The demise of capital punishment in the culture of death and the relationship between pain and punishment.

• Author: Fedoryka, Damian P.
• Position: P. 527-562

INTRODUCTION

The changes in the current Latin editio typica of the Catechism of the Catholic Church ("Catechism"), specifically in the articles dealing with capital punishment, (1) and some of the responses to those changes, are thought provoking. In this context is the notable appeal of Pope John Paul II to spare the life of Darrell Mease. (2) This appeal has been taken as evidence, as indeed it could, that the Pope was "against" capital punishment. (3) The general impression is that the Catechism is also "against" capital punishment unless it is an "absolute necessity," an eventuality that is "practically non-existent." (4) Thus, as Inside the Vatican puts it, "the Catholic Church comes closer than ever to calling for a ban on capital punishment," an outright ban that is called for by pressure groups opposed to capital punishment. (5)

If Pope John Paul II and the Catechism are "against" capital punishment, the following question must be asked: is the separation of body from soul, that is, an act causing death, also intrinsically evil? The rhetoric and emotion accompanying the call for a ban on capital punishment seem to imply that it is. And paragraph 2267 of the Catechism does speak of non-capital punishment as "more in conformity with the dignity of the human person." (6) This would seem to suggest that capital punishment is intrinsically wrong.

But this is a misreading of the Catechism. The Catechism neither implies nor should be taken to imply that capital punishment is intrinsically wrong, even though it assumes that the need for capital punishment is practically non-existent. In principle, capital punishment in itself remains justified even if the need for it as a practicable, effective way to defend human lives against the aggressor arguably no longer exists in certain countries. (7)

In order to understand why capital punishment is not intrinsically wrong, and why it is misunderstood in a consumer culture or "culture of death," (8) it is necessary to understand the nature and purpose of punishment. Part I of this Essay introduces a systematic distinction between two roles of punishment, namely, punishment as the restoration of the "just order" and punishment for the sake of deterrence or defense. It also discusses the relationship between guilt, punishment, and sanctions in the law. Part II outlines some fundamental presuppositions for establishing the primary meaning of the punishment of persons, the penal dimension of punishment, and why punishment should not be imposed purely for reasons of deterrence. These presuppositions are the notions of sovereignty understood as a kind of an ownership that is grounded in "the good," and the metaphysical meaning of death. Part III explores the notion of human dignity in modern consumer culture and its attitude toward pain. Part IV continues the task of examining the intrinsic connection between pain and the penal character of punishment by a systematic contrast between the pain of separation from "the good" on the part of the innocent and the pain accompanying a rejection of "the good" on the part of the guilty. Part V focuses on the public dimension of crime and the proper characteristics of punishment that "fit" the crime. Part VI applies the discussion of pain and punishment to capital punishment, considers the public nature of this punishment, and explains the role of public authority as grounded in a sovereignty that is over, but transcendent to, the human being.

1. THE ROLE OF PUNISHMENT

   1. Punishment and Deterrence." Two Distinct Dimensions of Capital Punishment

      There are two distinct themes or dimensions of capital punishment that are directly relevant to a discussion of the legitimacy of capital punishment. The first theme is the restoration of "just order," which I consider the proper or intrinsic meaning of punishment, as discussed below; the second is the deterrence or "defense" dimension of capital punishment, which is one of the functions of punishment in general. The revised second edition of the Catechism only implicitly mentions the first theme--restoration of the just order--when it indicates that "[p]unishment has the primary aim of redressing the disorder introduced by the offense," (9) while the second theme deterrence or defense is a central theme or premise in the Catechism's discussion of capital punishment. (10)

      We can distinguish between these two themes as follows: the first one focuses on the role of punishment in general (including capital punishment in particular) after the crime has been committed; the second addresses the question of how to protect society and its individuals against future acts of aggression before these acts occur. The first theme deals with capital punishment in its intrinsic significance as an act that has a meaning independent of any secondary role it may also or even necessarily have; the second deals with capital punishment intended as a means whose effects may or may not follow. Again, the first theme deals with capital punishment as an intended penalty; the second deals with death as a possible or even inevitable but still an unintended element in an act of defense. It should be clear from the texts that both the Catechism and Pope John Paul II in his encyclical Evangelium Vitae have the second theme in mind when they take a position "against" capital punishment. (11) But this in no way implies that the Catechism or Pope John Paul II are "against" capital punishment as a punishment for a crime in the past. Accordingly, it is necessary to consider each of these dimensions of capital punishment separately.

