Capital Punishment: A Natural Law Perspective

By

Kevin J. Vail

The death penalty a.k.a. capital punishment is a topic

which evokes strong emotions in many people on both sides

of the debate. Is it a remnant of a barbaric past which

human society has outgrown? Or is it a necessary evil to

meet the demands of justice and maintain order in a

society? I will briefly examine the legal history and use

of capital punishment in the United States and the English

colonies. It is my intention to examine legal, moral and

theological arguments for and against capital punishment.

The first man executed in the English colonies that

would become the United States was James Kendall in 1608 in

Jamestown. According to the Espy file 14634 persons were

executed in the United States between 1608 and 1987. 11,528

of those these executions were for the crime of murder,

there has been an average of 1 execution every 9.56 days in

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the United States. English law, which governed the

colonies until 1779, allowed for the imposition of the

death penalty for 14 offenses, however in practice most

colonies used capital punishment for fewer crimes than the

English law allowed for.

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 The movement to abolish the death penalty in the

United States first began in 1845 with the American Society

for the Abolition of Capital Punishment. In the 19th Century

states acted to reduce the number of crimes to which the

death penalty was attached and currently 12 states and the

District of Columbia do not provide for its use in any

circumstance. In 1962 the U.S. Supreme Court in Robinson v.

California ruled that the 8th Amendment was applicable to

the states. Ten years later the U.S. Supreme Court, in

Furman v Georgia suspended the use of the death penalty in

all cases citing its “arbitrary and capricious” imposition

by juries. The opinion was unusual in that the court failed

to reach a consensus on what precisely the states had to do

in order to repair the faulty statutes. All nine justices

wrote separate opinions on what constituted “cruel and

unusual” punishment under the 8th Amendment. Two of the nine

justices were of the opinion that the death penalty was

unconstitutional in any circumstance. In 1976, in Gregg v

Georgia the court ruled the death penalty was not

unconstitutional per se but could be used if juries are

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given proper guidance and discretion during trial.

Today the debate on the legality of the death penalty

continues. Recent court decisions have ruled that a “death

sentence for rape and kidnapping as it was excessive for

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the crime and thus unconstitutional. (Everheart v. Georgia,

1977). The Court has also said it was unconstitutional to

execute the insane (Ford v. Wainright, 1986), but it was

constitutional to execute the mentally retarded (Penry v.

Lynaugh, 1989) and it is unconstitutional to execute an

offender who was 15 or younger when the crime was committed

(Thompson v. Oklahoma, 1988), but the Constitution does not

bar the death penalty for 16-year-olds who commit homicide

(Stanford v. Kentucky, 1989).3 The court will undoubtedly

continue to refine its doctrine in the coming years. Public

support for capital punishment remains high. A 1994 Gallop

poll found that 80% of Americans continue to support the

death penalty in principle; however that number had dropped

to 62% by 2000 according to a NBC News poll.4

Justice is not always to be determined by opinion poll

and legal precedent however. One must consider that the

civil law of men must be held up to a standard outside of

itself in order to determine if it is just or unjust. This

is the natural law perspective. This perspective holds that

the natural law is the foundation of all human law inasmuch

as it ordains that man shall live in society, and society

for its constitution requires the existence of an

authority, which shall possess the moral power necessary to

control the members and direct them to the common good. A

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full discussion of the contents and obligations of the

natural law is outside of the scope of this essay however

suffice it to say, according to this perspective, that

human laws are valid and equitable only in so far as they

correspond with, and enforce or supplement the natural law;

they are null and void when they conflict with it.5

The natural law is defined as man’s participation in

the divine law thru the light of natural reason.6 This

means, of course, that human law is derived from an

understanding of God. A discussion of the novel

interpretation of “separation of church and state” that has

evolved in the United States and elsewhere in the West over

the past 40 years is also outside of the scope of this

essay. I assert here that as a fact of history the Western

legal tradition is derived from Christian ethics. The bulk

of theological speculation is derived from the Catholic

tradition.

Catholic theology and social teaching rests on a triad

of authority:

1) Sacred Scripture – the canonical books of the Old

and New Testaments

2) Sacred Tradition – that which is always been taught

and held to be true whether written or unwritten

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 3) The Magisterium – the teaching office the Church

which consists of all the Bishops in the world in communion

with the Pope in Rome.

It is the Magisterium that is authorized to interpret

Sacred Scripture and Sacred Tradition, also called the

Deposit of Faith, to address contemporary questions.

The vast majority of theological speculation on the topic

of capital punishment remains in the realm of privately

held opinions which may be held or ignored according to the

conscience of the individual.

