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Joe Hoover, S.J.April 25, 2017

Every few weeks, it seems, a news item about the death penalty appears in the national media, often in the guise of tragic farce. A proposal is made in Alabama to bring back firing squads. The state of Arizona wants to let the condemned supply their own lethal injection drugs. Arkansas tries to execute eight men in 10 days before its execution drugs expire. Nebraska upends political expectations when its legislature bans the death penalty, but a year later voters overwhelmingly choose to bring it back.

In the case of Nebraska, the Catholic Church put itself in the thick of the debate. Its brief but robust campaign to maintain the ban on capital punishment last year illuminated one of the church’s most challenging tasks: promoting Catholic social teaching in a way that actually changes society.

Trying to convince Catholics in Nebraska to oppose the death penalty involved discussions around concepts like “prudential matter,” “intrinsic evil” and “non-negotiables.” The campaign raised a question that comes up time and again in Catholic circles: Can you “rank” moral principles, especially surrounding the defense of life?

Can you “rank” moral principles, especially surrounding the defense of life?

It also raised questions about how the church advocates on a justice issue when its teaching on that issue has evolved over time. Has the leadership of the church failed over the years in educating the faithful on the entire swath of its social doctrine? Is a Catholic obligated to adhere to every last teaching of the church? Are there cases, in some places and at some times, where no matter how ardently the church fights, the Catholic position has no chance?

In January 2015, State Senator Ernie Chambers of Omaha filed a bill to abolish the death penalty in Nebraska, the 21st time he had done so since 1976, when the U.S. Supreme Court ended a moratorium on capital punishment.

State Senator Ernie Chambers of Omaha has been trying to abolish the death penalty since 1976. (Photo by Joseph P. Hoover)
State Senator Ernie Chambers of Omaha has been trying to abolish the death penalty since 1976. (Photo by Joseph P. Hoover)

Mr. Chambers is an iconic but controversial figure in Nebraska politics. Usually clad in jeans and a black or gray sweatshirt cut off at the forearms, the African-American legislator is seen by some as a heroic defender of the poor and minorities, and by others as an anti-church, racially inflammatory obstructionist. He may be both the most loathed and most admired politician in the state. “He tells us the things we don’t want to hear,” said Father James Novakowski of the Holy Spirit Church in North Platte, Neb. And over the past 40 years Mr. Chambers has been the state’s unyielding voice in the wilderness for ending the death penalty.

Last time around, on May 20, 2015, he finally succeeded in getting his repeal measure through the state’s nonpartisan legislature, backed by a coalition of conservative and liberal senators and assisted by the lobbying efforts of lay Catholics and church officials. When Republican Governor Pete Ricketts, a Catholic, vetoed the repeal, the legislature overrode him by one vote. The bill became law, making national news, particularly because this was the first time since 1973 that a “red state” had banned the death penalty.

But soon after, a group called Nebraskans for the Death Penalty ran a successful petition drive to put the issue on the ballot for 2016. Governor Ricketts put $300,000 of his own money into the effort to restore capital punishment. Keeping the death penalty in Nebraska became one of his chief priorities.

The Church Goes All In

Catholics make up about one-quarter of Nebraska’s population, and many death penalty opponents felt they were key to defeating the referendum. The Nebraska church put a wealth of resources into fighting to “retain the repeal,” in the awkward language of the campaign.

The state’s Catholic Conference and the Catholic Mobilizing Network sent boxes to all 237 parishes in the state; they included posters, pamphlets and pre-recorded video messages from each bishop, along with guides for priests to address the death penalty in homilies.

A social media campaign was launched. The bishops made radio spots and devoted their personal columns in diocesan papers to the issue. The church sponsored a group called Journey of Hope, led by the family members of murder victims. It conducted a public education tour around the state discussing alternatives to the death penalty.

Dave Zabolsky, a churchgoer at Omaha’s Christ the King Parish, said he had never seen such a single-minded mobilization of the church on any issue.

Alex Kelly, the Nebraska director of the Catholic Mobilizing Network, said that most parishes confirmed that they used the materials sent to them. People were responding well to it,” he said, quoting priests who told him, “‘The transition to conversation about the death penalty was made easier for me. Can you send me more?’”

