The Catholic Lawyer

Volume 6, Spring 1960, Number 2 Article 3

Crime and PunishmentPope Pius XII

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CRIME AND PUNISHMENT tPOPE PIUS XII

T HE QUESTION which We shall examine today was suggested to Us by

one of you, the illustrious Professor Carnelutti. It is: the function ofpunishment, the "redeeming of the criminal through repentance"; a ques-tion which We should like to formulate in this manner: crime and

punishment in their reciprocal relationship. We should wish, that is, to

indicate in broad outline the path of a man from the state of noncriminal-

ity, through the actual crime, to the state of criminal guilt and itspunishment (reatus culpae et poenae), and vice versa, the return fromthis state, through repentance and expiation, to the state of liberation

from the crime and punishment. We shall be able then to see moreclearly what is the origin of punishment, what is its nature, what itsfunction, what form it should take in order to conduct the criminal to

his liberation.

The Path toward Crime and Punishment

It is necessary here to make two preliminary remarks.

Above all, the problem of crime and of punishment is a problem

concerned with persons, and this under a double aspect. The path towardcrime takes its beginning from the person of the one acting, from his

"Ego." In the sum of the actions which proceed from the Ego as from a

center of action, there is question here only of those which are based

upon a conscious and voluntary determination; that is, acts which the

Ego was able to perform or not perform, those which it performs because

it has freely determined to do so. This central function of the Ego withregard to itself - even if operating under various influences of a different

nature - is an essential element when there is question of true crime and

true punishment.

tThis address was prepared for the December 5, 1954 meeting of the Italian Asso-ciation of Catholic Jurists. (Translation taken from 53 CATHOLIC MIND 364 (1955).)

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The criminal act, however, is also alwaysan opposition of one person against an-other, both when the immediate object ofthe crime is a thing, as in theft, and when itis a person, as in murder; further, the Egoof the person who becomes a criminal isdirected against higher authority, and there-fore in the end always against the authorityof God. In this matter We, Who have asOur aim the true problem of crime andpunishment properly so-called, prescindfrom the merely juridical crime and fromits consequent penalty.

-It is also to be observed that the personand the function of the person who is thecriminal form a strict unity, which in itsturn presents different aspects. Simultane-ously it concerns the psychological, juridi-cal, ethical and religious fields. Theseaspects can certainly also be consideredseparately; but in true crime and punish-ment they are so closely related amongthemselves that only by taking them alltogether -is it possible to form a correctconcept about the criminal and the ques-tion of crime and punishment. It is not evenpossible, therefore, to treat this problemunilaterally, merely under its juridical

aspect.The path toward crime therefore is this:

the spirit of a man is found in the followingsituation: it is faced with the performanceor omission of an action, and this perform-ance or omission is presented to it as simplyobligatory, as an absolute "you must," anunconditional demand to be fulfilled by apersonal decision. The man refuses to obeythis demand: he rejects the good, acceptsthe evil. When the internal resolution is notterminated within itself, it is followed by theexternal action. Thus the criminal action isaccomplished both internally andexternally.

As far as the subjective side of the crimeis concerned, in order to judge rightly it isnecessary to take into account .not only theexternal act, but also the influences, bothinternal and external, which have cooper-ated in the decision of the criminal, such asinnate or acquired dispositions, impulses orobstructions, impressions from education,stimulations from persons or things in themidst of which the person lives, circumstan-tial factors, and in a particular way thehabitual and actual intensity of the will-act,the so-called "criminal urge," which hascontributed to the accomplishment of thecriminal act.

Considered in the object affected by it,the criminal action is an arrogant contemptfor authority, which demands the orderlymaintenance of what is right and good, andwhich is the source, the guardian, the de-fender and the vindicator of order itself.And since all human authority cannot bederived ultimately except from God, everycriminal act is an opposition to God Him-self, to His supreme law and sovereign ma-jesty. This religious aspect is inherently andessentially connected with the criminal act.

The object affected by this act is also thelegally established community, if and in asfar as it places in danger and violates theorder established by the laws. Neverthelessnot every true criminal act, as describedabove, has the character of a crime againstthe public law. Public authority must beconcerned only with those criminal actionswhich injure the orderly society as estab-lished by law. Hence, the rule concerninga juridical crime: no crime where there isno law. But such a violation, if it is other-wise a true criminal act in itself, is alsoalways a violation of the ethical and relig-ious norm. It follows therefore that thosehuman laws which are in contradiction to

divine laws cannot form the basis for a truecriminal act against the public law.

Connected with the concept of the crim-inal act is the concept that the author of theact becomes deserving of punishment (rea-tus poenae). The problem of punishmenthas its beginning, in an individual case, atthe moment in which a man becomes acriminal. The punishment is the reaction,required by law and justice, to the crime:they are like a blow and a counter-blow.The order violated by the criminal act de-mands the restoration and re-establishmentof the equilibrium which has been dis-turbed. It is the proper task of law andjustice to guard and preserve the harmonybetween duty, on the one hand, and thelaw, on the other, and to re-establish thisharmony if it has been injured. The pun-ishment in itself touches not the criminalact, but the author of it, his person, his Ego,which with conscious determination hasperformed the criminal act. Likewise thepunishing does not proceed, as it were, froman abstract juridical ordination, but fromthe concrete person invested with legitimateauthority. As the criminal act, so also thepunishment opposes person to person.

Punishment properly so-called cannottherefore have any other meaning and pur-pose than that just mentioned, to bring backagain into the order of duty the violator ofthe law, who had withdrawn from it. Thisorder of duty is necessarily an expression ofthe order of being, of the order of the trueand the good, which alone has the right ofexistence, in opposition to error and evil,which represent that which should notexist. Punishment accomplishes its purposein its own way, in as far as it compels thecriminal, because of the act performed, tosuffer, that is, it deprives him of a good andimposes upon him an evil. But in order that

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this suffering may be a punishment, thecausal connection with the crime isessential.

The State of Guilt and Punishment

We add that the criminal has broughtabout, by his act, a state which does notautomatically cease when the act itself iscompleted. He remains the man who hasconsciously and deliberately violated a lawwhich binds him (reatus culpae), and si-multaneously he is involved in the penalty(reatus poenae). This personal conditionendures, both in his relation to the authorityon which he depends (or better, the humanauthority of public law in so far as this hasa share in the corresponding penal proc-ess), and at all times also in his relation tothe supreme divine authority. There is thusbrought about an enduring state of guiltand punishment, which indicates a definitecondition of the guilty party in the eyes ofthe authority offended, and of this author-ity with respect to the -guilty party. (St.Thomas: Sum. Theol. III, q. 69, a.2, obj. 3et ad 3.)

