The Death Penalty, a new twist

[vz71]

perhaps it might be more fruitful to table the discussion regarding prudential decisions versus doctrine and focus, for now, on what we understand the Catechism to say.

My contribution to this thread, so far, has focused on what I believe to be a profound weakness in the argument/concept that the death penalty is not punishment. In fact, I’ve tried to outline why an attempt to separate the death penalty from the concept of punishment (in particular the retributive end of punishment) would result in the death penalty, or any other criminal penalty, becoming an immoral action.

Then I guess it is a good thing that the CCC has not directly said one way or the other if it is to be considered a punishment.

What it has done is specify it is an option once the guilt and responsibility of a crime has been determined, and restrict the usage of it.

One can infer that it is considered punishment simply because of the specification that guilt must be determined before it can come into play.
Or one can infer it not, because of the restrictions imposed and the specifications of punishment in the previous paragraph.

In either case, the CCC is silent, and I imagine we are free to consider it punishment or not.

 

[Verbum_Caro]

Hi vz,

Then I guess it is a good thing that the CCC has not directly said one way or the other if it is to be considered a punishment.

Not in so many words. My point is though, that the only moral and reasonable position is that if the death penalty is used at all, it certainly must be “punishment”, and specifically retributive punishment.

In fact, the 1994 version of the CCC (not the official version, of course) rendered it thus:

2266 (old version) Preserving the common good of society requires rendering the aggressor unable to inflict harm. For this reason the traditional teaching of the Church has acknowledged as well founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty. (my emphasis)

This is consistent with Evangelium Vitae 56:

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. (emphasis mine)

Again, the death penalty is recognized as punishment.

The point is that not admitting the death penalty is punishment, or attempting to divorce it, or any other of the ends of punishment, from the primary retributive end is an untenable position. This is what I have been attempting to show, and if you scroll back to my first post on this thread you’ll see it was in response to Newbie’s assertion that the Church to the death penalty being imposed as punishment, and my attempt to offer a clarification of that assertion. An attempt to divorce the death penalty from the concept of punishment leads to quite a few difficulties – not the least of which is the conclusion that Newbie seemed to draw that the death penalty can be used as means to an secondary end (protection of society), without reference to the primary end (retribution).

What it has done is specify it is an option once the guilt and responsibility of a crime has been determined, and restrict the usage of it.

Yes, I think you are right.

One can infer that it is considered punishment simply because of the specification that guilt must be determined before it can come into play.
Or one can infer it not, because of the restrictions imposed and the specifications of punishment in the previous paragraph.

My argument is that this is not so, or at least, that the second possible inference you describe would be an ill considered one. You seem to indicate that such an inference could be made from the ends of punishment listed in the previous paragraph. I have not yet mentioned the death penalty in relation to these four ends, but I think it would be useful for us to take a look at it – would you be interested in doing so?

In either case, the CCC is silent, and I imagine we are free to consider it punishment or not.

I’m not sure the CCC is silent on the issue (death penalty as species of punishment) – I think I’ve been showing how the death penalty is being fit into the context of punishment. But even were the CCC silent, I’m not sure that would give us license to ignore sound reason or the weight of the Catholic intellectual tradition regarding this concept.

Because of this I could say that in a certain respect we are free to not consider the death penalty as punishment, but we wouldn’t be correct (in a similar way we are free to consider a horse a handbag!) Perhaps what you mean is that we are free to consider the death penalty as poor punishment*, or bad punishment, *or a punishment of last resort, or even unjust punishment (but not unjust, at least, for not being punishment!).

I’m interested in your thoughts. Thank you for the conversation.

VC

 

[pnewton]

Correct.

But the CCC is doctrine. As I said earlier, we are not free to pick and choose the teachings we live by.

It is not infallible, though. It does allow for a limited application of the death penalty. What has always bothered me is the statement made both in the Catechism and by John Paul that is one of the premises accepted as fact that is crucial to deny the death penalty entirely, that is that in modern society we now have the ability to lock people up safely for life.

“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”

This statement is not doctrine it is a judgement of the state of today’s society. Not once have I ever seen on piece of evidence that this is true. It has merely been stated as fact in a vacuum of documentation.

I challenge anyone to find any evidence which any Catholic has used to accept this idea as an axiom, critical to the formulation on the death penalty.

