Finally, some hold that the death penalty is incompatible with the teaching of Jesus on forgiveness. This argument is complex at best, since the quoted sayings of Jesus have reference to forgiveness on the part of individual persons who have suffered injury. It is indeed praiseworthy for victims of crime to forgive their debtors, but such personal pardon does not absolve offenders from their obligations in justice. John Paul II points out that “reparation for evil and scandal, compensation for injury, and satisfaction for insult are conditions for forgiveness.”

The relationship of the State to the criminal is not the same as that of a victim to an assailant. Governors and judges are responsible for maintaining a just public order. Their primary obligation is toward justice, but under certain conditions they may exercise clemency. In a careful discussion of this matter Pius XII concluded that the State ought not to issue pardons except when it is morally certain that the ends of punishment have been achieved. Under these conditions, requirements of public policy may warrant a partial or full remission of punishment. If clemency were granted to all convicts, the nation’s prisons would be instantly emptied, but society would not be well served.

Avery Cardinal Dulles, “Catholicism & Capital Punishment” (2001)

The purposes of criminal punishment are rather unanimously delineated in the Catholic tradition. Punishment is held to have a variety of ends that may conveniently be reduced to the following four: rehabilitation, defense against the criminal, deterrence, and retribution. Granted that punishment has these four aims, we may now inquire whether the death penalty is the apt or necessary means to attain them.

Rehabilitation. Capital punishment does not reintegrate the criminal into society; rather, it cuts off any possible rehabilitation. The sentence of death, however, can and sometimes does move the condemned person to repentance and conversion. There is a large body of Christian literature on the value of prayers and pastoral ministry for convicts on death row or on the scaffold. In cases where the criminal seems incapable of being reintegrated into human society, the death penalty may be a way of achieving the criminal’s reconciliation with God.

Defense against the criminal. Capital punishment is obviously an effective way of preventing the wrongdoer from committing future crimes and protecting society from him. Whether execution is necessary is another question. One could no doubt imagine an extreme case in which the very fact that a criminal is alive constituted a threat that he might be released or escape and do further harm. But, as John Paul II remarks in Evangelium Vitae , modern improvements in the penal system have made it extremely rare for execution to be the only effective means of defending society against the criminal.

Deterrence. Executions, especially where they are painful, humiliating, and public, may create a sense of horror that would prevent others from being tempted to commit similar crimes. But the Fathers of the Church censured spectacles of violence such as those conducted at the Roman Colosseum. Vatican II’s Pastoral Constitution on the Church in the Modern World explicitly disapproved of mutilation and torture as offensive to human dignity. In our day death is usually administered in private by relatively painless means, such as injections of drugs, and to that extent it may be less effective as a deterrent. Sociological evidence on the deterrent effect of the death penalty as currently practiced is ambiguous, conflicting, and far from probative.

Retribution. In principle, guilt calls for punishment. The graver the offense, the more severe the punishment ought to be. In Holy Scripture, as we have seen, death is regarded as the appropriate punishment for serious transgressions. Thomas Aquinas held that sin calls for the deprivation of some good, such as, in serious cases, the good of temporal or even eternal life. By consenting to the punishment of death, the wrongdoer is placed in a position to expiate his evil deeds and escape punishment in the next life. After noting this, St. Thomas adds that even if the malefactor is not repentant, he is benefited by being prevented from committing more sins. Retribution by the State has its limits because the State, unlike God, enjoys neither omniscience nor omnipotence. According to Christian faith, God “will render to every man according to his works” at the final judgment (Romans 2:6; cf. Matthew 16:27). Retribution by the State can only be a symbolic anticipation of God’s perfect justice.

For the symbolism to be authentic, the society must believe in the existence of a transcendent order of justice, which the State has an obligation to protect. This has been true in the past, but in our day the State is generally viewed simply as an instrument of the will of the governed. In this modern perspective, the death penalty expresses not the divine judgment on objective evil but rather the collective anger of the group. The retributive goal of punishment is misconstrued as a self-assertive act of vengeance.

The death penalty, we may conclude, has different values in relation to each of the four ends of punishment. It does not rehabilitate the criminal but may be an occasion for bringing about salutary repentance. It is an effective but rarely, if ever, a necessary means of defending society against the criminal. Whether it serves to deter others from similar crimes is a disputed question, difficult to settle. Its retributive value is impaired by lack of clarity about the role of the State. In general, then, capital punishment has some limited value but its necessity is open to doubt.