An attempt has been made - based onthe idea that time and space, formally con-sidered, are not simply realities, but instru-ments or forms of thought - to draw theconclusion that, after the cessation of- thesinful action and of the actual punishment,one can no longer speak of any permanentquality belonging to them in reality, in thereal order, and therefore, of any state ofguilt or punishment. If this were so, oneshould have to abandon the principle:"What's done, cannot be undone." Appliedto a spiritual action - such as a criminal actis of its very nature - this principle wouldbe based (as is asserted) on a false valua-tion, and on an erroneous use, of the con-cept of time. We would be going outside the

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limits of Our discourse if We were to treathere of the question of space and time. Itwill be enough to note that space and timeare not simply thought-forms, but have abasis in reality. At any rate, the conclusionwhich is drawn from them against the exis-tence of a state of guilt is invalid. Undoubt-edly man's fall into sin takes place on thisearth in a definite place and at a definitetime, but it is not a quality of that place orthat time, and, therefore, its cessation is notconnected with the cessation of a "here"and a "now."

What We have so far explained concernsthe essence of the state of guilt and punish-ment. On the other hand, by virtue of thespecial prerogative of the higher authority,to which the culprit has refused due obedi-ence and submission, its indignation anddisapproval turn against not only the ac-tion, but its author, against his person onaccount of the action.

With the act of crime is immediatelylinked, as was just now indicated, not the,punishment itself, but the guiltiness andpunishability of the action. Nonetheless,there is not excluded a penalty, which, byvirtue of a law, is incurred automatically atthe moment of the criminal action. InCanon Law are recognized penalties ("lataesententiae") liable to be incurred by thevery fact of committing a sin. In civil law,such a penalty is rare, nay, in some legalsystems, unknown. Always, moreover, thisautomatic incurring of a penalty supposesreal and serious guilt.

Consequently, it is customary for thepenalty to be imposed by a competent au-thority. That presupposes a penal law actu-ally in force, a legal person invested withauthority to punish, and in him certainknowledge of the act to be punished, asmuch from the objective standpoint, that is

to say, concerning the actual commission ofthe crime contemplated by the law, as fromthe subjective standpoint, that is, from aconsideration of the culpability of the guiltyone, its gravity and extension.

This knowledge, necessary for pronounc-ing a penal sentence, is, before the court ofGod the Supreme Judge, perfectly clear andinfallible, and to have called attention to itcannot be without interest to the jurist. Godwas present to the man in the internal re-solve, and in the external execution of thecriminal act, having all fully within His gazedown to the last detail; all is before Himnow, as in the moment of the act. But thisknowledge in absolute fullness and sover-eign certainty, at every instant of life, andover every human act, is proper to Godalone. Because of this, there belongs to Godalone the final judgment on the value of aman, and the decision on his ultimate fate.He pronounces the judgment as He findsthe man at the moment He calls him toeternity. Yet an infallible judgment of Godexists also during life on earth, and not onlytaken as a whole, but over every sinful act,together with the corresponding penalty;yet, in spite of the ever-ready divine dispo-sition to forgiveness and remission, in somecases He carries it into effect during thepresent life of the man.

The human judge, on the other hand,since he does not possess the omnipresenceand omniscience of God, has the duty offorming for himself, before issuing a judi-cial sentence, a moral certainty - that is,one which excludes every reasonable andserious doubt about the external fact andthe internal culpability. But he does nothave immediate insight into the interiordispositions of the accused at the very mo-ment of the crime; rather in most cases thejudge is not in a position to reconstruct

them with absolute clarity from the argu-ments offered in proof, nor, often enough,even from the confession of the delinquent.But this difficulty should not be exaggeratedas though it were ordinarily impossible fora human judge to attain sufficient certainty,and therefore a solid foundation for a sen-tence. According to the cases, the judge willnot fail to consult renowned specialists onthe capacity and responsibility of the pre-sumed criminal, and to take into considera-tion the findings of the modern sciences ofpsychology, psychiatry and characterology.If, despite all these precautions, there stillremains a grave and serious doubt, no con-scientious judge will proceed to pronouncea sentence o.f cuue. ation, all the moreso when there is a question of an irrevoca-ble punishment, such as the death penalty.

In most crimes external behavior is al-ready sufficient manifestation of the internalmotivation which was responsible for thecrime. Therefore, ordinarily one can - andat times one even should - deduce a sub-stantially sound conclusion from the exte-rior; otherwise juridical actions would berendered impossible for mankind. On theother hand, one should not forget that nohuman sentence finally and definitely settlesthe fate of a man, but only the judgment ofGod, both for single acts and for those ofa lifetime. Consequently, in. every casewhere human judges have erred, the Su-preme Judge will re-establish equilibrium,first of all, immediately after death with thedefinitive judgment on the whole life of aman, and then later and more fully in thefinal and universal judgment before all men.This is not to be understood as though itdispenses a judge from conscientious andexact efforts in ascertaining the facts. Still,there is something magnificent in the reali-zation that there will be a final equation ofguilt and punishment which will be abso-

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lutely perfect.Whoever has the duty of guarding the

accused person in protective custody shouldnot fail to bear in mind the painful burdenwhich the investigation itself inflicts uponthe prisoner, even when those methods ofinvestigation are not being employed whichcannot be justified in any way. Ordinarilythese sufferings are not taken into accountwhen the penalty is finally inflicted, a con-sideration which would be difficult torealize. However they should not be lostsight of.

In external juridical matters the sentenceof the court is definitive for all that con-cerns guilt and punishment.

in your sessions, illustrious gentlemen,there was manifested the, desire that bymeans of legislation some relaxation beintroduced in the obligation which bindsthe judge to the articles of the penal code.Not, of course, in the way the duty of thepraetor was interpreted by Roman law,"adiuvandi, supplendi vel corrigendi iuriscivilis gratia" ("to help, supplement orcorrect civil law"), but in the sense of afreer evaluation of the objective factsover and above the general juridical limitsset by legislative authority. Thus, even inpenal law, a kind of "analogia iuris" wouldbe applicable, and the discretional powerof the judge would be extended beyond thelimits hitherto accepted as valid. It is be-lieved that in such a way there would resulta notable simplification of penal laws anda considerable diminution of the numberof particular crimes. At the same time itwould help to make people better under-stand exactly what the state considersdeserving of punishment, and for whatreasons.

