The Biggest Problem with the Death Penalty

[Ender]

The difference between the typical case and the capital case is that the person wrongfully convicted (or wrongfully sentenced to death) is dead. There can be no fix when the person is dead.

This is certainly true but the evidence does not indicate that this has happened all that often. It also needs to be pointed out that innocent people will die regardless of which choice we make; it cannot be argued that those who are spared execution never go on to kill again.

However, there is much reason to believe that these mistakes occur more often in capital cases than non-capital cases. There is less political pressure on prosecutors and police to convict a car thief or a robber than to convict a murder suspect, especially when the murders are particularly heinous. Juries and judges are far more vengeful on accused killers than accused drug dealers, and are that much more willing to look over exculpatory evidence.

I am uncomfortable with this blanket assertion but I have no experience or evidence with which to agree or disagree. Of course, you don’t provide any evidence that your contention is valid either. We do know, however, that the process in capital cases has more safeguards built into it which argues for fewer mistakes.

If we are at all concerned with justice (and a death penalty irrefutably presupposes we are), then we should be at least as concerned with an innocent person being killed as we are with a guilty party going free.

I doubt that anyone disagrees; no one is contesting this point.

Ender

 

[camerong]

This is certainly true but the evidence does not indicate that this has happened all that often. It also needs to be pointed out that innocent people will die regardless of which choice we make; it cannot be argued that those who are spared execution never go on to kill again.
I am uncomfortable with this blanket assertion but I have no experience or evidence with which to agree or disagree. Of course, you don’t provide any evidence that your contention is valid either. We do know, however, that the process in capital cases has more safeguards built into it which argues for fewer mistakes.

Ender

Merely because some innocent people will go to prison no matter what does not mean that we should try to lessen this from occurring. But what if we could never be very certain that the person we were putting to death actually did it? You would agree the death penalty would then be wrong, correct? And I’m meaning to say that there are many factors which make it so we are much less sure in many, if not most, cases, than we typically think.

As for evidence that capital cases include far more pressure, see the judge that I discussed above. But its certainly not a leap of logic to think that police are under greater pressure to find whodunnit if 5 people are slain than if a car is stolen.

What additional safeguards are in place? True, some states require mandatory appeals to state supreme courts if the death penalty is chosen. But, as I mentioned in the OP, state supreme courts are often elected, and so really, supreme court justices are under very similar pressure to uphold executions. See, for example, the story I discussed in the OP about California Supreme Court–the story was told by the judge at the lecture I attended yesterday, but I’m sure I can find the case discussing it.

 

[Bluegoat]

Well, I have serious problems with the death penalty, and I can’t for the life of me figure out how all those pro-death penalty in the US Catholics keep forgetting the “So rare as to be practically non-existant” bit.

But yes, I think that difficulties in the administration of justice in such cases are a problem. I also find as a Canadian, when I read about/watch criminal cases in the US, I am struck by the political nature of the decisions being made on how to prosecute etc. I think this is a result of people like district attorneys being elected, which I tend to think actually is less democratic and less just. And finally, when I look at the people who are given the death penalty in the US, they tend to look a little too alike for my comfort.

 

[revertfromLDS]

Kudos Bluegoat! I was begining to feel as though I was the only one who felt this way! Nearly non-existent IS the part we should focus on as American Catholics. Figures that a Canadian Anglican would be the one to agree with me
Oh, and for the record my feelings were’nt really hurt by your correcting me Camerong, I just thought it was a little petty. My point was just that the fundamentals of LIFE, liberty and the persuit of happiness are every bit as important if not moreso than any of our Constitutional rights like that of a fair trial. And it is a sticky issue afterall that I feel passionately about so perhaps it isn’t really possible to have a conversation about the fair or unfair nature of the implamentation of a practice I think is inherantly wrong. So sorry I missed that as being your original objective!
Also, I was definately feeling defensive already from DaveBJ and ByzCath telling me my interpretation of the Gospel as being inacurate and others agreement that God indeed approves of the death penalty in general because it’s killing, not murder and there’s an obvious distinction between the two!
Peace!

 

[Ender]

But what if we could never be very certain that the person we were putting to death actually did it? You would agree the death penalty would then be wrong, correct?

If a member of the jury is not very certain that the defendant committed the crime then he shouldn’t be convicted, let alone punished. Of course that would be wrong.

As for evidence that capital cases include far more pressure, see the judge that I discussed above.

I’m sure there is more pressure in murder cases but I am not willing to believe that police, prosecutors, judges, and juries are so anxious to punish someone that they are likely to railroad anyone they can get their hands on.