My opinion is only my own, but I at least have dealt with criminals for two decades. This axiom is false. Criminals escape, murder both inside and outside the prison and they still quite often pose a danger to others.

 

[vz71]

My opinion is only my own, but I at least have dealt with criminals for two decades. This axiom is false. Criminals escape, murder both inside and outside the prison and they still quite often pose a danger to others.

Is it possible to claim of a statement addressing possibilities as an axiom?

 

[vz71]

Perhaps what you mean is that we are free to consider the death penalty as poor punishment*, or bad punishment, *or a punishment of last resort, or even unjust punishment (but not unjust, at least, for not being punishment!).

I’m interested in your thoughts. Thank you for the conversation.

VC

Well certainly the fear induced when the sentence is handed down would be punishment. However I do not see where the death itself fits into any of the criteria listed in 2266.
As I said before, death does not redress disorders, it is nor expiatory, it is not medicinal, nor does it contribute to correction.

If this can be explained, then I would have no problem with death being a form of punishment. But as it sits right now, I am viewing it as an option when there is no other means.
I am not certain there is any crime worthy of death.
But I am certain there are circumstances that require it…criminals too dangerous to be kept alive without putting others in danger.

 

[pnewton]

Is it possible to claim of a statement addressing possibilities as an axiom?

I see what you are asking. yes and no. If what was meant that we currently have the technology that if used we could safely lock up, then that could be false, although necer provably false as one can not prove a negative.

If what is meant that maybe we are able, maybe we are not able, then that is true of course. However, if we are not, the conclusion drawn on the application of the death penalty is illogical. The more appropriate conclusion would be that the death penalty can be suspended when we arrive as a society to the point we can safeguard society without capital punishment.

 

[vz71]

I see what you are asking. yes and no. If what was meant that we currently have the technology that if used we could safely lock up, then that could be false, although necer provably false as one can not prove a negative.

If what is meant that maybe we are able, maybe we are not able, then that is true of course. However, if we are not, the conclusion drawn on the application of the death penalty is illogical. The more appropriate conclusion would be that the death penalty can be suspended when we arrive as a society to the point we can safeguard society without capital punishment.

I see no problem believing that we can lock someone away forever. The technology necessary is there. The application of the technology is of issue.

 

[pnewton]

I see no problem believing that we can lock someone away forever. The technology necessary is there. The application of the technology is of issue.

But it is a technological question, not a question of doctrine. Again, I would like to see anywhere that experts in the field agree that we can incarcerate people so well.

 

[Verbum_Caro]

vz, thanks for the response, I’ll continue to explain what I think is operating here.

I do not see where the death itself fits into any of the criteria listed in 2266.
As I said before, death does not redress disorders, it is nor expiatory, it is not medicinal, nor does it contribute to correction.

Here we have moved on to an analysis of how the death penalty as punishment measures up against the ends of punishment.

It is important, I think, to understand that those four things – what you called criteria – listed in 2266 correspond to the traditional **four **(sometimes listed as three) **ends of punishment. **

Again these ends are:

1)RETRIBUTIVE (or vindicative*)
2)CORRECTIVE (or rehabilitative)
3)DETERRENCE
4)PROTECTION OF SOCIETY
The CCC states these as:

1)Redressing the disorder
2)Correction
3)Defending public order
4)Protecting people’s safetyAnd thus we have this outline:

Former Wording| Modern Wording
Retributive| Redressing the disorder
Corrective| Corrective
Deterrence| Defending public order
Protection of society . | Protecting people’s safety.
As I said before, the first end on the list is the primary end and is intrinsic to any just punishment. Any punitive action must be ordered to this primary end, and it defines it’s scope. The retributive end of punishment must also be proportional to the gravity of the crime.

The remaining secondary ends (we could call them effects) of punishment must be based upon the retributive in order to be just and moral. The ideal punishment would encompass all of them; but the remaining three are effected to greater or lesser degrees, depending on the situation.

What is of crucial importance at the outset is to see that if any of the secondary ends are being sought (say, for instance, protecting society) that end must be based upon the primary end of retributive punishment. Do you see why this is so? I have been attempting to show why.

