The Revised Catechism on the Death Penalty

With popular news articles beginning on August 2, 2018, various media agencies have been proclaiming: “Pope Francis has declared the death penalty wrong in all cases, a definitive change in church teaching . . .” (New York Times), “Pope Francis has changed Catholic Church teaching to fully reject the death penalty . . .” (Washington Post), “Pope Francis Says No to Centuries of Church Teaching” (National Review). It is no wonder that many Catholics have been confused and even quite disturbed by the announcement of recent changes to the Catechism of the Catholic Church with respect to capital punishment. The confusion has been compounded by the fact that Catholic commentators themselves have been divided on how properly to approach and understand the new texts of the Catechism and other, relevant texts from the Congregation for the Doctrine of the Faith. It appears to some that Pope Francis has indeed attempted to change centuries of Church teaching on capital punishment, that he has ruled out its use in an absolute way, and has even presented the act of applying the death penalty as intrinsically evil in relation to natural law and Christian morality. Others continue to view the relevant texts of the Catechism as they had prior to the new changes, as pastoral and prudential judgments that capital punishment ordinarily ought not be implemented in contemporary circumstances, but which imply no doctrinal change with respect to the intrinsic morality of the death penalty. I will argue that a careful reading of the relevant documents firmly favors the latter interpretation of the new text of the Catechism.

According to the Vatican translation, the new paragraph 2267, “The death penalty,” now reads:

2267. Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.

Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.

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”,[1] and she works with determination for its abolition worldwide.

[1] Francis, Address to Participants in the Meeting organized by the Pontifical Council for the Promotion of the New Evangelization, 11 October 2017: L’Osservatore Romano, 13 October 2017, 5.

Given the proclamations in popular media, and the serious concerns even of Catholic commentators, the careful reader may be struck first of all by what is absent from the new text. While there is a clear structure in the three sub-paragraphs of 2267 of recognizing the past, recognizing present circumstances, and then presenting teaching that is said to follow upon present circumstances (much more on this structure below), there is no language that would be equivalent to: “In the past the Church taught that the death penalty was not intrinsically evil, but now the Church teaches that it is intrinsically evil,” or, “In the past the Church taught that in some circumstances the death penalty may be morally justified, but the Church now recognizes that prior teaching to have been in error and currently correctly teaches that there can never be circumstances in which the death penalty may be morally justified.”

Rather than focusing on the intrinsic morality of applying the death penalty, the contents of 2267 chiefly address circumstances of time, mentality, and detention systems, and then what is said to follow upon those circumstances. Let us consider each of these in particular.

The first sub-paragraph interestingly opens not by addressing the objective moral status of the death penalty in prior Church teaching, but by addressing how the penalty was “long considered an appropriate response” in relation to certain crimes. The language here does not address moral doctrine per se, but the thoughts of people (presumably within the Church and within societies more broadly), what they “considered,” regarding the appropriateness of the death penalty over long periods of time.

The second sub-paragraph continues the focus on both circumstances of time and mental considerations by noting that “Today, however” (the Latin text literally has “however, in these times,” His autem temporibus), there is an increasing awareness (in Latin: “it is acknowledged,” agnoscitur) that the dignity of the person is not lost even after the commission of very serious crimes. This is the first reason in the structure of the text that leads to the eventual conclusion concerning the “inadmissibility” of the death penalty.

The second reason is similar, in that it is also bound to time and is concerned with the realm of mentality: a new understanding is said to have emerged concerning the significance of penal sanctions imposed by the state. The text of the Catechism does not elaborate on this point. However, the “Letter to the Bishops regarding the new revision of number 2267,” from the Congregation for the Doctrine of the Faith, offers some clarity. Considering the “inadmissibility” of the death penalty as a result of reasons provided in the second sub-paragraph of 2267, the Congregation notes (in section 7 of its document):

This conclusion is reached taking into account the new understanding of penal sanctions applied by the modern State, which should be oriented above all to the rehabilitation and social reintegration of the criminal.

This brief explanation is very useful for grasping what is involved in the “new understanding” of the significance of penal sanctions applied by the modern state that is relevant for the conclusion of 2267. Two points should be addressed before continuing with the structure of the Catechism’s new text.

