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.

Sunday, April 14, 2013

A plea for mercy for Kermit Gosnell

Abortionist Kermit Gosnell is facing the death penalty if he is convicted of the murders for which he is being tried in Philadelphia. Surely, the heinous acts of which he stands accused are depraved. They probably meet the criteria for capital punishment under Pennsylvania law. However, in the event that Gosnell is convicted, which seems likely, I am asking my fellow pro-lifers around the country to join me in requesting that his life be spared.

Someone might make the case for mercy by pointing out that Gosnell merely carried out the logic of the abortion license that is enshrined and protected in our law. One might note that there is no moral difference between dismembering a child inside the womb (which our jurisprudence, alas, treats as a constitutional liberty) and snipping a child's neck after he or she has emerged from the womb (potentially a capital offense). How can our legal system impose the death penalty on Gosnell, given the arbitrariness and irrationality of the underlying law?

But that is not the fundamental reason for our asking for Gosnell's life to be spared.

Kermit Gosnell, like every human being, no matter how self-degraded, depraved, and sunk in widkedness, is our brother---a precious human being made in the very image and likeness of God. Our objective should not be his destruction, but the conversion of his heart. Is that impossible for a man who has corrupted his character so thoroughly by his unspeakably evil actions? If there is a God in heaven, then the answer to that question is "no." There is no one who is beyond repentance and reform; there is no one beyond hope. We should give up on no one.

If our plea for mercy moves the heart of a man who cruelly murdered innocent babies, the angels in heaven will rejoice. But whether it produces that effect or not, we will have shown all who have eyes to see and ears to hear that our pro-life witness is truly a witness of love---love even of our enemies, even of those whose appalling crimes against innocent human beings we must oppose with all our hearts, minds, and strength. In a profoundly compelling way, we will have given testimony to our belief in the sanctity of all human life.

I do not myself believe that the death penalty is ever required or justified as a matter of retributive justice. Many reasonable people of goodwill, including many who are strongly pro-life (and whose pro-life credentials I in no way question), disagree with me about that. But even if the death penalty is justified in a case like Gosnell's, mercy is nevertheless a legitimate option, especially where our plea for mercy would itself advance the cause of respect for human life by testifying to the power of mercy and love.

I do not expect my request to be met with universal acclaim. Given the horrific nature of the acts of which Gosnell is accused, it is understandable that some, perhaps many or even most, will believe that this is not a case where mercy is appropriate. They will not want to join me. I understand.

However, I ask everyone who reads these words to consider the matter carefully and prayerfully. In 1994, I had the honor of representing Mother Teresa of Calcutta as her Counsel of Record on an amicus curiae brief to the Supreme Court of the United States asking the justices to reverse Roe v. Wade. In connection with that project, I learned that this was not Mother's first intervention in American courts. On a number of occasions, she had asked judges to refrain from imposing the death penalty on a defendant convicted in a capital murder case. She did not question the defendants' guilt, or even the justice of the death penalty. Her plea was always a plea for mercy.

By asking for mercy for Kermit Gosnell, we defenders of human life in all stages and conditions have the opportunity to follow the example of the greatest pro-life witness of the 20th century.


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WOW!!!! Be merciful as your heavenly Father is merciful

Posted by: Myra D'Souza | Apr 15, 2013 10:43:11 AM

An absolutely beautiful and mind-blowing essay, Professor George. I agree with Myra D'Souza: WOW!

Posted by: jfm | Apr 15, 2013 10:50:32 AM

No way. For all the feel good tangential brushes with theology, you fail - utterly fail - to understand the nature of justice and the place and propriety of mercy. If you read the totality of Scripture, capital punishment was both a warning and a sign: a warning to other (abortionists?) of what temporal fate awaits them; and, a sign that life is sacred and to take innocent life requires - requires - restitution. Failure to make the restitution by the civil government calls the judgement of God down on a nation.

Posted by: Michael | Apr 15, 2013 11:18:11 AM

This act of consistency (I realize people can differentiate) is appreciated as is the general tone. The author at times, in comments w/o anyone being able to reply, has a harsh tone. Which is his right and all, but I find it counterproductive, unless you are (even then, maybe not) talking to the choir.