Canon law forbids clergy to shed human blood and

therefore the Church does not and has never carried out

sentences of death. However it has long been held that the

state may make use of capital punishment. In the Middle

Ages the Church was asked to employ her expertise

adjudicating crimes such as heresy and blasphemy. In these

cases it was the sole concern of the inquisitional body to

determine the validity of the crime charged, not to

determine or carry out the appropriate penalty.

The relationship between the modern Catholic Church

and liberal democratic states is not as close as in the

past. The Church seeks to teach the faithful and to

encourage them to participate in the political life of the

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secular state. The Catechism of the Catholic Church,

published in 1997, in paragraph 2267 states:

“Assuming that the guilty party's identity and responsibility have been fully
determined, 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 aggressor. If, however, non-lethal means are sufficient to
defend and protect people's safety from the aggressor, authority will limit itself to
such means, as these are more in keeping with the concrete conditions of the
common good and are more in conformity to the dignity of the human person.
Today, in fact, as a consequence of the possibilities which the state has for
effectively preventing crime, by rendering one who has committed an offense
incapable of doing harm - without definitely taking away from him the possibility
of redeeming himself - the cases in which the execution of the offender is an
absolute necessity "are very rare, if not practically non-existent."7

This is actually a subtle reformulation of the traditional

teaching; in this statement it would seem that the only

justification for capital punishment is specific deterrence

i.e. to eliminate the possibility that a killer will kill

again. Previous catechetical documents such as the

Baltimore Catechism, published in 1898 or the Roman

Catechism published in 1566 make no mention of capital

punishment.

The United States Conference of Catholic Bishops

(U.S.C.C.B.) has been a vocal leader in the movement to

abolish the death penalty in the United States. In 1980

that body released its first comprehensive statement on

capital punishment which stated:

“We believe that in the conditions of contemporary American society, the

legitimate purposes of punishment do not justify the imposition of the death
penalty. Furthermore, we believe that there are serious considerations which

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 should prompt Christians and all Americans to support the abolition of capital
punishment” 8

It is important to note however that the writings and

opinions of national Episcopal conference such as the

U.S.C.C.B. do not carry doctrinal authority and in fact the

U.S.C.C.B. is regarded by more conservative Catholics as

notoriously liberal, a phrase often used among those of

this persuasion is “the Democrat party at prayer”.

Traditional Catholics are more likely to refer to the

historical writings of various theologians and Doctors of

the Church which are consistently more favorable towards

the use of capital punishment. Avery Cardinal Dulles

writing for the conservative Catholic periodical First

Things summarized the whole of Catholic teaching on capital

punishment in 10 points.

1) The purpose of punishment in secular courts is fourfold: the rehabilitation of the criminal, the
protection of society from the criminal, the deterrence of other potential criminals, and retributive
justice.

2) Just retribution, which seeks to establish the right order of things, should not be confused with
vindictiveness, which is reprehensible.

3) Punishment may and should be administered with respect and love for the person punished.

4) The person who does evil may deserve death. According to the biblical accounts, God
sometimes administers the penalty himself and sometimes directs others to do so.

5) Individuals and private groups may not take it upon themselves to inflict death as a penalty.

6) The State has the right, in principle, to inflict capital punishment in cases where there is no
doubt about the gravity of the offense and the guilt of the accused.

7) The death penalty should not be imposed if the purposes of punishment can be equally well or
better achieved by bloodless means, such as imprisonment.

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 8) The sentence of death may be improper if it has serious negative effects on society, such as
miscarriages of justice, the increase of vindictiveness, or disrespect for the value of innocent
human life.

9) Persons who specially represent the Church, such as clergy and religious, in view of their
specific vocation, should abstain from pronouncing or executing the sentence of death.

10) Catholics, in seeking to form their judgment as to whether the death penalty is to be supported
as a general policy, or in a given situation, should be attentive to the guidance of the pope and the
bishops. Current Catholic teaching should be understood, as I have sought to understand it, in
continuity with Scripture and tradition. 9

The death penalty remains a controversial subject

among Catholics. Many organizations exist within the Church

that assert its use is contrary to Christian morality while

others such as Supreme Court Justice Antonin Scalia assert

the teachings contained in the newest Catechism of the

Catholic Church represent a departure from traditional

Catholic teaching.10

Those traditional views are derived first from

Genesis 9:6

"Whoever sheds the blood of man, by man shall his blood be shed; for in the image of

God man was made."

This passage would seem to indicate that out of respect for

the dignity of each man only a sentence of death is

commensurate with the crime of murder. This interpretation

is in strengthened by none other than Immanuel Kant who

wrote in his treatise The Metaphysical Elements of Justice:

"If however, he has committed a murder, he must die. In this case, there is no substitute that will
satisfy the requirements of legal justice. There is no sameness of kind between death and
remaining alive even under the most miserable conditions, and consequently there is also no

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 equality between the crime and the retribution unless the criminal is judicially condemned and put
to death...