The first point is that, while the Catechism text and the Congregation’s document together indicate that the “new understanding” of penal sanctions applied by the modern state considers that such sanctions “should be oriented above all to the rehabilitation and social reintegration of the criminal,” there is no necessary implication that the Catechism and the Congregation agree with or teach that rehabilitation and social reintegration of the criminal constitute the true principal purpose of just penal sanctions. On the contrary, the Catechism itself still teaches that “Punishment has the primary aim of redressing the disorder introduced by the offense.” This teaching is found in the immediately preceding paragraph, 2266, that has remained untouched with the revision of 2267. The same truth is explicitly taught also in section 56 of Pope Saint John Paul II’s 1995 encyclical letter, Evangelium vitae. Both that encyclical and paragraph 2266 of the Catechism go on to recognize a medicinal purpose of punishment, insofar as it contributes to the correction of the guilty party, but neither document supports the understanding that increasingly may be found in modern states, that the primary purpose of penal sanctions is rehabilitation and social reintegration of the criminal. Nevertheless, it is necessary to recognize the presence of that “new understanding” in order to make sense of the conclusion reached at the end of 2267. Given that the modern state’s understanding of “penal sanctions” is a certain way, that may have profound implications for whether the death penalty ought to be carried out—or even can be carried out—in its proper context of justice.

The second point is just to make explicit that the “State” addressed in 2267 is understood clearly by the Congregation to be the modern state, not any and every conceivable state or political society. That is to say, the Congregation for the Doctrine of the Faith is presenting a recent political context as necessary for grasping the second reason of 2267 as a reason that leads to the final conclusion of 2267.

The last reason leading up to that conclusion is somewhat different from the prior two reasons, insofar as it is not directly concerned with mental or intellectual acts such as an “increasing awareness” or “a new understanding.” Nevertheless, the third reason is similar to the prior two inasmuch as it regards a circumstance of modern times, namely, that there are generally more effective systems of detention available now than in times past, “which ensure the due protection of citizens” without definitively depriving the guilty of the possibility of redemption. This point is not new. It was already contained in the previous version of 2267 of the Catechism, and it was a reason frequently used by Pope Saint John Paul II in his own efforts to reduce the application of the death penalty.

Returning to the structure of 2267, the reader finds that the three reasons of the second sub-paragraph are formally connected to a conclusion. This is evident from the opening of the third sub-paragraph: “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’ . . . .” The connection between sub-paragraphs two and three is crucial for understanding the final teaching on the inadmissibility of the death penalty. In context, that teaching is said to be consequent upon (the Latin text has: Quapropter, “Wherefore” or “And therefore”) the three considerations of the prior sub-paragraph. In the formal structure of 2267, we do not have the Church’s teaching concerning the inadmissibility of the death penalty apart from the conditions presented in the second sub-paragraph.

Now, given the formal dependency of the final teaching upon the preceding conditions of 2267, it is also crucial to recall that each of the conditions listed is also formally presented as a condition that is contingent, only sometimes occurring, and in principle subject to change. If these characteristics did not belong to the conditions listed, then it would not be intelligible to qualify them in terms of “increasing,” “new,” and “more effective.” It is implied that the “awareness” had not always been increasing in the same way or to the same degree, that the “understanding” that is “new” had not always existed or been as widespread, and that in times past systems of detention were not as effective as they are currently. Of course, it goes without saying that current conditions that represent changes from the past may also change again in the future.

I am not arguing that Pope Francis, the Congregation for the Doctrine of the Faith, or any person who had a role in drafting the new text of 2267 consciously and deliberately intended to present the teaching of that paragraph with a view to it being subject to change in the future consequent upon the conditions it listed changing. Nevertheless, I am arguing that the text as written and approved by Pope Francis is in fact formally structured in such a way that its conclusion (“Consequently, the Church teaches . . . ‘that the death penalty is inadmissible . . .’”) is based upon contingent conditions that are subject to change. Thus, it is not engaging in eisegesis, wishful thinking, or an otherwise improper reading of 2267 to understand its conclusion as in principle subject to revision or non-applicability in a case where the conditions upon which the conclusion is based have changed, or perhaps have never actually been realized in the first place.

The accompanying document from the Congregation for the Doctrine of the Faith may even insinuate the last point. Returning again to section 7 of the document, immediately following the sentence quoted above, concerning the conclusion of inadmissibility following (in part) upon the new understanding of penal sanctions applied by the modern state, the Congregation includes the following sentences.

Finally, given that modern society possesses more efficient detention systems, the death penalty becomes unnecessary as protection for the life of innocent people. Certainly, it remains the duty of public authorities to defend the life of citizens, as has always been taught by the Magisterium and is confirmed by the Catechism of the Catholic Church in numbers 2265 and 2266.

Paragraph 2265 still reads:

Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm. For this reason, those who legitimately hold authority also have the right to use arms to repel aggressors against the civil community entrusted to their responsibility.

Taking these two quotations together, it seems as though the Congregation is leaving open the possibility that, while modern societies may generally possess efficient detention systems, some may find in certain cases that they in fact lack what is necessary to protect the lives of innocent persons and to defend their citizens. In such cases, if the defense of the common good requires it, those with legitimate authority may use arms to render the unjust aggressor within the community (as aggressors against the civil community may come from within as well as from without) unable to cause harm. In some cases this may require use of arms to the point of death.

