Capital Punishment

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CAPITAL PUNISHMENT

The execution of a criminal under death sentence imposed by competent public authority. Unlike the act of a private person exacting revenge for a wrong done to himself or to his family, this penalty manifests the community's will to vindicate its laws and system of justice, to atone for wrongful conduct, and to deter criminal acts by others in the future. Among some primitive peoples, a popular assembly might order death not only to retaliate for murder or treason, but also to appease spirits offended by sorcery, incest, or sacrilege.

Ancient Practices. Capital punishment existed in the legal codes of the ancient Middle Eastern kingdoms. These codes commonly prescribed death for homicide and for some religious or sexual offenses. Thus, for Israel, it was declared that "whoever sheds the blood of man, by man shall his blood be shed" (Gn 9.6) and further that "you shall not let the sorceress live. Anyone who lies with an animal shall be put to death. Whoever sacrifices to any god, except to the Lord alone, shall be doomed" (Ex 22.17–19). The law of the Israelites at one time or another listed as capital crimes homicide, bearing false witness in a capital charge, kidnapping, insult or injury to a parent, sexual immorality, witchcraft or magic, idolatry, blasphemy, and sacrilege. Hebrew law clearly distinguished between voluntary and involuntary manslaughter: "When a man kills another after maliciously scheming to do so, you must take him even from my altar and put him to death" (Ex 21.14). It likewise embraced the lex talionis: "If injury ensues, you shall give life for life, eye for eye, tooth for tooth, hand for hand" (Ex 21.23–24). It is generally understood that this principle of retribution was enunciated not only to sanction stern penalties, but also to protect offenders from excessive punishments. When death was prescribed, the sentence was more often carried out by stoning, although hanging, beheading, strangulation, and burning were also used. Among the Babylonians, the Code of hammurabi distinguished between manslaughter and willful homicide and also proclaimed the lex talionis. Death and mutilation were frequent penalties. The Assyrian Code likewise mentioned death and mutilation, but it remains questionable how often such penalties were inflicted. In the Hittite kingdom, death was reserved mainly for crimes committed by slaves or for special crimes against the king.

The term capital punishment derives from caput, a word used by the Romans variously to mean the head, the life, or the civil rights of an individual. Roman law also knew the death penalty as the summum supplicium. In addition to death, Roman law looked on perpetual hard labor and banishment (interdictio aquae et ignis et tecti — denial of fire, water, and shelter) as lesser capital punishments. Banishment meant in effect a grave loss of one's civil rights or status (deminutio capitis ). During the Republic, death was imposed mainly for crimes among the military. Under the emperors, it became increasingly common as the penalty for a much wider range of offenses. Rome early embraced the lex talionis in its Law of the Twelve Tables (450 b.c.). Ancient Greece and Rome generally looked on homicide, treason, and sacrilege as capital offenses. Later Roman law put other crimes, such as arson and false coining, in the same category. The Greeks imposed death in several ways, e.g., sometimes a free man would be permitted to take poison, and a slave would be beaten to death. Roman usages included strangulation, exposure to wild beasts, crucifixion, and the culeus (drowning a condemned man tied up in a sack with a cock, a viper, and a dog).

Christian Attitudes Towards Capital Punishment. Ancient Israel had prescribed capital punishment for some crimes, but the Old Testament spoke also of divine mercy: "As I live, says the Lord God, I swear I take no pleasure in the death of the wicked man, but rather in the wicked man's conversion, that he may live" (Ez 33.11). Few took these words, however, as a restriction on the community's power to execute a justly condemned criminal. The same proved true of Christ's new teaching on the lex talionis: "You have heard that it was said, 'An eye for an eye,' and, 'A tooth for a tooth.' But I say to you not to resist the evil-doer; on the contrary, if someone strike thee on the right cheek, turn to him the other also" (Mt 5.38–39). Christians tended to hear in these words an exhortation to be quick to waive lawful rights out of love even for an erring neighbor. Along with it, however, they have recalled St. Paul's defense of civil authority: "For it is God's minister to thee for good. But if thou dost what is evil, fear, for not without reason does it carry the

sword. For it is God's minister, an avenger to execute wrath" (Rom 13.4).