For this proposition a certain foundationcan surely be admitted. In any case, theends which this proposition has in view -

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namely, the simplification of the norms oflaw, the prominence given not only to strictformal law but also to equity and spon-taneous good judgment, the better adapta-tion of penal law to popular sentiment -

are not, We say, vulnerable to objection.The difficulty would arise not so much onthe theoretical side as from the form ofits realization, which, on the one hand,should preserve the guarantees of the exist-ing order and, on the other hand, take intoaccount the new needs and reasonable de-sires of reform. Canon Law offers examplesin this sense, as is evident from Canons2220-2223 of the Code of Canon Law.

In what concerns the various kinds ofpenalties, penalties concerning honor, [ju-ridical capacity], inheritance, personal free-dom, body and life - bodily punishment isnot provided for in Italian law - We will,in Our explanation, limit Our remarks con-cerning them to the nature and purpose ofpunishment. Since, however, as We havealready noted, some jurists do not hold thesame opinion concerning the meaning andpurpose of punishment, it follows that theirviews of various punishments are also dif-ferent.

Up to a certain point it may be true thatimprisonment and isolation, properly ap-plied, is the penalty most likely to effect areturn of the criminal to right order andsocial life. But it does not follow that it isthe only just and effective one. What Wesaid in Our discourse on internationalpenal law, on Oct. 3, 1953, referring tothe theory of retribution, is to the pointhere. Many, though not all, reject vindic-tive punishment, even if it is proposed tobe accompanied by medicinal penalties. Wethen declared that it would not be just toreject completely, and as a matter of prin-ciple, the function of vindictive punish-ment. As long as man is on earth, such

punishment can and should help towardhis definitive rehabilitation, provided manhimself does not raise barriers to its effi-cacy, which, indeed, is in no way opposedto the purpose of righting and restoringdisturbed harmony, which, as We alreadypointed out, is an essential element ofpunishment.

The inflicting of punishment finds itsnatural complement in its being, carriedout as the effective privation of a good, orthe positive imposition of an evil, by com-petent authority as a- reaction to the crim-inal action. It is a weight placed to restorebalance in the disturbed juridical order,and not aimed immediately at the fault assuch. The criminal action has revealed inthe guilty person an element that clasheswith the common good and with wellordered life with others. Such an elementmust be removed from the culprit. Theprocess of removing it may be comparedwith the intervention of a doctor in thebody, an intervention which may be pain-ful, especially when the cause of sickness,and not the symptoms, must be dealt with.The culprit's own good, and, perhaps,more so that of the community, demandthat the ailing member become soundagain. The meting out of punishment, how-ever, no less than the healing of the sick,demands a clear diagnosis of causes, notmerely of symptoms, a therapy adapted tothe ailment, a cautious prognosis and asuitable prophylaxis.

The meaning and purpose of the punish-ment, and the intention of the punishingauthority, which is usually in agreementwith that purpose, indicate the attitude theculprit should have; it is that of acknowl-edgment of the evil done, which provokedthe penalty; of aversion from, and repudi-ation of, the evil deed itself, of repentance,expiation and purification, and purpose of

future amendment. That is the path thecondemned man should follow. The prob-lem, however, is whether he will reallytake it. Turning Our attention to such aquestion, it may be helpful to consider thesuffering caused by the punishment, ac-cording to its various aspects: psycholog-ical, juridical, moral and religious, thoughnormally these various aspects are allclosely united in the concrete.

Psychologically, nature spontaneously re-acts against the physical evil in the penalty,her reaction being all the stronger in pro-portion to the suffering imposed on humannature as such, or on the individual tem-perament. Along with this, there is a fixing,likewise spontaneo-us, of the cu.lpit's attcn-tion on the criminal action which causedhis punishment, and whose connection isnow vividly before his mind, or at leastis now uppermost in his conscience.

Following such more or less involuntaryattitudes, there appears the conscious andwilled reaction of the Ego, the center andsource of all personal actions. This higherreaction can be a voluntary, positive ac-ceptance, as is shown by the good thief onthe cross: "We receive what our deedsmerit" (Luke, 23, 41). It may be merepassive resignation; or at times it may bea deep bitterness, a total interior collapse;then, too, it may be a proud resistance,which at times becomes a hardening inevil; finally it may be a complete revolt,savage but impotent. Such psychologicalreactions take differing forms, dependingon whether there is question of a longpunishment, or of a short punishment,short in time, but surpassing in height anddepth all time-measure - the pain of death,for example.

Juridically, execution of the punishmentimplies the valid, effective action of thehigher and stronger power of the juridical

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community (or rather, of the one possess-ing authority in this community) on thelaw-breaker, who, obstinately opposed tothe law, has culpably violated the estab-lished juridical order, and now is-forcedto submit to the prescriptions of that order.-for the greater good of the communityand of the criminal himself. Thus the ideaand necessity of penal law is clear.

On the other hand, justice demands that,in carrying out the provisions of penallaw, any increase of those punishmentsprovided for the case, as also any arbitraryharshness, annoyance or provocation, beavoided. Higher authority must see to thecarrying out of the punishment, and giveit a form w hich i! orresnondi to its pur-pose, not in an unyielding fulfillment ofminute prescriptions, but in adapting it, sofar as possible, to the person to be pun-ished. Indeed the gravity and dignity of thepower to punish, and its exercise, naturallyindicate that the public authority view asits main duty contact with the person ofthe guilty one. Judgment on him must bemade, therefore, according to special cir-cumstances, if the functioning of that officeis to be fully taken care of through theproper channels. Very often, if not always,one aspect of punishment must be en-trusted to others, especially the real andeffective care of souls.

