March 20, 2015

Catholics and the Death Penalty - A Reply to Dr. Tollefsen

      I see this morning that the philosopher Christopher Tollefsen has written an essay, intelligent and thoughtful, posted on The Public Discourse website, of The Witherspoon Institute. Dr. Tollefsen is (in no particular order of importance) a professor of philosophy at the University of South Carolina, a public intellectual, a Catholic, and noted for his opposition to the death penalty. As such, being a lawyer, and lacking any special training or study in philosophy or theology, I approach my response to his essay with some trepidation. Nonetheless, I believe that a response to Dr. Tollefsen's essay is merited, and I hope that I may contribute some small thing in the discussion. 

      His essay, "God, Death, and Capital Punishment," in fine, consists of Dr. Tollefsen's responses to two critiques of his arguments against use of the death penalty. He frames his responses in two sections. The first section is entitled "Can a Catholic Hold My View About Capital Punishment?," to which he replies in the affirmative. The second, "Can a Christian Hold My View About God and Death?," to which he similarly replies in the affirmative.

      I am mainly concerned here with the first prong of his response, which consists of a response to the question "Can a Catholic Hold My View About Capital Punishment?" Dr. Tollefsen argues that the death penalty is intrinsically wrong, and that, though the Catholic Church has taught in the past that "without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly," this is not a brief for use of the death penalty. In light of the foregoing, an oath required by the Church of followers of the heretical Peter Waldo, he states:
But the Church has never taught that the death penalty is mandatory, nor has it taught that one sins if one rejects its permissibility.  At most, the Church has taught, and perhaps only accepted, its permissibility.
      He also responds to those concerned that, were the Church to change from "permissible" in its stance on the death penalty to "impermissible," then it would be a change in doctrine. He puts forward the idea that, as the Church changed (or seemingly changed) position on holding slaves or coercing heretics, so a change on the Death Penalty, wrought by "deepening insight into the nature and dignity of the human person, and the inviolability of human life," would be development that need not concern Catholics that the Church is freely modifying long-standing teaching.

      I would like to focus on the four strands of the sentence I quoted in block above, namely that the Church: (1) Has never taught the death penalty is mandatory, (2) Has never taught that one sins if one rejects its permissibility, (3) At most, the Church has taught that the death penalty is permissible, and (4) At most, the Church has only accepted the permissibility of the death penalty.
(1)

      Dr. Tollefsen's first proviso I take to have two meanings, first that the Church has never taught that the death penalty must be used for any given crime, and second, that the Church has never taught that the death penalty must be part of a society's criminal justice framework. While there is some difference between the two of these, in either case, I do not think there is much disagreement that the Church has never taught the death penalty is mandatory. In short, throughout my own readings in punishment theory, legal history, and Catholic theology (admittedly not as extensive as I would prefer), I have never seen a statement by the Church that any form of punishment is mandatory. The Church, rather, has focused on the conditions and application of punishment. To borrow from the Catechism:
Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people's safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party.
The Church has a long history, especially from philosophers and theologians such as Aquinas, Gratian, Innocent III, and any number of Decretists and Decretalists, of ruminating on punishment, its nature and effect and so on. The short paragraph from the Catechism is shorthand, in a way, for thousands of years of such meditation.

(2)

      The second statement, whether one sins if one rejects the permissibility of the death penalty, gets us into more sticky territory, as it begins to shade into questions of prudence and individual conscience. I take Dr. Tollefsen to mean here that this is a question of whether one sins if one disagrees with a teaching of the Church that the death penalty may be legitimately available as a form of punishment ever, rather than in any specific legal system.

At the very least, then-Cardinal Ratzinger seemed to agree, when in a letter, he stated that:
For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion.
This, then, is indeed a matter of prudential judgment - permitting Catholics to disagree with the teachings of the Church without themselves incurring mortal sin. For instance, it seems like there is no mortal sin incurred by true pacifists, provided that they are not rejecting the overall use of capital punishment or of war. More on that below.

(3)&(4)

      It is difficult to determine what Dr. Tollefsen means when he says, "At most, the Church has taught that the death penalty is permissible" and "At most, the Church has accepted the permissibility of the death penalty," and why he differentiates between the two. The latter, of course, changes the matter from "Church teaching" to "Church acceptance," without explaining the distinction or difference. The Church seems to have taught that the death penalty is permissible, even if limited - the Oath required of the Waldensians and the statements in the Catechism ("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") indicate as much.