Over time the essence of this traditional concept of the state as the upholder of justice and of its competence to punish with measures it deems necessary and reasonable has been accepted by the Church. At the same time, the reasons for and outlook upon capital punishment have differed over the centuries. For ease of presentation this article focuses on five more or less distinct periods.

From the Time of Jesus to the 4th Century. The earliest Christian experience at the height of the Roman Empire was chiefly that of victim. Every execution recorded in the New Testament is seen as an unjust abuse of power — the beheading of John the Baptist, the crucifixion of Jesus, the stoning of Stephen, the death of Antipas of Pergamum; not to mention the martyrdom traditions of Peter and Paul and so many others under Roman emperors from Nero to Diocletian. Capital punishment was an unsavory institution used as a blunt instrument of power-politics. Its most memorable function was providing the early Christian community with a crowd of witnesses ('martyres') who were revered for their faith and courage in shedding their blood at the hands of unjust imperial agents.

The relatively few Christian records that survive from this first period reflect the utter distaste with which the practice was generally viewed. Athenagoras of Athens declared executions to be intolerable even if in accordance with the code of justice, and Tertullian held there could be no exception to God's law against taking human life. The Apostolic Tradition, usually dated in the third century, forbade any Christian in authority from imposing a death penalty. Canon 56 of the Council of Elvira (a.d. 306) prohibited Christian magistrates from attending church services during their term of office because of the danger of their having been involved in legal bloodshed. Lactantius (c. 240–320), though ultimately inconsistent, at least in his early work insisted that no Christian could kill either in war or by being involved in capital trials, both of which were unacceptable actions for any follower of Christ, even though he generally acknowledged the right of the state to use the sword.

The Emperor Constantine to the 10th Century. With the conversion of Constantine in the fourth century leading to the adoption of Christianity as the state religion of the Roman Empire, Christians found themselves cast— willy-nilly—in the role of potential executioners. The problems this created were monumental and the stances adopted were diverse. A classical event for the study of this transitional era is the execution of Priscillian, heretical Bishop of Avila, by Emperor Maximus in Trier in 385. It is the first documented instance of Christians killing fellow Christians for heresy. Carried out with the collusion of Bishop Ithacius, it provoked outrage. Bishops Martin of Tours, Ambrose of Milan, and Sergius of Rome severed communion with Ithacius and the other bishops involved. Their protest may have had more to do with the fact that a church leader was executed by the civil authority for a religious offence than with the execution as such. In any event, the ominous event was to cast a long shadow for centuries to come.

Ecclesiastics like Ambrose and Augustine and John Chrysostom never lost sight of the fact that "the Church abhors bloodshed." In reply to a Christian governor who asked for his advice, Ambrose made it clear that, in his opinion, a Christian magistrate should avoid killing, noting that "even pagan governors commonly boast of never having executed a man" (Dudden, 1:121, n.2). This ideal was even more pronounced in augustine, although later misinterpretations long obscured this fact. Commenting on Rom 13.4, he defended severity for the sake of social order, but praised the Christian instinct to moderate juridical sternness. His advice to Christian magistrates judging heinous murder cases was to "let your indignation be tempered by considerations of humanity." As long as "the violent excess of savage men be restrained, why do you not commute your sentence to a more prudent and more lenient one?" (Ep. 133 and 134).