Yet one longtime activist against the death penalty, Marilyn Felion, said that in more politically conservative parishes, lay Catholics had to push their pastors to publicize the issue. “It was like pulling teeth,” she said.

In more politically conservative parishes, lay Catholics had to push their pastors to publicize the issue.

Father Tom Fangman, of St. Patrick’s Church, in Elkhorn, Neb., reached out to Governor Ricketts, with whom he had worked before on a program to fund inner-city education.

“I was really impressed that he called me [back] and said, ‘Can we talk?’,” said Father Fangman. “And we ended up talking for an hour and 10 minutes. I really appreciated that he wanted to hear what I said.”

In the end, however, the governor was not swayed. Mr. Ricketts has cited the teachings of St. Augustine and St. Thomas Aquinas, justice for families of murder victims and the protection of corrections officers among his reasons for wanting to maintain the death penalty. (When a request was made for an interview in November the press office said the governor was too busy. The governor’s office did not respond to more recent requests for an interview.)

As pastor, Father Novakowski said he spoke about the issue nearly every week during the campaign at his parish in North Platte, a farming, ranching and railroad community in the middle of the state. “A few people would not be happy when I would say things like, ‘You can’t leave your discipleship outside the voting booth and pick it up on the way out,’” he said.

Though the use of the death penalty has declined in the United States, it still retains majority support.
Though the use of the death penalty has declined in the United States, it still retains majority support. (Sources: Death Penalty Information Center, Gallup polls)

On Nov. 9, the campaign to bring back the death penalty won, 61 percent to 39 percent. In some western counties, the referendum question won by a margin of 4 to 1. Death penalty opponents carried only Lancaster County, which includes the state capital of Lincoln.

Despite its flurry of activity in the months leading up to the election, Ms. Felion and some other activists held the church partly accountable for the result. Had the bishops made the issue more of a priority over the last several years, they said, a stronger base of Catholics would have been developed to resist the campaign to restore the death penalty.

One Omaha priest told me he felt as if the ministers of the church had “failed their people.”

Tom Venzor, executive director of the Nebraska Catholic Conference, the political advocacy arm of the church, said that over the years the conference did “incredible work across the state to inform consciences.”

The appeal of retribution

Why was the death penalty reinstated in such overwhelming fashion? Some cited a lingering frontier justice, or the appeal of taking an eye for an eye; others wondered whether the phrase “retain the repeal” was confusing for voters.

For Omaha resident Don Regan, who voted to restore the death penalty, the issue was not only the death penalty’s deterrence of crime, but what he learned from his philosophy classes at Creighton University, a Jesuit school.

“The natural laws are pretty clear,” he said, in their support of the ultimate penalty. Additionally, the changing views of the church on the issue over the years allows for differing opinions, he said.

Mr. Venzor, of the Nebraska Catholic Conference, said that for many people, the vote came down to “an intuitive natural sense of justice in its retributive aspect.” While most Nebraskans do not feel this way, he said, “Some folks have an unhealthy sense of retributive justice, calling for blood.”

For many people, the death penalty vote came down to “an intuitive natural sense of justice in its retributive aspect.”

Father Novakowski said one parishioner, after hearing his homilies against the death penalty, did his own research on the internet and then told him, “I voted against you.” As a result of that, Father Novakowski said, he “preached that when the internet becomes our bible, we’re in trouble.”

Recent prison riots, prison escapes and high-profile murders were also on Nebraska voters’ minds last November. One case, from 2014 involved a man named Nikko Jenkins, who was let out on parole, committed a spree of murders and, because of the temporary repeal, was spared the possibility of the death penalty.

Another factor was the extraordinary nature of the 2016 election. “The number one cause or influence or failure was the fact that it was the presidential cycle,” said Mr. Kelly, of the Catholic Mobilizing Network. “There was so much of the nation’s attention going on politically at a national level.”

The election was divided so clearly into two camps that all other causes were swept up into one camp or the other. “With the issue like the death penalty, a social justice issue,” said Kelly, “if you’re not for the death penalty you are [seen as] a liberal social progressive.”

There were no major polls indicating how the state’s Catholics stood on the issue, but given the lopsided result, it seems likely that a large number voted to restore the death penalty. One reason may be that the church’s approach to teaching about an issue like capital punishment has been so complicated.