But, as I mentioned in the OP, state supreme courts are often elected, and so really, supreme court justices are under very similar pressure to uphold executions.

I am not ready to condemn our entire criminal justice system because of vague claims about pressures and problems. Problems surely exist and they should be addressed.

See, for example, the story I discussed in the OP about California Supreme Court–the story was told by the judge at the lecture I attended yesterday, but I’m sure I can find the case discussing it.

Argument by anecdote is not all that convincing. The implication is that a single situation is representative of the entire system and there is no evidence that this is so.

Ender

 

[Ender]

Kudos Bluegoat! I was begining to feel as though I was the only one who felt this way! Nearly non-existent IS the part we should focus on as American Catholics.

Here’s a challenge for everyone who feels he understands the Church’s teaching on capital punishment: find ANYTHING the Church (Popes, councils, catechisms, Doctors of the Church) has ever said prior to 1995 that supports 2267. And please don’t respond that nothing other than 2267 (including the first 1995 years of Church teaching) is relevant.

Ender

 

[camerong]

For all who are interested in this topic, I believe they will be discussing the death penalty on Catholic Answers this evening. If you can’t listen live, you can get mp3 recordings on this site.

 

[adrift]

For all who are interested in this topic, I believe they will be discussing the death penalty on Catholic Answers this evening. If you can’t listen live, you can get mp3 recordings on this site.

It was very interesting not at all what I expected.

Patric Madrid referred to his web site.

 

[Ender]

It was very interesting not at all what I expected.

Patric Madrid referred to his web site.

The article Patrick Madrid points to (by Cardinal Dulles) presents a real problem for those who believe that 2267 is all that matters on the subject of capital punishment.

Ender

 

[Friar_David_O.Carm]

The article Patrick Madrid points to (by Cardinal Dulles) presents a real problem for those who believe that 2267 is all that matters on the subject of capital punishment.

Ender

Those people have a problem then as 2267 is in no way definitive.

 

[adrift]

The article Patrick Madrid points to (by Cardinal Dulles) presents a real problem for those who believe that 2267 is all that matters on the subject of capital punishment.

Ender

What “real problem”?
Here are some quotes from the article

Some Catholics, going beyond the bishops and the Pope, maintain that the death penalty, like abortion and euthanasia, is a violation of the right to life and an unauthorized usurpation by human beings of God’s sole lordship over life and death. Did not the Declaration of Independence, they ask, describe the right to life as “unalienable”?

I believe we see this by some who post.

1. The purpose of punishment in secular courts is fourfold: the rehabilitation of the criminal, the protection of society from the criminal, the deterrence of other potential criminals, and retributive justice.

1. Just retribution, which seeks to establish the right order of things, should not be confused with vindictiveness, which is reprehensible.

1. Punishment may and should be administered with respect and love for the person punished.

1. The person who does evil may deserve death. According to the biblical accounts, God sometimes administers the penalty himself and sometimes directs others to do so.

1. Individuals and private groups may not take it upon themselves to inflict death as a penalty.

1. The State has the right, in principle, to inflict capital punishment in cases where there is no doubt about the gravity of the offense and the guilt of the accused.

1. The death penalty should not be imposed if the purposes of punishment can be equally well or better achieved by bloodless means, such as imprisonment.

1. The sentence of death may be improper if it has serious negative effects on society, such as miscarriages of justice, the increase of vindictiveness, or disrespect for the value of innocent human life.

1. Persons who specially represent the Church, such as clergy and religious, in view of their specific vocation, should abstain from pronouncing or executing the sentence of death.

1. Catholics, in seeking to form their judgment as to whether the death penalty is to be supported as a general policy, or in a given situation, should be attentive to the guidance of the pope and the bishops. Current Catholic teaching should be understood, as I have sought to understand it, in continuity with Scripture and tradition.

 

[Ender]

What “real problem”? Here are some quotes from the article

I’m not sure if you’re agreeing with me or disagreeing; I’ll assume the latter and point out some of the conflicts.

2267 *The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor. *

This statement is factually incorrect. The traditional teaching never included that restriction. Dulles makes a relevant comment: “Turning to Christian tradition, we may note that the Fathers and Doctors of the Church are virtually unanimous in their support for capital punishment.” This support for capital punishment is unbroken from the early fathers up until at least 1969 when Vatican City removed the death penalty from its laws. This restriction is an innovation of JPII’s that appeared in 1995.