Some have proposed that it would bewell to establish a religious congregationor a secular institute which would caremore extensively for the psychological as-sistance of prisoners. Undoubtedly nunshave long been bringing the warmth andgood influence of Christian charity to wom-en's prisons; for Us this is a good oppor-tunity to express to them Our gratitude.Still, the above-mentioned proposal seemsworthy of deep study, and We express thehope that a like foundation, no less than

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those religious and ecclesiastical associa-tions already active in houses of detention,will give full play to the energies releasedby the Christian Faith; We hope, too, thatall the solid results produced by investiga-tion and experience in the field of psychol-ogy, psychiatry, pedagogy and sociologywill be used to the advantage of the im-prisoned. This naturally presupposes athorough professional training in thosecalled to such work.

No one who is in any way familiar withthe actual 'application of punishment willnurse utopian dreams of great success. Thegood-will of the prisoner must match anyoutside influence, but that cannot be gottenby force. May divine grace arouse anddirect that good-will!

The moral aspect of carrying out of pun-ishment and the sufferings effected are inrelation to the purpose and principleswhich should determine the dispositions ofthe condemned.

To suffer in this life means practically aturning of the soul within itself; it is a pathwhich drives one from the superficial to'deep within oneself. Considered in thatlight, suffering has great moral value. Pre-supposing a right intention, its free accept-ance is a priceless act. "Patientia opuspertectum habet," ("Suffering makes aperfect work"), writes St. James (1, 4).That is true also of the sufferings causedby punishment, which can bring progressto one's interior life. By its nature it is areparation and a restoration - through andin the guilty person, and willed by him - ofthe culpably violated social order. The es-sence of the return to good consists moreexactlyT in breaking away from the faultthan in the free acceptance of suffering.Suffering, however, can lead to this break,and turning away from one's wrongdoingcan, in its turn, be of great moral value,

and facilitate and elevate its moral effec-tiveness. Thus, suffering can reach moralheroism, heroic patience and expiation.

In the area of moral reaction, however,contrary manifestations are not lacking.Often the moral value of punishment is noteven recognized; often it is consciously anddeliberately rejected. The criminal willneither recognize nor confess his guilt, willin no way submit to good, wills no expia-tion or repentance for his own crimes.

And now a few words on the religiousaspect of the suffering which results frompunishment.

Every moral transgression of man, evenif materially committed only in the sphereof legitimate human laws and then pun-ished by men according to positive humanlaw, is always a sin before God and callsdown upon itself from God a punitivejudgment. Not to take this into accountis contrary to the interest of public author-ity. Sacred Scripture (Romans 13, 2-4)teaches that human authority, within itsown limits, is, when there is question ofinflicting punishment, nothing else than theminister of divine justice. "For he is God'sminister: an avenger to execute wrath uponhim that doth evil."

This religious element in the inflictionof punishment finds its expression andrealization in the person of the guilty one,in so far as he humbles himself under thehand of God Who is punishing him throughthe instrumentality of men; thus he is ac-cepting his sufferings from God, offeringthem to God as a partial payment of thedebt which he has contracted before God.Accepted in this way, punishment becomesfor the guilty person a source of interiorpurification on this earth, of complete con-version, of resolution for the future, a bul-wark against possible relapse. Sufferingthus accepted with faith, repentance and

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love is sanctified by the pains of Christ andsupported by His grace. This religious andholy meaning of suffering due to punish-ment is impressed upon us by the wordswhich the good thief addressed to his cruci-fied companion: "We receive the due re-wards of our deeds," and by his prayer tothe dying Redeemer: "Lord, remember mewhen thou shalt come into thy kingdom";a prayer which, when weighed upon thescales of God, brought to the repentantsinner the assurance of the Saviour: "Thisday thou shalt be with me in paradise"

-(Luke 23, 41-43); the first plenary in-dulgence, as it were, granted by ChristHimself.

May all who have fallen under the blowsof human justice suffer the punishment in-flicted upon them not in a spirit of duress,not without God and without Christ, notin revolt against God, not spiritually shat-tered by anguish; but may it open for themthe way which leads to holiness.

Liberation From the State of Guiltand of Punishment

It remains now to speak of the final sec-tion of the path which We wished to pointout to you, that is, the return from thestate of guilt and punishment to that ofliberation.

Liberation from guilt and liberationfrom punishment are not necessarily iden-tified, either in concept or in reality.Prescinding from the fact that, in the sightof God, the remission of eternal punish-ment is always connected with the remis-sion of grave guilt - guilt may be remittedwithout necessarily implying the extin-guishing of the penalty. On the other hand,the penalty may have been paid withoutthe guilt having ceased to exist in the innerbeing of the culprit.

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Now, the return to the juridical andethical order consists essentially in theliberation from guilt, and not from punish-ment.

In the exposition of the first section ofthis path, We pointed out the internal andexternal character of the guilty act, that is,in relation to its author, as also in its rela-tions to higher authority, which is, in thelast analysis, the authority of God Himself,Whose majesty, justice and holiness areslighted and offended in every culpable act.

Liberation from guilt must, therefore,reintegrate the relations disturbed by theculpable act. If we are dealing with asimple real debt, that is, one that is con-cerned with purely material considerations,it may be fully extinguished by the handingover of the thing required, without thenecessity of any personal contact with theother party. If, however, there is questionof a personal offense (either by itself orconnected with a real debt), then the cul-prit is bound to an obligation, in the strictsense, to the person of the creditor. It isfrom this strict obligation that he must bereleased. And because, as We have alreadysaid, this obligation has a psychological,juridical, moral and religious aspect, so hisliberation must have a similar aspect.

Guilt, however, in its internal element,also implies in the culprit a state of en-slavement and of bondage on his part tothe object to which he has given himselfin the performance of the culpable act;that is, in substance, an enslavement to apseudo-ego whose tendencies, impulses andends constitute in man a caricature of thegenuine ego, intended by the Creator andby nature only for the good and the true.This contradicts those norms of the rightpath according to whose direction man,made in the image of God, should act and

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form himself. From this enslavement alsomust there be effected a psychological, ju-ridical, moral and religious liberation. :

In human law, we may speak of a sortof liberation from guilt when the publicauthority no longer proceeds against theculpable act; for example, even withoutregard to the actual internal dispositions ofthe culprit, by positive remission of theguilt on the part of authority, or becausethere has expired the period established bythe law within which exclusively the sameauthority intends, under certain conditions,to bring before its tribunal, and to passjudgment upon, the violation of the lawthat has taken place. However, this waydoes not constitute an interior conversion,a metanoia, a liberation of the ego fromits interior slavery, from its will to evil andto illegality. Now, it is only to this libera-tion from guilt in its proper meaning, tothis metanoia (that is, change of mentalattitude), that We would wish here todraw attention.