Posted by: Joe | Apr 15, 2013 11:32:29 AM

If convicted, the Jury (or judge) should sentence him to death according to the dictates of the law. This is what justice demands. The Governor Corbett, through his executive prerogative, should show mercy and commute the sentence.

Mercy requires justice.

Posted by: CLS | Apr 15, 2013 11:32:57 AM

Thank you. Too often pro-lifers are met with a claim that they are only anti-abortion, not really pro-life. When we stoop to asking for vengeance (not restitution because there is nothing we regain from the death of this despicable man) we become little better than pro-abortionists.
And a side note: Do WE really want justice? I doubt it, because whose life could withstand that? We all NEED mercy.

Posted by: Kristina | Apr 15, 2013 11:34:44 AM

Killing Gosnell would not provide "restitution".

Posted by: Richardson | Apr 15, 2013 11:41:54 AM

I think Pope John Paul II made a compelling case that the death penalty should be used only when less extreme measures would fail to adequately protect society from the offender. Clearly by those criteria, execution is not warranted in this case.

I agree Gosnell's conviction seems likely. However, in reality, considering the way our criminal justice system works, it is extremely unlikely a 72-year-old man sentenced to death would live long enough to actually be executed. Perhaps the best time to appeal for mercy would not be at the time of sentencing, but ten or fifteen years from now, if Gosnell is still alive and execution appears immanent.

Posted by: David Nickol | Apr 15, 2013 11:59:36 AM

Yes, the prerogative of governors to pardon and commute sentences is often neglected in recent years. Catholic Law School is launching an executive clemency program under the direction of former MD governor Bob Ehrlich.

It promises to be a very unique and interesting endeavor: http://www.law.edu/2013-Winter-Spring/Law-school-to-host-nations-first-clemency-clinic.cfm

Posted by: CLS | Apr 15, 2013 12:20:46 PM

CLS: I am not familiar with death penalty procedure in Pennsylvania. When you say that "the Jury (or judge) should sentence him to death according to the dictates of the law," do you mean that the jury (I think it is the jury there) is not given discretion under state law to exercise "mercy" as advocated by Prof. George? If the jury does have that discretion, I don't see why it should be less able to use it than the governor, whom you say should so exercise such mercy.

Posted by: Matt Bowman | Apr 15, 2013 2:01:58 PM

The man is 72-years old. Even if he is sentenced to death, he'll never be executed by the state. Years of appeals will see to that. He'll die in prison long before he would ever have been executed. Of course, he's not been convicted yet, so don't be so sure he'll even be found guilty. He certainly seems smug and sure he'll be exonerated. Perhaps he's already greased the right palms.

Posted by: C'est Moi | Apr 15, 2013 2:13:48 PM


Gosnell justly deserves the maximum allowable sentence under PA law--i.e. the death penalty. In my mind, though perhaps I am wrong, it is the role of the judge and jury to meet out justice. It is the role of the governor to bestow mercy--thus his or her clemency powers.

Posted by: CLS | Apr 15, 2013 4:18:11 PM

Here is Pennsylvania law regarding sentencing for first degree murder:

Since Gosnell is being tried by jury, if the jury renders a verdict of first degree murder, there will be a separate hearing for the jury to decide whether Gosnell will be sentenced to life in prison (the minimum permitted) or sentenced to death. The jury takes into consideration a list of specific aggravating and mitigating circumstances. Aggravating factor #16 is, "The victim was a child under 12 years of age." Factor # 2 is, "The defendant paid or was paid by another person or had contracted to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim." (Whether or not the prosecutor will argue that factor #2 is relevant, I don't know.)

The question I would have for lawyers is if, under the circumstances, it is the duty of jurors, in spite of how they feel about the death penalty and how inclined they are to show mercy, to say, "There were aggravating factors but no mitigating factors, therefore, as instructed by the judge, we find that the law requires the death penalty. Although our personal beliefs may argue strongly for showing mercy, our understanding of the law requires us to decide that death is the appropriate sentence."

In short, does the jury have the liberty to show mercy?

