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Death penalty is never right

Observer Viewpoint | Wednesday, January 19, 2005

If the trial judge approves the jury’s recommendation, Scott Peterson will die for the murder of his wife, Laci, and their unborn son, Conner. But don’t expect Peterson to check out too soon. The 641 inmates on California’s death row wait an average of 16 years to die. Some die of old age rather than lethal injection.

If the Catholic Church had its way, none of them would ever be executed. Question: Why is the Church so protective of murderers, even of one like Peterson?

The “primary aim” of punishment is “redressing the disorder introduced by the offense.” Catechism, no. 2266. This is retribution, restoring the balance of justice. Other purposes are rehabilitation of the offender and deterrence of the offender and of others.

Pope John Paul II, in Evangelium Vitae (EV) and the Catechism, affirmed the traditional teaching that the state has authority to impose the death penalty and that retribution remains the “primary aim” of punishment. But he has developed the teaching on the use of that penalty, so that neither retribution nor any other purpose will justify the use of the death penalty unless it “is the only possible way of … defending human lives against the unjust aggressor.” In other words, if it is the only possible way of keeping Scott Peterson from killing more people. “[N]on-lethal means,” continued John Paul, “are more in keeping with … the common good and … the dignity of the human person. Today, … as a consequence of the possibilities which the state has for … rendering one who has committed an offense incapable of doing harm – without definitively taking away from him the possibility of redeeming himself – the cases in which … execution … is an absolute necessity ‘are very rare, if not practically non-existent.'” Catechism, no. 2267, quoting EV, no. 56.

This severe restriction arises from the importance of the conversion of the criminal. St. Augustine and St. Thomas agree “for a just man to be made from a sinner is greater than to create heaven and earth.” S.T., I, II, Q. 113, art. 9.

Whether execution is such an “absolute necessity” depends on the ability of the prison system to confine this prisoner securely. That involves a prudential judgment. But John Paul’s development of the teaching on the use of the death penalty is a universal, and not a prudential, criterion. It applies everywhere and to all states.

Even under this teaching, one could still argue for the death penalty in some cases, for example, if a life inmate, already in maximum security, murders another inmate; or if the state is unable to confine inmates securely.

EV and the Catechism discuss the death penalty in the context of “preventing crime,” and the “system of penal justice.” Perhaps this teaching might not apply to a military tribunal which applies the “laws of war” outside the usual criminal process. In a just war, the state has authority to kill intentionally, subject to the restrictions of proportionality and non-combatant immunity. Or perhaps execution of a terrorist leader could be justified even under John Paul’s criteria if his continued imprisonment would incite further terrorist attacks. On the other hand, the martyrization of such a leader by executing him might have the same inciting effect. Or, could a terrorist be treated as a spy and rightly executed pursuant to the laws of war? Whatever the answer to such hypothetical cases, John Paul’s teaching fully applies to all prosecutions under ordinary criminal law, including that of Scott Peterson.

This teaching cannot be dismissed as merely John Paul’s personal opinion – he put it in the Catechism. At the least, it is a teaching of the authentic magisterium or teaching authority, whether or not the Pope has proclaimed it definitively. As Vatican II declared, “loyal submission of will and intellect must be given, in a special way to the authentic teaching authority of the Roman Pontiff, even when he does not speak ex cathedra.” Lumen Gentium, no. 25. The Code of Canon Law, no. 752, codifies this requirement so that such teachings, even if not proclaimed “with a definitive act” are binding in that “the Christian faithful are to take care to avoid those things which do not agree with it.”

This teaching is an aspect of John Paul’s advocacy of a “culture of life.” We have developed instead a “culture of death” in which the intentional infliction of death is readily accepted as a problem-solving technique, as in the death penalty, war, euthanasia and, of course, abortion. Scott Peterson may die for killing the unborn Conner. But Laci could have legally killed him to solve a problem or for no reason. John Paul instead appeals “to each and every person, in the name of God: respect, protect, love and serve life, every human life!” Even the life of a guy like Scott Peterson.

Professor Emeritus Rice is on the Law School faculty. His column appears every other Thursday. He can be contacted at plawecki.1@nd.edu.

The views expressed in this column are those of the author and not necessarily those of The Observer.