Avery Cardinal Dulles, “Catholicism & Capital Punishment” (2001)

By the middle of the fourteenth century, a defendant who had slain a housebreaker might be acquitted by judgment of the court. The same applied where he had slain someone who came to rob him. The courts were not consistent in their treatment of such cases, and it appears that at least until late into the century, acquittal might depend upon clear evidence of self-defence. In this area, the community was ahead of the courts. Trial juries supplied evidence of self-defence where, on the basis of coroner’s inquest testimony there had been neither true self defence nor even clear evidence of housebreaking or attempted theft.

Thomas A. Green, “Societal Concepts of Criminal Liability for Homicide in Mediaeval England” (1972)

In order to kill in self-defence [in Medieval England], it was necessary for the man attacked to retreat until retreat was no longer possible. At the trial the jurors always alleged the presence of such an impasse, and though that was sometimes true, a comparison of the coroners’ rolls and the trial rolls reveals that it often was not and that a petty jury had so altered the facts as to make pardonable what the law considered nonpardonable. From the community’s point of view, a violent attack could be met by a violent response. A man whose life was threatened did not have to seek some means of escape; indeed, he need not do so though he was not in danger of losing his life. The court’s concern with last resort indicates a concept of criminal liability fundamentally at odds with prevailing social notions.

Thomas A. Green, “Societal Concepts of Criminal Liability for Homicide in Mediaeval England” (1972)

After the weakening of the popolo/Geremei government in 1292 and under the impact of factional conflict and the institution and expansion of “privileged” status in 1306, 1310 and 1319, however, the use of private accusation procedure changed dramatically. Assault cases had been, as we have seen, the type of case that dominated the private accusation court procedure and had been the means by which families controlled their feuds in the thirteenth century. Accusation procedure was the specific area still reserved for “private justice,” the area in which the podesta, representative of “public justice,” did not have the authority to initiate an investigation, except under certain specified circumstances. But the function of assault charges in the private accusation judicial process had changed – from a means of controlling feuds to a means of vengeance, protection, and control by the ruling faction. In the early fourteenth century one increasingly finds only the charges of the privileged against their enemies. There are no counter- charges since the law of privilege effectively prevented the opposition from using the courts.

A complete register of accusations has survived from January, February and March of 1319, the year of yet another factional coup that further narrowed the power base to those who supported the growing authority of the Pepoli family, and the evidence from that register indicates a pattern startlingly different from the popolo-dominated 1280s. Increasingly in the early fourteenth century private accusation procedure came to be monopolized by those of “privileged” status. In the complete 1319 register, which is typical for accusation records of that period, there are thirty-four cases, (of which thirty concern assault and four concern trespass or property damages). What is startling is the number of cases in which the accusor invoked his privileged status: Twenty-eight of the thirty-four cases, a figure in sharp contrast to the low number typical of the 1280s pattern. The “privilege” referred to was popolo status of accusor and magnate status of accused or that of simple privilege (that of 1306) and “new” privilege (that of 1310). Of the remaining four cases, two of the accusors were titled individuals from the city, which would put them in the elite category. In not one case is there a counter- charge by the accused as was typical of the 1280s. By 1319 accusation procedure was the preserve of the privileged and elite of society. The courts were being used not so much to contain the vendetta as to further it. Criminal justice, which had been depersonalized in theory, but not in practice, during the popolo dominated 1280s, became an even more manipulated and personalized system in both theory and practice in the early fourteenth century.

The nature of social control thus had changed significantly by the early fourteenth century. To be sure, in both the popolo reform years of the late thirteenth century and the post-1306 faction-dominated period the courts were manipulated and to an extent that manipulation can be interpreted within the framework of “conflict theory.” Thus, during the 1280s, as we have seen, the entire community had used the courts to protect itself against “outsiders” and the popolo party had also utilized the courts, probably less successfully, as a means of pursuing its conflict against the magnates. After 1306 manipulation took the form of one faction of the popolo party using the courts in its struggle against another faction. But there is a major difference between the nature of social control in those two periods that cannot be explained within the limitations of conflict theory. In the 1280s the courts not only served as a vehicle for conflict, but they also functioned well in minimizing disputes and helping to control the vendetta. This role, however, was severely reduced in the new kind of social control that dominated the post-1306 period.

Moreover, the role of ideology had changed as well. Ideology, which had served as the ethos binding together the popolo party and its sympathizers and which did have an impact on criminal justice in the 1280s, had become a mask for the self- interests of a narrow group…The criminal court system of the early fourteenth century had lost any trace of pretensions to impartiality and impersonality and had become a blatant instrument of factional conflict, protection, and revenge. The legal reforms of the late thirteenth century and the popolo ideology of law and order, with its ideals of abstract justice, were only a temporary reality in the thirteenth century and were submerged in the factionalism of the early fourteenth century. The dream of justice remained unfulfilled in the thirteenth and fourteenth centuries and remained so for centuries to come.