Paragraph 2266 also continues to teach that “Legitimate public authority has the right and the duty to inflict punishment proportionate to the gravity of the offense.” Taking this passage together with those texts quoted in the last paragraph, it seems possible to conclude that in a case where the legitimate public authority does not in fact have the efficient means to detain a person who is a criminal threat to the lives of the innocent in a civil society, that authority may not only use arms to render the criminal unable to cause harm, but may do so as a punishment proportionate to the gravity of the offense the criminal has given in relation to the common good.

I am not arguing here that the above reading of section 7 of the Congregation’s document is the sole proper way to interpret its teaching on the Catechism, but only that it is a possible and apparently reasonable way to do so. It avoids contradiction with the revised 2267 precisely because it assumes that one of the conditions for the teaching on the death penalty’s inadmissibility is not realized in a given case. It also has the advantage of being in harmony with the teaching of Pope Saint John Paul II, as found in the prior version of 2267, that “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 an unjust aggressor.” The latter is an important advantage, given what the Congregation’s document says in the following section (8):

All of this [the contents of section 7] shows that the new formulation of number 2267 of the Catechism expresses an authentic development of doctrine that is not in contradiction with the prior teachings of the Magisterium. These teachings, in fact, can be explained in the light of the primary responsibility of the public authority to protect the common good in a social context in which the penal sanctions were understood differently, and had developed in an environment in which it was more difficult to guarantee that the criminal could not repeat the crime.

The Congregation assumes the importance of the present teaching being in developmental harmony with prior teachings of the Magisterium. Such harmony is one that avoids contradiction. Adequately explaining differences between the new formulation of 2267 and prior teachings on the death penalty requires, again, having recourse to differences of social contexts, understandings, and environmental circumstances. But having recourse to differences of those kinds indicates that the new formulation or teaching of 2267 is itself contingent upon such differences having been realized. If/when they are not so realized, it seems clear that the present conclusion of 2267 is not applicable insofar as the revised formulation in the Catechism is concerned.

At this point, it is necessary to look further at the concluding text of 2267, and at the actual terms used in the revised formulation. One might object to the interpretation given above by pointing out that the final part of 2267 says that “the Church teaches,” in light of the Gospel, that the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person. It would seem that the ultimate source of the inadmissibility of the death penalty is the Gospel itself, which does not change. Also, the problem with the death penalty is represented as being an attack on the inviolability and dignity of the person. Such an attack would seem to be condemned by natural law, such that it cannot become right based on mere changing circumstances. Hence, the teaching of 2267 appears to imply the intrinsic moral evil of the death penalty.

One way to respond is to point out that in the context of 2267, the whole concluding “teaching” is what is said to follow upon the conditions of sub-paragraph two. That is, the death penalty is taught, in light of the Gospel, to be inadmissible because it is an attack on the inviolability and dignity of the person, given (as following from) the three conditions of the prior sub-paragraph.

The words, “In light of the Gospel . . . because it is an attack on the inviolability and dignity of the person,” may not mean anything more than: judged or evaluated in light of some principles contained within the Gospel, the Church is presently considering that the three conditions in sub-paragraph two lead to the inadmissibility conclusion under modern circumstances, because in these circumstances the death penalty would be an attack on the inviolable dignity of the human person.¹ How might this work?

The Gospel certainly calls us to recognize and respect the personal dignity of every human being, even that of the greatest sinner or criminal. Both just punishment and merciful pardon must presuppose the existence and recognition of the personal dignity belonging to a responsible moral agent. We cannot evangelize or expect people to be receptive to the Gospel itself without an awareness of the inalienable dignity of every person, which ultimately is the dignity or worthiness of being made in the image of God. (Of course, there are other kinds of dignity that build upon this foundation, and that can be acquired or lost by good or evil actions, respectively; but the Catechism is evidently not focusing on them in 2267.) If it is true that in certain places there is an “increasing awareness” of the inalienable dignity of the person, considering that fact in light of the Gospel will of course lead the Church to foster that increasing awareness and to remove hindrances or difficulties to it becoming a beneficial influence in societies.

Especially in times when a “culture of death” has obscured the abilities of many to adequately recognize and respect the personal dignity of the pre-born, the disabled, and the vulnerable, taking advantage of the awareness of personal dignity wherever one can becomes all the more urgent. It may seem better in such an environment to forgo a certain form of punishment that, while justifiable in principle, directly terminates the life of a dignity-bearing person. It may seem better in such an environment, from a pastoral and prudential point of view (“in light of the Gospel”), practically to treat the death penalty as an option generally “not to be admitted,” and instead to focus on applying other effective forms of punishment and restraint that allow for the continued existence of the criminal’s personal dignity and the potential for the fruits of the Gospel to be accepted or increased in him or her.

