In journeying around the United States to speak about our faith response to the U.S. death penalty, I find the overwhelming majority of its supporters are not supporting the actual death penalty that we have in this country. They are instead supporting a myth, a death penalty that does not exist.
This fantasy death penalty kills neatly and quietly without horrendous botched executions. It causes no harm to the innocent family of the condemned or to the staff and officers who must kill as part of their job. The myth even promises that families of murder victims will experience healing from watching the state commit a legal homicide — the killing of the offender. This mythical death penalty is not biased by race or wealth, only convicts the guilty, only attaches to the worst of the worst, only costs a fraction of life imprisonment, only … only … only it does not exist.
The facts of the real death penalty, the one we actually have, are not ambiguous. It is horribly skewed based on race and wealth, the latter translating to quality of legal representation at the initial trial. Meanwhile, the cost for the massive government program called capital punishment is mind-boggling. Getting a person to an execution costs many times more than the cost of life in prison. Reasoned analysis indicates that most of the difference in costs is spent on the state side for lawyers and their assistants. It is called living off the pipeline.
According to national statistics, the average time from death sentence to execution is between 15 and 20 years. In my state of Florida, where we have 400 people on death row, the average time from death sentence to execution for the 23 men executed from January 1, 2010 until now is 25.2 years. During all that time, hundreds of state-employed lawyers and technical assistants have been paid their salaries, benefits, vacations, and retirements from the pipeline of death row cases. California has almost twice as many death row inmates as Florida, almost twice as large a pipeline. The real death penalty is an invisible industry, a work-relief program for state-employed lawyers. The myth that it is cheaper to kill inmates than to keep them in prison is a lie.
And there is no accountability for results from such massive outlays of taxpayer money. Since 1976, over 150 people have been released from U.S. death rows for innocence. In my state of Florida, we have released 26 people from death row for innocence over the same period of time that we have executed 92 people. Our exorbitantly expensive pipeline system has generated at least one near-fatal mistake for every three and a half actual executions without anyone being sanctioned. A private sector operation with such an abysmal track record would have long since been investigated and forced to shut down.
The truth regarding execution of the innocent is even more damning. Our two most pro-death penalty U.S. Supreme Court Justices, Clarence Thomas and recently deceased Antonin Scalia, both acknowledged in Kansas v. Marsh that because our human criminal justice system makes mistakes, the only way to guarantee innocent people will not be executed is to repeal the death penalty. They also said repeal must be done by state legislatures, not by the Supreme Court.
As a Catholic death row chaplain who has witnessed the execution of a man I believe was innocent and a botched lethal injection, I confirm that our human systems can and will make mistakes. That means when someone claims to support the death penalty but not to support botched executions or the execution of the innocent, they are supporting a fantasy that does not exist. The reality is that if one supports executions, one supports execution of the innocent. We cannot have one without the other. If one supports executions, one supports botched executions. We cannot have one without the other.
In the face of such overwhelming realities about our U.S. death penalty, it is no surprise that, once the fantasies have been stripped away, the only way to motivate good people’s support is false claims that God and the Catholic Church support it. Such claims are thin indeed, but in my experience, those are the basis of the last desperate attempts by Catholics to support the U.S. death penalty.
Our Church has been absolutely clear. While capital punishment may not be on the same moral plane of intrinsic evil with the conventional life issues—abortion, euthanasia, assisted suicide, embryonic stem cell research—it is a life issue nonetheless. It can only be morally justified when non-lethal means are insufficient to protect society. So what can possibly be the claims that advocate Church support?
The first claim I frequently hear is that we must execute murderers to protect other prisoners; in other words, that incarceration protects free society from murderers but does not protect those in the prisons. This claim is based on two falsehoods. The first is the assumption that all the so-called worst of the worst are being executed already. That simply is not true. In case after case, people guilty of horrible murders, whether serial killers or otherwise, have been sentenced to life in prison. They are already there with the other inmates.
The other falsehood that supports this erroneous argument is the assumption that the homicide rate inside prison fences is much higher than in free society. That is also not true. According to the U.S. Department of Justice, the homicide rate in state prisons was at 4 per 100,000 in 2002. There was a higher homicide rate among the U.S. free society population (6 per 100,000) than either in state prison (4 per 100,000) or in local jails (3 per 100,000). The statistical evidence continues to support the truth that those inside prison fences are less likely to face homicide than those of us in free society. In other words, St. Pope John Paul II was right in saying that:
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…the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically non-existent.”
The second oft repeated claim is actually a denial of Church teaching. This argument alleges that people — as opposed to actions — can be intrinsically evil or beyond redemption. Under Catholic magisterial teaching, no human being is intrinsically evil, and no act committed by a human being prevents that person from susceptibility to redemption through the cross and resurrection of Jesus Christ. One of the strongest faith-based arguments against executions is that no one should shorten the time that God allows for a man or woman to find salvation.
The third such claim presented to me is terrorism. When speaking in Catholic churches in Wisconsin during that state’s attempt to reinstate the death penalty after the horror of 9/11, I encountered the wishful thinking that capital punishment could deter terrorism. Although Wisconsin had abolished the death penalty in 1853, some state leaders argued it needed reinstatement to ensure that a 9/11-type attack never happened there. In church after church, I responded to this assertion with the question, “How does capital punishment deter a suicide bomber?” Invariably, the questioner had never thought about that. Part of our death penalty myth is that capital punishment can protect us from people who are determined to harm us even at the cost of their own life. Of course, it cannot.