Despite the chaos and violence that followed the collapse of the Roman Empire and the centuries of migrations of peoples all over Europe and beyond, the ideal, though often obscured, was never obliterated. The penitential books of the 8th and 9th centuries, in dealing with capital crimes, considered them as sins to be expiated according to their seriousness, but never to be avenged by use of the death penalty. In mid-ninth century Pope Nicholas I, in a letter to the recently-converted Bulgars, actually recommended abolition as the Christian ideal: "You should save from death not only the innocent but also criminals, because Christ has saved you from the death of the soul" (quoted by Compagnoni, p. 47).

Vestiges of the earlier attitude of aversion to the use of capital punishment, even when it was theoretically justifiable, survived in church canons declaring unfit for sacramental ordination anyone who had ever imposed, carried out, or otherwise assisted in carrying out an execution.

The Hildebrandine Reform through the Middle Ages. In the 11th century the Hildebrandine (gregory vii) Reform brought with it certain readiness to incorporate the use of force into the service of the church. The Augustinian conditions and restraints on using violence and waging justified war were offset by church indulgences guaranteeing that this newly authorized kind of killing, done in the interests of the church, was not only ethically unobjectionable but was in fact the special work of God— Deus vult ("God wills it").

The two centuries from 1050 to 1250 saw significant change in church acceptance and endorsement of violence. gratian recognized and grappled with the problem in his Decretum (c. 1140). In his famous Causa 23, he tried to reconcile the earlier ideal and the current developing practice. He cited the advice of Jesus to "turn the other cheek" no less than six times in this single Causa, and went back to ponder the commandment, "Thou shalt not kill," three different times. In the end, Gratian adopted the Augustinian suggestion that these precepts of Christ were to be observed "in the preparation of the heart, not the conduct of the body." He concluded that executions could be lawfully carried out by Christians in certain circumstances. By the 13th century canonist generally agreed that the "hard sayings" of Jesus about loving one's enemies, doing good to those who hate you, endlessly forgiving sinners, and never taking revenge were best presented as spiritual advice to private individuals. In the legal forum, a more useful principle was to be found in Roman law — "vim vi repelleret." It affirmed the legality of using proportionate violence to counter unjust aggression — tit for tat, an eye for an eye, a life for a life.

On the theological side Peter the Chanter (d. 1197) was a lonely voice objecting to the trend toward justifying the killing of all manner of offenders.

This change of church policy can also be traced gradually in the formal documents of the period. In 1184 Pope Lucius III issued the decretal Ad abolendam, sometimes called the "founding charter of the Inquisition," that opened the way for the use of capital punishment as the standard remedy for dealing with recalcitrant heretics, while identifying at the same time a long list of diverse groups designated as heretics including, for the first time, the Waldenses.

It was in this same period that a group of Waldenses in 1210 seeking to be reconciled with the Church were required to affirm that: "the secular power can, without mortal sin, exercise judgment of blood, provided that it punishes with justice, not out of hatred, with prudence, not precipitation" (Denzinger, 257).

The fact that the canonists had found a way to obviate earlier ambivalence helped clear the way for Canon 3 of the Fourth lateran council in 1215, endorsing as official policy henceforth that heretics were to be handed over to the secular power for punishment after the bishops had applied all the sanctions of canon law (which itself prohibited bloodshed). Sixteen years later, Pope Gregory IX in his constitution, Excommunicamus (1231) incorporated into canon law the 1224 imperial constitution of Frederick II, acknowledging burning at the stake by the secular arm as the appropriate punishment for a recalcitrant heretic.

On the theoretical plane, in medieval times, St. thomas aquinas made his classic defense of the death penalty on the ground that "if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good" (Summa Theologiae 2a2ae, 64.2). Citing Aristotle, he argued that "by sinning man departs from the order of reason and … falls into the slavish state of the beasts" (ST 2a2ae, 64.2 ad 3). Aquinas, however, also proposed as a working jurisprudential norm that "in this life penalties should rather be remedial than retributive" (ST 2a2ae, 66.6). Thus, while upholding capital punishment in principle on grounds of retribution, social defense, and deterrence, he sounded an interestingly modern note by the priority he gave to rehabilitation as a penal aim.