Pope Francis Doubles Down

In 1992 the Catholic church approved its first universal catechism in more than four centuries. It included the traditional teaching that the death penalty was allowed for the protection of public order. But by the time the final, official edition in Latin came out in 1997, that teaching had been altered. The change was influenced by John Paul II’s 1995 encyclical “Evangelium Vitae,” which said that, because of “steady improvements in the organization of the penal system,” cases in which execution is an “absolute necessity” are “very rare, if not practically non-existent.”

Pope Benedict reaffirmed this church teaching, and Rome’s stance against capital punishment reached an apex with the papacy of Pope Francis. In the fall of 2015, he stood in the well of the U.S. Congress and advocated for the “abolition of the death penalty.”

The church’s stance against the death penalty covers all fronts. It is not a deterrent, the argument goes, and public safety can be maintained without it. In addition: our theologians’ understanding of natural law has evolved over time; mercy is the foundation of Christian life; the rehabilitation of offenders should never be ruled out; and the default stance of all Christians should be, quite simply, not to kill anyone. Furthermore, an execution may not bring true closure to murder victims’ families. (As Father Damian Zuerlein of Omaha argues, what the family of a victim really wants is not “justice,” but their loved one back.)

Even the notion that the death penalty helps deter convicts from attacking corrections officers has been challenged by researchers in an article in the 2017 edition of The Journal for the Study of Religion and Society. It declares this is “essentially impossible to test, since a person who is deterred from a crime remains undetectable. We have no way to know whether any inmates have ever been deterred from killing in prison because they feared the death penalty.”

Our theologians’ understanding of natural law has evolved over time;  the default stance of all Christians should be, quite simply, not to kill anyone.

The journal goes on to point out how the death penalty can even be an incentive for prison murders. Some inmates, faced with the prospects of thousands of days in jail with no chance of parole, use the death penalty as incentive to murder, receive the death penalty and end their misery. Death penalty opponents have called this “suicide by governor.”

Nevertheless, in spite of the church’s sweeping opposition to capital punishment, some officials in the church maintain there is still room for debate on capital punishment. It can seem confounding.

A Prudential Matter

Omar F. A. Gutierrez, of the Office of Mission and Justice for the Archdiocese of Omaha, said that an individual Catholic’s discernment about the validity of the death penalty “boils down to a hierarchy of issues.” He said, “Benedict talks of ‘non-negotiables.’ What are the intrinsic evils, to use the [U.S. Catholic Conference of Bishops’] language, and what are more prudential matters?”

Whether people are even familiar with the term, “prudential matter” is what makes space in the room for disagreement. Prudential matter, to put it provocatively, is kind of like a way out for Catholics.

“When you’re applying what the church teaches to a specific context,” said Mr. Gutierrez, “then it becomes a prudential matter, because when assessing the specific context, the bishops may in fact have facts wrong.

“So, the principle isn’t wrong, the teaching isn’t wrong, but the application in this specific context could be wrong.”

The governor of Nebraska, for instance, may be aware of mitigating circumstances, factors the church is not privy to, that make the death penalty necessary in a given case. (For example, one mitigating circumstance may be concern over the safety of corrections officers.) There is a crack of light, according to discourse such as this, allowing the governor and other Catholics to support capital punishment.

That does not mean Catholics can simply dismiss the church’s teaching. “When Catholics hear the word ‘prudential,’ left or right,” said Gutierrez, “they hear they don’t have to pay attention to it. ‘If it’s a prudential issue, I can ignore it.’ And I get this on the left and right of the political spectrum. ‘It’s a personal decision.’

But moral theologian Margaret Pfeil said it would be very difficult for a Catholic to argue for the death penalty using prudential judgment as guided by the formation of conscience: “Wouldn’t a properly formed conscience have to take seriously an encyclical (“Evangelium Vitae”) and the revised catechism?” She said it is difficult to imagine the arguments a Catholic could come up with to oppose these two documents. “If the answer is “prudential judgment,” she said, “then the question is “Where is that judgment coming from,” if not the church’s own teachings? “What have people used to form their consciences?”