If the person hasn’t done something wrong, and gravely wrong, in the first place it would be immoral to put them to death as a means of protecting society. We can’t put to death someone merely because they are likely to kill someone. We couldn’t, for instance, put to death someone guilty of tax evasion because their psychological profile indicates they are likely to kill. It is why we must sure, as the Catechism points out, that the person is guilty of a crime before they are executed, and not simply a threat to society. Furthermore, they can’t be guilty of just any crime (jaywalking?) but must be guilty of a capital crime.

Now, just because something is assigned as a capital crime doesn’t necessarily mean death is a proportional punishment. The state could err on that. What you might want to hold is that you don’t think any crime whatsoever could be proportional to the punishment of death. That is not what I am concerned with at the moment. What I am concerned with is that if that is the case, *if the death penalty isn’t proportional to a crime *(or any crime!) then it would be immoral to impose the death penalty **in a juridical way, **even if the person is a threat to society.

vz71:

as it sits right now, I am viewing it as an option when there is no other means.

There is a problem with this view, at least as it is expressed. And the problem stems from divorcing the death penalty (or any other punishment) from the retributive end. We can’t incarcerate someone, fine them, remove privileges, or impose death simply as a means to obtain one of the secondary ends of punishment. They must have done something to deserve the incarceration, or the fine, or the loss of privileges, or death.

vz71:

I am not certain there is any crime worthy of death.
But I am certain there are circumstances that require it…criminals too dangerous to be kept alive without putting others in danger.

Yes, like I said above you might question whether or not the death penalty can ever be legitimate retribution. But I don’t think the Church does so. She, can’t in fact, given that she thinks the death penalty could *hypothetically *be used. If it can be used at all as a juridic act, even if only in very limited circumstances of protecting society, then it must be based upon the concept of retribution.

In closing I want to note what I believe to be two very important points that might be helpful to you:

1. Retribution is not restitution. And it is easy to confuse these two things. Although sometimes restitution (giving back what has been taken, or its equivalent) is a component of retribution, retribution exceeds this. So it is a mistake to argue, for instance, that a murderer’s death doesn’t bring back the victim or compensate the victim’s family. That would be restitution, which, really is impossible in the case of murder.
2. The death penalty is a juridic act of the state. We aren’t talking about some other sort of state sanctioned killing (whatever that might be), but rather an adjudicated, reasoned process by which it is determined to put a person to death. Excluded then are emergent situations such as a prison escape, or an attack on a guard, or some other sort of desperate scenario (the prison is cut off from food supplies and starvation looms). These types of situations call for the application of a different moral analysis.

I hope I’ve given you some things to consider, and that it is helpful in moving the discussion forward. Thanks again for engaging in it.

VC

*vindicative *not *vindictive. In fact, a good argument against the use of the death penalty, in my opinion, would be that it may have degraded (in certain times and places) to a vindictive act, i…e. revenge, and isn’t truly a vindicative act. If so, it would be impermissible use.

 

[Verbum_Caro]

vz, thanks for the response, I’ll continue to explain what I think is operating here.

Here we have moved on to an analysis of how the death penalty as punishment measures up against the ends of punishment.

It is important, I think, to understand that those four things – what you called criteria – listed in 2266 correspond to the traditional **four **(sometimes listed as three) **ends of punishment. **

Again these ends are:

1)RETRIBUTIVE (or vindicative*)
2)CORRECTIVE (or rehabilitative)
3)DETERRENCE
4)PROTECTION OF SOCIETY
The CCC states these as:

1)Redressing the disorder
2)Correction
3)Defending public order
4)Protecting people’s safetyAnd thus we have this outline:

Former Wording| Modern Wording
Retributive| Redressing the disorder
Corrective| Corrective
Deterrence| Defending public order
Protection of society . | Protecting people’s safety.
As I said before, the first end on the list is the primary end and is intrinsic to any just punishment. Any punitive action must be ordered to this primary end, and it defines it’s scope. The retributive end of punishment must also be proportional to the gravity of the crime.

The remaining secondary ends (we could call them effects) of punishment must be based upon the retributive in order to be just and moral. The ideal punishment would encompass all of them; but the remaining three are effected to greater or lesser degrees, depending on the situation.

What is of crucial importance at the outset is to see that if any of the secondary ends are being sought (say, for instance, protecting society) that end must be based upon the primary end of retributive punishment. Do you see why this is so? I have been attempting to show why.

