Capital Punishment

Surely there are few in any issues a blog devoted to the development of Catholic legal theory should be more concerned with than the morality of capital punishment.  The article excerpted below, The Right to Life,  will appear in the May 12th edition of The New York Review of Books.  To print/read the entire piece, click here.  Some excerpts follow:

In her book Dead Man Walking, published in 1993, Sister Helen explained how she first became involved with condemned prisoners, and she traces the cases of three men whom she accompanied, as their spiritual adviser, through their final days and hours. It was a best-selling and highly influential book, its arguments given wider currency by the film starring Susan Sarandon in the role of Sister Helen. This new book appears at a time when the death penalty system is in crisis. In 2000 James Liebman of Columbia University School of Law led a team which surveyed four and a half thousand death penalty cases and found "reversible error" in 68 percent of them. In his words—which seem the more true, five years on—the system is "collapsing under the weight of its own mistakes."
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After his death, Sister Helen took O'Dell's body to Italy for burial, and was granted an audience with John Paul II. This was the climax of her campaign within the Catholic Church, and she credits the O'Dell case with helping to change teaching which had stood since the days of Saint Thomas Aquinas. When she began campaigning, many individual priests and Catholic laypeople were abolitionists, but the hierarchy was not, and in Dead Man Walking she tells of her encounters with an obstructive prison chaplain who incarnated the conservative, misogynist status quo. After her letters, and her visit to the Vatican in the wake of the O'Dell case, Pope John Paul spoke out unequivocally against the death penalty, and the Catholic Catechism was altered. Unfortunately, it was altered by the removal of words that specifically endorsed capital punishment, rather than by the addition of words to exclude it. There is plenty here for theologians and Catholic lawyers to argue over, so the change may not be quite the lasting triumph that Sister Helen thought it.

Among the promoters of the death penalty, Sister Helen picks out Justice Antonin Scalia of the US Supreme Court for special odium. He is a prominent Catholic; how can he vote against the Church's teaching? "My morality and religious beliefs have nothing to do with how I vote," he says, and he aims to keep "personal predilections, biases, and moral and religious beliefs" out of the process of constitutional interpretation. Where does he leave them, the reader wonders, when he goes to work? Is there a sort of depository or a left-luggage office where you check in your personal experience and judgment, while you shrink yourself to a cog or spring in the great machinery of the law?
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Even if you cannot stand behind every argument the author makes, The Death of Innocents is a deeply convinced and deeply convincing book. Now we know what's wrong: racial bias, bias against the poor, inept counsel, overzealous prosecutors trying to make a name, self-serving judges, missing witnesses, careless science, coerced confessions. Add in the use of jailhouse informants, the propensity of police officers to lie, and their evident inability to reason about the facts of a case, and you have a recipe for the continuing conviction and death of innocent people.
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As Sister Helen sees it, attempts to make the penalty more consistent have failed. Yet where defects are only procedural, they could be remedied; given political will and a bottomless public purse, possibly they could be fixed. If the bureaucrats were wise and the system fair—if the process met tightly defined legal criteria of objectivity—would it be all right to have a death penalty? Many would say yes. Sister Helen is clear in her view. "I don't believe that the government should be put in charge of killing anybody, even those proven guilty of terrible crimes." This is what the world would like to hear America say. You do not have to be a Christian, or have any faith at all, to support Sister Helen's basic position: "Every human being is worth more than the worst act of his or her life."

The death penalty is not wrong because it is inconsistently administered. If it were fairly administered, it would still be wrong. Finally, the issue is moral; a nation so God-besotted should be able to grasp that. When the government touches a corpse, it contaminates the private citizen. A modern nation that deals in state-sponsored death, becomes, in part, dead in itself; dead certainly, to the enlightened ideals from which America derives its existence as a nation.
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Michael P.