The Rise of the National State to Modern Times. With the rise of the national state, the practice of capital punishment continued unabated and unscrutinized. The countries of Europe invoked the death penalty when heresies and non-conformity appeared to threaten national unity and used it to punish more offenses.

Martin luther harked back to the Augustinian position that execution of heretics was wrong, but otherwise he actually reinforced its broad use by the state for all other offenses with his doctrine of the two kingdoms. The sacralization of the executioner as God's avenger in the secular order was more indispensable than ever. Five years after Luther's death, John calvin executed Michael Servetus in Geneva for heresy (1553). When he wrote to explain himself to the leading Lutheran theologian, Philip Melanchthon, to the surprise of many, Melanchthon completely approved of Calvin's action, saying that since Servetus denied the Trinity, he was not so much a heretic as a blasphemer, and blasphemy was a capital crime according to Roman Law. Except for a few relatively small pacifist groups like the Quakers, Protestants like Catholics questioned neither the theory or the practice.

The so-called "Roman Catechism" drafted and published by order of the Council of trent (1566) summarized the official Catholic position. Its treatment of the Commandment "Thou shalt not kill" is, for the most part, an eloquent affirmation of the gift of life, filled with the spirit of Jesus and the Gospel. But in explaining the Commandment the Catechism acknowledges some exceptions, among them killing in self-defense, in a just war, and capital punishment. With regard to the last, it says:

Even among human beings there are some limitations to the extent of this prohibition of killing. The power of life and death is permitted to certain civil magistrates because theirs is the responsibility under law to punish the guilty and protect the innocent. Far from being guilty of breaking this commandment, such an execution of justice is precisely an act of obedience to it. For the purpose of the law is to protect and foster human life. This purpose is fulfilled when the legitimate authority of the state is exercised by taking the guilty life of those who have taken innocent life …. [Part III, c. 5]

The practical consequences of this acceptance and approval of capital punishment can be seen in an extreme example at the end of the 16th century. In a concerted effort to stamp out brigandage in the Papal States, Sixtus V (1585–1590) in his first five months as pope, had over 7,000 Roman bandits beheaded and had the heads of many posted on the Ponte Sant'Angelo. He celebrated his 'success' by having a medal struck bearing his image and the inscription 'Securitas Perfecta.' Meanwhile England was witnessing executions that were even more bloody if fewer in number carried out in the name of religion. In Paris the "grand gibbet" of Montfaucon that could hang up to 60 people simultaneously, rivaled Notre Dame Cathedral as an architectural marvel.

Few at the time seriously contested the state's right to execute criminals or the essential reasonableness of capital punishment. It was a young Italian, Cesare Beccaria, who opened the modern debate on the institution itself with his essay Dei delitti e delle pene (1764). On the basis of his own theory of society, he rejected the state's right to take a citizen's life. Far more influential, however, was his critique of the death penalty as cruel, unreasonable, and ineffective. Within two years his essay had appeared in French translation and had become known all over Europe. Beccaria spoke of Montesquieu's influence on his thought, but he himself merits the title of father of modern penal reform.

Many trace the abolition of capital punishment in Tuscany (1786) and Austria (1787) to Beccaria's challenge to "enlightened" rulers. His essay also stimulated Samuel Romilly and other leaders of the crusade to reform England's penal code, a movement that reduced British capital offenses to four crimes by 1861. In the U.S. at the end of the 18th century, Dr. Benjamin Rush and others led a campaign for the abolition of capital punishment in Pennsylvania and elsewhere. By the dawn of the 20th century, philosophers and theologians were beginning to join social reformers in their critique of capital punishment.

