Is the death penalty ever "legitimate defense"?

Exploring John Paul II's 1997 capital punishment loophole

This week at Where Peter Is, we are publishing a lengthy essay in four parts by theologian Robert Fastiggi, PhD, on the magisterial authority of the 2018 revision to no. 2267 in the Catechism of the Catholic Church (CCC) on the death penalty.

In his essay, Dr. Fastiggi provides a comprehensive and convincing argument that Pope Francis’s teaching is clearly an act of the authentic Magisterium, and as such demands the religious assent of intellect and will of the faithful, in light of what Lumen Gentium 25 and Canon 752 teach about the submission owed to the pope’s teachings, even when he does not teach definitively.

I have wholeheartedly accepted the revision to CCC 2267 since the day it was promulgated, not only because it was clear to me that the language in Pope St. John Paul II’s 1997 formulation was being used as a loophole to justify any and all support for the death penalty, but because it was difficult for me to imagine a concrete case where the criteria for its licit use given in the teaching could ever be applied.

The teaching of Pope St. John Paul II on the death penalty

The CDF’s instruction Donum Veritatis states that “When it comes to the question of interventions in the prudential order, it could happen that some Magisterial documents might not be free from all deficiencies. Bishops and their advisors have not always taken into immediate consideration every aspect or the entire complexity of a question” (DV 24). It seems to me that the 1997 version of CCC 2267 might very well have contained one of these “deficiencies,” and that this deficiency has been resolved by Pope Francis with the 2018 reform.

It seems to me that the 21 years that elapsed between the release of the Second Edition of the CCC and the 2018 development reflects the concept taught in Donum Veritatis that “time has permitted discernment and, after deeper study, the attainment of true doctrinal progress” (DV 24).

The first paragraph of the obsolete 1997 teaching on the death penalty says (emphasis added):

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. (CCC, 2267, Second Edition, 1997)

Before he promulgated this teaching, however, John Paul II appeared to push a little further. In his 1995 encyclical Evangelium Vitae, John Paul II argued against the use of the death penalty, and even seemed to distance himself from the view that legitimate defense is a valid justification for capital punishment, writing, “there is evidence of a growing public opposition to the death penalty, even when such a penalty is seen as a kind of ‘legitimate defence’ on the part of society. Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform” (EV 27).

John Paul II’s wording — that the death penalty “is seen as a kind of ‘legitimate defence’ on the part of society” — is hardly a ringing personal endorsement of its use, especially when in the next sentence he asserts “Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless.” In paragraph 56 of the encyclical, he quotes the teaching in the original edition of the CCC: “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must 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" (EV 56).

In principle, this teaching seems clear and reasonable. Lethal force is lawful in cases of legitimate defense. But both Evangelium Vitae and the Catechism are unclear on what, precisely, constitutes a situation where the death penalty is an absolute necessity. Both texts simply assert that “such cases are very rare, if not practically non-existent.”

Furthermore, in Evangelium Vitae, John Paul II makes two assertions, one of which seemingly cancels out the other. At one point he writes, “If bloodless means are sufficient … public authority must limit itself to such means” (EV 56), and at another he asserts, “Modern society in fact has the means.”

Was he trying to say that the death penalty can no longer be justified? Arguably, he was.

Church teaching on legitimate defense

Many have noted that John Paul II, by teaching that the defense of society was the only justification for the death penalty, effectively discarded many reasons Catholics have used to defend its use, such as retributive justice or to put pressure on a criminal to repent of his sins or convert to the faith. Secular excuses, such as deterrence or economic benefits, are also excluded. But it is difficult to square use of the death penalty with the Church’s teaching on legitimate defense.

The CCC teaches:

2263 The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing. "The act of self-defense can have a double effect: the preservation of one's own life; and the killing of the aggressor. . . . The one is intended, the other is not."

2264 Love toward oneself remains a fundamental principle of morality. Therefore it is legitimate to insist on respect for one's own right to life. Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow:

If a man in self-defense uses more than necessary violence, it will be unlawful: whereas if he repels force with moderation, his defense will be lawful. . . . Nor is it necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one's own life than of another's.⁶⁶

2265 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."

In certain situations, it is clear that self-defense or the legitimate defense of others may require lethal force, such as in a situation with a live shooter. Police officers, when they shoot, are trained to aim at the "center mass" of the aggressor because that increases the likelihood of stopping the attacker from causing more harm. In an ABC News interview, criminology professor David Klinger explained that “if an officer aims at anything other than the torso area, the odds that he or she will miss increase greatly.” Klinger admitted that this means the death of the aggressor is foreseeable: “But aiming for the chest means that the type of wounds suspects usually sustain are likely to be fatal, he said.”

According to CCC 2263, the principle of legitimate defense is considered a different matter than “intentional killing,” because the principle of double effect is applied. The purpose of defense is so that "an unjust aggressor be rendered unable to cause harm." 

