The DEATH Penalty

James Megivern:
The Need For a Higher Ethic - Waking the Sleeping Giant
Nov. 23, 1999 - Orlando, Florida

Opening remarks and an introduction to this speech and speaker

Thank you very much for the warm welcome. I presume that most of you are somewhat familiar with the Death Penalty issue, if you've been in this parish in recent times, so it's a bit difficult to know where to start or exactly what your chief interest may be, and therefore I would like to leave time for questions in case I miss some of the issues that are uppermost on your mind. One of the things that has occurred to me in the time since my last visit 18 months ago, is that this really is a unique issue. There is nothing else like it. Certainly in Catholic church history that is true.

The closest you might come to it is perhaps the problem of human slavery where you saw the Church teaching that an institution of the society was at least "all right" or was tolerable, or however strongly one might have wanted to defend it, and we know that there were many who did defend slavery throughout the 19th century. It is interesting to parallel the death penalty with slavery because ultimately the basis of the ethical argument against slavery and the ethical argument against capital punishment is the same -- the dignity of the human person and the inalienable right to life. That has only gradually become clear in official statements of Catholic teaching in this century.

The most interesting thing about the experience of the Catholic community,(which I tried to trace in my book) is the “missing story.” How did the death penalty ever come to be placed on what I call its privileged pedestal?

It had become enshrined there by at least the 13th century, yet we know it was not there is the early Church. It certainly was not drawn from anything Jesus taught. On the contrary, it is in violation certainly of the whole spirit of the teaching of Christ, and yet we know that by the high middle ages it had become a standard part of the status quo. It was formally incorporated into canon law in 1231 as the appropriate punishment for a recalcitrant heretic. It was even specified that burning at the stake was the appropriate manner for doing so. Things had come a long way from the time of Jesus to the time of Innocent III and Gregory IX, and obviously the change did not happen overnight.

The number of things that developed that made it possible for leading church authorities, both theologians and canonists, to place it in this kind of privileged position is a fascinating and largely untold story. But it happened. And one of the things that has to be kept in mind is that when one quotes Thomas Aquinas as favoring the death penalty, that is not the whole story. Yes, you can draw a number of quotations from his work where he supports the death penalty, but you also have to remember when and where and why he is writing. He wrote within 50 years of this privileging of the death penalty as the church-authorized mode of dealing with heretics. He is not addressing an open and free question in that sense. The theologians of earlier days freely debated whether this was an allowable practice - was this the way to handle heretics? And there were good theologians both pro and con. But once it became part of canon law, the expected practice, that kind of free exchange no longer took place. The death penalty had been placed in a privileged position, elevated to its protected pedestal, and any who dared challenge its propriety had to bear the burden of proof.

The best way to see how privileged that pedestal had become is to look at the Roman Catechism of 1566. The Protestant Reformation had started early in the 16th century, and it was Luther, Calvin, and Zwingli who initiated reform, arguing about the deficiencies of the Church of Rome. But one of the things that also happened as a result of the Protestant Reformation was the Catholic Counter-Reformation, largely carried out by the Council of Trent, which in the course of 18 years (1545-1563) pondered many of the problems raised by the Reformers. Political circumstances forced them to adjourn before they could finish their work, but when they broke up, they left it to a young, talented Pope, Pius V, to finish some of the unfinished business. One of those chores was to publish a Catholic Catechism calculated to offset the famous catechism of Martin Luther which had been tremendously successful in recruiting and instructing followers. John Calvin did much the same with his French Catechism.

The Roman Church knew this and had been trying to come up with a comparable Catechism for popular consumption. The best that had been done up to then was the work of the talented German Jesuit, Peter Canisius, but his was not official. The Council fathers at Trent wanted one with a formal, official imprimatur on it, "THE Catholic Catechism." So they charged Pius V to put together a team of the best Roman theologians and get this work done. And he did. He appointed largely a Dominican team to the Catechism of the Council of Trent also known simply as the Roman Catechism, published in 1566. It has some marvelous qualities and good responses to many of the criticisms that had arisen, but when it comes to the Commandment, "Thou Shalt Not Kill," the treatment opens with exceptions. Before you even let the words of the Commandment resonate -- "Thou Shalt Not Kill" --the exceptions are quickly slipped into place.