Deacon Al Aulner of Holy Family Church in Omaha grew up in the farming community of Hastings, in central Nebraska. He was once a death penalty supporter. For him, the death penalty went from becoming a prudential matter to something that was not really up for debate. Mr. Aulner said that his conversion on the issue took place over several years. “I fell in love with the church and her teachings,” he said. “She carries the teaching of Christ. If I love Christ I have to follow the church's teachings.“

The writing of John Paul II also influenced him: “With a lot of prayer, I came to realize I needed to acquiesce whether I Iiked it or not.... I can’t pick and choose which teaching I am going to follow.”

But few Catholics become deacons, not to mention deacons who engage in a prayerful, reflective process of understanding church doctrine on thorny issues like the death penalty.

According to some observers, the hierarchy of the American church has not made it easy for Catholics to have the change of heart Mr. Aulner had. The ordinary Catholic’s failure to endorse the broad range of the church’s social justice positions is the result of a “self-inflicted wound” by the bishops, as one priest put it.

In part, this is because of the very concept of “non-negotiables,” those issues on which a Catholic is obligated to follow the teachings of the church. The phrase is repeatedly utilized by some Catholic leaders in relation to a few issues—typically abortion, euthanasia and same-sex marriage. Naming only these issues as “non-negotiable” becomes a clue for some Catholics that all other issues are “negotiable,” or far lesser social wrongs. They become matters that the church has no real say in.

There is a similar case with another popular phrase in Catholic moral discourse. Theologians such as Cathleen Kaveny argue that constantly employing the term “intrinsic evil”—an act that by its very nature is always wrong—also causes the marginalization of issues such as the death penalty. When a moral offense does not attain the label “intrinsic evil,” Catholics may assume it has less weight and requires less moral discernment.

When a moral offense does not attain the label “intrinsic evil,” Catholics may assume it has less weight and requires less moral discernment.

This slicing up of moral questions and categories, so runs the critique, makes it more difficult to convince pro-death-penalty Catholics that, as Mr. Gutierrez puts it, the burden of proof is on them—that they need to explain why they believe the death penalty is legitimate.

Arguing against the church for the necessity of the death penalty should be a case that is difficult, if not impossible, for Catholics to make. But the very language the church uses when talking about the death penalty can allow some Catholics to feel they do not have to make that argument at all.

Priorities in the Dignity of Life

Embedded in this question of intrinsic evil and non-negotiables is a further question about a “ranking” of pro-life issues.

In parts of Nebraska, for instance, the laser-like focus on the death penalty was surprising for some people, said Mr.Kelly of the Catholic Mobilizing Network. “We were hearing, ‘Why are all of you focusing on the death penalty? What about abortion?’ It came off that all of a sudden we were backing off that pro-life, anti-abortion identity.

In his homilies, Father Novakowski discussed the referendum in a way that tried to reconcile both causes. “My parishes know that my stance on pro-life is to know that God is the author of all life, from conception to natural death,” he said. “And that includes not having the right to take another life.” In other words, part and parcel of being pro-life means opposing the death penalty.

But this approach clashes with a ceaseless debate by activists in the Catholic Church. There is a current in Catholic discourse that suggests the struggle to end abortion gets diluted when people include other causes as part of the “pro-life” stance. A priest at a Mass with a politically liberal congregation, for instance, talks about protecting the unborn. Then he immediately reels off a string of other “life” matters—securing health care, defending immigrants, ending the death penalty. Is he trying to draw attention from the most heated and divisive Catholic opinion of them all, one that might upset half the house? Is he effectively burying the radioactive material of anti-abortion teaching?

On the other hand, identifying with the entire host of “life issues” is seen by some as giving deeper credibility to the cause of those who fight on behalf of the unborn.

“If you can’t agree when life actually begins, then the substantial belief that the death penalty is moral or unjust doesn’t hold.”

When working on the death penalty, said Mr. Kelly, it is important that the church’s position on “prime” life issues be made clear. “It’s absolutely vital to be able to begin with the understanding of when life begins,” he said. “That’s why things like abortion, euthanasia, stem cell research...if you can’t agree when life actually begins, then the substantial belief that the death penalty is moral or unjust doesn’t hold.”

Dave Zabolsky summed up the conventional Catholic approach to these moral issues succinctly. “A life lost to the death penalty is tragic,” he said. “A life lost to abortion is evil, because they’re innocent.” He said he struggles with the issue of whether the death penalty should be legal, but said that in the end he agrees with the church’s position.