It may also be pointed out that no one has ever heard of anyone condemned to death on account
of murder who complained that he was getting too much punishment and therefore was being
treated unjustly; everyone would laugh in his face if he were to make such a statement." 11

The second point of traditional Catholic teaching on

capital punishment comes from reflections on Romans 13:1-4:

"Let everyone be subject to the higher authorities, for there exists no authority except
from God, and those who exist have been appointed by God. Therefore he who resists the
authority resists the ordinance of God and they that resist bring on themselves condemnation. For
rulers are a terror not to the good work but to the evil. Dost thou wish, then, not to fear the
authority? Do what is good and thou wilt have praise from it. 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 on him who does evil."

This passage would seem to directly address the question if

the governments of men have the right to impose a sentence

of death. In addressing this passage St. Augustine of Hippo

Bishop and Universal Doctor of the Church and perhaps the

most influential theologian of the first millennium wrote:

“The same divine law which forbids the killing of a human being allows certain exceptions, as
when God authorizes killing by a general law or when He gives an explicit commission to an
individual for a limited time. Since the agent of authority is but a sword in the hand, and is not
responsible for the killing, it is in no way contrary to the commandment, “Thou shalt not kill” to
wage war at God’s bidding, or for the representatives of the State’s authority to put criminals to
death, according to law or the rule of rational justice.” 12

In this view the state which is given its authority by

God acts His agent and therefore possesses the authority to

execute justice.

I have chosen in this essay to address these questions

concerning capital punishment:

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 1) Is the death penalty in and of itself objectively

immoral?

2) Does the state possess the authority to utilize

capital punishment?

I believe the answers to these questions are:

1) No, capital punishment is not in and of itself

immoral and is in fact required to demonstrate the

intrinsic value of human life.

2) Yes, the state as an agent of divine authority does

possess the authority to administer capital punishment

for certain crimes.

I have not addressed certain questions derived from a

utilitarian perspective such as does the imposition of the

death penalty have a general deterrent value? I do not

believe that issues appropriately addressed from a

utilitarian perspective. The American justice system often

appears to operate exclusively from this utilitarian

perspective; this reflects the profound influence of Jeremy

Bentham who called capital punishment “useless

annihilation”. Atheist utilitarian philosophy regards death

as the ultimate evil instead of a stage on the way to

eternal life. I concur with Avery Cardinal Dulles when he

states that “While this change [the abolition of the death

penalty in Europe] may be viewed as moral progress, it is

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probably due, in part, to the evaporation of the sense of

sin, guilt, and retributive justice, all of which are

essential to biblical religion and Catholic faith. The

abolition of the death penalty in formerly Christian

countries may owe more to secular humanism than to deeper

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penetration into the gospel.”

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12
1
Espy, M. Watt, and John Ortiz Smykla (2002) “Executions in the United States, 1608-1987: The
ESPY File", (online), 7/31/05. http://users.bestweb.net/~rg/execution.html
2
Smith, Sharon C. (1999). “Capital Punishment in the United States.” (Online), 7/31/05.
http://www.closeup.org/punish.html
3
Ibid
4

Quixote Center (N.D.). Equal Justice USA (Online), 7/31/05

http://www.quixote.org/ej/states/maryland/2003_bill_dies.html
5
Aquinas, St. Thomas Summa Theologica II, Q) 95, a) 2 (online). Catholic Encyclopedia , 7/31/05.
http://www.newadvent.org/summa/209502.html
6
Aquinas, St. Thomas Summa Theologica II, Q) 91, a) 2 (online). Catholic Encyclopedia , 7/31/05.
http://www.newadvent.org/summa/209102.htm
7
Catechism of the Catholic Church (online), 7/31/05. http://www.scborromeo.org/ccc/para/2267.htm
8
United States Conference of Catholic Bishops (ND). USCCB Statement, 1980. (online) 7/31/05
http://www.usccb.org/sdwp/national/criminal/death/uscc80.htm
9
Dulles, Avery (April 2001) “Catholicism and Capital Punishment” (online), 7/31/05. First Things
112: 30-35 http://www.firstthings.com/ftissues/ft0104/articles/dulles.html
10
Scalia, Antonin (May 2002). “God’s Justice and Ours” (online), 7/31/05 First Things 123:17-21.
http://www.firstthings.com/ftissues/ft0205/articles/scalia.html
11
Kant, Immanuel (1965) The Metaphysical Elements of Justice New York: Bobbs-Merrill Co. Inc.
12
Demetrius B. Zema & Gerald G. Walsh trans., (1950).AUGUSTINE, THE CITY OF GOD Book I,
ch. 21, reprinted in 8 THE FATHERS OF THE CHURCH 17, 53
13
Dulles, Avery; Ibid