The first one concerns animals -- God gave them for human sustenance so of course the Commandment cannot mean they ought not to be killed. At the time nobody seems to have been arguing against this, so it was easy to affirm it and move on. All they had to do was quote Augustine, which they did. But, then comes the question of homicides, that is, killing human beings. And the very first real exception to the Commandment is the death penalty. There are NO conditions, NO restrictions, NO explanation for this. It is just standing there on its privileged pedestal as part of the woodwork. Yes, of course you can kill criminals, i.e., the executioner can kill them, the State can kill them, anyone with proper authority can kill them. The death penalty is a normal and natural instrument of the state. No further questions need be asked.

This, it seems, is where and how the Church officially backed itself into a corner. Capital punishment had been in place for several centuries; it had simply become a standard item in Church teaching. The Commandment saying "Thou Shalt Not Kill" was assumed to have no bearing on such a revered usage of church and state. The next exception listed, of course, was “a just war,” since these two forms of killing had long gone together as twin exceptions to the prohibition of killing, but at least, in the case of war, certain conditions were spelled out which had to be fulfilled.

So, in short, capital punishment imbedded itself inmedieval Christendom and remained there. Once it was thus accepted, the consequences could be horrific but retained nonetheless. For instance, 19 years after the Catechism was published there was a terrible social problem of banditry in the Roman countryside. With war between the papal states and Spain, and a host of other political problems, elderly Pope Gregory XIII had not been able to control the this criminal scourge. When he died in 1585, even some of the cardinals coming to the conclave to elect the new Pope were harrassed by the bandits. When their deliberations began, one of the candidates made it known that he would fix the situation, if elected. He became Pope Sixtus V, and in the first five months of his papacy, he had over 7,000 Roman bandits beheaded and had many of their heads posted on the lampposts of the Ponte Sant' Angelo. When challenged by some that this was not the best way to conduct a Christian polity, Sixtus responded that he would kill 20,000, if that is what it took. And he had a medal struck to memorialize his success; it carries an image of him in his papal tiara, surrounded by the motto: "Securitas Perfecta." Perfect Security -- as in a graveyard.

Why do I mention this bizarre aberration? It is the hisoric nadir of the process of canonizing the death penalty. It epitomizes the extreme to which the practice had gone. It would be tough to come up with an example of greater abuse than that of Sixtus V. It was only because the death penalty had been so deeply entrenched that it could thus go unchallenged. The major Protestant reformers objected to many other things about Rome but they found no fault with the death penalty and in fact used it themselves. Only some of the fringe Anabaptist groups, whch later developed into what we call the Peace Churches (e.g., the Mennonites, Quakers) took the position that "Thou Shalt Not Kill" means THOU SHALT NOT KILL, and concluded that the death penalty is wrong. But they themselves were thereby considered among the heretics subject to execution, so their opposition was dismissed as based on self-interest rather than principle.

There was no relief in this crazy situation until the 18th century Enlightenment. Because of its secular/anticlerical nature, protesting against so much that churchmen stood for, it was also possible for it to criticize formerly sacrosanct parts of the established order. The one who played the most dramatic role was Voltaire, an iconoclastic lawyer who spent a good part of his legal career preoccupied with three capital cases. The most notorious was the first one, the Jean Calas case, which he lost in the sense that Calas was executed, but the greater loser in the process was the privileged pedestal supporting the rampant automatic use of the death penalty.

Calas was a Huguenot whose son had been murdered. Nobody had any evidence as to who the killer was or what had happened. But a rumor began that the son was thinking of returning to the Catholic Church, and that the father killed him rather than let him convert back to Catholicism. Once the rumor began, public public outrage called for his blood, and the courts obliged. What made the case different, however, was Voltaire's clamor for justice. He caused such a stir that the King was virtually forced to appoint a 50-judge panel and the 50-judge panel came back with a verdict of "Innocent." But Calas was dead three years by then. So all they could do was indemnify the family. But I think that this is a key turnaround point - - just as the 7,000 executions by Sixtus V is the nadir, the first real recognition that there might be something wrong with the whole practice of human beings claiming the power to kill fellow human beings.

And, by coincidence, it was precisely at this time that Cesare Beccaria's famous booklet On Crimes and Punishments (1764) appeared. Voltaire embraced it heartily, translated it from the Italian and added a powerful introduction, indicting all of Western Christendom, calling for an end to the barbaric use of the scaffold.

