The Death Penalty According to Pope Francis
1. “We must strongly affirm that capital punishment is an inhumane measure, which wounds personal dignity, whatever the operative mode of the penalty. Voluntarily deciding to suppress a human life, which is always sacred in the eyes of the Creator, and of which God is the final and true judge and guarantor, is in itself contrary to the Gospel.”1 Thus Pope Francis recently expressed himself on the occasion of the 25th anniversary of the publication of the New Catechism. This reflection is not new. The discourse of October 2017 simply summarizes the ideas largely developed by the Sovereign Pontiff in a letter from 2015,2 which references two other documents from 2014.3
2. Francis believes that his predecessor John Paul II had already condemned the death penalty in his Encyclical Letter Evangelium Vitae (in No. 56) as well as in the Catechism of the Catholic Church (in No. 2267).4 He includes in this condemnation that of a life sentence in prison, which he said was “a death sentence in disguise.”5 This is why the recent discourse of October 2017 does not encourage a revision of the New Catechism of 1992. It simply underlines that this disapproval of the death penalty finds in the Catechism of John Paul II “a more appropriate and more fitting place” with the finality of doctrine, which must be placed in “everlasting love.” If there is a revision, it ought to consist in developing the doctrine in order to preserve it, and in “abandoning statements related to these arguments that now seem in reality contrary to a new understanding of the truth.” This position and these arguments experienced their hour of glory during the period prior to the Second Vatican Council, but they are now contrary to the “evolution of the conscience of the Christian people, which is moving away from a consenting attitude toward a penalty which heavily wounds human dignity.”
3. We can reduce to four the fundamental arguments that the pope uses to justify this evolution of conscience.6 First, “human life is sacred because from its beginning, from the first instant of its conception, it is the fruit of the creative action of God and, from that moment, man, the unique creature on earth that God has willed to belong to Himself, is an object of the personal love of God. […] Life, and especially human life, belongs only to God. Even he who kills does not lose his personal dignity and God Himself is the guarantor.” The proof which is given is that God did not wish to punish Cain for his murder by taking away his life. From this point of view, the death penalty would logically appear to be contrary to the Fifth Commandment.
4. Second, the infliction of death on one who is guilty could not amount to just punishment for two reasons. First of all, the death penalty cannot be justified as a “legitimate defense” on the part of society, by analogy with legitimate self-defense; indeed, “when the death penalty is applied, we kill persons not for current assaults, but for wrongs committed in the past” and this is why self-defense would not pertain here, since it would be applied “to persons whose capacity to commit crime is not actual, since they have already been rendered incapable, and who have been deprived of their liberty.” Subsequently, the death penalty cannot be justified as an act which reestablishes the order damaged by the injustice, as “we will never do justice by killing a human being…The death penalty does not restore justice to the victims, but only elicits a desire for revenge.”
5. Third, the death penalty is contrary to the Divine Mercy. “By the application of capital punishment, the convict is denied the possibility of reparation, or of correcting the injury caused; the possibility of confession, by which man expresses his interior conversion; and contrition, passage towards repentance and atonement, in order to reach an encounter with the Merciful Love of God which heals.” In this line of thought, the death penalty also implies “a cruel, inhumane, and degrading treatment, just like the anguish which precedes the moment of execution and the terrible wait between the moment of the sentence and the application of the penalty.”
6. Fourth, “it is impossible to imagine that today States do not have another method than capital punishment to defend the lives of others against an unjust aggressor” 7 because “there are means to effectively punish crime without permanently depriving the person who has committed it of the possibility to redeem himself.”8
7. Finally, let us add the reason why a life sentence in prison is a “hidden” or “disguised” death penalty. The pope sees it as an attack on hope: “A life in prison, as well as sentences which, by their duration, make it impossible for the condemned to imagine a future of liberty, can be considered as hidden death penalties since one does not deprive the culpable party of his freedom by these means, but seeks to deprive him of hope.” This is why “recently, in the Vatican Penal Code, life imprisonment has disappeared.”9
8. To sum it up, the death penalty is considered “inadmissible,” in the eyes of Pope Francis, for reasons of a double argument of authority (it is condemned by the New Catechism and by the Encyclical Evangelium Vitae) and because of a fourfold argument of reason: it violates the sanctity of created life; it is unfair and ineffective in reestablishing justice; it is constituted as an obstacle to mercy; and other means of punishment are already sufficient.
