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 the United States. 1 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.

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 given proper guidance and discretion during trial. 2
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

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

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 mans
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
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

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 nonexistent."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

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.

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

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 Gods bidding, or for the representatives of the States 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:

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

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 penetration into the gospel.
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