Psychologically considered, the libera-tion from guilt is the abandonment and re-traction of the perverse will freely andconsciously placed by the ego in the cul-pable act, and the renewed intention towill what is right and good. This change ofWill presupposes a return into oneself, andhence an understanding of the evil andculpability of the resolution formerly takenagainst the good recognized as obligatory.There is united to such understanding thereprobation of the evil done, repentance asdirectly willed sorrow, deliberate regretful-ness in the soul for the evil perpetratedbecause it was wicked, contrary to law and,in fine, contrary to God. In this catharsisof the inner being, there is also accom-plished and included a withdrawing fromthe false good to which man had turned in

his guilty act. The culprit begins to submithimself to the order of justice and right,in obedience to its author and guardian,against whom he had rebelled.

This leads psychologically to the finalstep. Since the culpable act - as alreadymentioned - is not the offense directed.against an abstract norm of law, but is, insubstance, a stand against the person ofthe obligating or prohibiting authority,complete conversion tends, through psy-chological necessity in one form or another,toward the person of the offended authoritywith the explicit or implicit sorrowfulconfession of the fault, and with interiorpetition for remission and pardon. HolyScripture gives us brief and classic ex-amples of such repentance, like the wordsof the publican in the Temple: "0 God,be merciful to me, a sinner." (Luke 18,13); or the words of the prodigal son:"Father, I have sinned" (Luke 15, 21).

In spite of this, when considered underthe purely psychological aspect, the per-verse will expressed in the culpable act canend in another way without attaining re-lease from guilt. The culprit no longerthinks of his act, but he has not actuallyretracted it; it has simply ceased to weighupon his conscience. Now, it should beclearly stated that such a psychologicalprocess does not constitute a release fromguilt, just as falling asleep in the eveningdoes not signify or obtain the removal,much less the suppression, of the evil com-mitted during the day. Nowadays, somewill perhaps say that the guilt has beensubmerged in the subconscious or the un-conscious. But it is still there.

Nor would any better result be obtainedwith the attempt to suppress the psycho-logical awareness of guilt by means of auto-suggestion or external suggestion, or even

by means of clinical psychotherapy, ofpsychoanalysis. A real, free, guilty willcannot be psychologically corrected or sup-pressed by insinuating the persuasion thatit has never existed. We have indicated thedeplorable consequences of a like treat-ment of the question of guilt in the dis-course addressed to the members of theFifth International Congress of Psycho-therapy and Clinical Psychology, April15, 1953. ,

A final observation must yet be made onthis question of psychological liberationfrom guilt. A single, fully conscious andfree act can contain all the psychic ele-ments of a true conversion; but its depth,firmness and extent can present defectswhich, if not essential, are at least appre-ciable. A profound, extended and lastingliberation from guilt is often a lengthyprocess which only gradually reaches ma-turity, particularly if the culpable act hasbeen the fruit of an habitual disposition ofthe will. The psychology of relapses offersmore than sufficient material for proof onthis point, and the supporters of the puri-fying, educative and fortifying function ofa somewhat lengthy imprisonment find inthese experiences a confirmation of theirtheory.

Juridical liberation from guilt, as distinctfrom the psychological conversion that isaccomplished in the intimate will of theculprit, is directed essentially to the higherauthority, whose requirements for observ-ance of established norms have beenslighted or violated. Private violations oflegal rights, if they have occurred in goodfaith or otherwise, do not prejudice thecommon good, are settled privately be-tween the parties or by means of a civilaction. They are not ordinarily the objectof penal law.

6 CATHOLIC LAWYER, SPRING 1960

In the analysis of the culpable act, Wehave already pointed out that it constitutesthe withdrawal and the negation of duesubordination, due service, due devotion,due respect and homage; that it is objec-tively an offense against the loftiness andmajesty of the law, or rather of the law'sAuthor, Guardian, Judge and Vindicator.The exigencies of justice, and hence ju-ridical liberation from guilt, require thatas much service, subordination, devotion,homage and honor be restored to authorityas were taken from that authority by thedelict.

This satisfaction may be performedfreely; it may also, in the suffering enduredbecause of the penalty inflicted, be to acertain degree forced; it may at one andthe same time be forced and free. Law inmodem nations does not attach much im-portance to voluntary reparation. It is con-tent to have the will of the culprit, bymeans of the penalty suffered, submit tothe powerful will of public authority, andto re-educate his will in this way to work, tosocial relations, to right action. It is not tobe denied that such a method of proce-dure can, by reason of immanent psycho-logical laws, lead to an interior reform,and hence to an interior liberation fromguilt. But that this must happen, or regu-larly does happen, is still to be demon-strated. In any event, not to take intoconsideration, as a matter of principle, thewill of the culprit to give satisfaction inso-far as sound juridical sense and violatedjustice require, is a deficiency and a lacuna,the bridging of which is earnestly de-manded by the interests of doctrine and offidelity to the fundamental principles ofpenal law.

However, juridical liberation from guiltcomprises not only the will to perform the

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required reparation but the actual repara-tion itself. Here science and the circum-stances of concrete life are frequently con-fronted by a difficult question: what shouldbe the rule in the event of moral or physicalinability to perform such reparation? Mustwe recur to a sort of compensation or sub-stitution, or may the exigencies of violatedlaw be left without reparation?

We have already indicated that man, bymeans of a culpable act committed withfull responsibility, is capable of offendingor of destroying certain goods and juridicalobligations; but after the fact he is oftenno-longer in a position to provide adequatesatisfaction. This is true in the instance ofmurder, of privation of sight, of mutilation,of full sexual violation, of adultery, of de-finitive destruction of another's good name,of the declaration of an unjust war, of thebetrayal of state secrets, of certain formsof l se majest, , and of other like delicts.

The law of retaliation would inflict aproportionate evil on the culprit. However,by this alone, the one injured in his rightswould not receive reparation nor have hisrights restored. But, prescinding from thefact that adequate indemnity is not im-possible in all cases, it should be notedthat judgment on the guilt regards not somuch the damaged good of the other party,but principally the person of the culpritand his perverse will exercised to his ownadvantage.