9. Yet, it is an evident fact that it was always held as just, even in the most Christian societies, except by a certain number of generally modern theorists, that the political authority punish certain crimes with death. The proof of Revelation confirms this natural sense of the common good. When the Decalogue forbids killing,11 it implies unjust killing. We see clearly that the Old Testament prescribes the death penalty in many instances.12 On this point, the New Testament has not abolished the Old. St. Paul, speaking of political authority, refers to the sword, instrument of the death penalty: “Authority is for thee the minister of God, for the sake of good. But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is God’s minister: charged to chastise him that doth evil.”13 In the City of God, St. Augustine commented on these passages of Scripture as follows: “The same divine authority who says: Thou shalt not kill has established certain exceptions in defense of killing man. God then ordains, whether by the general law, or by a temporary and private precept, that the death penalty be applied. However, this is not truly homicide, which owes its administration to authority; the minister of the penalty is only an instrument, like the sword with which he strikes. Also, they have in no way violated the commandment Thou shalt not kill, those who, by order of God have declared war, or who, in the exercise of public authority have, in conformity to the divine laws, that is to say in conformity to the decision of the most just reasons, punished criminals.”14
10. Thus Pope Innocent III only defends a biblical and traditional truth when he proposes to heretics who wish to enter into the Church a profession of faith holding, among other truths, that “secular power may, without mortal sin, exercise a judgment of death provided it chastises by righteousness and not by hatred, with wisdom and not with haste.”15 Leo X similarly condemns Luther’s proposition that “burning heretics is contrary to the will of the Holy Ghost.”16 Leo XIII, when condemning duels, recognizes the right of public authority to inflict the death penalty.17 Finally, Pius XII declares with an extremely remarkable precision: “Even when it comes to executing one condemned to death, the State does not have rights over the life of the individual. It is then reserved to the public authority to deprive the condemned of the possession of life, in expiation of his fault, after which, by his crime, he has already renounced his right to life.”18
11. St. Thomas19 thought that the death penalty could be legitimized, even by natural law, without calling upon the proof of supernatural revelation. This legitimization results from two principles, each absolutely necessary to the other. The first20 is the necessity of the common good. Just as one may, in order to save the body, amputate a putrid limb which threatens the whole, so too, for the good of all, can one amputate from the social body one of its particular members when this member is a danger for all, if only because of the type of crime which his example allows if he is not sufficiently punished. It is true that, in the social body, those who are referred to analogically as the “members” of society are persons and, hence, they are not part of society, which is a whole of order, in the same way that members are part of the body, which is a physical whole.21 Indeed, this good, which is their life, belongs firstly to God, and not to the State, except to the extent that the authority presiding over the State is the minister of God. It follows that the law of the State cannot prevail over that of God, which is the foundation of all laws, and Who has given life to each individual. If we wish to justify the death penalty, we must introduce another principle,22 according to which, by crime, man is deprived of his dignity of being endowed with reason and freedom: “By sin man departs from the order prescribed by reason; this is why he falls from his human dignity which consists in being born free and existing for himself; he thus falls into servitude which is similar to that of the beasts, so that one may dispose of him according as he is useful to others.” In using his liberty against nature and against God, man leads an inauthentic life. He therefore deserves a punishment in the very order of what he has corrupted. It then belongs not only to God, but also to human authority, who is the minister of God, to deprive him of the good of corporal life, of which he has lost the use. It is indeed a principle underlined by St. Thomas that “all those who rebel against an order of things must normally be repressed by that order and by its principle.”23 Consequently, the one that seriously endangers the life of others merits to be himself deprived of life.
12. As we have shown above, Pius XII speaks differently, by calling a “right to life,” of which the criminal would be deprived prior to the intervention of the authority which would then deprive him only of his life: “It is reserved to public authority to deprive the condemned of the good of life, in expiation of his fault, after his crime has already deprived himself of his right to life.” In 1952, we (were) in the aftermath of the World Wars and the birth of totalitarianism. In these times of Cold War, the Holy Father (intended) to defend individuals against State control. He uses language appropriated to the circumstances. It remains true, with this, that in all rigor of terms, no individual has a “right” in the strict sense over his life. For life is a gift from God and man possesses only the use of it. Eight years earlier, the same Pius XII declared: “Man is not the owner, the absolute master of his body, he is only the usufructuary”24 […] “As long as a man is not guilty, his life is untouchable; thus, all acts tending directly to destroy it are illicit, whether that destruction is understood as an end or a means for that purpose, whether it is an embryonic life or one in full development, or one already arrived at its end. God alone is master of the life of a man who is not culpable of a fault leading to the death penalty.”25 Authority, as minister of God, becomes, in turn, master of a man’s life only when he is guilty of such faults. But this restriction is not based on a strict and absolutely fundamental right that the individual possesses over his own life. It is explained because it is above all God who gives life to man, not the State. “Without doubt, man is by his nature destined to live in society, but, as reason teaches, in principle, society is made for man and not man for society. Not from it, but from the Creator, man holds the right over his own body and his life, and it is to the Creator that he will give an account for the use he has made of it. It follows that society cannot directly deprive one of this right, as long as he has not incurred such punishment as a sanction for a serious crime proportionate to that punishment.”26 This privilege (and not this right, in the strict sense) that man possesses, he holds directly from God, and not from the State. And it is thus God and not the State, who can decide in what measure it is appropriate to take it from him. This being said, circumstances led the pope to speak of a “right” in a broader sense, to protect the individual against the emergence of totalitarianism in the first half of the 20th century.