However, it must be noted that the “increasing awareness” that the dignity of the person is not lost even after the commission of crimes may not on its own constitute a sufficient reason (in light of the Gospel) for the teaching that the death penalty ought to be avoided in a society because it would represent an attack on that dignity. In the text of 2267, it is this reason joined to the “new understanding” of the significance of penal sanctions imposed by the state, and the availability of non-lethal effective means of detention, that leads to that conclusion.

In a context in which state-imposed penal sanctions are understood no longer primarily as redressing the disorder introduced by the offense, but chiefly as oriented toward the rehabilitation and social integration of the criminal, apart from cases where the death penalty is necessary in order to detain the criminal from further harm, such a state has lost the principal rationale for capital punishment itself. In such a context, where the chief rationale for capital punishment as a penalty of justice is formally missing, it is actually not difficult to appreciate why that ‘punishment’ ought not “to be admitted” (admitti), “since” (quippe), absent the reasons of just redress of disorder and aggression detainment, “it would oppose the inviolable dignity of the human person.”

While the foregoing comments are sufficient in themselves to explain how the new text of 2267 can be understood consistently as a pastorally motivated teaching that capital punishment ordinarily ought not be implemented in contemporary circumstances, but without implying a doctrinal change with respect to the intrinsic morality of the death penalty, it may be useful to mention another possible reading of the “attack” element of the conclusion of 2267.

It may also be the case that the opposition to or “attack” on “the inviolable dignity of the human person” can be understood as a material opposition or attack that is always present whenever death is deliberately and directly inflicted. Insofar as death is the destruction of the substantial human being who always possesses personal dignity, this opposition can be said to exist (materially) whenever the killing of a human being is intended and caused, whether it is justified or unjustified. This opposition of itself provides a reason why we generally should not kill, and why for killing to be justified certain conditions must be met (as, for example, the exercise of proper authority, the presence of a just cause, and right intentions are necessary for a war to be justified; see Summa Theologiae II-II q. 40, art. 1, and also CCC 2309).

Hence, perhaps another way to read the conclusion of 2267 is the following: since the direct infliction of death (the destruction of the substantial existence of the human being) always involves a material opposition or “attack” in relation to the inviolable dignity of the human person, the Church, in light of the Gospel, teaches that inflicting the death penalty is not to be admitted so long as the conditions for its just exercise are lacking—and those conditions are in fact lacking when the circumstances of a political society are equivalent to those described in sub-paragraph two of 2267.

Lastly, it is worth noting that there may be more going on in the new text of 2267 than a simple pastoral and prudential teaching based on discursive reasoning with modern conditions taken as premises. It may be that those conditions are being treated more like “signs of the times” to be read and interpreted “in light of the Gospel.” It is noticeable that section 4 of the Second Vatican Council’s Gaudium et spes used these exact words (sub Evangelii luce) when speaking of the Church’s “duty of scrutinizing the signs of the times and of interpreting them in the light of the Gospel.” In the immediate context of that document, that “duty” is spoken of as a means of carrying out the task of being led by the “Comforting Spirit to continue the work of Christ himself, who came into the world that he might bear testimony to the truth, that he might save, not that he might pass judgment, that he might serve, not that he himself might be served.” It is not at all strange to think that the revised 2267 was motivated from an intended spiritual “reading” and “interpreting” of modern “signs” in light of that task. Here it should be recalled that both Pope Benedict XVI and Pope Saint John Paul II also strongly interpreted modern conditions as calling for a reduction or even abolition of the death penalty, and they undoubtedly did so because they believed the light of the Gospel led them to discern that way.

Familiar passages from Ecclesiastes declare: “For everything there is a season, and a time for every matter under heaven . . . a time to kill, and a time to heal; . . . a time for war, and a time for peace” (3:1–8). In his reply to an objection in the Summa Theologiae (II-II 64, 2, 2), Saint Thomas writes:

God, according to the order of His wisdom, sometimes slays sinners right away, for the liberation of the good; however, sometimes He concedes to them a time of repenting, according as He knows that to be expedient for His elect. And this also is imitated by human justice according to its power, for it slays those who are destructive to others; but it reserves for repentance those who sin while not harming others.

Combining elements from these passages, perhaps the new text of the Catechism can be understood as the product of a judgment, based upon a spiritual reading of modern conditions as signs in light of the Gospel, that the present “season” (“in these times”) should generally be one where human justice imitates God’s merciful concession whereby he sometimes spares sinners to allow them a time of repenting, at least provided that they do not continue to harm others (recall condition three of 2267).

In any case, however we understand the motivations and causes behind the revised text, it is clear that the text itself does not necessarily teach or imply anything new concerning the intrinsic morality of the death penalty considered apart from contingent circumstances presumed to exist in parts of the modern world.