Father Novakowski said he stresses Christian fundamentals. “It’s not so much as being against any [pro-life issues] or for them. It’s about surrendering our will to God’s will and accepting that only God is the author of all life,” he said. Catholics cannot say they are pro-life, Novakowski said, if they are only against abortion. In that case, he said, “You’re partially pro-life. If you’re pro-life you have to be all of the above.”

But even if the universal church revamped its entire way of talking about justice issues, and even if the Nebraska bishops had worked tirelessly for years educating the faithful about capital punishment, little might have changed with the Catholic vote last November. The days of the people in the pews doing exactly what their priest tells them are long gone. With regard to religious authority today, the exercise of free will is more alive than ever.

Then there is Ernie Chambers, who does not believe in God, has no use for organized religion and declared that white people are the devil. (“Now, when I say this, I don’t mean all white people,” he told me.)

But Mr. Chambers simply believes the death penalty is wrong. He admitted that his position took root in the church he grew up in, “which I’ve outgrown,” he said. For him, the prudential matter boils down to one thing: “I’ve never believed that the state should kill anybody.”

On Jan. 17, Mr. Chambers introduced a new bill to the state legislature, his 23rd, to end capital punishment in Nebraska. A hearing took place on March 24. It is not expected to come up for debate before June 2, when the session ends.

In the meantime, a bill was advanced out of committee that would allow the Nebraska Department of Corrections to hide the identities of lethal injection suppliers. It is supported by the governor.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
Philip Pocock
7 years 2 months ago

I have long pondered the issue of the death penalty and have no real definitive answer and still don't although I am aware of all the arguments put forward in this article.

While innocence is a form of justice - the preferred form for individuals I would think - do the "kings" of the world not have a responsibility to implement just states.

The last few paragraphs in the book of Numbers note that unless the death penalty is implemented for murder their will be a spiritual defilement of the "land" for example.

While a murderer who is executed and interiorly accepts this will have been exonerated I can still see why the arguments for just separating a murderer from society may be sufficient, possibly, given that someone has to carry iut the execution.

However, in the case of rape - where the two will become one body - a woman who was raped, under the natural law, could not move on to a new relationship, without committing "adultery", unless the rapist was dead.

Surely in this case the death case would be necessary.

Philip Pocock

Vince Killoran
7 years 2 months ago

In the end, we don't know what motivates someone to support the death penalty in a society in which the anti-death penalty argument is common and is, at least to some, compelling. References to a wooden notion of natural law seem to be backfilling a strong urge to impose the death penalty. Is it simply a matter of rough justice? Cultural backlash to humanism and Christianity?

The fact that Nebraska voters actually voted to revert back to the death penalty in the second decade of the twenty-first century is profoundly sad.

lisa kelly
7 years 2 months ago

Let's be clear that the Nebraska Catholic Church hardly showed concern for the death penalty being reinstated when the Nebraska Catholic Conference invited the very same pro-death penalty Governor (who personally paid for the vast majority of the pro death penalty campaign) to be their KEYNOTE SPEAKER along with the Arch Bishop at a rally last year on "religious liberty." There that wonderful pro-death Governor (who also denied Syrian refugees to come to the state) was celebrated by Catholics and hugged by the Arch Bishop. The reality is that it is the leadership of the Nebraska Catholic Church that is picking and choosing what teachings to uphold. Their priority remains sex issues first, life issues somewhere down the line when it is politically expedient.

Vincent Gaglione
7 years 2 months ago

This article is quite thorough in its discussions of all the factors that probably contributed to the repeal of the death penalty ban in Nebraska. I was impressed and gratified that no side, no persons, no institutions were spared the barbs well deserved. I am left wondering, will there ever be a definitive Catholic position on the death penalty and if not, why not?

As for Ms. Kelly’s comments on the political rally at which the archbishop praised and hugged the Catholic pro-death penalty governor, the optics of such events in our media driven world probably have greater impact on the faithful, churchgoing or not, than even a letter from the archbishop read in churches! The religious freedom issue of that rally, to my mind, is a contrivance, something to redirect the faithful away from real moral issues that the bishops know would engender much division, like the death penalty. Of course, the bishops are acutely aware that definitive moral statements on politically divisive issues only leads to fewer coins in the collection baskets.

