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Pope Francis, Capital Punishment, and Law



Doctrinal development and jurisprudence on the death penalty

Professors John Finnis and Gerard V. Bradley spoke in the Eck Hall of Law regarding Pope Francis’ update to the Catechism of the Catholic Church on the death penalty. The event was sponsored by the St. Thomas More Society, The Future Prosecuting Attorneys Council, and the Tocqueville Program for Inquiry into Religion and Public Life.

Professor Finnis first spoke about the accompanying letter to the August revision written by the Prefect of the Congregation of the Doctrine of the Faith, Cardinal Luis Francisco Ladaria Ferrer, S.J.. He noted that Cardinal Ferrer described it as a ‘development of doctrine’. Finnis, however, argued that it was nothing more but rhetorical emphasis in doctrinal development “that in some respects, was introduced by [Pope] Pius XII. It was certainly actually made by Pope John Paul II.”

The Catechism was published first in 1992 in French and in English in 1994. It was then repromulgated in a definite Latin edition and revised translations with 103 amendments altogether in 1997, Finnis noted. “It dealt and it deals with capital punishment in a firm, unchanging framework.”

Finnis provided a handout tracing the development of revisions to the Catechism. The ‘Legitimate Defense’ section ran from numbers 2263-2267 in the First Edition (1994) of the Catechism. CCC 2263 and 2264, to this day, still remain intact. CCC 2265, 2266, and 2267 from the First Edition were quoted in the 1995 encyclical, Evangelium Vitae. These numbers were subsequently revised in the Second Edition (1997) to be in line with Evangelium Vitae.

The whole doctrinal content in the 2018 version is already expressed in paragraph 2267 of the 1992 (1994) edition and 1997 revision. The First Edition states the following: “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and safety of persons, public authority should limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.”

The Second Edition to CCC 2267 was then expanded and included this concluding sentence: “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—without definitively 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.’”

That cases wherein an offender should be executed for wrongdoing are uncommon was reasoned for in paragraph 56 of Evangelium Vitae by Pope St. John Paul II.

The papal rescript from August 2018 of CCC 2267 includes this definitive sentence: “Consequently, the Church teaches, in the light of the Gospel, that ‘the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,’ and she works with determination for its abolition worldwide.”

The death penalty is now considered inadmissible in the Catechism as Pope Francis asserted it was so in his Address to Participants in the Meeting organized by the Pontifical Council for the Promotion of the New Evangelization on October 11, 2017.

There are two foundations to Christian doctrine: the sacredness of human life and deepening the understanding of intention.

Professor Bradley then approached the issue from an American civil law perspective. The teaching that Finnis just provided need not be binding insofar as one is Catholic; it should influence the secular law much more, Bradley noted.

“Retribution never requires death,” said Bradley. “Even if it were, death is uniquely required by the worst offenders. Capital punishment is still morally excluded, on grounds extrinsic to conceptions of punishments as such.”

Bradley covered the purposes or aims of punishments. He noted that Supreme Court Justice Stephen Breyer considers punishment to be something related to revenge, avenging wrongdoing, and seeking closure.

The USCCB, on the other hand, has a better vision of punishment than Justice Breyer, Bradley remarked. He provided a handout of the USCCB’s 2016 issue, “Background on Criminal Justice.” The issue states, “Justice includes more than punishment. It must include mercy and restoration.” Bradley said, “It’s all about restorative justice.”

Finally, he advised the law students to avoid involvement in capital punishment cases, as they induce scandal and are not in accordance with Church teaching.

Bea Cuasay is a sophomore studying Philosophy and Humanistic Studies. While writing this article, she found out she enjoys reading Justice Scalia’s court opinions. She can be contacted at bcuasay@nd.edu.

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