The National Catholic Review
Dale S. Recinella
What one Catholic Supreme Court justice could do
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When the U.S. Supreme Court reinstated the death penalty in 1976, our nation embarked upon a grand experiment. The hope was that new detailed procedures would result in a death penalty unaffected by the lingering racial bias of slavery and lynchings and impervious to arbitrary application. That experiment, however, has failed. DNA evidence alone has proved that some prisoners on death row were convicted of crimes they had not committed, and they have been exonerated. The question now is, How do we end the death penalty and extricate ourselves from the failed experiment?

One obvious answer is that our Supreme Court justices could change their position on the constitutionality of capital punishment. There is manifest legal justification for them to do so. And if just one of the five Catholic justices were to change his position on capital punishment, the use of the death penalty would end in the United States.

That became clear in June 2006 in a 5-to-4 Supreme Court decision in the case Kansas v. Marsh. The specific legal issue in the case concerned the Kansas death penalty statute, which makes death the default option. If a jury finds that the factors favoring a death sentence (aggravators) are equal to the factors against a death sentence (mitigators), the Kansas law requires the jury to impose a death sentence. The five-justice majority on the Supreme Court sustained the constitutionality of the Kansas statute.

A closer examination, however, reveals that the issue actually being argued through the majority, concurring and dissenting opinions in Kansas v. Marsh regards executing the innocent. The four dissenting justices—none of them Catholics—expressed concern about the state of the American death penalty, its arbitrariness and the consequent great risk of executing the innocent.

The five Catholic justices, however, favored continuing the death penalty. The majority opinion, written by Justice Clarence Thomas, notes: “Indeed, the logical consequence of the dissent’s argument is that the death penalty can only be just in a system that does not permit error. Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses.” Thomas then proceeds to rely on precedent: execution of the innocent should not be of concern to the U.S. Supreme Court as long as proper procedures are followed.

In his concurring opinion, Justice Antonin Scalia addresses the dissenters without responding to their concern about innocence. Scalia implies that their concern would in fact end the death penalty in the United States, saying: “Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation.” The three other Catholics—Chief Justice John G. Roberts and the associate justices Samuel A. Alito and Anthony M. Kennedy—joined with Thomas and Scalia to continue the U.S. death penalty. Scalia’s comment does not address the concern of the dissent, which can be paraphrased thus: Why not let mistakes be a basis for sentences of life imprisonment, which is reversible, rather than execution, which is not?

New Opportunity Before the Court

A case has now been accepted for Supreme Court review that offers a possibility for a re-examination of the death penalty. In Baze v. Rees, the court has agreed to consider the constitutionality of lethal injection as practiced in Kentucky. The specific issue is: Does the state’s lethal injection process, the mix of drugs prescribed in Kentucky and in all but one of the 36 other states that allow the death penalty, violate the Eighth Amendment’s ban on cruel and unusual punishment because it can inflict unnecessary pain and suffering? A court decision is expected before the end of June 2008.

As seen in Kansas v. Marsh, however, the Supreme Court will not be limited in its decision in Baze to the specific issue of lethal injection. The court could use this opportunity to find the death penalty unconstitutional. There are ample sound legal reasons for it to do so.

For over 25 years, the U.S. Catholic bishops have worked to end the death penalty. The church teaches that the death penalty should not be used unless there is no other way to protect innocent life in society— a situation that in modern American society is simply unimaginable. Yet one does not even reach the point of testing the requirement until “the guilty party’s identity and responsibility have been fully determined” (Catechism of the Catholic Church, No. 2267). The thicket of U.S. legal precedents, doctrines and statutes prohibiting courts from hearing late-discovered evidence of innocence and mitigation makes it impossible to satisfy the first requirement of the Catholic catechism. This is especially true of the legal doctrine called “procedural bar,” which limits or prohibits court review of such late-discovered evidence, even if it was hidden by the state.

Furthermore, U.S. death penalty jurisprudence contravenes the explicit commands of Scripture. There is no mandate in Scripture or in the Judeo-Christian tradition for maintaining a system of flawed justice that knowingly risks the execution of the innocent. On the contrary, Scripture commands, “Do not execute the innocent” (Ex 23:7). From a faith perspective as well as a constitutional perspective, the U.S. death penalty is inherently defective because it unnecessarily creates the risk of executing the innocent.

One might be concerned that Supreme Court justices should not be influenced by the teachings of their faith in making decisions. For at least two reasons such a concern is not an issue in this case.

First, the constitutional test for whether punishment is cruel and unusual under the Eighth Amendment is the “evolving standards of decency that mark the progress of a maturing society.” Changes in the fabric of American society, even when driven by principles of faith, are properly recognized in the evaluation of whether the death penalty constitutes cruel and unusual punishment.