These principles are behind many of the “Use of Force” policies of police departments and other law enforcement agencies. For example, the guidelines for the District of Columbia’s Metropolitan Police only allow members of the force to use deadly force when all other options are exhausted:

“Members shall not use deadly force against a person unless the member actually and reasonably believes that deadly force is immediately necessary to protect the member or another person (other than the subject of the use of deadly force) from the threat of serious bodily injury or death, the member’s actions are reasonable given the totality of the circumstances, and all other options have been exhausted or do not reasonably lend themselves to the circumstances. “

After the aggressor has been stopped, the use of deadly force must cease. If he or she survives a shooting, the injured assailant becomes a patient in need of medical attentions. The guidelines go on to say, “When force is used, members shall promptly conduct a visual and verbal check of the subject, to include checking vital signs when appropriate, to determine the need for medical care.”

Obviously, in recent years, there has been an outcry against police officers who use excessive or unnecessary force against non-aggressors or those who have already been subdued. And rightly so. This is why the Metropolitan Police have accountability measures built into their policies, such as, “Members shall take steps to prevent or stop illegal or inappropriate uses of force by other members and report illegal and inappropriate uses of force by other members that they observe or of which they are made aware.”

This is in line with CCC 2264’s teaching that says, "If a man in self-defense uses more than necessary violence, it will be unlawful: whereas if he repels force with moderation, his defense will be lawful." The use of force must be proportional to the danger posed by the aggressor.

If, for example, a group of police officers respond to a call about an aggressor who is indiscriminately punching other people with his fists in a shopping mall, force might be necessary to stop him, but not lethal force. If the officers chose to shoot him, rather than use tasers or nightsticks to subdue him, that would be unnecessary violence, and immoral (presuming no one's life appeared to be in immediate danger).

Does legitimate defense apply in death penalty cases?

Based on the understanding of “legitimate defense" taught in the preceding paragraphs in the CCC, it is hard to envision how the principle can justify the use of the death penalty. To apply the death penalty licitly according to the 1997 teaching, a criminal would have to be apprehended, charged with a crime, found guilty in a fair trial, and sentenced to death. Following the conviction, the criminal would presumably be detained in a prison of some kind waiting for execution.

Even if the offender was at times violent or was a perceived threat to guards and prisoners, carrying out the death penalty would require that they be restrained as it was done. How can it reasonably be understood that the death penalty is not direct killing, as opposed to the foreseeable outcome of the use of deadly force in legitimate defense. Furthermore, unlike the policies that govern police forces, in an execution, there is no attempt to provide medical care to offenders who survive. Only backup provisions to ensure their deaths.

Furthermore, even if such a person is unpredictable and dangerous, at the moment of execution, the offender is restrained. If, on the way to the execution chamber, a criminal breaks free from his bonds and begins to attack his jailers, he becomes an active aggressor, and the principle of legitimate defense applies. But if he is restrained again, he is no longer an active threat.

Many of the scenarios that are raised to defend edge cases — people marooned on a desert island with a madman, post-apocalyptic futures, the plunge of society into anarchy — do not present situations in which the “death penalty” can be applied. Remember, the death penalty, by definition, is carried out by a state after a fair trial.

By its nature, the death penalty is killing someone based on the potential threat someone might pose to others. The idea of the death penalty as a form of defense strikes me as similar to launching a preemptive war based on the notion that one country might do harm to another country. The Compendium of the Social Doctrine of the Church teaches, “A war of aggression is intrinsically immoral” (no. 500). Even if we cannot say that the preemptive direct killing of a potential aggressor is not intrinsically immoral, certain we can agree that it is an act against the dignity of the person.

Nonexistent in practice

My position is not necessarily a rejection of John Paul II's 1997 formula. He did teach that its necessity was “extremely rare” or “practically nonexistent.” We can certainly read this to mean that scenarios permitting the death penalty are "nonexistent in practice." There is a narrative (and I have no idea whether it’s a true story) that John Paul II was convinced by various advisors that a total rejection of the death penalty would appear to be a contradiction in the Magisterium (as Pope Francis’s critics argue today).

That said, a straightforward, close reading of the teachings of John Paul II on the death penalty indicate that he strongly wanted to close the door on the use of the death penalty, but without delving into the question of whether it is intrinsically evil, a matter that was integral to his 1993 encyclical Veritatis Splendor. Sadly, many Catholics, especially in the United States, exploited his seeming loophole and drove a truck through it.

Pope Francis, like John Paul II, avoided the language of intrinsic evil, but more effectively — and convincingly — put a stop to any confusion over whether the Church condones the death penalty. The answer is no: it is inadmissible because it is an attack on the inviolability and dignity of the human person.

I can accept that there could be — in a purely theoretical scenario — cases where the death penalty can be justified, I just can't envision them in the real world. And I don’t think Saint John Paul II could either.