If the person hasn’t done something wrong, and gravely wrong, in the first place it would be immoral to put them to death as a means of protecting society. We can’t put to death someone merely because they are likely to kill someone. We couldn’t, for instance, put to death someone guilty of tax evasion because their psychological profile indicates they are likely to kill. It is why we must sure, as the Catechism points out, that the person is guilty of a crime before they are executed, and not simply a threat to society. Furthermore, they can’t be guilty of just any crime (jaywalking?) but must be guilty of a capital crime.

Now, just because something is assigned as a capital crime doesn’t necessarily mean death is a proportional punishment. The state could err on that. What you might want to hold is that you don’t think any crime whatsoever could be proportional to the punishment of death. That is not what I am concerned with at the moment. What I am concerned with is that if that is the case, *if the death penalty isn’t proportional to a crime *(or any crime!) then it would be immoral to impose the death penalty **in a juridical way, **even if the person is a threat to society.

There is a problem with this view, at least as it is expressed. And the problem stems from divorcing the death penalty (or any other punishment) from the retributive end. We can’t incarcerate someone, fine them, remove privileges, or impose death simply as a means to obtain one of the secondary ends of punishment. They must have done something to deserve the incarceration, or the fine, or the loss of privileges, or death.

Yes, like I said above you might question whether or not the death penalty can ever be legitimate retribution. But I don’t think the Church does so. Nor can She, I beleive, given that she thinks the death penalty could *hypothetically *be used. If it can be used at all as a juridic act, even if only in very limited circumstances of protecting society, then it must be based upon the concept of retribution.

In closing I want to note what I believe to be two very important points that might be helpful to you:

1. Retribution is not restitution. And it is easy to confuse these two things. Although sometimes restitution (giving back what has been taken, or its equivalent) is a component of retribution, retribution exceeds this. So it is a mistake to argue, for instance, that a murderer’s death doesn’t bring back the victim or compensate the victim’s family. That would be restitution, which, really is impossible in the case of murder.
2. The death penalty is a juridic act of the state. We aren’t talking about some other sort of state sanctioned killing (whatever that might be), but rather an adjudicated, reasoned process by which it is determined to put a person to death. Excluded then are emergent situations such as a prison escape, or an attack on a guard, or some other sort of desperate scenario (the prison is cut off from food supplies and starvation looms). These types of situations call for the application of a different moral analysis.

I hope I’ve given you some things to consider, and that it is helpful in moving the discussion forward. Thanks again for engaging in it.

VC

*vindicative *not *vindictive. In fact, a good argument against the use of the death penalty, in my opinion, would be that it may have degraded (in certain times and places) to a vindictive act, i…e. revenge, and isn’t truly a vindicative act. If so, it would be impermissible use.

 

[Ender]

In either case, the CCC is silent, and I imagine we are free to consider it punishment or not.

The fact that the Catechism makes no explicit reference does not mean that we are free to consider capital punishment to be … punishment. As I said in an earlier post, 2267 is based on Evangelium Vitae 56 and here is what JPII said in that document:
*
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.*

It is simply undeniable that the death penalty is being addressed within the context of punishment and in fact makes no sense at all in any other context. A person may be executed only if he has committed a crime that merits such punishment.

Ender

 

[CWBetts]

Don’t just ignore the part that says executions should only be done in absolute necessity to protect society. Meaning in the United States, the death penalty is unnecessary.

 

[vz71]

But it is a technological question, not a question of doctrine.

It is a doctrine that has hinged upon our ability.

If we can prevent a criminal from being a danger to others lives forever rather then put them to death, then we our obligated to.

 

[vz71]

Don’t just ignore the part that says executions should only be done in absolute necessity to protect society. Meaning in the United States, the death penalty is unnecessary.

One would have to prove that the United States Judicial system is capable of keeping a dangerous criminal from endangering the lives of others forever.

There is compelling evidence that this is not the case.

 

[vz71]

vz, thanks for the response, I’ll continue to explain what I think is operating here.

If you wish to explain why (or why not) the death penalty is punishment, please do so.
I am not certain a lecture on what exactly is punishment is necessary.

 

[pnewton]

It is a doctrine that has hinged upon our ability.

If …

Yes. And that hinging will always result in an “if” that we can disagree with. I have yet seen any evidence to back the idea that we have this ability. I have asked a dozen times in five years.

