Some folks are getting all breathless about Pope Francis’ decision to make the death penalty impermissible at all times.

Is he going beyond his authority? Is he changing the catechism and breaking with centuries of church teaching? Is it true that if he does this he can do most anything? Rod Dreher over here seems  to think so.

I’m not so sure. That is to say I’m not so sure that this particular decision is the problem. As usual, there is more to this than meets the eye and it is not simply a question of the usual narrative, “Liberal Pope Francis Is Against the Death Penalty” and conservative American Christians are for the death penalty and they don’t like it and it confirms that Francis is a secret socialist and basically a bad guy.

Pope Francis has really only moved to close a loophole in the already very restricted Catholic teaching about the death penalty. This is therefore an incremental development of church teaching. Whether it is a legitimate development is open to debate.

In fact, when it comes to social doctrine which is not part of the natural law, the Catholic Church teaching does develop. The classic example is the Catholic teaching against usury. In the Middle Ages the church taught that usury was a sin. It was argued that it was a sin because it was un natural. It used money to make money rather than honestly selling goods and services. Furthermore, it was invariably seen as a way for rich people to oppress the poor through high interest rates.

However, in the modern world the practice of lending money is far more complex and it is arguable that the money lender is indeed honestly selling a service–making loans. Furthermore, with loans being available to everyone, rather than oppressing the poor it is arguable that the poor are empowered by being able to borrow. They can get an education they could not otherwise afford and purchase things on credit to improve their lives. Is money lending still abused? Of course, but that’s not the main question.

When it comes to the death penalty the real change happened not with Pope Francis, but with Pope John Paul II. I believe he (or the authors of the CCC) was the one who laid out the reason for punishment in the catechism. The relevant paragraphs are 2266 and 2267.

The efforts of the state to curb the spread of behavior harmful to people’s rights and to the basic rules of civil society correspond to the requirement of safeguarding the common good. 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.67

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 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.”

You can see that there was not much of an endorsement of the death penalty already. Francis just closed the loophole. I don’t think this is the monumental “change in the timeless doctrine of the church” the alarmists contend. First, this is social teaching. It is not doctrine or immutable moral teaching.

Moving on from that question–which can be debated– what interests me most in the words of the catechism are the reasons given for punishment of crime by the state. This, it seems to me, is a far more worrying change because it is a fundamental change.

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 primary aim of punishment is defending public order, protecting people and rehabilitation of the offender.

This is where the change in the tradition lies. In their book By Man Shall His Blood Be Shed philosophers Edward Feser and Joseph Bessette make a strong argument in favor of the death penalty. It was very interesting to see how this objective and calmly argued case in favor of the death penalty was ignored by the Catholic press and officials.

I wrote a review of the book for one of the centrist websites for which I was then writing. The editors never published the article. It was the one article of mine they did not publish–nor did they discuss it with me. They just went silent. This was especially surprising because my review was not simply a puff for the book. I’m actually not in favor of the death penalty, so I had no axe to grind. However, I did think that Feser and Bessette’s book was a valuable contribution to the debate, that it was well written and that it should have been taken seriously.

One of the points they make is to go back to basics and ask what the point of punishment really is. The Catechism takes a utilitarian point of view. It is for defense of the public and rehabilitation of the offender. However, this is not the classic Catholic position or the classical position at all. Feser and Bessette make the point that retributive justice is the foundation for punishment. Protection of the public and possible rehabilitation and repentance of the criminal are by products of the punishment.

This point is made very forcefully in an essay by C.S.Lewis called The Humanitarian Theory of Punishment.  To put his argument very succinctly he says punishment based on an objective law code and a set list of appropriate punishments for certain crimes is the only foundation for true justice. Therefore, if you steal an apple you must go to jail for two days. The judge then weighs up circumstances, intention and character and the need to protect the public and the chance for rehabilitation may adjust the sentence accordingly. If he is a constantly offending thief, for example, he may be sent to jail for two weeks not two days. If he is a starving urchin and this is his first offense he may be let off with a warning.