Robert Lewis
7 years 2 months ago

The punishment of death belongs to God, because it is forever irreversible and not subject to modification; moreover, it is premised upon a falsehood that presumes human omniscience--an "omniscience" that belongs to God alone. One can believe this, and still be in favour of retributive justice, as I, like Dostoevsky, am, because I do, nevertheless, believe that the choice the criminal made must be honored with punishment; his dignity and the dignity of his victim demand this.
Allow me to explain: I am actually AGAINST the "liberal" notion of punishment as "rehabilitation," and do not believe that any appeal board can pry into a man's soul and consciousness, and actually "know" that he has been "rehabilitated" whilst in prison. Instead of that, I believe that all sentences should be served to their fullest extent, unless mitigating evidence is offered. However, I want the possibility for that "mitigating evidence" always to be held open. "Rehabilitation Boards" are "playing God," when they set aside sentences by presuming to peer into a man's soul, but, by the same token, a jury of "twelve men, good and true" are ALSO "playing God" when they presume to know that a man "deserves" death--the punishment which, in a pious society, may belong only to God. So, if you think about it, capital punishment is, implicitly, worship of the State, of its "omniscience" and its right to take the place of God; it is, in other words, a form of idolatry. Also, I am against capital punishment for one other reason: the damage that it does to the most impressionable, namely children, by setting for them the example that tragic atrocities may be atoned or compensated for by committing further acts of violence. The desire for vengeance is among the basest of human emotions, and it should not be encouraged by a society calling itself civilized. I knew this from an early age, because I remember my own response, as a ten-year-old boy: a quarter Jewish, I had been paying careful attention all summer to the trial of Eichmann in Jerusalem, while staying with my grandparents in New York. Upon return to South Carolina, I learnt one morning that the convicted Nazi murderer had been hanged in Jerusalem. Ecstatic, I spent the whole day building gallows and hanging batches of my lead soldiers. At the end of the day, instead of feeling any sort of "closure," I felt sick to my stomach, and knew instinctively that I had done wrong--and that the Israelis probably had, too.

rose-ellen caminer
7 years 2 months ago

I accept the Church's position on the death penalty. I accept it as one being obedient to the Church's teachings in its commitment to the Christian ethos of the seamless pro life garment.My conscience can accept that because life is the most precious thing we have and because God is its author, only God can take a life.
I have a problem though with death penalty abolitionists who claim that their conscience tells them that only God can take a life, but then will take the position that we can take the life of innocent people, in wars. Seems dishonest. Or hypocritical. I'm not talking about self defense where you kill soldiers or combatants who are firing on you; its ethically clear you can defend yourself or others when being attacked. I mean the tactic of killing innocent people who we know are not armed and not fighting. Yet many who are adamantly opposed to capital punishment against people who have for have committed the most heinous atrocities, and who will cite the immorality of killing as their reason, approve of killing people who have not committed any such crimes ;as a means to an end. Innocent defenseless people can be killed, as a means to an end, but[guilty] people cannot be killed, as punishment "because killing is wrong". Or as often happens, one issue death penalty abolitionists are silent about others who kill innocent people and often oppose intervention to stop the killing of innocent people. We can stand aside as bombs are dropped on hundreds, sometimes thousands of innocent men women and children, or drop them ourselves , without our responsibility and the immorality of killing being invoked, but kill one murderer as retribution and "thou shalt not kill " is suddenly proclaimed. .
I'm committed to accepting the Church's anti death penalty position which in my heart of hearts I know is true and conforms to Christ, but I'm feeling seams in the seamless pro life garment that rub me the wrong way!

Robert Lewis
7 years 2 months ago

I agree with you; traditional "just war theology" does not permit the amounts of collateral damage that are countenanced in modern warfare.

Beth Cioffoletti
7 years 1 month ago

I don't understand why the Catholic Church does not root its arguments against the death penalty (and abortion) in the absolute sacredness of life. God became Incarnate, and every body/life is temple to this holy mystery. When we take the life of a human being, we refute everything that we profess to believe and the holiness of all of our lives is scandalized.

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