13. The doctrine of the Church, confirmed by the enlightenment of theological reason, establishes neither more nor less than, because of natural law, public authority has the right to inflict the death penalty. This does not mean that the same natural law requires the authority to exercise this right, let alone determine the cases where this exercise would be enforced. In practical terms, the death penalty will always be, in the context of legislation, a determination of the positive human law, of the civil law, subjected consequently to modification, evolution, and limitation. It is therefore possible, and it would not be illegitimate, to argue that this type of punishment is not appropriate in a given context, even to claim, in terms of civil law, the abolition of it. All of this is a matter of prudence. But the fact remains that the public authority still has the duty to maintain the death penalty or to return to it, if there is need to do so. And if the circumstances request that it not be exercised, it belongs to the same authority to make that call. Nevertheless, those who argue in favor of the abolition of the death penalty have the difficulty of trying to prove that it is contrary to the natural law, or at least, when they do not have a very clear idea of this law (which is frequent), what they call the dignity of the human person or the unconditional value of life, as a “right” understood this time in a subjective sense, far removed from the thought of Pius XII. These arguments are not correct. The death penalty is in conformity with the natural law. By contrast, there is the positive determination of this law which takes place with the civil law. If it is not illegitimate to call for the abolition of the death penalty, it would be wrong and worthy of condemnation to do so in the name of the natural law itself, or in the name of the Gospel and of charity, which cannot deny this natural law.
14. It cannot validate itself upon the teachings of John Paul II. These distinguish between the legitimacy of the principle of the death penalty and the opportunity of its exercise in the context of modern societies. Number 56 of Evangelium Vitae says precisely: “It is clear that the measure and quality of the punishment ought to be attentively evaluated and determined; they must not lead to an extreme measure in the suppression of the culpable person, except in cases of absolute necessity, when the protection of society cannot be possible otherwise. Today, however, following an ever more efficient organization of the penal institution, these cases are now rather rare, if not even practically non-existent.” According to No. 2267 of the New Catechism (also cited by Evangelium Vitae) it states that “if non-bloody means suffice to defend human lives against the aggressor and to protect public order and the security of persons, the authority will hold to these means, because they correspond better to the concrete conditions of the common good and are more conformed to the dignity of the human person.” Certainly, we will not go so far as to say that this teaching of John Paul II is a perfectly satisfactory echo of the Tradition of the Church. On the one hand in fact, the echo is even weakened, as the distinction between the legitimacy of the principle and the opportunity to exercise it, if it is present, remains solely implicit and John Paul II does not recall that the death penalty receives its legitimacy from the natural law because of the double principle indicated by Saint Thomas Aquinas. On the other hand, it seems even naive or irenic—in any case barely credible—to justify the abolition of the death penalty in an epoch when abortion, infanticide, terrorism, or human trafficking are on the front page of the press almost daily. When it comes to the argument of substitute punishments, it is not universally accepted. Moreover, it is doubtful if it belongs to the Church to proclaim in a manner so explicit and categorical, to decide on the circumstances of the death penalty in terms of the positive law and civil law. One cannot fail to be struck by the great sobriety with which the popes before Vatican II have treated this question, even at the beginning of the modern era: they most often limit themselves to recall the principle of the legitimacy of the death penalty at the level of the natural law, and for the rest leave a free range to prudence for the civil governments. This is what really shows the limits and the weaknesses of the preaching of John Paul II. However, it must be admitted that there is only an insufficiency, which, even if it proves to be serious, and even if it leans sharply (and indiscreetly) in favor of abolition, does not go so far as to allow the radical questioning undertaken by Pope Francis.
15. As for the four arguments of reason, in the light of the principles recalled by Saint Thomas, and used again by Pius XII, they prove ineffective and sophisticated. The first rests on the inalienable dignity of the person as well as the sacred and inviolable character of human life. It forgets that, for having been guilty of certain sins, which jeopardize the common good, man deserves to see his life taken away. It omits the essential distinction which exists between the ontological dignity, inadmissible, and the moral dignity, which is lost when man makes a bad use of his liberty. “If it is wrong in itself,” says St. Thomas, “to kill a man who retains his dignity, it could be a good action to put to death a sinner, entirely as one kills an animal; one may even say with Aristotle that a bad man is worse than an animal and is more harmful.”27
16. The second argument is that the death penalty cannot be a legitimate defense and that it cannot restore the order injured by injustice. It confuses the death penalty and self-defense. Self-defense implies a sentence of death, but the death penalty is not limited to self-defense, in the strict sense of the reaction of a victim in regard to his aggressor in the context of an actual assault. On the other hand, the death penalty may not only be defensive, but also preventive and dissuasive. When it comes to justice, it consists precisely in rendering to each one what is his due, and not solely in repairing a material damage. The death of a criminal does not materially repair his crime (it does not resuscitate his victims), but it does justice. For when a sinner harms the social order by choosing something to which he is not entitled, there is compensation by removing what he has chosen by his free will: “He who by sin has unduly followed his will, suffers something contrary to this.”28 The termination of life is in this way a just reparation and it is required by the common good of the social order.