Sarah Rubin Blanshei, “Crime and Law Enforcement in Medieval Bologna” (1982)

The breakdown of the popolo into clearly defined, legally distinctive factions is apparent by 1303, but the key year in this development is really 1306. Later privilege lists, such as those of 1310 and 1319, refer back to 1306 as the major point of change in early fourteenth century political and legal structures.

The 1310 and 1319 revisions of the privileges lists demonstrate how powerful a legal weapon privilege had become for the ruling faction. According to the provisions governing those privileges, a privileged person could make an accusation against a member of the opposition and his charge would have validity by his word alone. The enemy faction however, could not respond with counter- charges, since privilege carried with it immunity from investigation in assault cases.

As a result of this expanded concept of “privilege,” private accusation procedure in the early fourteenth century became primarily a legal weapon of the ruling faction. Consequently, accusation records from the 1280s and the early decades of the fourteenth century reflect very different patterns of law enforcement. In the 1280s assault cases dominated the private accusation procedure, with other types of cases such as property damages, trespass, the ignoring of court orders, and single-instance theft cases (frequently by servants of the household) also included, but to a much lesser degree. All socioeconomic levels of the established community turned to the courts and used the accusation procedure to settle their differences: Contadini, great as well as lesser guildsmen, individuals from the upper ranks of the urban elite, including magnates – all appear in the private accusation records, as accusor as well as accused. Occasionally a feud between prominent families would break out and temporarily dominate the private accusation records as charges and counter-charges were filed, as, for example, in 1286, when one incident provoked seven cases, comprising thirteen percent of the cases in one of the four notaries’ records. This incident, as usually happened, resulted in the acquittals of all concerned and demonstrates vividly how elite families in the 1280s used the law courts to contain the vendetta.

Sarah Rubin Blanshei, “Crime and Law Enforcement in Medieval Bologna” (1982)

The new patterns of prosecution as revealed in the post-popolo records of the late thirteenth and early fourteenth century reflect not only a greater proportion of foreigners, but also an increasing number of magnates. This heightened visibility of nobles, magnates, and other members of the elite in judicial records stems, as we shall see, from the new political situation of that period and an increased manipulation of the judicial system for political or factional purposes.

The new political situation began to develop in 1292 when certain individuals who had been banished throughout the popolo period were permitted to return to Bologna. In 1300 there was a general reconciliation between the groups in power in Bologna – called the Geremei faction – and those groups that had been in exile since 1274 – the Lambertazzi party. The readmission of the Lambertazzi resulted, however, not in civic harmony but in political realignments that soon caused deep splits within the still dominant Geremei faction, with one group within the Geremei – the “Pars Marchesana” – opposing reconciliation with the Lambertazzi and advocating friendship with the Marchese d’Este, the former bitter enemy of Bologna. In 1306 this intransigent faction gained power, and the criminal courts became an instrument of vendetta employed by the new ruling faction to strengthen its political position and punish its enemies.

Once again the inquisition records contain a high level of assault, riot and sedition cases as the ruling classes’ fear of revolution again became stronger than its fear of marginal groups in society. This change is similar to the one that occurred in 1296, when the concern that enemy agents might incite riots and rebellions in the city led to increased prosecution of foreigners and assault cases, but in 1306 there is a parallel development that is new to that year and marks a major modification in the use of the accusation process. In the 1280s, as we shall see, the elite had appeared frequently in the accusations, and when a feud flared up between aristocratic families, the elite became highly visible in the records as the families resolved their differences in a web of charges and counter-charges. But other more humble social groups had also utilized the accusation process for the same purpose. Increasingly, however, after 1306, members of the elite in power came to dominate the accusation records, and to use the accusation process as a means of protecting themselves from the opposing faction.

The legal instrument which made possible this manipulation of the courts for factional vendetta was judicial “privilege.” Special legal protection, or “privileges” had been accorded all members of the popolo party in the 1280s with additional protection for popolo officials. Legal privileges granted to all members of the popolo (but popolo in this context refers only to members of the popular societies – the guilds and armed companies – and their sons, brothers, and fathers) included heavier monetary penalties against any magnate committing an act of violence against such a privileged person; condemnation of a magnate on the basis of a privileged person’s accusation alone; and secret accusations by such privileged persons. Popolo officials had much more extensive privileges, including immunity from any investigation or punishment for any crime committed in self-defense.