The most striking change represented by Beccaria was the omission of appeals to the Bible. Up to this point, what little discussion there was was theological. Why the death penalty? The Bible prescribes it. The Enlightenment, however, saw the rise of criticism of the Church and of the Bible, so a different kind of argument began, a secular philosophical argument based on what it to be human. Fallible humans do not have the vision to know what was in the heart of this person who committed a heinous crime. And while admittedly a society must have the authority to protect itself, and ought to be able to punish those who break its laws, punishment must stop short of death. We do not have the right to take the lives of our fellow human beings.

Such a philosophical argument about human nature and responsibilities affirms the right to life and the dignity of the human person on rational grounds. But you quickly come to the same conclusion from a religious perspective: from belief in the sovereignty of a Creator-God, as well as from the teaching of Jesus about loving one’s neighbors. What has happened in our day is that these two approaches -- philosophical and theological -- have found one another and embraced. That embrace can be traced to 1948. After our century demonstrated a greater capacity for the destruction of human life than any previous century, with the Holocaust, atomic incinerations, ethnic cleansing, etc., something clearly had to be done.

There were enough survivors in 1945 to realize that there was no future for the remainder of the race unless things changed. We have good reason to be proud of the role that Eleanor Roosevelt played at that part of the work of the United Nations and in the beginnings of the formulation of what became in 1948, The Universal Declaration of Human Rights of which, as I am sure most of you know, Amnesty International was a direct outgrowth. The logic of the UDHR led finally in 1977 to the Stockholm Declaration, setting universal abolition of the death penalty as the only acceptable ideal for a modern state. Europe has largely adopted that ideal and insists on its adoption by others if they want to be taken seriously as part of the international community.

How did this remarkable development come about in 1948? The committee that was put together at the fledgling UN had access to the best thinkers in the world, and the committee that was selected to formulate the Universal Declaration was really ecumenical in the widest sense. It had a leading Confucian scholar; a well-known Buddhist scholar, a prominent Jewish scholar, an eminent Muslim scholar, and a first-rate Catholic scholar named René Cassin, who chaired the group. He was a philosopher who was a friend of, and much influenced by, the leading Thomist philosopher of the day, Jacques Maritain, author of highly regarded works on the role of the State and Natural Law. Maritain and Cassin were friends of the Papal Legate in Paris at the time, Angelo Cardinal Roncalli, who ten years later became Pope John XXIII. And five years after that -- the year of his death -- he published the Encyclical Peace on Earth (Pacem in Terris - 1963).

These are not just random events. There is a line of direct intellectual influence and development. Some of the language and principles in the Universal Declaration reappear in Pacem in Terris. Roncalli was very much involved with Cassin, precisely on re-thinking the whole notion of the right to life. And it is beyond dispute that the enhanced understanding of the value of human life, affirmed by both the UDHR and Pacem in Terris, as well as by the Second Vatican Council, led the Catholic Bishops within a few years to the recognition that they could not have it both ways: Either they were going to have to reject this higher valuing of human life -- or reject the death penalty -- which flies in the face of such valuing of life.

We have lived to see the principles of Pacem in Terris of 1963 applied directly to the death penalty in the new Catholic Catechism of 1992, the Encyclical Evangelium Vitae of 1995, and the talks of the Pope in Mexico City and St. Louis, Missouri, in 1999. During this remarkable period of less than four decades we have seen the systematic deconstruction of the privileged pedestal of the death penalty. This can properly be called a conversion, a dramatic turnaround on the part of Catholic leaders, the adoption of a higher ethic of life because of a fuller recognition of the value and dignity of human life.

The first time that some of the American Catholic Bishops tried to do something about the growing awareness of this incongruity between valuing life and approving death was in 1974. Bishop Ernest Unterkoeffler of Charleston, South Carolina, headed the committee looking into it. He had been a prison chaplain in Virginia, and had accompanied men to the electric chair - at least one of whom he was convinced was innocent. It was this direct experience of seeing the vulgar reality of intentionally killing other human beings that sparked his opposition. His committee formulated a lengthy statement, but it got shot down in the church politics of the day. Then John May, at that time Bishop of Mobile, offered a simple resolution, saying “The United States Catholic Conference goes on record as opposing the death penalty." Period. The vote was 108 for and 63 against, so the statement was adopted.

The problem with that single sentence, however, was that it offered no explanation. There was thus no consensus on anything ther than the conclusion. It took another six years and the special interest and work of the Bishop of Tallahassee, Rene Gracida, at the time, to produce a better statement for further consideration. This 1980 statement was passed with 145 of the bishops voting in favor, but there were still 31 opposed and 41 abstentions.

