The New York Archdiocese and the Death Penalty

The New York Archdiocese and the Death Penalty
by pragerfan

August 8, 2018

The Director of Public Policy for the Archdiocese of New York, attorney Ed Mechmann, writes a piece in support of Pope Francis' shift in Roman Catholic teaching on the death penalty, calling the Pope's change "a challenging lesson in mercy."

The new teaching promulgated by the Church runs as follows:
Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good. Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption. Consequently, the Church teaches, in the light of the Gospel, that "the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person", and she works with determination for its abolition worldwide.
I'd like to take this apart line-by-line, then we'll look at the piece itself.
Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.
It is interesting that the change in Roman Catholic teaching here seems to attack the death penalty in the United States. Let's examine a few statistics. The United States, according to some statistics, ranks fourth in the world in the number of people it executes every year. Last year, according to Wiki, the United States executed 23 people. Assuming that the Wiki data and calculations are correct, the average time prisoners were on death row was 22 years, the least being 11 years and the most being 35 years. Why does the change in teaching attack the death penalty in the United States? Because the countries that execute more people than the United States are not generally seen to possess morally "legitimate authority" because they are not free countries — for example China executed over 1,551 people in 2017 alone. Other countries include Iran and Saudi Arabia — again not the first places we think of when we think of freedom. Countries that oppress their citizens deprive themselves of legitimate authority. These statistics will be important later.

The moral foundation for the death penalty goes back to the Old Testament, to the book of Genesis. After the great Flood, in which God because of human wickedness wiped away all life from the earth, except for the righteous Noah and family, God tells Noah
Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man. [Italics mine]
God does three things here: first, He gives the the world's first moral command, essential to a civilized society: those who steal the lives of the innocent — for that is murder — must forfeit their own lives. Second, God tells us that He, God, is not the one who is going to be doing the killing — we are. Third, He gives us the reason that we must put murderers to death: because God made man in His image. In this passage alone, God foresees two very common arguments against the death penalty. First, it is argued that only God has the right to take human life — that is, imposing the death penalty means that human beings are somehow "playing God." In Genesis 9:6, God commands that man, not God, take the life of the murderer. Obviously, God Himself doesn't buy the argument that we are "playing God" or that only God can take human life. The second argument commonly brought forward is that man cannot take human life because man is made in the image of God. Again, in this verse, Genesis 9:6, God turns that argument on its head by saying that it is precisely because He made man in His image that the death penalty must be imposed for murder. More on this presently.

The last thing worth noting in this snippet is that the death penalty is labeled as "extreme." Since God commands the death penalty, and as it is the first moral command, before there was a Jewish nation, before there were the Ten Commandments — is God therefore "extreme?" When the Catholic Church says the death penalty is "extreme," what statement do they make about God who commands it? Can the death penalty be "extreme" and, at the same time God who commands it is not? We are told that this language was carefully considered — but was it? Let's keep moving.
Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes.
This is an amorphous and vague statement. How is an "ever-increasing awareness" quantified? An ever-increasing awareness on the part of whom? The Pope? Liberal theologians? What about the roughly half of Americans and millions of others around the world who support capital punishment? Are we somehow unaware of this "ever-increasing awareness?" How did half of the Roman Catholic Church in America, and all those Protestants who support capital punishment, miss the bus on this? How is "dignity of the person" quantitatively defined? Recall that Justice Kennedy legalized same-sex marriage under the auspices of "dignity." Regardless of our definition of personal dignity, where is the consideration of the dignity of the murder victim? Does not the murder victim at least share dignity of person at least equal to that of the murderer himself? How is it that in 2,000 years of Christian Tradition in which capital punishment for murder has been morally permissible, we are only now in the pontificate of Pope Francis deciding that capital punishment is "never permissible?" Is Pope Francis a wiser man than nearly all of the Church fathers, including St. Thomas Aquinas, among other great Catholic theologians? Were all of these people all wrong and Pope Francis right? What about God and the Bible? Was God wrong when He spoke Genesis 9:6, but Pope Francis is right? Clearly, there's a lot to unpack.
In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state.
What is this "new understanding?" How has it emerged? We are given none of this. What is meant by the "significance of penal sanctions?" It is now considered worse to get three squares, a cot and a toilet, than nearly starved to death in a Roman prison 2,000 years ago? The laity isn't told any of this — it's as if we're supposed to get it through osmosis — or are we accept these broad, sweeping claims "just because?"
Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.
The death penalty for pre-meditated murder has never been about the "due protection of citizens." God didn't say that man is to kill the murderer to protect other men. He said that we are to kill murderers precise because man is made in the image of God. So, the fact that others are protected — capital punishment is the ultimate deterrent because dead murderers do not murder again — is ancillary and perhaps, it could be argued, not even germane to this issue. The issue here is the perpetrator's descrecration of the image of God in man. It so happens that in the Orthodox Christian theology of iconography we have the fullness of the exact exposition of Genesis 9:6, as follows:
It is on the basis of the Incarnation of God in Christ that we believe that the honor given to a material icon passes to the person whom the icon depicts. Materiality and spirituality cannot be divorced. It is in, by and through the material that we ultimately honor the spiritual. God ultimately honors the image of Himself in man by becoming man. It this reality that Genesis 9:6 points us to : Murder is not merely the ending of a material existence. It is a sin against the entire man created in love by God in His image, thus, and this is the crux of the matter, the disregard for and destruction of the image passes to the one in whose image man is created: it is ultimately a rejection and desecration of God Himself. The murderer rejects the entirety of the order of the cosmos both external to himself and within himself.
In short, murder is the destruction of the image of God in man, and this act against the image passes to its Creator Himself: that is to say, God regards the murder of a man as if it were the murder of God Himself. Thinking of murder in this way demonstrates why God commands the death penalty for murder in Genesis 9:6. The death penalty honors the image of God — and therefore God Himself — in both the perpetrator and the victim by holding the perpetrator responsible, as a human being created in the image of God, for his actions.

