In a sign of unity remarkable in itself, the editorial boards of America magazine, the National Catholic Register, the National Catholic Reporter, and Our Sunday Visitor, all joined an editorial calling for abolition of the death penalty in the United States.
The editorial marks one step forward, but two steps back. It follows laudable concerns about the way the death penalty occurs in the U.S., but it overstates the Catholic position against the death penalty, and it adopts a “by any means necessary” approach that feeds into Roe v. Wade-style judicial supremacy.
1) The death penalty is broken
First, what the publications got right. They correctly criticize some of the deep flaws about how the death penalty operates in the United States.
Sometimes people on death row are exonerated by DNA evidence. Sometimes methods of execution like lethal injection–ironically designed to be “humane”–do not work properly and inflict horrible pain in the process. Court rules that have grown up around the death penalty leave people on death row for decades while the system sorts out their appeals, appeals about appeals, and appeals about appeals about appeals.
More substantively, a sympathetic argument can be made that in our culture, where death is seen as a solution to societal problems, we make overall progress by reducing our recourse to inflicting death when we can. This seemed to be Pope John Paul II’s argument, and it is echoed by scholars such as Robert George and Richard Garnett.
2) The death penalty is not an intrinsic evil
Catholic teaching does not uncategorically condemn the death penalty as these editorials do. That is fine–Catholics are free to take positions that the Church leaves them free to take.
The editorials have received understandable criticism, however, for appearing to oppose the death penalty in principle and calling it “abhorrent.” In addition to centuries-old tradition recognizing the legitimacy of capital punishment, the encyclical “The Gospel of Life” didn’t treat the death penalty in such absolute terms. And then-Cardinal Ratzinger explained that despite Pope John Paul II’s position against the death penalty, “it may still be permissible … to have recourse to capital punishment.”
To be fair, the joint editorial did not necessarily call the death penalty itself abhorrent, but it called “the practice” abhorrent. That leaves the tiniest bit of wiggle room for the publications to claim, if they want to, that they weren’t calling it intrinsically evil, they were only referring to the way it is practiced in the U.S. today as abhorrent.
3) It is extremely unwise to ask the Supreme Court to abolish the death penalty
Sadly, the joint editorial did not qualify its request that the Supreme Court abolish the death penalty. It framed their editorial in the context of an upcoming court case, and concluded by “hoping the court will . . . abolish[] the death penalty once and for all.”
This is both unprincipled and legally suicidal in the effort to preserve a culture of life. The main purpose of opposing the death penalty is to promote broader respect for human life in the context of U.S. culture. But in that same context, the abortion culture was thrust upon the U.S. by a lawless Supreme Court in Roe v. Wade.
Asking the court to abolish the death penalty is to request that the court assume the same lawless superiority. The U.S. Constitution not only does not ban the death penalty, it explicitly allows it. Recent cases striking down instances of the death penalty simply impose the policy preferences of a majority of life-tenured justices.
Even though death penalty cases operate under an actual textual clause in the constitution prohibiting “cruel and unusual punishment,” there is simply no way for nine unelected justices to “abolish the death penalty once and for all” without making “cruel and unusual” mean whatever a court majority personally think it means. The constitution itself did not, and does not, abolish the death penalty.
The editors are asking the court to do the kind of thing it did in Roe, and the kind of thing Catholics (and some of these same editors) are asking it not to do with marriage. This request entrenches the attitude that keeps Roe v. Wade on the books. It also chips away at the legitimacy of the American republic, even though participatory politics and the rule of law are also important principles within Catholic social teaching.
How will these editors credibly criticize the court for imposing its policy views when those views are hostile to life, marriage, or similar issues? Robert Bolt’s Thomas More speaks to them just as he spoke to Roper: “Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
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I do share the hopes of Jeanette De Melo, the National Catholic Register’s editor in chief, that this joint effort could lead to “the day we can stand in unity with the other Catholic publications on” the issues of euthanasia and abortion. With not a little bit of irony, the National Catholic Reporter and America magazine think that the death penalty must be abolished, but they give their imprimatur for Catholic politicians to oppose abolishing abortion–or even restricting it a little bit.
I’m not holding my breath for a joint editorial rejecting their Mario Cuomo view. For the Reporter and America it would spell an end to their widespread propagandizing in favor of national Democratic party candidates.
But despite the hope that this joint effort may lead to unity on more fundamental life issues, it does not justify buying into a supreme judicial tribunal omnipotent enough to abolish the death penalty. Pro-life Catholics would be wise to follow George and Garnett, and direct their anti-death-penalty advocacy towards elected officials.