Augustine on capital punishment

In his book On Augustine: The Two Cities, Alan Ryan says that Augustine’s “understanding of the purpose of punishment made the death penalty simply wrong” (p. 82).  That is a bit of an overstatement.  In The City of God, Augustine writes:

However, there are some exceptions made by the divine authority to its own law, that men may not be put to death.  These exceptions are of two kinds, being justified either by a general law, or by a special commission granted for a time to some individual.  And in this latter case, he to whom authority is delegated, and who is but the sword in the hand of him who uses it, is not himself responsible for the death he deals.  And, accordingly, they who have waged war in obedience to the divine command, or in conformity with His laws, have represented in their persons the public justice or the wisdom of government, and in this capacity have put to death wicked men; such persons have by no means violated the commandment, “You shall not kill.” (Book I, Chapter 21)

And in On the Sermon on the Mount, Augustine says:

But great and holy men… punished some sins with death, both because the living were struck with a salutary fear, and because it was not death itself that would injure those who were being punished with death, but sin, which might be increased if they continued to live.  They did not judge rashly on whom God had bestowed such a power of judging.  Hence it is that Elijah inflicted death on many, both with his own hand and by calling down fire from heaven; as was done also without rashness by many other great and godlike men, in the same spirit of concern for the good of humanity.  (Book I, Chapter 20)

Clearly, then, Augustine did not regard the death penalty as “simply wrong.”  However, it is true that he tended to oppose its use in practice, and often pleaded for clemency in particular cases.  For example, in one letter he urges a proconsul “to forget that you have the power of capital punishment,” and in another he says that “our desire is rather that justice be satisfied without the taking of their lives.”  (See the footnotes on p. 115 of By Man Shall His Blood Be Shed for references to other passages from Augustine either upholding the legitimacy of capital punishment in theory or recommending against its use in practice.)

Ryan’s discussion of Augustine’s rationale is instructive.  The saint’s reluctance to apply the death penalty had nothing to do with squeamishness about punishment, violence, or coercion.  As Ryan notes, Augustine’s just war theory allows that a just cause for war could include not only self-defense, but also the aim of punishing a state that is guilty of crimes.  Augustine was also not opposed to state suppression of heresy.  As Ryan notes:

Augustine took it for granted that being coerced into receiving the truth was a benefit, not a burden; it was a view one might expect from a man who thought that corporal punishment might be administered lovingly and with the intention to bring the offender to his senses. (p. 95)

Nor did utopian politics underlie Augustine’s opposition to capital punishment.  Ryan has much to say about Augustine’s doubt that true justice – as opposed to a mere absence of excessive disorder – can ever be realized in the earthly city, given original sin.  Augustine did not even favor overthrowing tyrants, let alone ambitious schemes for social improvement. 

In general, Augustine’s opposition to the actual practice of capital punishment was, Ryan says, “not the expression of a modern humanitarian impulse” (p. 84).  He elaborates as follows:

Augustine did not flinch from physical suffering…  He did not flinch from the fact of the hangman or the soldier or the civilian police.  It no doubt took a peculiar temperament to earn a living by butchering one’s fellow human beings, but it did not follow that the hangman was not God's instrument.  In this vale of sorrows, he is.  Nor should we, looking back from a safe distance, ignore the fact that corporal and capital punishments are almost inescapable in societies where the expense of housing and feeding prisoners would be intolerable, and where only the better-off would have had the resources to pay fines – as they frequently did.  The violent poor would suffer violence at the hands of the state, as would poor robbers and housebreakers.  Augustine's fear was not that they would suffer but that they would suffer for what they had not done. (pp. 84-85)

That brings us to Augustine’s actual concerns, which were twofold, and had largely to do with the brutality of the methods deployed in the Roman system of criminal justice.  The accused were often tortured until an interrogator was satisfied that he had gotten an honest answer.  One of Augustine’s worries, writes Ryan, was that an innocent person might either die from the torture itself, or falsely confess to a crime so as to escape further torture and then be unjustly executed.  The other main worry was that “the criminal is supposed to be brought to a state of repentance,” yet “the barbarity of Roman executions” made it “almost impossible for him to die in a good frame of mind” (p. 83).

So, Augustine worried, first, that an innocent person might be killed, and second, that a guilty person might not have a chance to repent of his sins before death.  But notice how historically contingent are the specific reasons why Augustine (on Ryan’s interpretation) thought the death penalty entailed these dangers.  Torture and barbaric methods of execution were the main sources of the problem.  It is because a person might give a false confession under torture that the innocent might be executed, and it is because of the terror and physical pain of extreme methods of execution that the guilty would be unable to focus on getting themselves right with God. 

Aquinas, when considering the suggestion that execution removes the possibility of repentance, responds that the objection is “frivolous” and that if an evildoer would not repent even in the face of imminent death, he probably would never repent (Summa Contra Gentiles III.146).  It might seem that this reflects a disagreement with Augustine, but the considerations raised by Ryan show that that is not necessarily the case.  Augustine was writing when Europe was still largely pagan, whereas Aquinas was writing long after Christianity had taken deep root.  Perhaps Aquinas would agree that if capital punishment were inflicted in the specific way that it was in Augustine’s time, then there would be a problem.  That is compatible with the view that if it is administered in a more civilized way, then it would not interfere with repentance and might even encourage it.

In any event, the specific reasons why (according to Ryan’s interpretation) Augustine opposed the use of capital punishment would not apply in a Western context in modern times.  For DNA evidence has made it possible to be close to certain of guilt in at least many cases, modern methods of execution are now close to being as antiseptic and painless as possible, and modern Western criminal justice does not sanction torture as a method of gathering evidence.  (I’m not talking about anti-terrorism practices post-9/11 – that is a different topic that I’m not addressing here – but rather everyday criminal investigations.)

Contemporary Christian opponents of capital punishment sometimes emphasize that their position is simply a return to that of the Fathers of the Church.  But the moral, political, and theological premises on which they base their opposition are often very different from those of a Father like Augustine.  The critics also often argue that past Christian support for capital punishment reflects historical and cultural circumstances that no longer hold.  But as the example of Augustine shows, past Christian opposition to capital punishment can also reflect historical and cultural circumstances that no longer hold.