      We are left, to some extent, attempting to guess where and why Dr. Tollefsen is drawing distinctions. In order to explore this further, I think it is worthwhile to find out what exactly it was that Peter Waldo taught, that the Church required his followers to take an oath. There are few translations, but from Pierre Jourdan, a follower of Waldo in the 1400s, we have:
The final precept that we teach is our opposition to the death penalty and any taking of life. The judge who condemns a man to torture or death, no matter what the circumstances or the motives, acts contrary to the Gospel.
      To this sort of teaching, the Church replied that the followers of Waldo who wished to return to the Church swear that: "without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly." Dr. Tollefsen seems to be saying that the Church's oath was formulated in regard to the judge or executioner, which could condemn a man to death and execute him without any personal mortal sin attaching. Dr. Tollefsen argues:
[T]here is a considerable difference between swearing that a type of act is not intrinsically wrong, and swearing that those who undertake that kind of act, under particular circumstances, and given certain states of mind, need not commit mortal sins in doing so.
      At this point, we need to pause and consider those statements in conjunction. The Church states, "without mortal sin...one may exercise a judgment in blood." Dr. Tollefsen interprets this to mean, "one may undertake a judgment of death without incurring mortal sin, even though the death penalty is intrinsically wrong, provided there are particular circumstances and the judge has a certain state of mind." 

      The requirements of mortal sin are that it be a grave matter, committed with full knowledge of it being a grave matter, and with full consent of the will. If the Church teaches that one may execute a judgment of death without mortal sin, provided that one does so without hatred or incautiously, then it seems that such a judgment is not a grave matter. But, Dr. Tollefsen may be focusing less on the question of whether such a thing is a grave matter, and more on questions of full knowledge or full consent, the only other mitigation for mortal sin.

      Therefore, Dr. Tollefsen asserts that particular circumstances or certain states of mind might make the difference. Such must be related to knowledge or consent. But, then, what would these circumstances or states be? As, Dr. Tollefsen claims that the death penalty is always a grave matter (that it is inherently wrong), it could never be other than a mortal sin, unless the judge who hands down the sentence is not aware that it is intrinsically wrong, or that the judge hands down the sentence without full consent of the will. 

      The latter, to borrow from a famous jurist, is "too extravagant to be maintained" - I suspect there are few who could, with a straight face, argue that all judges who would hand down judgments of death without incurring mortal sin are under internal or external compulsion such that their freedom of decision in the matter is compromised.

      However, the former seems almost as problematic. It seems like Dr. Tollefsen argues that the Church teaching is that, because most judges at the time the Oath was taken had no awareness that the death penalty was grave matter, they could hand down sentences of death without incurring mortal sin. Is Dr. Tollefsen now arguing, however, that because our modern judges have more fully-formed consciences, due to "deepening insight into the nature and dignity of the human person, and the inviolability of human life," the death penalty must now always be considered a mortal sin? This would seem to contradict arguments at which he hints the death penalty was more acceptable in earlier societies, where the "subjective state is one we should expect to find in a culture that uniformly accepts the death penalty as just and indeed divinely permitted." In a culture such as ours where the death penalty may no longer be seen a divinely permitted, it would seem like the Oath is even more applicable. How does one reconcile the claim that the death penalty was more acceptable in earlier societies where it was seen as divinely permitted with the claim that we now have more knowledge into the nature and dignity of the human person, and therefore, the death penalty is more likely to be a mortal sin for the judge?

      Moreover, if we take Dr. Tollefsen's approach that the Church claimed that a judge could hand down a death penalty without mortal sin because of the lack of insight into the nature and dignity of the human person, part of the oath becomes superfluous, namely that one may judge worthy of death provided that one does so without hatred or incautiously. It is a canon of legal interpretation that one ought to choose an interpretation of a text that does not make parts superfluous, but this is what happens, it seems, if one is going to seriously apply the question of mortal sin to the death penalty, using Dr. Tollefsen's criteria.

While this has been an extensive essay, I hope it provokes in some way further clarification and discussion of this quite important topic.

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