17. The third argument forgets that mercy consists in remitting the fault committed, but not necessarily the punishment. Sacramental pardon is, moreover, accompanied by a penance, that is to say a punishment voluntarily accepted. The death penalty could be just this and could give to the condemned the occasion to redeem himself. The examples of this sort of situation are sufficiently known, starting with that of the good thief. Eternal life is incomparably more precious that temporal life.
18. The fourth argument could eventually conclude that the death penalty is no longer appropriate, but not that it is illegitimate.
19. First, the vision of the current pope represents an impiety in regard to the Tradition of the Church, accused to have odiously betrayed the Gospel. Second, it ignores the gravity of sin, which deprives the person of their moral human dignity and merits proportionate chastisement. Third, it neglects the primacy of the common good of society and of the Church, which is much more important than all personal goods. Fourth, it confuses the legitimacy of the principle and the opportunity of applying it, and thus makes morality dependent upon the evolution of the conscience of the Christian people. Fifth, and finally, it stands out even from the line hitherto followed by his predecessors since Vatican II.
20. For today’s Catholics, it is unfortunately an additional scandal after the questioning of the morality of marriage and the rehabilitation of Luther.
1 Francis, Discourse to the participants of the meeting organized by the Pontifical Council for the promotion of the New Evangelization, Wednesday, October 11, 2017.
2 ID, Letter to the President of the International Commission against the death penalty, March 20, 2015 (DC No. 2519, p. 94-96).
3 ID, Letter to the participants of the 19th Congress of the International Association of the Death Penalty and of Criminology, May 30, 2014 and Discourse to a delegation of the International Association of the Death Penalty, Thursday, October 23, 2014.
4 Letter of October 23, 2014.
5 Letters of October 23, 2014 and March 20, 2015.
6 They are detailed in the letter of March 20, 2015.
7 Letter of October 23, 2014.
8 Letter of March 20, 2015.
9 Letter of October 23, 2014.
10 Michel-Marie Labourdette, Course of Moral Theology, “Justice,” p. 100-105 (on question 2a2æ 64, article 2), Toulouse, 1960-1961; Charles Journet, The Church of the Incarnate Word, t. I The Apostolic Hierarchy, Desclée, 1955 (2nd edition, reviewed and augmented), p. 356-358.
11 Ex. 20:13.
12 Lev. 20:2; 20:9-10; 20:27; 24:16-17.
13 Rom. 13:4.
14 St. Augustine, City of God, Book I, Chapter 21, Migne Latin, t. XLI, col. 35.
15 Innocent III (1198-1215), Letter Ejus Exemplo addressed to the Archbishop of Tarragon, on December 18,1208, DS 795.
16 Leo X (1510-1522), Bull Exsurge Domine of June 15,1520, DS 1483
17 Leo XIII (1878-1903), Letter Pastoralis Officii to the Bishops of Germany and Austria, on September 12, 1891, DS 3272. The Pope indeed said that “ the two divine laws, that which has been proclaimed by the light of natural reason and that which has been composed in the Scriptures under the divine influence, formally defend that no one, outside of public cause, wound or kill a man.”
18 Pius XII (1939-1958), Address to the Histo-Pathology Congress, on September 13, 1952, Papal Teachings by the Monks of Solesmes, “The Human Body,” No. 375.
19 Summa Theologica, 1a2æ, question 94, article 5, ad 2; question 100, article 8, ad 3; 2a2æ, question 64, article 2.
20 2a2æ, question 64, article 2, corpus.
21 Cf. PIUS XII (1939-1958), Address to the Bio-Medical Union Saint Luke, on November 12, 1944, Papal Teachings by the Monks of Solesmes, “The Human Body,” No. 52.
22 2a2æ, question 64, article 2, ad 3.
23 1a2æ pars, question 87, article 1, corpus.
24 Pius XII (1939-1958), Address to the Bio-Medical Union Saint Luke, on November 12, 1944, Papal Teachings by the Monks of Solesmes, “The Human Body,” No. 48.
25 Pius XII, ibidem, n° 58.
26 Pius XII, ibidem, n° 51.
27 2a2ae, question 64, article 2, ad 3. 28. 2a2ae, question 108, article 4, corpus.
28 2a2ae, question 108, article 4, corpus.