Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, April 30, 2007

Catholic Justices and the Death Penalty

Rick says:

I disagree with Eduardo (as I suggested, in response to Michael, here and here) that there is "authoritative church teaching" on the question whether a federal judge reviewing a state court's denial, on procedural grounds in state postconviction proceedings, of a death-row inmate's Penry II claim is required to vote to reverse that denial.

Of course, I was mostly joking. On the other hand, how's this for a defense of my argument:

Given the immorality of the death penalty in all but exceptional cases (what I take to be the authoritative teaching of the Church) and given an American death penalty that goes substantially beyond what the Church would allow, it seems to me that Catholic Justices are under at least some moral obligations with respect to the death penalty.

It may be that Catholic justices are under (moral) obligations akin to civil disobedience.  This could mean the sort of Brennan/Marshall dissenting from all applications of the death penalty.  Or, alternatively, if you think their role-based obligations as justices to "The Law"  trump their moral obligations, perhaps they are under an obligation to resign so as not to participate in the machinery of death put into place by the law.   I'm reminded of this passage from Evangelium Vitae:

Sometimes the choices which have to be made are difficult; they may require the sacrifice of prestigious professional positions or the relinquishing of reasonable hopes of career advancement. In other cases, it can happen that carrying out certain actions, which are provided for by legislation that overall is unjust, but which in themselves are indifferent, or even positive, can serve to protect human lives under threat.

The first sentence seems to me to point towards withdrawal from positions of power and prestige in favor of one's moral obligations towards human life.  But that last sentence suggests a third possibility:  If there is a plausible legal position according to which "a federal judge reviewing a state court's denial, on procedural grounds in state postconviction proceedings, of a death-row inmate's Penry II claim" could vote to grant habeas (an assumption that I think may be warranted in this case by the fact that five justices in fact voted to grant such relief), while still being technically correct in a legal sense, then I do not think that it is utterly implausible to suggest that a judge (Catholic or otherwise, although we're talking about Catholic judges) has a (moral) obligation -- rooted in the immorality of the death penalty (an immorality affirmed by the authoritative teachings of the Church) -- to do adopt that position. 

Perhaps even this last possibility is too strong.  I'm not deeply committed to it -- I'll admit that it's a very complicated issue that I need to think about much, much more carefully.  But I did want to expand on the issue a little bit in response to your facetious reply to my facetious post (not that my post deserved much better).  In short, I was not saying (even jokingly) that the Church has a position on the narrow legal question, but I did mean to suggest that the general immorality of the death penalty imposes some obligations on someone in a position of authority with the discretion to act accordingly. 



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