The biggest problem Dulles presents, however, is his declaration that 2267 is a prudential opinion. Therefore it does not rise to the level of an ordinary teaching of the Church … and Catholics therefore have no moral obligation to assent to it.

The Pope and the bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like our own, the death penalty ought not to be invoked, because, on balance, it does more harm than good.

Ender

 

[Gottle_of_Geer]

I just attended a lecture by a US Court of Appeals judge who discussed the death penalty. His point about the death penalty was not that it was per se wrong, but that the process leading to the death penalty is in such a bad state that we cannot continue executions.

Among the problems the judge recognized:
-Misconduct by the investigating police department. …

-Misconduct by the prosecutor. …

-Misconduct by the trial judge. All kinds of rulings can be made incorrectly. One example was where jury instructions gave the jury the option of either sentencing the defendant to “life WITH the possibility of parole, or death” where the instruction should have given the option of life WITHOUT parole or death. Incredibly, the state supreme court held that that was a harmless (nonreversible) error.

-Misconduct by state appeals judges. …

These are problems that exist with the whole of the justice system; but unlike most criminal cases, mistakes made in dealing death cannot be fixed.

That is debatable: some might argue that execution for a crime of which one is innocent is just, since nobody is morally inocent. This is attractive under some aspects - but they are themselves debatable. ​

We hope…that the defendant whose life is at risk will be represented by…someone who is inspired by the awareness that a less-than-vigorous defense…could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge…committed to the protection of defendants’ rights…

But even if we can feel confident that these actors will fulfill their roles…our collective conscience will remain uneasy. Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency or not at all, and despite the effort of the states and courts to devise legal formulas and procedural rules to meet this…challenge, the death penalty remains fraught with arbitrariness, discrimination…and mistake…

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored…to develop…rules that would lend more than the mere appearance of fairness to the death penalty endeavor…Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved…I feel…obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies… Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme.

Justice Blackmun, who voted to UPHOLD an automatic sentence of the death penalty in two landmark cases in 1976, remarked just before retirement that despite his and his colleagues efforts to make the death penalty fair, the problems with the system rendered the death penalty irreparably broken:

I have raised a number of problems regarding the death penalty elsewhere, and though I was aware of the above problem, its one that few people outside of the legal field consider. If the death penalty was acceptable to Catholicism, surely we must be concerned with applying it fairly.

That goes without saying - or should. It is dreadful to think that some who should see this, might not Equity is essential for a society to be just, whatever one’s religion or lack of one.​

As the above indicates, it is often unfairly applied now, and it may be impossible to make it fair.

As there is misconduct - let it be made abundantly & unambiguously clear that those guilty of it will suffer the penalty to which their misconduct exposes others.​

A lawyer - or any other person or group engaged in the practice of criminal law or of anything related thereto - if tempted to mishandle a case, who is aware that his misconduct is liable to lead to his imprisonment for life, or to his execution, has a very strong motive to live up to the best traditions of his calling.

Could the problems owe something to defects in the Churches ? Some of them are not terribly interested in social doctrine, which is seen as “social Christianity”, & as the rival of “true Christianity”. That suggestion may be completely wide of the mark, but it’s hard to believe that what Churches preach & teach has no effect - however remote - on the administration of justice.

Equity is not confined to the niceties of law - that too should be obvious. Just as it ought to be obvious that correct procedure is only one element in the doing of justice & equity. ISTM as if something is wrong with some people’s moral philosophy: as somebody (I forget who ) pointed out, nothing is more important for the beliefs we hold than the philosophical position by which they are supported and fed. So an inadequate moral philosophy, is going to lead to a morally inadequate philosophy of law, which is going to lead to morally inadequate decisions about laws, & to morally inadequate judicial practice. So one’s philosophical assumptions, however hazy or unconscious, can in practice have very marked consequences, for good or ill.

That many things are not though they should be, or are iniquitous rather than equitable, is not a reason for abolishing or rejecting the death penalty. Not here in Britain (where it has unfortunately been abolished), & (presumably) not the US either. If it is not fair now - why not make it fair ?

There can be practical reasons for not being just in a certain way, but never for being unjust. To execute murderers is in itself not unjust, but it can be just not to execute them.

BTW - what about trials of juveniles ?

 

[adrift]

Catholicism and Capitol Punishment

I’m not sure if you’re agreeing with me or disagreeing; I’ll assume the latter and point out some of the conflicts.

I was neither agreeing nor disagreeing. I didn’t know what you meant.

2267 *The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor. *

Where does this quote comes from. It is not in the article I linked.

This statement is factually incorrect. The traditional teaching never included that restriction.

