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By Deacon Keith Fournier
© Thrid Millennium, LLC

The news flashes are everywhere; the case is Roper v. Simmons, 03-633, decided by the United States Supreme Court, today, March 1, 2005 in a 5-4 decision. It finally ends the practice of putting all juvenile offenders to death for capital offenses. It follows upon another decision limiting the use of State sponsored lethal force by chemical injection, electrocution or asphyxiation against criminal offenders who are "mentally retarded" or mentally diminished. That case was Atkins v. Virginia [2002]. It held that that executing the mentally retarded was no longer permissible.

Both practices are now held to be unconstitutional under the eighth amendment to the United States Constitution as "cruel and unusual punishment." Although several bases were given for both decisions, the reasoning of the Court revolved around the diminished mental capacity of the offender to determine right from wrong. Prior decisions had called into question younger teenagers; this decision closes the loop by adding all teenagers.

The decision in Roper forbids the execution of killers who were under 18 when they committed their crimes. The practice, still followed in 19 states, Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Utah, Texas and Virginia, is now officially ended in the United States of America.

Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer were joined by Justice Kennedy who, writing for the majority said: "Our society views juveniles ... as categorically less culpable than the average criminal,"

Chief Justice William H. Rehnquist, Justices Antonin Scalia, Clarence Thomas and Sandra Day O'Connor dissented. In a twenty four page dissenting opinion, Justice Scalia wrote: "The court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter... In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty... The court thus proclaims itself sole arbiter of our nation's moral standards,"

The facts of the case were egregious and shock the conscience. At the age of 17, Christopher Simmons kidnapped a neighbor in Missouri, hog-tied her and threw her off a bridge. Undoubtedly this was an evil act that should not go without punishment. It will not. He will spend his days in jail. The questions concerning the use of capital punishment are actually not about not punishing, rather, they are about taking another life as punishment.

Apparently some scientific evidence presented in the lower courts confirmed what anyone who has raised children through the teenage years already knew, those years are the formative years for conscience. According to medical experts, the "amygdale" -- the central part of the brain that sends out impulses in reaction to the environment and perceived threats -- is very active in teenagers. However, the prefrontal cortex -- the part that makes value judgments, is not fully developed. Oh I know, some will mock such "science", others will call it "bleeding heart liberalism", but even these "experts" who offered this scientific evidence in the lower courts did not say that teenagers don't know the difference between right and wrong but rather that they struggle with impulse control.

Christopher Simmons who committed this horrible crime is now 27. He was sentenced to death in Missouri for a murder he committed at the age of 17. The Supreme Court of that State overturned the sentence, calling the execution of juvenile's cruel and unusual punishment. The State of Missouri appealed. The U.S. Supreme Court has ruled.

Now, the battling between "left" and "right", "liberal" and "conservative" begins.

Let me state very clearly, I oppose the death penalty--always have and always will. It is a part of my deep abiding commitment to holding a consistent ethic of life. However, I understand that some Christians do not share my conviction and I understand their positions.

All the years that I have fought on the front lines of the pro-life cause, I have been uncomfortable with being labeled a "conservative." I have never officially registered as a "Republican"--though the current leadership of the Democratic Party and their love affair with the autonomous self and the so-called "abortion right" forced me to leave their ranks. Some of my "conservative" friends don't think I am one of "them," either, because of my opposition to the death penalty, among other things.

What I am is pro-life, pro-family, pro-freedom and pro-poor.

Capital Punishment is an issue where the labels have lost what little value they might have ever had. In a rush to multiply executions in order to purportedly lower the crime rate (no connection between these two has ever been shown) both Democrats and Republicans seem to be "out-toughing" one another in a race to the killing fields of capital punishment.

Ironically, some contemporary "liberals", who still oppose the death penalty, also support unencumbered abortion on demand. They fail to see the duplicity in their approach. Their wholesale support of the unimpeded "right" to execute innocent pre-born persons and their opposition to the State-sanctioned killing of (in most instances) of guilty adults is inexplicable. I guess they find some "justification" (when you strip away the rhetorical subterfuge) in the fact that, instead of killing an apparently malformed guilty person, they are killing a not yet fully formed innocent one. They insist on calling abortion a "choice" and they hide behind the evil of another of this same Courts rulings, Roe v wade, which made it a "right", even though it is always wrong.

Then there are the new "conservatives" with their "compassion confusion." They rightly oppose the execution in the womb of innocent children, yet support executions outside of it. At least some of them draw the vital distinction between killing the innocent and killing the guilty. On their right flank (and closing fast), are their newfound friends, the libertarians, who support both kinds of execution with no distinction. Then, as the events of the last few months have made so very clear, there is a rising tide who wants to legalize the killing of the mentally disabled such as the brain damaged Terri Schiavo.

Even some of my well-intended Christian friends, especially my fellow Catholics, who correctly and compassionately oppose both kinds of executions, fail to make the vital distinction as to the foundation of the opposition of Catholic teaching to killing the pre-born and the question of whether or not the State has the authority to execute capital offenders.