In opposition to this is the offering orreparation made by the culprit at his ownexpense, from his personal being, propertyand ability, for the benefit of another, thatis, in every case, of the violated law,namely, of the superior authority. Thusactive reparation, which includes the in-terior conversion of the will, is for theculprit who, at his own expense, performs

the required satisfaction, the second of thetwo above-indicated elements which con-stitute liberation from guilt. The same can-not be said of purely passive reparationwhen the culprit is forced to bow beneaththe suffering that this reparation implies.This purely passive satisfaction, fromwhich any element of voluntary and re-pentant will is lacking, is thus deprived ofthe essential element of liberation fromguilt. Consequently, the culprit remains inhis culpable condition.

We have many times pointed out thatevery grave culpable act is in the last an-alysis an offense before God, Who has anabsolute, because divine, right to obedi-ence and submission, to service and praise,and Who as Author, Guardian, Judge andAvenger of the juridical order makesknown to the culprit His exigencies withthat unconditional absoluteness which isproper to the intimate manifestations ofconscience. In the guilty resolution of theego, man slights God Who thus revealsHimself, he leaves aside the infinite good,the absolute majesty, and in this wayplaces himself by his action above God.But if man repents and returns to hisproper subordination before the majestyof God, if, in conscious and completesurrender of his ego to the supreme in-finite good, he separates himself from hisculpable act in its deepest roots in orderonce again to be free in good and in hisGod, he nevertheless finds it impossibleto make reparation by his own powers(that is, as derived from his own being,will and potency) in any proportionatefashion for that which he has committedin the sight of God by his act. He hasoffended and slighted an absolutely infinitegood, an absolutely unlimited right, a su-preme majesty. In the gravity of his fault

there thus intervenes this absolute infinity,while anything that man might offer oractuate is essentially, intensively and ex-tensively, finite. Even were such repara-tion to endure until the end of time, it cannever reach a stage of equality - tantumquantum - between the exigency of Godand the offering or reparation of man.

God has bridged this abyss; He has putinto the hands of finite man an infiniteprice; He has accepted as an offering ofreparation for guilty man the ransom of-

fered by Christ, which is super-abundantbecause it is of infinite value in submis-sion, honor and glorification, by reason ofits derivation from the hypostatic union.As long as time will endure, this ransomremits for repentant man his guilt beforeGod through the merits of Jesus Christ.

Let it not be said that these theological

and religious considerations lie outside thefield and the interests of science and jurid-ical practice. Doubtless a sharp distinctionof competencies is an advantage to life andto any true science; but in this self-limi-

tation one must not reach the point ofdenying or ignoring explicitly inseparableconnections which by intrinsic necessity aremanifested on every side. In every realoffense - in whatever material field it mayhave taken place- there is contained arelation with the ultimate requirement ofall law and of all order. It is a character-istic or prerogative of the world of law thatthere is nothing in it which in its funda-mental structure has been created without-this supreme requirement, or which in itsfinal analysis can be made intelligible with-out this transcendent relation. In this thereis no debasement, but rather an elevationof law and of juridical science, for whichtotal laicization is an impoverishment, notan enrichment.

6 CATHOLIC LAWYER, SPRING 1960

The ancient Romans united law andright (ius ac fas), notwithstanding the dif-ference in concepts, and they always con-ceived them as related to the divinity. Ifnow modern depth-psychology is correct,there is in the innate dynamisms of thesubconscious and the unconscious a ten-dency which draws toward the transcendentand makes the essence of the soul gravitatetoward God. The analysis of the. guilt-process and of liberation from guilt revealsthe same tendency toward the transcendent.This analysis brings forward considerationsand aspects which the science and practiceof penal law do not of course have to treatof directly, but about which they shouldhave sufficient knowledge in order thatothers may make them useful to the endof the execution of the penalty and applythem to the advantage of the culprit.

Moral liberation from guilt coincidessubstantially for the most part with whatWe have already said concerning psycho-logical and juridical liberation. It is thereprobation and withdrawal of the positivecontempt and violation of the moral ordercommitted by the culpable act; it is theconscious and voluntary return of the peni-tent culprit to submission and conformitywith the ethical order and its obligatoryrequirements. There are comprised in thesepositive acts the endeavor and the offeringof the guilty one to satisfy the just demandsof violated law of the ethical order, orbetter, of the Author, Lord, Guardian andVindicator of that order. And there appearsthe conscious will and resolution of theculprit to be faithful in future to the pre-cepts of what is right and good. In its es-sential parts, then,. this liberation consistsin that interior disposition which has beenindicated in the statement presented by youas the purpose and the fruit of the right

CRIME AND PUNISHMENT

fulfillment of the penalty, even though itis here considered and circumscribed undera slightly different viewpoint.

Finally, by religious liberation there isunderstood liberation from that interiorguilt which burdens and binds the personof the culprit in the sight of God, that is tosay, before the supreme and ultimate re-quirement and necessity of all law and ofevery moral obligation, Who with His in-finity covers and protects His will and Hislaw, which has come forth, either imme-diately from Himself, or mediately fromsome legitimate human authority withinthe area of its own competence.

How man can free himself or be freedfrom his offense against God has beenalready sufficiently explained in the secondpoint concerning the juridical aspect. Butif this final religious deliverance is notmanifested to the culprit, or at least if theway to such is not pointed out or madesmooth - if only by means of a long andsevere penalty - then in such a case verylittle, not to say nothing, is offered to guilty"man" in his punishment, however muchone may talk of psychic cure, of re-educa-tion, of social formation of the person, oremancipation from aberrations and fromenslavement to himself.

Doubtless these expressions meansomething that is good and important; butfor all that, man remains in his guilt beforethe supreme necessity upon which his final.destiny depends. This necessity can waitand often does wait at length, but in theend it consigns the culprit to the guilt fromwhich he is unwilling to desist, and to theconsequences of that guilt. It is indeedsorrowful to have to say about a man: "Itwere better for that man if he had not beenborn" (Matt. 26, 24).

Therefore, if someone or something can

contribute toward warding off such an evil,even though it be penal law or the execu-tion of a lawful penalty, no effort shouldbe spared. All the more since God duringthis life is always most willing to effecta reconciliation. He incites man to accom-plish internally the psychic withdrawal fromhis senseless act; He offers to welcome himonce again, if he repents, into His friend-ship and His love. May human penal law,in its judgments and in the execution ofthose judgments, never forget the man inthe culprit and never omit to strengthenhim and assist him to return to God!

