ARTICLES

Sea Change on Death Penalty?

Pro-Life Catholics Ponder Pope's Teaching

By Christopher Zehnder

"It wasn't a shock," said Charles Rice, speaking of Pope John Paul II's teaching on the death penalty. "I've never been a big fan of the death penalty," said Rice, "but following St. Thomas Aquinas, I thought it was a necessary thing." Rice said he had to ask himself about the pope, "okay, who's this guy over there? He's not some Polish tourist living in Rome."

In his book, The Winning Side: Questions on Living the Culture of LIFE, Rice, a professor at Notre Dame Law School in Indiana, asks the question, "can we be pro-life and support capital punishment?" He explores the question in light of Pope John Paul II's encyclical, Evangelium Vitæ. The pope, he wrote, allows only one criterion for the use of the death penalty, which is "the protection of human lives from this convicted criminal."

Rice wrote that, before Evangelium Vitæ, he accepted the death penalty. He said he and others had argued that, for some crimes, only the death penalty could restore justice; that to punish murder by imprisonment, "a penalty qualitatively no different from that inflicted for embezzlement, is to devalue innocent life."

Rice told me he thought these arguments were still true, but that they have been "preempted by a higher criterion. What John Paul is doing," he said, "is putting it into the twofold category of, one, the emphasis on the dignity of the person; to convert the single human person is a greater good than the creation of the material universe. Second, it is a challenge to the power of the state."

Rice said that "the Church is affirming the importance of each individual human person, even [the] guilty. The pope says you have to be so protective of the life of the guilty that innocent life has absolute protection. Then we move on into all those other things -- abortion, euthanasia, etc. In the big picture it is a challenge to the claim of the modern state essentially to be God, to determine issues of life and death."

Though in his book Rice wrote that "the teaching of John Paul II and of the Catechism on the death penalty is proving to be the Humanæ Vitæ of many orthodox and politically conservative Catholics," he does not think it has the same status as the teaching on artificial contraception. Yet, Rice told me, "it doesn't have to. Ad Tuendam Fidem emphasized that even non-definitive teachings of the Church are binding in the formation of conscience.

"Humanæ Vitæ," said Rice, "I think is infallible by universal teaching of the Church. This one [on the death penalty] requires the religious submission of will and of mind, which is not the assent of faith. What's the difference, in terms of formation of conscience? In my opinion, a legislator cannot support it, a prosecutor cannot ask for it, a juror cannot vote for it."

I spoke to some pro-life advocates in the San Diego area to see how the pope's teaching on the death penalty affected their thinking -- can one be pro-life and still support the death penalty? Joan Patton, who for many years has worked with the San Diego Pro-Life League and the Right to Life Council of San Diego County said that, before the pope spoke, she was not certain where she stood on the death penalty. "I had mixed feelings about it," she said. "I could see the arguments from both sides. I thought about it over a long period of time. I really had not come to a definite conclusion." The pope's statement on the death penalty, said Patton, "made up my mind for me, that I am opposed to the death penalty as long as we can be assured that people that have committed heinous crimes will have life in prison without parole, to protect society."

I asked Patton whether she came down against the death penalty because she understood the pope's reasoning, or merely because she gave the teaching "religious submission mind and will." "It would be a combination of the two," said Patton, "because the pope was able to sway my arguments against. I also do accept the fact that he said that in certain societies and under certain conditions [the death penalty is permissible], which does leave it open to areas where that is the only way they can protect human society."

Peggy Pinciotti said that she accepts the pope's teaching on the death penalty because she understands his reasoning. Pinciotti, who has been active in the pro-life movement for the past 21 years, said that being in the movement made her realize that "you don't take another person's life, even in revenge. In the United States we have the means to keep the criminals off the streets, so there really isn't a necessity" for the death penalty.

Marilyn Smyth said that for many years she did not see the conflict between being pro-life and supporting the death penalty. "I hadn't thought a lot about it," said Smyth. "I thought it was for putting people to death who were terrible criminals, terrible murderers. I thought that it was fair to them." Now, however, Smyth says that she doesn't think the death penalty "is fair to the rest of us. I do think some people deserve to die, it isn't unfair to them; but I don't think we all deserve to have to make those decisions. It would be easier if we could all keep them from hurting anyone forever. I've heard other people say that they would like to banish people somewhere, and that would be fine with me, too."

Smyth says, though, she thinks there needs to be a stronger punishment than life imprisonment for murderers, to protect prison guards and other criminals. "I had a nephew in Arizona," she said, "who worked at a prison as a sheriff and he was told boldly by one of the prisoners, 'I can kill you anytime. We don't have the death penalty in Arizona.' I think there needs to be something to protect them, but if they work that out, I don't really like putting people to death. It's not because I feel sorry for them, but because I think it hurts us by diminishing life."