Lewis goes on to point out that if the reason for punishment is protection of the public or rehabilitation the possibilities for gross injustice are alarming. If the reason for punishment is only protection of the public, then a re-offending thief might be given a life sentence even though all he did was steal twenty dollars. If the reason for punishment is rehabilitation the person might be locked up until such time that the authorities consider him to be properly “re-educated”–and that might be a life sentence.

A few years ago a few cases came up which illustrated the gross injustice that can come about when protection and rehabilitation are the sole reasons for punishment. Shawn Ratigan was a Catholic priest who was arrested for taking pictures of little girls’ pelvic areas. He had these pictures on his computer. Most of the girls were clothed although there were some naked pictures. He was also accused of touching some of the girls inappropriately. To protect the public he was sentenced to fifty years in prison. One does not want to defend Shawn Ratigan. He admitted that he should go to jail, but instead of fifteen years he was given a life sentence.  “Fifty years is necessary to protect society from him,” Assistant U.S. Attorney Katharine Fincham said. You can read the story here.

Was a life sentence without parole justice for Shawn Ratigan?

People object to retributive justice because they think it is a form of revenge, but revenge is an emotional response of rage that demands equal payback for a crime. Retributive justice is not based on revenge, but on an objective standard of both law and punishment. The ironic thing about punishment based on protection and rehabilitation is that (because it is subjective) it actually opens the way to revenge. So the mother of one of the girls Ratigan photographed said, the priest should be put away for the full term because his actions had taken a lasting toll on the girl, her family and rocked their faith in the church. “Our baby, our little girl, has suffered,” said the woman. “There are monsters everywhere.”

In other words the mother’s quite understandable outrage justified what many would see as an unjust sentence of Mr Ratigan.

A similar case the same year shows how punishment based on the motive of protection or rehabilitation can produce injustice in which the perpetrator receives too lenient a sentence. I can’t track down the report on the case now, but a Protestant youth pastor was convicted of molesting about ten teen aged boys. He gave them alcohol, showed them pornography and engaged in sex acts with them. The judge sentenced him to five years but suspended the sentence on condition that he underwent counseling for his problem

In one case driven by protection of the public a man gets a life sentence. In a second case (which was objectively far worse) the punishment was driven by rehabilitation and the man is freed.

I once had the opportunity to have dinner with a retired circuit judge. I asked him about C.S.Lewis’ famous essay. “Did judges and lawyers know about this essay?” He said they all did but it was rejected by the majority of law professors, judges and lawyers. I asked why.

He chuckled cynically and said, “Because Lewis’ theory is based on the acceptance of an objective law code which is greater than any one country’s civil law, and if there is an objective external law code, then there is also a lawgiver. They know that and that is why they reject retributive justice…because they reject an objective moral code and the One who gives it.

Belloc was right. Every argument is a theological argument.

Therefore what lies beneath the Pope’s decision is an earlier decision to base the theory of punishment on the subjective criteria of rehabilitation and protection of the public and (as a result) also the subjective emotion that demands revenge. In other words, it was based on a utilitarian understanding of punishment rather than one rooted in an objective law.

To my mind this is why the two paragraphs on punishment  are among the weakest in the catechism, and this weakness has led to the abolition of the death penalty which seems like such a nice merciful thing, but it may well lead to far greater injustice in the long run.

Given the underlying philosophies, it follows that the death penalty is abhorrent because with modern prisons the population can be adequately protected and the longer the criminal stays locked up the more time he has to be rehabilitated and set right. If this is the reason for punishment, then Pope Francis is right to do rule out the death penalty.

Lewis, Feser and Bessette argue for an objective standard of punishment– that the death penalty is permissible because certain heinous crimes cry out to heaven for the death of the offender. They argue that this has been the constant tradition of the church and Christian society down the ages.

My own opinion is to agree with them that retributive justice should be the foundation of punishment, and I would agree that certain crimes are so heinous that they demand the death penalty. However, I would conclude by saying, the principle of mercy in the Christian faith should be the motivation to do away with the death penalty and that in a Christian society a judge should say,  “For what you did, you deserve to die, and the state should have the power to take your life, but mercy demands that we commute that sentence to life imprisonment.”