The Twentieth Century. The symbolic dawn of a new age opened with the formation of the United Nations. The words of the UN's Universal Declaration of Human Rights (1948) echo in Pope John XXIII's Pacem in Terris (1963), where he stated,

Any human society … must lay down as a foundation this principle: every human being is a person … By virtue of this he has rights and duties of his own … which are universal, inviolable, and inalienable. If we look upon the dignity of the human person in the light of divinely revealed truth, we cannot help but esteem it far more highly. (nn. 9–10).

In 1972 the U.S. Supreme Court ruled against the death penalty because of inequities in imposing sentences (Furman v. Georgia ). A number of states and the federal government set about passing laws to get around the accusation of a capricious selection process and thus get around the Eighth Amendment's ban on cruel and unusual punishment. In November 1974, the National Conference of Catholic Bishops, in a decision that was far from unanimous, made a simple declaration in opposition to the death penalty. Two years later, their position was far more clear and effective. They took as guidelines: 1) the sovereignty of God over life; 2) the duty to aid the criminal and not merely punish; 3) the awareness of human fallibility; 4) the need of reconciliation; and 5) the growing awareness of the complexity of criminal actions and motivations. Their pastoral conclusion was that the death penalty should be abolished, a position articulated in terms resonant with the Church's opposition to abortion and euthanasia, and the bishops urged Catholics to range themselves at the side of the Quakers, who had a long tradition of struggle in behalf of life.

About the same time (March 1976), the Canadian bishops, for pastoral reasons, passed a resolution favoring the abolition of the death penalty and calling for prison reform and the reform of the entire justice system. Its action was taken in respect for life, while it termed the death penalty a violent measure which begets violence. Writing in the Osservatore Romano (Feb. 20, 1977), G. Concetti stated forthrightly that the right to life is "primordial and inviolable" and that the state lacks the right to take it away. In the modern understanding the state is viewed not as having absolute rights, like the divine right of kings, but more accurately as a limited mechanism with rights and powers limited even as are the rights of the citizens it represents.

In 1978 French theologian Jean-Marie Aubert, a pioneer in moving the spotlight away from the theoretical issue of the state's right to kill and to focus it rather on the sordid practice itself, affirmed that "at the level of historical analysis, we can only conclude that capital punishment is … an evil, barbaric institution, unworthy of any and every society today" (Chrétiens et Peine de Mort, p. 90). Aubert's book appeared the same year in which Pope john paul ii was elected and launched his continuing campaign to change minds, hearts and policies so as to end the practice of deliberately killing human beings, no matter how heinous their crimes.

John Paul addressed "the problem of the death penalty" in his encyclical Evangelium vitae (March 25, 1995). He noted that "there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely." John Paul acknowledged that public authority must "redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime … while at the same time offering the offender an incentive and help to change his or her behavior and be rehabilitated." And he adds,

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. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent (n. 56).

The Catechism of the Catholic Church quotes Evangelium vitae verbatim, but it prefaces the section on capital punishment saying, "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 agressor" (n. 2267). Taking their cue from the Pope John Paul, the U.S. Catholic Bishops in November 2000 included in a statement on crime and criminal justice an appeal for all Americans to "join us in rethinking the difficult issue (of capital punishment) and committing ourselves to pursuing justice without vengeance. With our Holy Father we seek to build a society so committed to human life that it will not sanction the killing of any human person."

Bibliography: NCCB Statement on Capital Punishment, Origins 6 (1976) 389–395. Responsibility & Restoration: A Catholic Perspective on Crime and Criminal Justice, a statement of the catholic bishops of the united states. (Washington, DC, 2000). j. megivern, The Death Penalty. An Historical and Theological Survey (New York, 1997). j-m. aubert, Chrétiens et Peine de Mort (Paris, 1978). g. h. stassen, ed., Capital Punishment: A Reader (Cleveland, 1998). f. compagnoni, "Capital Punishment and Torture in the Tradition of the Roman Catholic Church," Concilium 120 (10/1978). n. blazquez, Pena de Muerte, #3 in Series Teologia Siglo XXI (Madrid, 1994).