I agree with you but again where did you get this quote?

Dulles makes a relevant comment: “Turning to Christian tradition, we may note that the Fathers and Doctors of the Church are virtually unanimous in their support for capital punishment.” This support for capital punishment is unbroken from the early fathers up until at least 1969 when Vatican City removed the death penalty from its laws. This restriction is an innovation of JPII’s that appeared in 1995.

I did not find this quote exactly as you state it.

Turning to Christian tradition, we may note that the Fathers and Doctors of the Church are virtually unanimous in their support for capital punishment, even though some of them such as St. Ambrose exhort members of the clergy not to pronounce capital sentences or serve as executioners. To answer the objection that the first commandment forbids killing, St. Augustine writes in The City of God:

This part of your statement is not there at all

This support for capital punishment is unbroken from the early fathers up until at least 1969 when Vatican City removed the death penalty from its laws. This restriction is an innovation of JPII’s that appeared in 1995.

But he does say

. Pope John Paul II spoke for the whole Catholic tradition when he proclaimed in Evangelium Vitae (1995) that “the direct and voluntary killing of an innocent human being is always gravely immoral.” But he wisely included in that statement the word “innocent.” He has never said that every criminal has a right to live nor has he denied that the State has the right in some cases to execute the guilty.

The biggest problem Dulles presents, however, is his declaration that 2267 is a prudential opinion. Therefore it does not rise to the level of an ordinary teaching of the Church … and Catholics therefore have no moral obligation to assent to it.

Is this your interpretation because he doesn’t say this.

The Pope and the bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like our own, the death penalty ought not to be invoked, because, on balance, it does more harm than good.

Ender

In coming to this prudential conclusion, the magisterium is not changing the doctrine of the Church. The doctrine remains what it has been: that the State, in principle, has the right to impose the death penalty on persons convicted of very serious crimes. But the classical tradition held that the State should not exercise this right when the evil effects outweigh the good effects. Thus the principle still leaves open the question whether and when the death penalty ought to be applied. The Pope and the bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like our own, the death penalty ought not to be invoked, because, on balance, it does more harm than good. I personally support this position.

There is nothing wrong with this statement.

I guess that is why I was confused by your initial comment that indicated somehow that it contradicted the Catechism.

 

[Ender]

Where does this quote comes from. It is not in the article I linked.

That quote was from the Catechism; it is the first paragraph of section 2267. You recognize that this part of 2267 is historically inaccurate; the quote from Dulles simply helps make that argument.

This part of your statement is not there at all

What I quoted was in italics; the non-italicized part is my comment.

Is this your interpretation because he doesn’t say this.

Dulles twice calls the Church’s new position on the death penalty prudential, that is: opinion, and opinions, even of popes, do not require our assent. As Karl Keating observed in 2004 regarding 2267:*

Beyond that, it has included a prudential judgment (the only such one in the “Catechism” on any topic, so far as I am aware) that, by its nature, cannot be binding in conscience.*

Another useful aspect of Dulles’s article is to allow us to determine that it is retribution that is the primary objective of punishment. As you quoted, he identifies the four objectives as protection, deterrence, rehabilitation, and retribution. Section 2266 of the Catechism states that *“The primary scope of the penalty is to redress the disorder caused by the offense.” *Dulles’s article allows us to understand that the primary objective of punishment is retribution (not protection); a point with which most people are unaware and are reluctant to concede.

Ender

 

[adrift]

That quote was from the Catechism; it is the first paragraph of section 2267. You recognize that this part of 2267 is historically inaccurate

Your quote is a little different than is posted on the Vatican website.

.

2267 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.

I cannot agree that this is historically inaccurate as it isn’t being presented as part of history. That this is a further development is obvious. It is acknowledging that in the past it was necessary that society protect itself but that is no longer necessary as society has other ways to do so.
I agree that this is an opinion. An opinion that should be given weighty thought. I do have problems with this thought. I have mentioned one which no one seems to answer.
It seems when this topic is mentioned people are entrenched. The Catechism says

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity "are very rare, if not practically nonexistent.

There is no proof of this. I live in an area with over twenty prisons. I know how many times prisoners escape so I have reservations that it is possible to render someone incapable of doing harm at least in the US. Perhaps that would be the case in Europe. I do not know. I do know that there are murders ins prison so again I have doubts that it is possible to prevent harm. These concerns are never answered. They must be before you can make the death penalty practically nonexistent. Perhaps what I am doing is citing the rare but it isn’t very rare.

 

[Ender]

Your quote is a little different than is posted on the Vatican website.