I asked Smyth, who is an officer in the Right to Life Council of San Diego County and works in political education, whether she thinks one should support a candidate who is pro-death penalty. "I suppose I would have to think about that," she said. "But a candidate who supports the death penalty is feeling that they are doing something that is fair, and killing an unborn baby is not fair. It's a different way of thinking there, because the baby doesn't deserve that." "This is my concern," said Lisa Smith, the former pro-life head at St. Brigid's in Pacific Beach, "I like the fact that the Catholic Church has been for the death penalty from the beginning; it has always been acceptable for Catholics, and encouraged Catholics to be in favor of the death penalty in serious cases. I always wanted to be in tune with the magisterium of the Catholic Church and what is correct down through the ages with the Holy Spirit. And so I'm a little bit concerned that the pope has changed this somewhat. It used to be a black and white issue, and much as I love this pope -- and he has been fabulous and is a saint -- I just feel a little bit uneasy about how he has phrased things with the death penalty. It's like it's almost impossible that it is even needed any more."

I asked Smith about what she thought of Charles Rice's statement that the teaching on the death penalty is proving to be the Humanæ Vitæ of many conservative Catholics. "I am anything but a dissident Catholic," said Smith. "I don't think this issue is anywhere near that issue, because Humanæ Vitæ issue revolves around people wanting to use birth control, and the Catholic Church has always clearly said that is a mortal sin, and there is no way to fudge on this. With the death penalty it seems that you are fudging all the time. It seems that the pope is saying it needs to be more rare than ever, and possibly never. That is a far cry from Humanæ Vitæ. I would like the death penalty to be extremely rare, too. I would like all those on death row to have the chance to repent. It seems that if you are going to be in favor of the death penalty in theory, then you need to allow some circumstances where it is acceptable. It's really hard to draw the line. If the pope said, absolutely, the Catholic Church does not support the death penalty, I would say, okay, I'm opposed to the death penalty. I would say, it's awfully strange that in all these years the Catholic Church has been wrong on this one issues when they have never been wrong on any other issue, and it would be a sad thing to kind of pull the rug out from under those of us who have been holding the Church's position for so many years."

Betty Mettee, pro-life coordinator at St. James in Solana Beach and representative for the Oceanside deanery, told me "I have expanded my thoughts on the death penalty in this way. I think we need to know the background of the person more and have more tolerance of lack of training, lack of principle, that kind of thing. But I still approve of the death penalty. There are some very violent kinds of crime occurring; somehow I'm hoping that the example of those deaths will prevent others from committing such crimes."

I reminded Mettee that the pope does not allow deterrence as a justifiable reason for using the death penalty. "Then I am not fully with the pope on that. I know that I should be," said Mettee. "I'm glad that His Holiness is saying that in certain circumstances death should be allowed, but I think it needs to be exercised hopefully to discourage others from committing the crimes."

Joseph O'Connor, a pro-life attorney, said he thinks that the pope's statement in Evangelium Vitæ "forms a pretty strong ordinary magisterium. The Church teaching in the person of the pope should be very very carefully looked at, and you can't just pick up the general culture. It's not a drastic expansion of what was said in the catechism before that. Clerics were never allowed to inflict the death penalty."

O'Connor said he has been active in the pro-life movement since its beginnings, in the sixties. He said he cannot recall anybody, then, who was "vigorously for" the death penalty. "It was all Catholics, initially," said O'Connor. Protestants, he said, moved into the movement later, and "the influence for enthusiasm for the death penalty comes from the Protestants."

When he was first in law practice in the sixties, O'Connor said, "the law schools were against capital punishment, the judiciary was also. [California Governor] Pat Brown was speaking out against it, and then the courts threw it out for a while. In the last ten years, everybody politically has to be for the death penalty, and now all these judges have been appointed that way. [Public approval for the death penalty] went to 80 percent. That's shocking! What I think brought about this glorification of the death penalty is the soft sciences claiming [criminals] were all being cured and that they were not a danger to society, and they put them back into society. That's what brought about the change in thinking."

O'Connor thinks "a lot of Catholics are unduly influenced by the culture," particularly in matters having to do with the death penalty and the military. "People who claim to be highly conservative and very Catholic," he said, "are actually a little bit off in these areas. A lot of these people just blindly follow conservative politics and pretty soon when things get bad enough they don't listen to what's going on."

O'Connor, though, thinks that "a sea change" is taking place among Catholics since the fall of Communism, "and all these social issues will be taken a look at."

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