We also need to deal with the claim that capital punishment deprives the guilty of the possibility of redemption. We'll assume that by "redemption" the Roman Church means salvation which is found in Christ, rather than temporal acts of remorse on the part of the perpetrator and/or forgiveness on the part of the victims' families. I would posit three responses to this claim.

First, according to the data presented in 2017, the average convicted murderer sentenced to death sits in prison for 22 years. If capital punishment deprives the murderer of the possibility of redemption — presumably by repenting of his sins, confessing, and receiving absolution and forgiveness according to the rites prescribed by the Church — what about the decades he's already had to repent while on death row? It's hard to argue with a straight face that an executed murderer never had the opportunity to repent while sitting on death row for an average of 22 years, when at any time during his prison stay he could have easily called for a priest or pastor, repented, and accepted God's forgiveness. So those who argue that the murderer is somehow deprived at the time of execution need to account for the time he's already had to weigh the gravity of his sins.

Second, murderers sentenced to death know their executions are forthcoming. Some even know the date, the time, and the hour that they will face justice. But the innocent don't know when they are going to meet God. In this way, the death penalty, while final, is actually tempered with a mercy that most other people don't enjoy. The guy who is T-boned at an intersection has no time to arrange his belongings, say goodbye to his family and friends, and to honestly reckon with God concerning his sin and acceptance of Jesus' gift of forgiveness. Those under sentence of death know months if not years ahead of time they are going to die, and therefore have the opportunity to do all of these things, up to and including the last rites, assuming that they do not first die of some other cause, in which case the death penalty becomes a moot point.

Third, the notion that death deprives the guilty of redemption limits God's redemptive power. Isaiah 25:8 says that, "He will swallow up death in victory." In the New Testament letter to the Roman Church, St. Paul writes
Who shall separate us from the love of Christ? shall tribulation, or distress, or persecution, or famine, or nakedness, or peril, or sword? As it is written, For thy sake we are killed all the day long; we are accounted as sheep for the slaughter. Nay, in all these things we are more than conquerors through him that loved us. For I am persuaded, that neither death, nor life, nor angels, nor principalities, nor powers, nor things present, nor things to come, nor height, nor depth, nor any other creature, shall be able to separate us from the love of God, which is in Christ Jesus our Lord. [Italics mine]
If it is God's will that, for reasons known to God alone, a condemned murderer is to be with Him, then that person will be with Him. This is a deep mystery which we do not understand. We do know Jesus said to the thief on the right, "Today, you will be with Me in paradise," even though that thief faced the death penalty. There is no human agency that can prevent Jesus Christ from redeeming whom He will in the way that He wishes — God is not willing that any should eternally perish — we only separate ourselves from God because of our own choice to reject Him: the contrast of the two thieves between whom Christ was crucified is instructive.
The Church teaches, in the light of the Gospel, that the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.
As I pointed out elsewhere, that the death penalty is morally inadmissible can only be inferred. This statement of moral value is found nowhere in the Old or New Testament. So it has to be concluded on some other basis. The Church contends that the death penalty is inadmissible in the "light of the Gospel" but the Gospels do not morally assess the death penalty.