Although the new legal privileges of the ruling faction in the fourteenth century were less sweeping than those granted to the popolo officials in the 1280s, they nevertheless were broader than the general legal protection granted to all members of the popolo societies and did give the ruling faction a powerful legal weapon. The process by which the ruling faction became legally privileged was two-fold: Gradually members of the opposition were erased from popular societies so that to be a “privileged person” came to be synonomous with belonging to one of the factions into which the popolo had subdivided – the faction in power. Second, the nature of legal privilege itself was expanded to include not only protection from magnates but from Lambertazzi and specifically from the former members of popular societies who had been removed from those societies, that is, individuals of the opposing faction. The exclusion of the opposing popolo faction from legal privileges was accomplished in 1303 after the January conspiracy and uprising of that year, by assigning to the opposing popolani and their descendants the status of magnates and by removing their names from the matriculas of the popular societies.

The breakdown of the popolo into clearly defined, legally distinctive factions is apparent by 1303, but the key year in this development is really 1306. Later privilege lists, such as those of 1310 and 1319, refer back to 1306 as the major point of change in early fourteenth century political and legal structures.

Sarah Rubin Blanshei, “Crime and Law Enforcement in Medieval Bologna” (1982)

In the post-popolo period after 1292 there were equally significant changes in the area of criminal prosecution. External and internal pressures on the government modified the ruling classes’ perception of who and what constituted dangerous individuals and crimes, and this in turn influenced the pattern of criminal prosecution. The first major modification in social control came in 1295 under the pressure of the commune’s war with the Marchese d’Este of Ferrara, a war of much more challenging scope than Bologna had experienced in decades. The war made serious fiscal and public safety demands upon the government and led to revision of the tax rolls and a new estimo to meet war expenses, and also to law reforms to meet the danger to public security. The communal courts themselves were reorganized and placed on a more centralized footing, the investigative process was made less cumbersome, and the scope of the podesta‘s investigative powers in cases of assault was enlarged. In addition, the number of police or beroarii was increased and monetary penalties against foreigners were made double those paid by Bolognese. It was the foreigners who became more explicitly the concern of the courts, and this increased concern stemmed directly from the government’s fear that “foreigners,” especially supporters of the Este, such as the “Whites” from Tuscany, would enter the city and attempt to create disturbances that would subvert the government.

The new preoccupation with the foreigner directly affected the prosecution of crime, and consequently the inquisition records of 1296 differ in pattern from those of the 1280s and early 90s. The number of foreigners and assault cases prosecuted rose: for example, nine of sixteen cases in one notary’s register in 1296 involved foreigners. The pattern of assault cases also changed and reflected the new jurisdictions of the podesta of the fourteen assault cases in that 1296 register, two had taken place in the contado and twelve in the city; seven were by foreigners, one by a magnate and four were the new type of assault case, that is, they did not belong to the pre-1295-categories of assault in which the podesta was authorized to initiate investigation. Finally the prosecution of assault cases rose noticeably: In the inquisition sample for the 1280s and 1290s there were 99 assault cases, 48 cases of theft, and 58 homicide cases. In contrast, in a complete register of 1296 thirty-three of the total of 59 cases were urban assault, three were rural assault, with only six cases of larceny and seven homicides.40 In comparison with the 1280s, the level of prosecuted assault in 1296 increased by 33 percent whereas theft and homicide decreased by 55 and 56 percent respectively.

In part these figures may represent a real increase in assault due to the presence in the city of mercenaries, and the court records do identify a number of such individuals in assault cases, but this only partially explains the data. The higher level of assaults was also due to the conscious desire of the government to investigate any crime that might lead to riots. The government feared that Este agents were encouraging conspiracies with the aim of instigating riots that would topple the government. Because of this concern the government was investigating assault cases that had previously been outside the investigative powers of the podesta and had belonged exclusively to the sphere of private accusations: Twenty-eight percent of the 1296 register’s assault cases fall into the new categories of assault recognized only after the outbreak of the war as within the podesta‘s investigative powers. The ministrales, or parish officials, were, in fact, instructed specifically and personally by the iudex ad malleficia to report such cases. Once the war was concluded, however, the number of such cases in the records diminished. In time of war it was assault rather than theft that was feared more by the government and the pattern of prosecution reflects that fear.

Sarah Rubin Blanshei, “Crime and Law Enforcement in Medieval Bologna” (1982)

When the popolo/Geremei regime was progressively weakened and finally overthrown in the late thirteenth and early fourteenth century, the key reforms of the popolo party were seriously eroded. Revisions of the Popolo Ordinances and program of 1292, 1311, and 1318-19 essentially re-established the primacy of the pre-popolo legal concepts and practices of composition (expiation by payment of a fine) and the use of the pax, or peace agreement between offender and victim, to cancel bans. The revisions of 1292 reinstated the fine and pax by altering the concept of perpetual banishment. “Perpetual” was to mean a ten year minimum period during which bans for major crimes such as homicide, robbery, kidnapping, and rape, could not be cancelled, but at the end of ten years, a person banished for homicide could have his ban cancelled by paying a fine and obtaining a pax from his victim’s family.