Posted by: David Nickol | Apr 15, 2013 4:53:55 PM

This is a good question. Occasional MOJ poster Mary Leary is a crim law/crim pro expert and a former PA prosecutor. She would likely know the answer.

Posted by: CLS | Apr 15, 2013 5:08:12 PM

Or, at least have some thoughts rooted in her experience of the process.

Posted by: CLS | Apr 15, 2013 5:11:20 PM

The judge's instruction is to state: "The verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases."

If the jury deadlocks on the sentence, the judge can only impose a life sentence.

The law seems to suggest that the jury does not have the liberty to show mercy. This brings us, then, to the hotly contested issue of jury nullification. I suppose the jury could send out the note you propose, but this would seem to contravene the law which the jury is duty bound to uphold.

The jury could do this, but I don't think it should do this. Again, the discretion to commute sentences or bestow a pardon is traditionally rooted with the executive authority. Just from a little bit of digging around, it looks like a pardon has to be filtered through a pardon board: http://www.bop.state.pa.us/portal/server.pt/community/history/19511

Posted by: CLS | Apr 15, 2013 5:24:50 PM

The mitigating factors listed provide enough for the on the fence juror to determine that even if "mercy" alone is not enough, they in good faith can rest on something else, such as his age (he will be over 80 when the appeals are over) and the catchall "any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense" and very well another of the listed criteria. Realistically, mercy will influence their judgment.

Since there is very well some doubt that he does not meet any of the criteria, the necessity of the jury to sentence him to die is unclear to me. The clarity of what "justice" demands under the law repeatedly in these cases are a lot murkier than is proclaimed. See, e.g., "Justice Accused."

Posted by: Joe | Apr 15, 2013 6:06:47 PM

Excellent post! Could not agree more. There is no reason to kill this man - we are pro life and his being in jail does not threaten our safety as I see it.He is not like a Hussein , tied to terrorists that would stop at nothing to have him released. I pray we offer him a just punishment , mercy, spare his life ,and pray for his conversion. As Christ would have done.

Posted by: Kristin | Apr 15, 2013 6:44:49 PM

I say "Keep Him Alive!" If he is put to death, he and what he did will be forgotten. Alive... well, no one can forget.

Posted by: maureen | Apr 15, 2013 7:08:10 PM

Did the author list some place in the past his guidelines of leaving things open for comments. I thought perhaps it was a new thing but then came here and saw he has a new post up w/o allowing comments. A bit unfortunate since in effect he makes a claim about a certain group and they might wish to respond.

Posted by: Joe | Apr 15, 2013 11:49:49 PM

Many of the incidents cited in Catholic history for mercy and not using the death penalty relate that the convict, as he faces death, confesses his sin and asks for mercy from God. I don't think it is necessary or appropriate to routinely use the death penalty but what if that is the only situation that will allow the convict to face his sin, repent and receive the forgiveness from God at the hour of death? How is not correcting sinners merciful?

Posted by: AnneG | Apr 16, 2013 4:56:26 PM


It is not the function of a civil criminal justice system to get convicts to confess their sins and repent.

There is something a little strange about this whole issue. As I and others have noted, if Gosnell is sentenced to death, given the way death-penalty cases work, he will probably die of natural causes before all appeals are exhausted. At 72, his life expectancy is less than the average time convicted murderers spend on death row before execution. I am personally opposed to capital punishment, but the jury in this case will decide the sentence, and if they are doing their duty as jurors, they will not even be listening to outside appeals for mercy, let alone allowing themselves to be swayed by them.

Those who want mercy for Gosnell will have a good ten or fifteen years to argue for it. On the other hand, Texas has about ten executions scheduled for between now and the end of July. One is scheduled to take place tonight. Why don't we all appeal for mercy for convicts whose executions are actually immanent? I am sure they would love to have the attention and support of Robert George and the pro-life community.

Posted by: David Nickol | Apr 16, 2013 6:26:06 PM

Mercy does not negate justice. God did not say that mercy would or should replace lawful consequences.

Posted by: J Zachman | May 13, 2013 4:14:10 PM