As I begin my seventh year of cell-to-cell ministry on Florida’s death row, it is not surprising that I am frequently asked to speak to Catholic audiences on the realities of the American death penalty. Most invitations are from Catholics who are sincerely interested in the truth, but who know that politicians and agenda-oriented media channels have provided them only opinions, with almost no facts. In such an environment, our dialogue must start with the basics. Paragraph 2267 of the Catechism of the Catholic Church is the relevant passage on Catholic teaching about the death penalty:
Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.
If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.
Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm—without definitively taking away from him the possibility of redeeming himself—the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically non-existent.”
It has been disappointing to find that two of the questions most frequently asked of me about this text add very little to the audiences’ understanding of the issues. The first question focuses on the last paragraph of the catechism text and is usually asked by liberals: “Isn’t it true that the Catholic Church has changed its teaching about capital punishment?” I have learned that this is not so much a question about capital punishment as an attempt to suggest something about the doctrine of infallibility—namely that any change in this teaching proves the doctrine is questionable. The response, of course, is that the teaching is consistent, but nuanced to take into account modern realities.
A second frequent question focuses upon the middle of the first paragraph and is usually asked by conservatives: “Isn’t it true that the death penalty is not intrinsically evil but abortion is?” This is usually not a death penalty question, but rather a thinly veiled assertion that real Catholics can support only a particular political party. That issue has been addressed in a statement by our U.S. Catholic bishops.
The point for our purposes is that both questions are salvos in an esoteric theological debate, which assumes, for purposes of argument, that the death penalty works flawlessly and infallibly. No one in America has ever seen such a death penalty. Neither question advances the knowledge of the average American Catholic parishioner about the deep moral and ethical problems with America’s death penalty, which is a deeply flawed, fallible and sometimes perverted system.
A much more significant question leaps from the introduction to the catechism text. “Does the American death penalty guarantee a full determination of the accused party’s identity and responsibility?” The answer is a resounding no. There are many factors that contribute to this result. Perhaps the most severe is the American legal doctrine of what is called procedural bar.
Procedural bar is a legal concept that has been marketed to the public under false pretenses. Americans are told that there is no reason why it should take longer than five years after a death sentence to carry out an execution. Therefore, we are advised, anyone on death row for longer than five years must be clogging the courts with spurious appeals. The solution is simply to cut off access to the courts after a certain period of time. That is the doctrine. After a certain period of time, in other words, the accused is forbidden to present new evidence to the courts.
The foregoing pretenses fly in the face of reality. Since 1976, according to the non-profit Death Penalty Information Center in Washington, D.C., 115 people have been released from America’s death rows with evidence of their innocence. For those 115 exonerated death row inmates, the average time between being sentenced to death and exoneration was more than nine years.
So one might assume that when a citizen’s life is at stake, the time periods allowed for the introduction of new evidence would be long ones. Not so. In Florida, a condemned man may introduce evidence of innocence only within one to two years after the imposition of the death sentence. In Texas, the condemned can do so only within 18 months after receiving a death sentence. In Virginia the period has been temporarily extended from 21 days to 90 days.
What about evidence of innocence that the prosecutors and police had in their possession but hid from the court? Too bad. Thanks to various legal procedures, prosecutors have been able to obtain court decisions to the effect that such conduct no longer merits court review of innocence. Politically desirable executions can roll forward, enhancing the political careers, salaries and perks of ambitious politicians and government employees, unimpeded by the evidence of innocence that may be sitting in the courthouse basement—never to be reviewed by a judge or a jury.
We might hope that in the United States only trivial evidence would be disregarded in this fashion. If only that were true. Unfortunately, it is not. For example, in one case the prosecution “hid” the original police report and used a “revised” police report at trial. The original police report did not support the guilt of the accused; the revised police report did. No jury or court has been able to review the original police report. Too much time has passed; the evidence of innocence is thus subject to procedural bar.
Recently, in Missouri the state argued, almost successfully, that there is no constitutional right not to be executed just because one is innocent. In that case, a man had been sentenced to death based on nothing but the testimony of three jailhouse snitches. Years later, all three admitted to lying. The Missouri State Supreme Court ruled for a new trial by a razor-thin vote of 4 to 3.
We might want to believe that the federal courts would act as a safety net against execution of the innocent. Not anymore. The Anti-Terrorism and Effective Death Penalty Act of 1996 severely limits the ability of federal courts to hear post-trial evidence of innocence that state courts have refused to consider. The shortened time limits created by this law pose an especially egregious risk of executing poor defendants despite late-discovered evidence of innocence. Without the resources to hire an attorney, they may be unable to meet the shorter time limits.
Even those with competent counsel are out of luck. Recently, a federal court took the rare step of granting a state death row inmate a new trial. The federal judge was outraged that the prosecutor had materially misled the court and the jury about the motivations of the state’s only witness. It had been misrepresented to them that the witness had nothing to gain by his testimony, when in fact he was being released from reams of felony charges. The state also hid other evidence concerning their star witness, who, it turns out, had himself originally been charged with the murder. The state’s own attorneys told the press that there was not a shred of evidence connecting the death row inmate to the murder. Then the federal appeals court overruled the new trial and reinstated the death penalty. Why? It had been too long. Procedural bar. The state is pushing on toward execution.
The watershed event in America’s plunge toward routine executions without a full determination of the condemned’s identity and responsibility was the U.S. Supreme Court case of Leonel Herrera in 1993. A former Texas judge submitted an affidavit stating that another man had confessed to the crime for which Herrera was facing execution. Numerous other pieces of new evidence also threw doubt on his conviction. In a modern rendition of the famous Gospel scene of Pilate’s hand-washing, the Supreme Court announced that it could not be concerned with factual innocence. It could address only procedural violations. Herrera was executed.
This is the death penality in the United States. This is the disastrous state of affairs that caused Governor George H. Ryan Sr. to commute the sentences of everyone on Illinois’ death row. This is the mess that prompted pro-death penalty Governor Frank Keating of Oklahoma to opine that our standard of guilt must be raised from “beyond a reasonable doubt” to “moral certainty.” Under the American death penalty, it is preposterous to assume that the guilty party’s identity and responsibility have been fully determined, as required by the Catholic Catechism.
Although we may not yet be ready to tackle the abstract theological concepts involved in the abolition of the death penalty universally, we can say with certainty that all American Catholics who accept church teaching must be opposed to the death penalty as it is used in the United States today. Until the case of Leonel Herrera is overturned, the Anti-Terrorism and Effective Death Penalty Act of 1996 is repealed, and the legal doctrine of procedural bar is banned in capital cases, it is simply not possible to be a faithful Catholic and support the use of the death penalty in the United States.