The problem, of course, was obvious. This was a virtually unparalleled situation where both leaders and laity had been raised in a Catholic cultural context where the death penalty rested unchallenged on its privileged pedestal. Most had never heard anything other than the Church's acceptance of and support for the use of the death penalty for most of their lives. Worse, all were still being deeply influenced by a popular culture where capital punishment was not only accepted but heavily mythologized as if it were a panacea for crime. The polls showed unprecedented support as of the late 1970s compared with earlier figures. In the 1960s popular support for the death penalty had declined dramatically and a moratorium stopped all executions as of 1967. There were no state killings for 10 years. But the 1976 Gregg v. Georgia decision changed all that, and American culture was altered by the increasingly vindictive attitudes. “Get tough” politicians found they could exploit people’s fears and win votes by fostering irrational reactions to media perceptions of rising crime.

This is where the institutional American Catholic church suddenly found itself: wedged between a society flooded with rising currents of popular recourse to angry violence, and a rejuvenated Gospel message emphasizing the dignity of the human person and the call to break the cycle of violence. All of the countries of Europe had moved in one direction -- abolition of the death penalty. Pope John Paul II spoke out ever more often and strongly against state killings in a way that no earlier pontiffs ever had. All the major European countries (France was the last major one, doing away with the guillotine in 1981) abolished the death penalty, and the United States -- which had been right in line with the UDHR in 1972 with Furman v. Georgia, ruling the death penalty unconstitutional as it was being used -- suddenly turned around.

On July 2, 1976, two days before the Bicentennial, the Supreme Court reversed itself and decided that the death penalty ould be constitutional after all -- if it were applied with “guided discretion.” The result was the creation of a monster. We are now using a system that is outrageous in cost. (A 1993 study out of Duke University showed that the first 8 or 10 executions in the state of North Carolina cost on average $2.3 million -- for the satisfaction of killing a single malefactor. It was even higher for Florida in the beginning, over $3 million). But that is only a relatively minor reason for opposing it. The major reason is ethical. What we really have to do is find ways to communicate the change that has taken place, and that is a challenge in Catholic circles.

Since the 16th century Counter-Reformation innovation was seen as shorthand for heresy. Teaching new things, novel ideas, anything that was not part of the cultural furniture violated the faith of our fathers - the rock of ages - the old-time religion. If it was good enough for Thomas Aquinas, it was good enough for today. Apply this to the death penalty and you can see the grounds for an unbending mentality that spells great trouble pedagogically. How do you get across the good news that the Catholic Church has changed, that it has embraced a higher valuation of human life and dignity, that it is calling all of its members to share this renewed position of honoring life, all human life in the spirit of Jesus?

Surely, there is no need to look down on or belittle those of an earlier day. What needs to be stressed is that new light has been offered precisely in our time. We are the ones now confronted with adapting the tradition by saying yes to the higher ethic. We may have seen reasons that seemed to justify the death penalty in the past, but we now have more than enough evidence and teaching and insights so that the old view has been surpassed. It can no longer stand on its borrowed pedestal. If we do not embrace the higher view of the value of human life, we are refusing to join in the most significant and revolutionary movement of our time.

One of the great problems contributing to the pedagogical difficulty here is the confusion that can result from having two different ethics functioning in our midst, both opposing the death penalty. But one of them is simply saying, "yes, it was OK in other times, when there were no reliable prisons. But in the modern state, which can detain criminals safely without killing them, then that's what ought to be done.” This is a commendable pragmatic ethic concluding that it would be better not to use the death penalty today.

But the other ethic, a higher ethic of the value of life, represented by he UDHR, by Pacem in Terris, by Evangelium Vitae, -- let’s call it “the post-Vatican II ethic” -- offered to today’s Catholic community, is a greater challenge because it is opposed in principle to any and all state-killings. The old exception found firmly ensconced on its privileged pedestal in the 1566 Catechism has been dismantled and removed as incompatible with the higher estimation of human life and dignity today. Catholic leaders, to one degree or another, have ben teaching this, some for a quarter of a century. There are finally definite signs that the message is at least beginning to get through to the sleeping giant -- the people in the pews. When they turn their TVs down or off, and listen to the counter-cultural challenge of the Gospel on the issue of the death penalty, it is no surprise that more & more are making the decision to “Choose Life.”