The return from the state of guilt and ofpunishment necessarily includes liberationnot only from the guilt, but also from thepenalty; only thus is there obtained that"restitutio in integrum," as it were, arestitution to the original state or conditionof non-culpability and hence of non-penalty.

Recent facts and statements suggest toUs at this point a brief declaration. Notevery penalty that is incurred bears withinitself its own remission. Revelation and theteaching authority of the Church establishclearly that, after the end of this earthlylife, those who are burdened with graveguilt will receive from the Most High Goda judgment and an execution of penaltyfrom which there is no liberation or condo-nation. God could, in the next life, alsoremit such a punishment; everything de-pends on His free will; but He has nevergranted it and will never do so.

There is no point in discussing herewhether this fact can be established withcertainty by the force of reason alone - assome assert, while others consider it doubt-ful. But both opinions contain, in their ar-guments based on reason, considerationswhich indicate that such a divine disposi-

tion is in no way contrary to any of God'sattributes: neither to His justice or Hiswisdom, neither to His mercy or Hisgoodness. Furthermore, these considerationsshow that the divine disposition is by nomeans opposed to the human nature be-stowed by the same Creator; with its abso-lute metaphysical finality directed to God,with the impulse of the human will towardGod, with the physical liberty of the willrooted and ever permanent in createdman.

All these reflections may perhaps leavein man, when he makes his judgmentsrelying on his own reason alone, a finalquestion, not so much about the possibility,but rather about the reality of such aninflexible decree of the Supreme Judge.Hence, it will not arouse too much aston-ishment if a noted theologian could write,at the beginning of the seventeenth cen-tury: "There are four mysteries of ourmost holy Faith which are most difficultfor the human mind to believe: the mysteryof the Trinity, of the Incarnation, of theEucharist, and of eternal punishment"(Lessius, De Perfectionibus moribusquedivinis, lib. XIII, cap. XXV).

Nevertheless, the fact of the immutabil-ity and the eternity of that judgment ofreprobation and of its fulfillment is beyonddispute. The discussions which have arisenbecause of a recently published book(Giovanni Papini, Il Diavolo; Vallecchi,1954) frequently portray a grave lack ofunderstanding of Catholic doctrine, andthey are founded on premises that areeither false or falsely understood. In thepresent instance the Supreme Legislator, inthe use of His sovereign and absolutepower, has established the unending validityof His judgment and of its execution.Hence, this limitless duration is the law

6 CATHOLIC LAWYER, SPRING 1960

now in force.But let us now turn to the field of human

law, which is the principal object of thepresent discourse. As We have alreadyindicated, liberation from guilt and libera-tion from punishment do not always coin-cide. The guilt may come to an end and thepenalty continue, and then on the otherhand, the guilt may continue in force whilethe penalty terminates.

There are various forms of cessation ofpunishment. It is first of all clear that suchcessation is reached automatically at themoment in which the. penalty inflicted hasbeen paid, or when the period of timeoriginally set down has been passed, orelse when its continuance (sometimes itsvery execution) was connected with a con-dition, either resolutory or suspensive, andthis condition has been sufficiently fulfilled.

Remission is another form of cessationof the penalty, by means of an act of thecompetent higher authority. This may takethe form of a favor, an indult or anamnesty, which is somewhat analogous inthe field of religion to the "indulgence."The power to issue such acts of clemencydoes not rest with the judge who has pro-nounced the sentence of condemnation,applying to the individual case the penaltyestablished in law. Per se, it resides withthe power that judges and punishes in itsown name and in virtue of its own law.Hence, the right to remit the penalty availsordinarily in the life of the state as some-thing reserved to the supreme authority.That authority can exercise this right bymeans of a general decree or by one con-cerned with an individual case.

Certain favors or mitigations in theexecution of the penalty, which leave itssubstance unchanged, but which aregranted to the culprit by reason of good

CRIME AND PUNISHMENT

conduct or for other motives, are not in-cluded under the heading of remission orcondonation. Besides, remission of the pen-alty in the proper sense is applied both to"medicinal penalties" and also to "vindic-

tive penalties" where these latter are ad-mitted.

The final stage of man's road throughguilt and punishment leads anew to theproblem, already mentioned several times,of the highest aim or object of the penalty,and particularly about the sense, or accord-ing to some, the non-sense, of a purelyvindictive penalty.

In Our discourse of October 3, 1953, tothe 6th International Congress of PenalLaw, and also on the present occasion, Wecalled attention to the fact that many, per-haps the majority, of civil jurists rejectvindictive punishment. We noted, however,that perhaps the considerations and argu-ments adduced as proof were being givena greater importance and force than theyhave in reality. We also pointed out thatthe Church in her theory and practice hasmaintained this double type of penalty(medicinal and vindictive), and that this ismore in conformity with what the sourcesof revelation and traditional doctrine teachregarding the coercive power of legitimatehuman authority.

It is not a sufficient reply to this asser-tion to say that the aforementioned sourcescontain only thoughts which correspond tothe historic circumstances and to the cul-ture of the time, and that a general andabiding validity cannot therefore be attri-buted to them. The reason is that thewords of the sources and of the livingteaching power do not refer to the specificcontent of individual juridical prescriptionsor rules of action (cf. particularly Rom.13:4), but rather to the essential founda-

tion itself of penal power and of its im-manent finality. This, in turn, is as littledetermined by the conditions of time andculture as the nature of man and the hu-man society decreed by nature itself. Butwhatever the attitude of positive humanlaw on this problem, it is sufficient for Ourpresent purpose to make clear that in anytotal or partial remission of punishmentthe vindictive penalties (no less than themedicinal) can and even should be takeninto consideration.

Arbitrariness cannot prevail in the ap-plication of condonation. The good of theculprit, no less than that of the juridicalcommunity whose law he has culpably vio-lated, must serve as a norm. Above bothof these are the respect and excellence ofthe order established according to what isgood and righteous. This norm requires,among other things, that, as is the case inthe normal relations of men with one an-other, so also in the application of penalpower, there be considered not only strictlaw and justice, but also equity, goodnessand mercy. Otherwise there is danger thatthe "summum ius" be converted into "sum-ma iniuria."