The faithful Catholic Christian must hold an unqualified opposition to all abortion as intrinsically evil--the taking of innocent human life which is always and everywhere immoral and illegitimate--period. However, our opposition to capital punishment does not imply that it is intrinsically evil--rather, that it cannot be justified since bloodless means are available to protect society, promote the common good, and allow for mercy to preside over strict justice! This merciful approach is clearly affirmed in the Catholic Catechism:

"If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity with the dignity of the human person" (CCC, n. 2267).

In fact, the Catechism was amended to emphasize that the use of "capital punishment" adds to the growth of what John Paul II has rightly labeled the "Culture of Death."

In his prophetic encyclical letter, "The Gospel of Life," John Paul vividly exposes contemporary culture as a "Culture of Death" having lost its understanding of the inviolable dignity of every human life.

Calling abortion the "cutting edge" of the "Culture of Death" he draws a connection to the contemporary use of executions warning the state that in implementing their role of applying justice "... the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare if not practically non-existent" ("The Gospel of Life," n. 56).

In short, we should not say that "capital punishment" is "intrinsically" evil, but we can and should oppose it. I do. I welcome the decision in Roper. If capital punishment was ever justified (and there have been divergent views throughout Christian history) it certainly is not now. The issues surrounding the propriety of the contemporary State's use of execution as retributive punishment are multiple. There is serious concern over the risk of killing the innocent. There are real questions as to the disparity of its application, given the national tragedy of what the Catholic Catechism rightly calls the "structures of sin" created by our undeniable history of racism. Then, there are the running debates as to whether or not it truly deters, or properly restores, a balance of justice. Finally, bloodless means are available and there is no good argument that capital punishment in any way protects society or serves the common good.

However, as serious as all of these concerns are, there are other issues that this latest decision has surfaced. The shrill and charged rhetoric has already begun.

The "right" will blame the "left", the "conservatives" will quote their champion, Justice Scalia, and opine about the need for the "strict construction" of the Constitution, which is the apparent panacea for everything that ails our Republic according to the contemporary conservative movement.

I affirm this decision. I only hope that it encourages a broader thrust, the development of a jurisprudence that will help us not only correct the mistakes of an activist judiciary with no moral restraints, but to develop a sane, civil, reasoned and concerned natural Law Jurisprudence for the twenty first century. I have long worried about the wholesale call for "strict constructionism" as the perceived solution for the horrid state of the law. Long ago I wrote and warned my pro-life friends that the "States Rights" rhetoric and the "Strict Construction" rhetoric that they had adopted in their courtship with the "right" would come back to bite them. It has.

Notice the language of those who now seek to defend the so called "abortion right." Knowing that the days of Roe v Wade are probably numbered, the proponents of abortion on demand want to send the issue "back to the States." Similarly, on the other front of the culture struggle, in the efforts to "redefine" and to attempt thereby to destroy marriage and family, the call is to let "the States decide" the issue. There is a growing effort to "legalize" the killing of the elderly and the disabled under the label of "mercy killing." It follows a similar path. It was not that long ago in American history that we had "free States" and "Slave States." Will we soon have "death" States and "Life" States?

When something is wrong it is wrong, period. That is the case with the taking of innocent human life in the womb, whether on the national or state level.

What is needed, more than strict constructionism, is the development of a Natural Law Jurisprudence. We need a new generation of jurists, trained in the classical Natural law, solid Catholic thought, and not just conservativism made to sound "Catholic."

The dignity of every human life from conception to natural death is written in the natural law that binds every human person. It is not something given by government, no matter which branch, and it cannot be taken away. The right to be born and to live a life unimpeded by those who would try to kill you when you get sick or old is a fundamental human right. Government exists to protect those rights.

The fact that marriage is between a man and a woman and ordered toward love which promotes the flourishing of human persons, promotes the openness to life which ensures the propagation of the human race and forms the first vital cell of any society is not a social construct up for grabs. Without marriage and family there can be no State or Nation.

These kinds of truths about human life and community are not simply "religious", though many of us who have faith have been informed by our faith to both understand them and reflect upon them. Rather, they are written in a natural law that can be known by all. Revelation simply confirms them.

Now, to return to today's decision. It is a right result. We should not execute minors even for the most heinous crime. It simply serves no purpose and is not justifiable in any way, shape or form. We are better than that as a Nation.

I hope that the discussion that follows this latest Supreme Court decision will be a useful one, particularly in the Christian community. It is time to put the death penalty to death and to build a culture of life.

____________________

Deacon Keith Fournier is a married Roman Catholic Deacon of the Diocese of Richmond, Virginia who also serves the Melkite Greek Catholic Eparchy with permission. A graduate of the Franciscan University of Steubenville, the John Paul II Institute of the Lateran University and the University Of Pittsburgh School Of Law, Deacon Fournier has been a human rights lawyer and policy advocate as well as an author and communicator, proclaiming and helping to build a new culture of life and civilization of love. Having recently turned fifty, he has dedicated the "second half" of his life to making the teachings of Pope John Paul II known and offering them as the path toward the authentic renewal of Church and culture.

Contact

Third Millennium, LLC
http://www.catholic.org VA, US
Deacon Keith Fournier - Deacon, 757 546-9580

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