My case for the death penalty here only seeks to defend it in completely and totally extreme circumstances. At a rationalistic level, when one has to face the fact that human nature is fallen, the death penalty very rarely ought to or even should apply.
The death penalty has never formally been condemned as heretical by the Church primarily because the death penalty acknowledges in a rather radical fashion what has already become of the being proven worthy of receiving the death penalty.
St Augustine lays out specific instances for the death penalty to be advocated such as when authority has been delegated to a man to wield the justice to remove the wicked from the society and when men are commanded to carry out war to rid the society of wicked (City of God, bk 1, ch. 21). St John Chrsostom also follows this line of thought in his Homily on the Romans when he expands on St Paul’s statement that the government is the sword of God (Homily 23). In addition, St Joseph of Volotsk also advocated for the death penalty in medieval Russia (Alfeyev, Orthodox Christianity, vol. 1, 155-156) and St Thomas Aquinas also defended the death penalty with application to heretics (Summa Theologiae, II-II:11:3 ad 3). So there is argumentation in support of the death penalty by numerous saints throughout the Church and it can be seen that the support of the death penalty is generally given to those who have been placed in power to sow proper justice by God. However, one must prove themselves just of wielding this authority first and foremost. In an ideal society, the death penalty would exist but it would be rarely, if at all, used.
One such objection a friend of mine made against the death penalty is that it is a variation of iconoclasm since a human being is made in the image of God. The position though assumes that a human cannot become so corrupted so as to lose their own humanity. So for instance, in Boethius’s writing, we see that “whatever falls short of the Good ceases to be”, “since they turned to evil, they have…lost their human nature”, and “a man transformed by vices, you couldn’t…consider human” (Consolation of Philosophy, bk 4, pr 3). It may be true that we are in our inherent nature crafted in the image of God but when we turn ourselves to evil, we throw our humanness, we become depraved, and we cease to be human. It is not those carrying out the death penalty justly who are therefore the iconoclasts but those who have submitted themselves to vice who are the iconoclasts.
Another objection my Orthodox friend gives me is that the death penalty neglects God’s forgiveness. However, there are several different points that need to be made.
1) Whoever speaks against the Holy Spirit will not be forgiven (Matt. 12:32).
2) Matthew 18:21-22 is speaking about forgiving personal enemies 70 times 7 and not necessarily talking about refusing to sow justice against other types of enemies (ST, II-II:11:3 ad 2). This is further indicated by the punishment sown against the man who refused to forgive his own personal enemy (Matt. 18:34-35).
3) “loving your enemies” is translated into the Vulgate as “diligite inimicos vestros” (love your [personal] enemies). An enemy of society is labeled and termed a “hostes” in the Latin but Jesus uses a word referring to your personal enemies. It is these who are the ones you usually hold grudges against. Holding grudges is condemned.
4) The state does exercise the authority of God (Rom. 13:1-4) and there is nothing that indicates it cannot wield the sword against those who pose a threat to the peace of society.
5) The death penalty still does not render one incapable of receiving divine forgiveness. If one talks about the mercy of God, one who is in deliberate rejection of the mercy of God such as Pharaoh (Ex. 4:21, 8:15), they experience this as wrath for Pharaoh drowns chasing after the Israelites he had let go.
One deemed a true heretic is further still, by nature, unrepentant. As one can see from St Paul’s definition of heretic, one only is a heretic after the first and second admonishment (Tit. 3:10). A heretic is generally defined as “obstinate” (CCC 2089) and they are generally only previously only in communion with the Church. It is significant that only after the third time a man is found factious (or heretical) that the Church is instructed to have nothing to do with him for the number three represents perfection. In this case, perfect imperfection.
The death penalty, is, in a sense, sacramental. A sacrament is something holy that offers a sanctifying grace but in its nature, reveals only what is. The Eucharist reveals the holiness of the bread and the wine as the body and blood of Christ, baptism reveals the transforming power of water, chrismation reveals us as christs (anointed ones) of God. The death penalty offers no sanctifying grace but in the sense that it reveals what is (that the one receiving it is already dead in sin, that they have already died spiritually, and that physical death is now carried out as a result of the spiritual deterioration), it can be said to be in a sense “sacramental”.
But only in extreme cases when proper due process has been carried out should the death penalty, if at all, be resorted to. There are numerous more ethical considerations before one considers this proper to be carried out. Because of our fallen society, it is best to be avoided at all costs.