Second, the actual numbers and places of executions over the last 31 years indicate that Catholic teaching on the death penalty may have influenced the evolving standards of decency of American society. Perhaps this is because the number of Catholics has grown to some 65 million in the United States, roughly a quarter of the population, according to the U.S. Conference of Catholic Bishops. That is about four times the size of the next largest denomination, the Southern Baptist Convention, with approximately 16 million members; it is over seven times the size of the two next largest groups, the National Baptist Convention USA and the United Church of Christ, each of which has about 8.5 million members.

More Catholics, Fewer Executions

By integrating execution statistics from the nonprofit Death Penalty Information Center in Washington, D.C., with state-by-state statistics about religious adherents available from the Association of Religious Data Archives maintained by Pennsylvania State University, one can make correlations between religion and executions.

Since 1976 there have been 1,096 executions at the state level (excluding three federal executions). That means that across 51 jurisdictions (the 50 states plus the District of Columbia), the average number of executions over the 31 years is 21 per state. The distribution of these executions, however, is drastically skewed by the predominant religious influence. Almost 88 percent of the 1,096 executions have occurred in the Bible Belt—the 11 states and territory (Oklahoma) of the former Confederacy and the slaveholding border states—where the greatest religious influence is still Southern Baptist. The Southern Baptist Convention is the only major American religious denomination to declare formally that Scripture mandates the death penalty (June 2000). More than 91 percent of executions have occurred in just 14 states. Of the other 36 states, 14 and the District of Columbia do not have the death penalty. Of the rest, they are either minimally participating (with small death rows or few executions) or have had no executions since 1976.

Even more impressive is the inversely proportional relationship between the size of the Catholic population and the number of executions. In general, the more Catholics there are in a given jurisdiction, the fewer the executions. In the 19 jurisdictions where Catholics make up more than 21 percent of the population, the average number of executions over the past 31 years is only 3 per state. In the 19 states where Catholics make up less than 16 percent of the population, the average number of total executions per state over 31 years is 25. For the 12 states where Catholics are less than 10 percent of the population, the average number of total executions per state over 31 years is 32, more than 10 times the number in states where the Catholic presence is largest.

In December 2007, the state of New Jersey, the third most Catholic state in the nation, became the first since 1976 to abolish the death penalty through legislation. New York, the fourth most Catholic state, has ended it judicially. Neither state has had any executions in the last 31 years. The eight most Catholic states in the nation have had a combined total of only two executions in the last 31 years.

The correlation between Catholic presence and America’s evolving standards of decency is even more striking at the national level. The annual number of executions climbed from 1976 until it peaked in 1999. That year Pope John Paul II stood on American soil and renewed his appeal “for a consensus to end the death penalty, which is both cruel and unnecessary.” While no one can prove a causal link here, a correlation exists: Since then, the annual number of executions in the United States has dropped by more than half, from 98 to 42. In that same period, the annual number of new death sentences also dropped by 60 percent.

The same correlation shows up in national polls. A Gallup poll in 2006 showed that the percentage of Americans who prefer life without parole instead of the death penalty has grown from 32 percent in 1994 to 48 percent. Given a choice between the two, the percentage of Americans who favor the death penalty has dropped from 50 percent in 1994 to 47 percent in 2006. For the first time since the death penalty experiment began, the percentage of Americans who prefer life imprisonment is higher than the percentage who prefer capital punishment. This attitude squares well with Catholic teaching, which precludes recourse to the death penalty unless no other means are available in a society to protect innocent life.

America’s evolving standard of decency, which marks the progress of our maturing society with respect to the death penalty, has been influenced to some extent by the growing presence of Catholics. Our Catholic Supreme Court justices should recognize the development and change their position on capital punishment. If just one justice were to make the change, the death penalty could soon be abolished in the United States.

Update: On April 17, the day after this article was published, the U.S. Supreme Court handed down a decision in Baze v. Rees, ruling that the drugs used to execute criminals in Kentucky did not cause unnecessary pain and thus was constitutional. While the Court had the option to approach the decision in a broad way, which would have allowed it to address the constitutionality of capital punishment, it opted for the opposite approach. All seven of the written opinions state, in some way or other, that the court’s decision assumes the constitutionality of capital punishment. Some of the opinions, including that rendered by Justice Samuel A. Alito, Jr., go so far as to say explicitly that the constitutionality of lethal injection itself has been assumed in the decision.

The decision is so narrow that even some of the justices who joined in the majority expressed concern that the Court has created a minefield of future death penalty litigation. Many Court observers and commentators concur. The constitutionality of capital punishment under “the evolving standards of decency marked by the progress of a maturing society,” in the words of the Eighth Amendment, still remains to be addressed.