A different kind of argument being voiced more frequently by my audiences is one that is touted by some media Catholics. It claims that the teaching on the death penalty in Evangelium Vitae and the Catholic Catechism is wrong, a liberal aberration that cannot be supported by Tradition. The question from my audience might be phrased: “Hasn’t the Church supported the death penalty for at least 1700 years? Where did this new teaching come from?”
The best answer to that question was actually given by Pope Benedict XVI in 1997 when, as Cardinal Ratzinger, head of the Vatican Congregation for the Doctrine of the Faith, he answered, referring to the Encyclical, Evangelium Vitae –The Gospel of Life:
’The pope has made important doctrinal progress’ in the encyclical’s discussion of capital punishment. ‘What is written in the catechism will be reformulated.’
Then Cardinal Ratzinger also noted that Catholic teaching develops by building on past affirmations rather than by overturning them. So, we might ask, how does the death penalty language in Evangelium Vitae and the Catechism build upon past affirmations rather than overturning them? The answer is that, throughout our history and Tradition on this issue, the Church has consistently looked at two sides of a formula: the role of government in preserving the common good, on the one hand, and the role of faith in dealing with forgiveness, rehabilitation and the human dignity of the offender’s life, on the other hand.
For example, in the Roman Catechism of the Council of Trent (St. Pope Pius V – 1566), the chapter concerning murder, the Fifth Commandment says:
Another kind of lawful slaying belongs to civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment is the preservation and security of human life. [Emphasis mine.]
This is an explicit statement of the purpose for recognizing government’s power to inflict capital punishment: the preservation and security of human life. The new language from Evangelium Vitae and our Catechism does not overturn this. But that is only one side of the equation. We also want to look at how the Roman Catechism of the Council of Trent (1566) dealt with the other part of the equation, namely with forgiveness, rehabilitation and the human dignity of the offender’s life. In this regard we see that later in the very same chapter of that Roman Catechism of the Council of Trent (1566) dealing with murder, it says the following:
But the most important duty of all, and that which is the fullest expression of charity, and to which we should most habituate ourselves, is to pardon and forgive from the heart the injuries which we may have received from others. The Sacred Scriptures, as we have already observed, frequently admonish and exhort us to a full compliance with this duty. Not only do they pronounce blessed those who do this, but they also declare that God grants pardon to those who really fulfil this duty, while He refuses pardon to those who neglect it or refuse to obey it.
Moreover, in the very next grammatical paragraph of this chapter of the Roman Catechism of the Council of Trent (1566) dealing with murder, it instructs pastors as follows:
As the desire of revenge is almost natural to man, it becomes necessary for the pastor to exert his utmost diligence not only to instruct, but also earnestly to persuade the faithful, that a Christian should forgive and forget injuries; and as this is a duty frequently inculcated by sacred writers, he should consult them on the subject in order to be able to subdue the pertinacity of those whose minds are obstinately bent on revenge, and he should have ready the forcible and appropriate arguments which those Fathers piously employed.
Potent words, especially given the context of the brutal anti-Catholic realities of the Reformation being waged against the Church at the time this was written. But this two-sided approach is consistent with Tradition. All the way back to St. Augustine, we see the effort to struggle with both sides of the formula. He recognized the need for capital punishment in the Fifth century, but warned against vengeance, saying “our desire is rather that justice be satisfied without the taking of their lives or the maiming of their bodies in any part…”
Even 1200 years later, in the Thirteenth century, we see the struggle with both sides of the formula. St. Thomas Aquinas defended the death penalty as a means of protecting the whole body of society, relating the state’s role in execution to that of a physician who “cut(s) off a decayed limb” in order to “care for the health of the whole body.” However, he also proposed as a working norm that “in this life, penalties should be remedial rather than retributive.”
In addition to Aquinas looking at both sides of the formula, the metaphor of the diseased limb is extremely poignant. In the Thirteenth century it may have been necessary to amputate a diseased limb in order to save a person’s life from a gangrenous infection. But assume that in our day and age the very same infection can be cured with antibiotics. Who would argue that Tradition requires us to amputate the limb rather than use antibiotics because that is what was done in the time of Aquinas?
Contrary to the abilities of penal systems in the Fifth and Thirteenth centuries, St. Pope John Paul II has pointed out in Evangelium Vitae, as incorporated into the Catechism, that we can use modern penology to protect the whole body of society today, and the cases warranting the death penalty now are “very rare if not practically nonexistant.”
Thus, the language in the Catechism and in Evangelium Vitae continues our history and Tradition by addressing both sides of the formula: the role of government in preserving the common good and the role of faith in dealing with forgiveness, rehabilitation and the human dignity of the offender’s life.
This two-pronged formula may be more difficult than the simple binary yes-or-no of the intrinsic evil analysis to which Catholics grew accustomed from 50 years in the pro-life trenches. But difficult is not the same as wrong. The teaching on the death penalty from Evangelium Vitae, as incorporated in the Catechism, is correct. As then Cardinal Ratzinger said, this Catholic teaching on the death penalty has been built on past affirmations rather than by overturning them.
 Kansas v. Marsh, 548 U.S. ___ (2006).
 “State Prison Homicide Rates Down 93 Percent: Jail Suicide Rates 64 Percent Lower Than in Early 1980s,” Bureau of Justice Statistics, Aug. 21, 2005).
 [Punishment] ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.
John Paul II, The Gospel of Life (Evangelium Vitae), 1995; incorporated into ¶2267 of the Catechism of the Catholic Church.
 Origins (1997).
 Catechism of the Council of Trent for Parish Priests Issued by Order of Pope Pius V (1566) (Rockford, IL: TAN, 1982), 426-427.
 St. Augustine, Epistle133, No. 1.
 St. Thomas Aquinas, Summa Theologica, 2a2aae, 66.6.