   2. Guilt and Punishment

      The consideration of punishment after the crime leads to an examination of the criminal not simply in his agency but in his guilt. In contrast, punishment's function as deterrence or defense against future crimes has no intrinsic relation to the guilt of a criminal. Defense contemplates not the guilt of the agent but his efficacy as the cause of the harmful effects the victim suffered. Punishment in its strict and proper sense, however, requires an inner relationship between the punishment and the guilt of the agent. The Catechism of the Council of Trent("Trent Catechism") helps make this clear.

      Speaking of the power over life and death entrusted to civil authorities, the Trent Catechism explains that this power is meant to be used to "punish the guilty and protect the innocent." (12) Although the Trent Catechism notes that such an exercise of civil authority obeys rather than violates the Fifth Commandment, it is clear that civil authority's judicious use of its power of "lawful slaying" has a broader "end" than that of the Fifth Commandment, which intends the "preservation and security of human life." (13) Even though the Trent Catechism notes that the power to punish "naturally tend[s]" to the protection of innocent life since it gives "security to life by repressing outrage and violence," (14) there is a clear difference between use of power to punish and use of power to protect innocents. Still, the civil authority acts in "paramount obedience" to the Fifth Commandment when it uses this power justly. (15)

      The text of the Trent Catechism clearly identifies civil authority as the "avenger of crime" in its judicious use of its power of slaying. (16) The Trent Catechism's contemporary counterpart is silent about the specific capacity of public authority as the avenger of crime in punishing the guilty. (17) This cannot be taken as proof of a development in the Church's teaching that would now restrict capital punishment to its role of "protect[ing] the innocent" or preservation and security of human life. (18) Even if this omission is, as it could be, a development in prudential judgments dealing with the need and prudential effectiveness of lawful slaying in defense of human life, it does not follow that the Catechism is thereby teaching about the prudential application of capital punishment as punishment. Part V, Section E, revisits the deterrent effect of punishment--an effect to which punishment naturally tends--and the treatment of deterrence as an end. The failure to consider or grasp the inner meaning of punishment shifts the hermeneutic balance toward the Fifth Commandment, which intends the preservation and security of human life but--since it provides no sanctions--does not intend the punishment, lethal or otherwise, of the prospective criminal.

      The text of the current Catechism shows a real but subtle shift from the Trent Catechism's explicit reference to the punishment of the guilty. Paragraph 2266, following three paragraphs dealing with legitimate defense, introduces the theme of punishment with a reference to the "common good" and goes on to explain, "Punishment has the primary aim of redressing the disorder caused by the offense." (19) It adds a comment on the voluntary acceptance of punishment as expiation, and then goes on to note the role of punishment in "defending public order and protecting people's safety." (20) If there is any reference of guilt, one can argue that it is safely hidden behind the concepts of disorder and offense. Still, these terms do not logically imply guilt. The agent can safely be considered a "cause" of the negative effect to be dealt with by punishment as a counter-cause producing counter-"effects": order and safety as aspects of the common good. (21) As such, the personalist dimension implied by the notion of guilt is absent.

   3. Sanctions Attaching to Divine and Positive Laws

      An important distinction must be made at this point between the divine law embodied in the Fifth Commandment and the positive law of a civil authority prohibiting murder. The latter contains, as an essential component of its binding character in the positive order, a sanction or penalty that follows the breaking of the law. Thus, the positive law must also intend or have as its end the punishment as a sanction. It is worth noting that the divine law...