It is interesting to note that the Roman Church seems to do the same with warfare and the war-fighting profession. She generally concludes, for example, that war is a "necessary evil" and should only be engaged in as a "last resort." While that's the way most people think about war, these moral assessments of warfare do not occur in the New Testament (or the Old Testament). In fact, the notion that war could only be waged as a "last resort" was unknown to the original framers — Sts. Ambrose of Milan and Thomas Aquinas — of the just war tradition taught by the Catholic Church. If the criteria for just war is satisfied, then a war is justified, regardless of whether other measures have been taken first.

In the same vein then, the Church now teaches that "in light of the Gospel" the death penalty is morally inadmissible. Many people would like to believe that because of the good things that Jesus taught, said, and did, He would have opposed the death penalty. I speculate that the Pope is projecting how he personally feels about Jesus' persona and deeds into a moral assessment of the death penalty, and concluding based on Jesus' deeds that capital punishment must never be admissible. But neither Jesus nor the New Testament writers morally assess capital punishment. Yes, Jesus did say to the rich young ruler, "you know the commandments, you shall not murder, you shall not commit adultery," etc. But unless we are to take the perverse step of morally equating the state charged with the responsibility to carry out a lawfully imposed sentence with the perpetrator receiving that sentence, we're forced to conclude that the New Testament is silent regarding the use of the death penalty by the state. Note that I do not necessarily take Romans 13:4 as an unqualified endorsement of capital punishment.

St. Thomas More said at his trial that "the maxim of the law is that silence betokens consent," so if we are to construe anything — and I am not saying we ought to construe anything — regarding what the New Testament writers believed about capital punishment, we must construe that they would have consented, not that they would have opposed. I concede that adherence to sola scriptura means that the Christian faith as defined only by the New Testament is also silent on abortion. However, early Christian writings such as the Didache (A.D. 150), morally legislate against abortion. This is one of the reasons I find sola scriptura to be a problematic doctrine. However sola scriptura is not at issue here as it is not a position held by the Roman Church. I bring this up because the New Testament itself does not morally assess capital punishment; however, other later sources do.

Now I'll touch on some of Attorney Mechmann's statements. He writes
If the Church teaches in an authoritative way that something is always forbidden (i.e., intrinsically evil), it can never later teach that it is sometimes permissible. That would be a contradiction. On the other hand, if the Church teaches in an authoritative way that something is permissible under some circumstances, it can later teach that it is forbidden under some or all circumstances. That is development, not contradiction.
What the Church is actually doing is teaching that the death penalty is permissible under some circumstances but that those circumstances no longer exist. This is precariously threading the needle, obviously begging the question of whether there is a possibility that circumstances giving rise to a moral application of capital punishment could ever again exist. If not, then there is no effective or practical difference between the claim that the death penalty is permissible under currently non-existent circumstances and the claim that the death penalty is never admissible. Pope Francis has said that the death penalty is never admissible. So barring significant changes that would bring about currently non-existing circumstances, the Church's whole line of argument regarding authoritative teaching, whether something is forbidden, or whether previous teaching is contradicted, is just a rhetorical sleight-of-hand.
We have to remember that the moral analysis of the death penalty begins with the universal moral prohibition of intentionally killing a human being...
Except that there is no such universal moral prohibition in the Judeo-Christian Tradition. The author is missing the key word innocent. The moral prohibition is against murder, that is, taking the life of an innocent human being. The most striking example of this in the Old Testament is King David taking the life of Uriah, the husband of Bathsheba. Uriah was the quintessential innocent man. King David paid dearly for his sin, even though he was eventually forgiven. However both King David and King Saul are praised for "slaying their thousands and ten thousands" in battle. King David entered battle with a clear conscience and exited battle the same way. In the Psalms we read about his heart-rending remorse regarding his murder of Uriah, but where in the Psalms do we read of his sorrow of killing enemy soldiers in battle?