The 1292 revisions also reinstated the use of the pax to mitigate the harshness of penalties, but that provision was cancelled in 1311, probably under the pressures from renewed factionalism incited by emperor Henry VII’s journey to Italy. Nevertheless the new legislation of 1311 did confirm that the pax was required before a ban could be cancelled. This issue was also prominent in 1318, and although the new statutes of that year are lost, we have references in the 1318 legislative records that reaffirm the ban rubric. It is in 1319, when the new statutes were to go into effect, that the formulae in the “perpetual” murder bans begin to include consistently new language specifying that the ban was perpetual until a fine of 1000 pounds has been paid “according to the new statutes.” Bans against foreigners and magnates, however, retained the original significance of permanent banishment and could not be cancelled by the pax in major crimes. Nor could the pax be used in the case of hired assassins or notorious thieves, individuals perceived also in the pre-popolo period as being outside the community and concepts of honor. The revisions of the late thirteenth and early fourteenth century thus marked a shift in the locus of criminal law away from the harsher and depersonalized emphases of popolo criminal justice and back to personalized, vendetta-based criminal justice.

Sarah Rubin Blanshei, “Crime and Law Enforcement in Medieval Bologna” (1982)

The procedure of inquisitio, or government-instigated investigation, in contrast to private accusation, was the type of procedure by which most homicides, “professional” or “notorious” thieves, public assassins, foreigners, and contadini were tried, convicted and punished. While vendetta-control cases went to the courts via the private accusation procedure, those crimes the commune sought to punish or deter went to court by means of the inquisition procedure.

Not only had the reforms created, or at least encouraged, a dual system of criminal law, but the duality, the divisions into separate spheres of accusation and inquisitio, was dysfunctional. Theoretically homicide was a crime in the sphere of inquisitio, but homicide, in certain forms, was closely related to assault, an “accusation type” crime. Indeed many homicide cases were what can be called “assault-homicides,” that is, they were assault cases in which the victim happened to die, and many assault cases were merely assault and not homicide only because the victim was rescued by mediators.

Both murder and assault frequently were crimes of passion, and often it was not possible to know at the time of the act itself whether a crime of murder or simply an assault had taken place. When murder was a crime of passion, it, like assault, was likely to be viewed with tolerance. Many murderers were not turned in and were never sentenced to corporal punishment because crimes of passion, even if deliberate and intentional acts, were, according to vendetta mentality, an acceptable way of settling disputes. Violence in personal relationships, even when it escalated to murder, was a act which still was viewed as one which could be expiated, as a personal injury against an individual. But the criminal justice system did not reflect these popular perceptual categories. Judges, in their sentencing of criminals who were not contumacious, did have the authority to distinguish murder “furioso” from other types of homicide, such as hired assassination, and could modify the penalty as they wished. They had no such option, however, in cases where the murderer chose to ignore court orders and had been banished. Banishment decrees did not distinguish between the two types of homicide and therefore murderers who had committed crimes of passion and fled the scene were banished under the same harsh terms as hired assassins and those who murdered their victims in the course of a robbery. The community, however, made the distinction that the law failed to make. Such murderers would often escape capture, and would be supported, while under ban, by their families and fellow villagers and might even come to terms and forge a peace agreement with the heirs of their victim.

The distinctions between “public” and “private” spheres of criminal prosecution, between the procedures of accusation and inquisition, between vendetta control and deterrence of marginal criminality, thus reveal a basic ambivalence in the community’s view of crime and criminality, between those crimes and criminals to be tolerated and those to be feared. The development of public authority in criminal justice, the expansion of the role of government, and the criminal law reforms of the popular party, had resulted not in a monolithic impartial system but in a dual system of social control. Moreover, this dual system had been shaped and fashioned by a particular kind of government. In the 1280s the government was dominated by a noble faction, the Geremei, a faction sympathetic to popolo ideology, and criminal justice was structured for a particular political context, one in which the government was sensitive to the demands of the popular party, and in which noble faction and popular party had become a temporarily unified political entity. As we shall see, however, when the political environment changed, so too did the theoretical basis of penology and the actual pattern of the prosecution and punishment of crime.

Sarah Rubin Blanshei, “Crime and Law Enforcement in Medieval Bologna” (1982)