My quote is from the - or at least a - Vatican site.
vatican.va/archive/ENG0015/__P7Z.HTM

I cannot agree that this is historically inaccurate as it isn’t being presented as part of history.

When you didn’t know where the quote was from you agreed that it was inaccurate; now that you know it is from the Catechism you’ve changed your mind? And what do you mean that it isn’t presented as part of history? That is precisely what “traditional” means.

That this is a further development is obvious. It is acknowledging that in the past it was necessary that society protect itself but that is no longer necessary as society has other ways to do so.

That’s not the point. The paragraph makes a claim about what the Church used to teach and that claim is false. Whatever is being said now cannot change what was taught before, and what was taught before - the traditional teaching - never included the restriction mentioned in 2267.

I agree that this is an opinion. An opinion that should be given weighty thought.

Yes it should but, as I pointed out, since it is an opinion it is not morally binding on our consciences to accept it. The only argument supporting the position expressed in 2267 is that JPII said it; it is not supported by what the Church taught in the past or even what she teaches today. When it is pointed out that the strongest argument is in fact merely an opinion, the objections to the use of the death penalty become extremely difficult to maintain. That is the biggest problem that the article by Cardinal Dulles presents.

Ender

 

[adrift]

It is interesting that this part of the Catechism has more than one way that it is stated and that it can be found on the Vatican Web site in two forms.

When you didn’t know where the quote was from you agreed that it was inaccurate; now that you know it is from the Catechism you’ve changed your mind? And what do you mean that it isn’t presented as part of history? That is precisely what “traditional” means

I am afraid you misunderstood me. I knew full well where the quote came from what I was questioning was that it was not in the article. What I was agreeing with you is that it was not part of the traditional understanding. I did not make it clear that I did not believe that is what it was saying. It is not claiming that it is part of tradition. It does say that the traditional understanding of the right of the state to execute does not preclude the idea of execution being undesirable as there are other means to obtain the same goal. This is not a change more of a development.

the traditional teaching - never included the restriction mentioned in 2267.

2267 does not say it does. It is appealing to tradition in order to show that the modern opinion does not go against what was traditionally taught.

 

[d97c]

Look at how the Catechism of the Council of Trent deals with this:

catholicapologetics.info/thechurch/catechism/TenCommandments-fifth.shtml

Specifically it says:
Execution Of Criminals
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, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment* is 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. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.

My primary problem with the argument of the anti death penalty folks is they argue that the “why of course the Church has always been against the death penalty,” when the anti death penalty USE teaching has been from primarily John Paul 2. Popes before that supported the right of the state to inflict the punishment.

religioustolerance.org/bem01.htm

and look at Innocent I

The first Pope to take a stand in favor of the death penalty was Innocent I in the year 405. In response to a query from the Bishop of Toulouse, Pope Innocent I based his position on Paul’s Letter to the Romans. He wrote:

It must be remembered that power was granted by God [to the magistrates], and to avenge crime by the sword was permitted. He who carries out this vengeance is God’s minister (Rm 13:1-4). Why should we condemn a practice that all hold to be permitted by God? We uphold, therefore, what has been observed until now, in order not to alter the discipline and so that we may not appear to act contrary to God’s authority.

(Innocent 1, Epist. 6, C. 3. 8, ad Exsuperium, Episcopum Tolosanum,
20 February 405, PL 20,495

So clearly WHETHER the state should USE the penalty is a matter of prudential, and I believe that if we had caught Hitler or if we catch Bin Laden, capital punishment is proper and a proportionate punishment.

 

[Brendan]

Maybe you stopped reading after the first book… Even if I had razored out that “man shall shed the blood of man who shed’s blood”, I still would have come to other passages like “Thou shalt not kill” and “let he who is without sin cast the first stone” and the ever-popular "love your neighbor as yourself."Peace!

Rememer that “Thou shall not kill” (the more literally translation would be “Thou shall not murder”) must be understood as the Church teaches it.

The correct use of the Capital Punishment is actually a fulfillment of the 5th Commandment. Here is the Council of Trent on the 5th Commandment

Execution Of Criminals

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, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment is 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. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.

As Catholics, we cannot hold that Capital Punishment is intrinsically wrong, only that it should be used rarely.

It cannot itself be a moral evil, because God Himself did issue it as a command, and God cannot order a moral evil. Therefore, we as Catholics must accept that there ARE circumstances where it is not only acceptable, but a moral requirement.

We look to the Church for those guidelines, and the Church has stated that it should be done rarely and when other means are not effective.