalty stance, limited only by a ban on clergy participation and an insistence that capital punishment follow from "proper motivation"--i.e., protection of the common good, which again parallels aspects of the preceding analysis of Kennedy. (235) Legal commentary such as Gratian's Decretum (1140) affirmed secular powers' right to impose death and provided that, while ecclesiastical authorities could not, they could summon the faithful to defend the faith by coercive, even fatal, means. (236) By the early thirteenth century, Pope Innocent III required a group of heretics reconciling with the Church to accept the Waldensian oath, declaring the non-imputability of mortal sin to civil authorities administering capital punishment. (237) Meanwhile, positivist affirmations of capital punishment found intellectual support in Saint Thomas Aquinas (1225-74), whose Summa Theologica affirmed exceptions to the Decalogue's prohibition against killing--capital sentences among them--on the premise of authority's duty to defend the common good. (238) By the late medieval period, church-state collusion in capital punishment was settled in both theory and practice. (239) Now-notorious extensions of this collusion appeared in the post-Reformation and Renaissance Church, when ecclesiastical authorities unhesitatingly endorsed the crusades and capital punishment for heresy. (240)

      Thus, by the time the Roman Catechism was published in 1566, which codified the wide range of doctrine regularized by the Council of Trent (1545-63), Catholic death penalty teaching likewise reached codified form:

      Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power ... is an act of paramount obedience to [the Fifth] Commandment which prohibits murder ... [and has as its end] the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. (241) Interpenetration looms large, presumably explaining, in part, why the summary of Catholic death penalty teaching reproduced in Part I(C), sounds as much like a text of secular jurisprudence as one specifically ecclesiastical.

    2. Present Catholic Teaching

      Contemporary Catholic death penalty teaching has evolved in a manner akin to jurisprudence. Much of this stems from context: the Roman Catholic Church encompasses a highly organized structure of beliefs and authority, and law occupies a central position. (242) Given these characteristics and their rootedness in the history just surveyed, it is unsurprising that the Church's own law and its commentary on secular law address punishment for intentional homicide. Thus the Code of Canon Law includes penal prescriptions for church members who commit homicide, (243) while the Catechism addresses secular authority's responsibilities concerning criminal punishment for murder, outlining theoretical justifications for and both normative and utilitarian arguments against the death penalty. (244)

      Given the history recited above, it is particularly noteworthy that Catholic teaching's longstanding premise that civil authority possesses a right to inflict capital punishment has become so conditioned that its present iteration closely approaches the normative threshold of death penalty abolitionism. Contemporary Catholic death penalty teaching encompasses three, interrelated elements:

      [1] a restrictive presumption that the state may impose capital punishment only when necessary to protect human life;

      [2] a corollary affirmative presumption, premised on notions of human dignity and the common good, that endorses nonlethal protective force; and

      [3] an assumption that contemporary historical realities render rare, "if not practically nonexistent," the likelihood that the first presumption will overcome the second. (245)

      Versions of this formulation appear in the Compendium of the Social Doctrine of the Church, (246) the U.S. Catholic bishops' statement advocating abolition of the death penalty, (247) and in academic commentary. (248)

      For purposes of comparing Catholic teaching to U.S. death penalty jurisprudence, elements of the preceding definition merit elaboration. From the premise of "safeguarding the common good," the first presumption asserts that the state has a "[l]egitimate" right and "grave duty" to defend life against unjust aggression, (249) and thus is not "exclude[d from] recourse to the death penalty." (250) But dais presumption is restyicave, permitting capital punishment only where an aggressor's identity and guilt have been ascertained, and where execution is "the only possible" effective means for the state to fulfill its protective duty. (251) The teaching does not flesh out what these limitations should look like. But that is unsurprising, for the Church's position is meant to frame the death penalty's moral contours, not provide civil authority with a blueprint for law proper to its sphere. (252)

      In any event, restricting the premise that the state has the right to execute people is fleshed out in the teaching's second presumption, asserting that the state should limit itself to nonlethal defensive means sufficiently capable of achieving its protective obligation. This normative prescription includes the important substantive assumption that nonlethal protective means "are more in keeping with the concrete conditions of the common good and [are] more in conformity [to] the dignity of the human person." (253) As the preceding discussion made clear, these norms are a critical hinge for comparing the Catholic and U.S. approaches.

      The teaching's third component argues that historical developments have made effective, alternative protective means sufficiently available that instances today when capital punishment "is an absolute necessity 'are very rare, it not practically non-existent.'" (254) Notable is this component's combination of utilitarianism with a normative assertion verging on abolitionism, (255) as seen in the U.S. Catholic bishops' iteration of the general teaching:

      [1] The sanction of death, when it is not necessary to protect society, violates respect for human life and dignity.

      [2] State-sanctioned killing in our names diminishes all of us.

      [3] Its application is deeply flawed and can be irreversibly wrong, is prone to errors, and is biased by factors such as race, the quality of legal representation, and where the crime was committed.

      [4] We have other ways to punish criminals and protect...

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