If the moral prohibition is against intentionally killing a human being, instead of against murder, then the Judeo-Christian Tradition would be completely turned on its head: it would become completely pacifistic. No criminal could ever be executed, no wars could ever be fought, no actions could ever be taken — even in self-defense or the defense of one's loved ones — that might result in the deaths of people. As far as warfare is concerned, such an approach might work when your "enemy" is Winston Churchill, but against a Hitler, Mao, Pol Pot, or a death squad, it is suicide. But the Bible is not a suicide pact. There is moral killing, and there is immoral killing — and immoral killing is murder.
The Church previously taught that the death penalty could be an exception to the general moral principle against intentional killing...
Well, again, there is no moral principle against "intentional killing." The principle is against "intentional killing of the innocent", and it's not clear to me why this author continues to fail to make this basic moral distinction. Perhaps it is because even though it's not a Catholic Bible, the King James Version of 1611 has held enormous sway in the Western world over the centuries and it translated the Fifth Commandment as "thou shalt not kill." In its day, this was a correct translation, because "kill" meant what "murder" means today. The King James Version uses "kill" and "murder" interchangeably to refer to immoral killing, but when killing is not immoral it uses the word "slay," a morally neutral term (showing once again that not all killing is immoral - there is moral killing and immoral killing). Thus, King David murdered Uriah but slew thousands in battle. The Hebrew also has two words for taking a human life to denote morally different acts. However, as the centuries wore on, the meaning of words changed and "kill" has come to be a morally neutral term for the taking of a human life. Thus, "thou shalt not kill" has been understood as a prohibition against intentional killing, instead of what it originally signified, which was a prohibition against intentional killing of the innocent.

I would like to digress for a moment. The author makes a few remarks about the history of the use of torture in the Catholic Church. Torture was rarely used. Nevertheless, torture, with the sole exception of a "ticking time bomb scenario" in which gathering information from a terrorist is the only recourse to save innocent lives (and even then we must admit torture is morally ambiguous as information obtained under duress may not be reliable), is always evil. But for whatever reason the Christian tradition has had some trouble with recognizing cruelty as a great sin. As historian Norman Cohn wrote
The sins to which the Devil of Christian tradition has tempted human beings are varied indeed: apostasy, idolatry, heresy, fornication, gluttony, vanity, using cosmetics, dressing luxuriously, going to the theater, gambling, avarice, quarreling, spiritual sloth have all, at times, figured in the list.... I have looked in vain for a single instance...of the Devil tempting a human being to cruelty.
Back to the author on the death penalty: did not degrade respect for human life (which is a dubious proposition, given the common barbaric methods of execution, but there it is).
I'll close with the following.

The notion that the death penalty degrades respect for human life because of the way in which it is carried out is at best tenuous. The purpose of the death penalty is not to promote respect for the life of the perpetrator, because he has already forfeited his right to life by stealing an innocent life. The purpose of the death penalty is to do justice and promote and foster respect for the life and dignity of the innocent and the victim.

It is truly breathtaking that while there is a reference to our "natural instincts" for justice and retribution (I would submit those instincts are written on our hearts by God, not by nature or by accident), throughout Mr. Mechmann's entire essay there is not one reference to the victims of crime, their dignity, their extinguished lives, or to the often barbaric ways in which crime victims meet their deaths. Why?

For someone who promulgates this new teaching of the Church as a "challenging lesson in mercy," it is strange that there is neither mention of mercy nor justice for the victims of crime; the primary moral concern always seems to lie with the murderer. We are obligated to assuage his guilt, to ensure he has the opportunity to seek redemption (an opportunity denied to his victim), and ultimately to ensure that the condemned lives out his days in relative ease and comfort, compared to his victims who lie in their graves and whose families suffer immeasurably.

When we fail to execute the murderer whose guilt is beyond doubt, we desecrate the image of God in man, we fail to "do justice and to love mercy" (Micah 6:8), and we disobey God's first moral command to humanity in Genesis:
Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man.