Finally, despite the 7-to-2 decision, the basic split on the U.S. Supreme Court on the issue of capital punishment remains 5-to-4, with the Catholic Justices counting as the five. Two of the seven justices that joined in the majority renewed their concerns about capital punishment. One, John Paul Stevens, went so far as to explicitly call for its abolition. Consequently, it is still possible for one Catholic U.S. Supreme Court Justice to recognize that church teaching has impacted “the evolving standards of decency” and tip the balance against the continued use of capital punishment in the U.S.

Dale S. Recinella, a lawyer in Florida and author of The Biblical Truth About Americas Death Penalty (Northeastern University Press, 2004), serves as the Catholic lay chaplain for Floridas death row inmates.

Comments

ALICE KELLY | 5/9/2008 - 5:57pm
Response to Prof. Kommers' Letter in Praise of Scalia-Thomas Moral & Constitutional Rectitude Prof. Kommers’ letter from Notre Dame, Indiana (“Executing Orders,” May 12,2008) illustrates the confusion U.S. Catholics experience in trying to integrate Catholic moral teaching and constitutional law. In explaining Justice Scalia’s and Justice Thomas’ votes upholding capital punishment laws, Professor Kommers presents the Scalia-Thomas “originalism” methodology for interpreting the Constitution as the answer to keeping moral personalism at bay. Prof. Kommers presents Scalia and Thomas as men who have “declined to incorporate their personal moral views into the meaning of the Constitution” (heroes), unlike the majority in Roe v. Wade (rogues). It’s a neat “state-choice” syllogism, but it’s wrong. First, Prof. Kommers’ original premise couldn’t be more mistaken. He “suspects” that the two Catholic judges find capital punishment to be “morally abhorrent, and they are fully aware of the church’s teaching against capital punishment. Prof. Kommers attributes their death penalty votes to Justice Scalia’s and Justice Thomas’ faithful reliance on the original meaning of the Constitution’s very words, although the morality of those words is repugnant to them and their church. But in fact, Justice Scalia is very much morally at home with capital punishment. He actually rejects the encyclical Evangelium Vitae, holding that it repudiates biblical text passages and church tradition. In rejecting the church’s doctrinal development against capital punishment, Scalia relies upon: (1) Paul's biblical teaching to the Romans regarding the source of the Roman Empire's power, and the Emperor's right to vengefully execute "him who doeth evil," and (2) a two thousand year tradition of church support for capital punishment, which included material and cheerful participation in the death-by-state process. Scalia sees capital punishment as the legitimate doctrinal legacy of the Early Tradition, “the legacy of St. Paul and St. Augustine,” and he views efforts to abolish capital punishment as the offspring of Napoleon, Hegel, and Freud- really bad guys. “God's Justice and Ours,” 123 FIRST THINGS, 17-21 (May 2002). So Scalia and Thomas do not repudiate their personal moral views when they conclude that capital punishment is not a violation of constitutional rights. In fact, they do the very opposite. They adopt their personal moral convictions. (Also see Gore v. Bush.) Second, Prof. Kommers’ following premise, the majority in Roe v. Wade (including Catholic Justice William J. Brennan) based their decisions upon “their personal moral views” rather than the Constitution, is also mistaken. We have seen these attacks on what is scorned as “judicial activism” for generations. When I was at Notre Dame- two winters after Fr. Sorin’s arrival- the gentle Indiana countryside was dotted with billboards calling for the impeachment of Chief Justice Earl Warren and his colleagues. They were ignoring the real meaning of the Constitution, they were “judicial activists,” and they were, therefore, godless Communists. There are several legitimate methods for interpreting constitutions. One approach is linguistic archeology- what did the words mean to some refined part of the population when the language was adopted. This is usually referred to as the “original meaning” or “originalism” method. Throughout our constitutional history, many judges have touted some form of this approach. Scalia and Thomas are the high profile present day practitioners. A more common and accepted interpretive approach often requires a broader investigation into the facts and the text. It includes consideration of the original meaning of the Constitution’s words, but it also studies context, conflict, purpose, precedent, ramifications, a tradition of judicial restraint, and related concerns. Any suggestion that the Constitution gives up its meaning only when it<
Joe | 5/9/2008 - 12:13pm
America Magazine would do well to teach its readers about the actual Catholic teaching concerning capital punishment. There is not and never was a teaching that says capital punishment could never be used by the state. The fact that a Catholic Judge on the SCOTUS would interpret the constitutional law to support the right of the states to have a death penalty and to support their right to use lethal injection says nothing about the judges prudential judgement as to how often, if at all, that this punishment should be used.
MaryMargaret Flynn | 4/25/2008 - 1:31am
And now we know even before I read this hopeful article--a 5 Catholic Supreme Court justices find the death plenaty constitutional and not cruel or unusual. Shall we refuse communion to the Justices as was suggested for Kerry and others?
HOUR CHILDREN INC | 4/22/2008 - 1:59pm
The clearest overview I've read that captures the heart of all that has been written,argued or prayed to end capital punishment in our land of opportunity and compassion.