 

[vz71]

Yes. And that hinging will always result in an “if” that we can disagree with.

Agreed.

The technology is there, but the system to utilize it is lacking.
However, with the change of but a few laws, the system we have would then be more then capable.

 

[Verbum_Caro]

If you wish to explain why (or why not) the death penalty is punishment, please do so.

To put it in simple terms*:

A. If the death penalty is allowed in order to secure a secondary end of punishment, namely, protection of society,

B. And since all secondary ends of punishment may only be morally sought in conjunction with the primary end of punishment, which is retribution,

C. And since retribution is not merely an end of punishment but is, itself, intrinsic to it, or rather quintessentially “punishment”, then

D. For the death penalty to be morally used it at all it must have the character of punishment.

My prior posts have been an explanation of parts B and C.

VC

We can state it even more simply: both the phrases “death penalty” and “capital punishment” accurately describe the action. * Evangelium Vitae, which is referenced by the Catechism in this discussion, explicitly notes that the death penalty is punishment. The end.

 

[vz71]

C. And since retribution is not merely an end of punishment but is, itself, intrinsic to it, or rather quintessentially “punishment”,

However, it is quite possible for there to be a condition intrinsic to punishment that is not, in itself, punishment.

then

D. For the death penalty to be morally used it at all it must have the character of punishment.

That actually runs counter to the CCC, which outlines precisely when the death penalty can and cannot be used.
It says nothing of ‘character of punishment’ but rather specifies the safety of others.

*We can state it even more simply: both the phrases “death penalty” and “capital punishment” accurately describe the action.

They may well describe the idea, that of putting to death a guilty criminal.
But it still does not line well with any of the conditions outlined within 2267.

Evangelium Vitae, which is referenced by the Catechism in this discussion, explicitly notes that the death penalty is punishment. The end.

True, but as has been pointed out multiple times within this same thread, the document does not carry the weight and authority of doctrine.

 

[Verbum_Caro]

However, it is quite possible for there to be a condition intrinsic to punishment that is not, in itself, punishment.

I think you misunderstand, or I ineffectually communicated. Please read my prior posts (and perhaps respond to them?). The retributive end of punishment is not a condition, it is essential to all punishment. In fact, in everyday language when someone says “punishment” they mean, usually, retribution.

vz71:

That actually runs counter to the CCC, which outlines precisely when the death penalty can and cannot be used.
It says nothing of ‘character of punishment’ but rather specifies the safety of others.

The Catechism reproduces the classic ends of punishment. Safety of others is an end of punishment. The Catechism is stating that the death penalty is punishment. So did *Evangelium Vitae. *It is a consistent view throughout our intellectual tradition.

Simply put, again, imposing the death penalty without it being punishment would be immoral.

vz71:

They may well describe the idea, that of putting to death a guilty criminal.
But it still does not line well with any of the conditions outlined within 2267.

The conditions of 2267 describe when the death penalty, as a form of punishment may or may not be used.

vz71:

True, but as has been pointed out multiple times within this same thread, the document does not carry the weight and authority of doctrine.

That the death penalty is punishment is not doctrine. That isn’t the “stuff” of doctrine. But it is sound reasoning*, *and consistent with the principles of moral theology, and consistent with the mind of the Church.

I’m not sure, exactly, why you seem to be resistant to it? It doesn’t militate against your own views on the use of the death penalty (I don’t think?) nor does it militate against the Catechism’s conditions for the use of the death penalty. In fact, it preserves the very notion that the Catechism could have conditions on the death penalty instead of complete ruling it out (and, I might add, preserves your own notion that it could be used, or at least it preserves it as an moral option).

If the death penalty isn’t punishment of the guilty than it is immoral under any conditions.

I am hoping that you will see that this isn’t a matter of simply not feeling like we want to call the death penalty punishment. Perhaps you object to what you perceive as the misuse of the death penalty, or perhaps you equate “punishment” with “revenge”, and because the death penalty should never be revenge you also wish it to not be punishment. But, again as I have outlined in my previous posts, if the death penalty isn’t punishment there is a grave moral problem in using it.

Perhaps it might be beneficial to our conversation if you respond to one or two of my prior posts regarding the ends of punishment and why it is morally necessary to seek the primary end of retribution when seeking any other end?

God bless,
VC