-It is precisely this reflection which givesrise to the thought that, in medicinal pen-alties, and also, within certain limits, invindictive penalties, a remission of thepunishment should be taken under con-sideration whenever there is moral cer-tainty that the inherent purpose of thepenalty has been obtained, that is, the trueinterior conversion of the guilty person,and a serious guarantee of its lasting char-acter. The regulations of Canon Law inthis matter (cf. Canon 2248, paragraphs1 and 2, and Canon 2242, paragraph 3)might serve as a model. These require, onthe one hand, proof of the actual change

of mental attitude in the culprit, and, onthe other, do not provide for any automaticcondonation, but rather make it depend ona positive juridical act of the competentauthority.

In the memorial presented by you, it isstated that civil penal law on this pointmakes a new development and a moreelastic adaptation to modern exigencies ap-pear desirable. This proposal may be good,although the requirements of civil penallaw under various aspects differ from ec-clesiastical penal law. In any event, thecarrying out of any reform seems to re-quire new theoretical clarifications andwell-founded practical experimentation.

Along with the legal and technical as-pect of liberation from punishment, thesame memorial also mentions another, com-pletely different, but very real, influencewhich is exerted upon the culprit, andwhich, being a more profound, intimateliberation from punishment, cannot bepassed over in silence. Naturally it is lesspleasing to professional jurists as such, al-though acceptable to them as "men" and"Christians"; it indicates an essential deep-ening or, one may prefer to say, a sub-limation or "Christianization" of the entireproblem of the execution of penalties.

Punishment is looked upon, by its verynature, as an evil imposed on man againsthis will; hence it creates of itself a spon-taneous defensive attitude on the part ofthe interior man. He feels himself robbedof the free disposition of himself and sub-jected to an extraneous will. Similar evils,

but arising from other sources, frequentlyaffect man, or he may even choose themby his own free election. As soon as spon-taneous opposition to the suffering no

longer exists, its oppressive and humiliat-ing aspect disappears or is substantially di-

6 CATHOLIC LAWYER, SPRING 1960

minished, even though the sensitive andpainful element remains. This We have al-ready had occasion to point out in thesecond part of Our present exposition.

Very many people, even though inno-cent, are today thus oppressed and suffer-ing; they suffer physically and morally inprisons and penitentiaries, in concentrationcamps, in places of forced labor, in mines,in quarries to which they have been rele-gated by political passion or the arbitrarywhim of totalitarian powers. They sufferall the miseries and all the sorrows - andsometimes even more-that can be inflictedupon true culprits according to law andjustice. Those who through no fault of their

own suffer such evils are certainly not ableto escape externally the pressure of force,but they can interiorly rise above all suchthings, sustained perhaps by naturally goodmoral motives, but much more easily andeffectively by religious considerations, bythe certainty that always and everywherethey depend on Divine Providence, whichpermits no person or thing to be takenfrom its grasp, and which -beyond the

fleeting period of man's earthly life - pos-sesses an eternity and an almighty powerto set aright whatever has been unjustlysuffered, to equalize again all things dis-arranged and hidden, to crush and punishall human tyranny.

To the eyes of the Christian, there is everpresent Our Lord, Who in His Passion ex-

perienced all the depths of human sufferingand tasted all its bitterness, and, in obedi-ence to the Father, for love of Him and outof loving compassion for men, willinglytook upon Himself sorrow and ignominy,the cross and death. Strengthened by theexample of the God-man, many of theseinnocent victims find in their suffering inte-rior liberty and peace, and attain an interior

CRIME AND PUNISHMENT

liberation from sorrow, even while the ex-ternal affliction endures, through the wayof faith, of love and of grace.

Those who suffer through their own faultand feel themselves slaves of punishmentmay also attain the same end and by the

very same way. We would wish to recallhere what We have already said whenspeaking of the execution of punishment,concerning the spiritual circumstances of

the person condemned to prison. Here Wedesire to consider how one can and shouldassist him to attain an interior victory and

consequently an interior liberation from the

evil of punishment. By faith and love andgrace, clarity of vision and light can beimparted to his spirit, warmth and sub-stance to his courage, strength and supportto his weakness. Unquestionably the con-victed person could himself bring to ma-turity and completion such an elevation;few, however, abandoned to their own de-vices, will be able to do so. They thereforeneed from others'advice, assistance, sym-pathy, encouragement and comfort. Butthe one who undertakes such a task must

draw forth from his own convictions andhis own interior riches that which he wouldcommunicate to the prisoner. Otherwisehis words would be only sounding brassand tinkling cymbals (I Cor. 13, 1).

We have read with profound emotionwhat one of your members, the distin-guished Professor Francesco Carnelutti, has

written on the words which the Lord willpronounce at the end of time: "I was inprison and you visited me .... As long as

you did it for one of these the least of mybrethren, you did it for me" (Matt. 25,36-40).

What is here proposed as the ideal in thegift of oneself for the spiritual salvation andpurification of the prisoner goes beyond

the new precept of the Divine Redeemer"Love one another," which was to be

the evident mark whereby His discipleswould recognize one another (John, 13,34-35); it is a question, in fact, of ap-proaching the guilty one in such wise as to

see, honor and love him in the Lord, andeven so to liken oneself to him as to putoneself spiritually in the place of the manin convict's garb and detained in his prisoncell, as the Lord says of Himself: I was inprison and you came to me (Matt. 25, 36):all of this interior world, this light, and this

goodness of Christ can give the condemnedprisoner support and assistance in order tocome forth from the wretched servitude ofpunishment and acquire once again libertyand interior peace.

Furthermore the words of the Lord placean obligation not only on those who havethe immediate care of the condemned per-son, but also on the community itself, ofwhich he is and remains a member. Thecommunity should see to it that it is dis-posed to welcome lovingly the man whocomes forth from prison into liberty. This

love should not be blind but clear-seeing,and at the same time sincere, helpful anddiscreet, such as to make possible his re-adaptation to social life and a renewedconsciousness of himself as free from guiltand punishment. The requirements of sucha disposition are not based upon a utopianblindness to reality. As has been noted, notall criminals are ready and inclined to bearwith the required process of purification

- and perhaps the percentage of such israther large - but it is still true that manyothers can be, and are assisted to obtaincomplete interior liberation, and for theseespecially no Christian effort will ever be

too much or too difficult.

(Continued on page 125)