THE COMMON GOOD
Putting the Death Penalty to Death
© Third Millennium, L.L.C. June 30, 2002
By: Deacon Keith A. Fournier
Few issues today are as divisive--and as important--as capital punishment.
Executions of mentally retarded criminals constitute "cruel and unusual punishment" and are prohibited by the Eighth Amendment to the United States Constitution according to the United States Supreme Court. The Virginia case of ATKINS v. VIRGINIA, decided by the United States Supreme Court on June 20, 2002, concerned a retarded man named Daryl Renard Atkins, who was convicted of abduction, armed robbery, and capital murder, and then sentenced to death.
In the opinion of the Court, the fact that Mr. Atkins was severely retarded meant that he lacked the requisite culpability. This was the basis for its ruling that the State cannot apply the sentence of capital punishment during the penalty phase of its criminal proceeding when a person with a mental disability committed the crime. The rationale of the Court was that such a mental impairment resulted in a diminished capacity and that therefore the punishment lacked proportionality to the offense.
The facts of the offense are chilling and without question. In the Supreme Courts opinion we read the following summary:
"At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed."
At the foundation of the High Court's significant break with its own past precedent supporting the application of the "death penalty" -and its long standing practice of rarely overturning a States exercise of its own discretion in its application of the death penalty- The High Court summarized its analysis in its these words taken from its own syllabus:
"First, there is a serious question whether either justification underpinning the death penalty-retribution and deterrence of capital crimes-applies to mentally retarded offenders. As to retribution, the severity of the appropriate punishment necessarily depends on the offender's culpability. If the culpability of the average murderer is insufficient to justify imposition of death, see Godfrey v. Georgia, 446 U.S. 420, 433, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. As to deterrence, the same cognitive and behavioral impairments that make mentally retarded defendants less morally culpable also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information."
Additionally, this same Court also recently ruled in a case called RING v. ARIZONA, that the decision to impose the death penalty must be decided by a jury and not by a Judge during the penalty phase of a criminal proceeding. Most Court observers feel that the trend evidenced by both of these rulings will lead to fewer and fewer executions.
As a Constitutional lawyer, former prosecutor, policy activist and Court watcher, I was not surprised by either decision. I welcomed them both as a part of a much broader conviction that I hold. As a Catholic citizen, I welcomed one more State action in a series of actions that I believe will lead to the "death of the death penalty"
These latest decisions follow upon actions taken by several States, led by both Republican and Democrat Governors, to implement a moratorium on Capital Punishment. The reason for these moratoriums is because its application has been unjust, discriminatory, and, in an increasing number of instances, later been found (through D.N.A. and other advanced forensics) to result in the killing of the innocent by the State!
When I heard the news of both opinions, I breathed a sigh of relief.
I reflected back upon one of several recent executions in my home State of Virginia. Though it occurred almost two years ago, it is as fresh in my mind, and heart, as if occurred yesterday.
On Thursday, September 14 2000, while still proclaiming his innocence, Derek Barnabei was executed by the State of Virginia with an injection of lethal chemicals. Convicted of a brutal rape and murder, he spent his last hours with a priest. Despite the intervention of Pope John Paul II, and voices from around the globe, the State Executioner carried out the execution and the announcement of his death was aired on television.
I remember that I had awakened that Thursday morning, made the sign of the cross, and gratefully greeted another day of life. As I do every morning, I grabbed a cup of coffee and the newspaper. That morning, however, I read the headlines, but I couldn't drink my coffee.
I had a knot in my stomach and a pain in my heart. I had hoped against hope that this execution would not go forward, that some last minute reprieve would be granted. I had come to believe in the innocence of this man.
Oh, I knew this was a tough case. I have practiced law for a long time. First, there was the issue of the evidence--both it's having been apparently tampered with and then there was DNA connecting Mr. Barnabei to the victim. Yet something seemed odd and the deeper I dug, the more troubled I became.
Then, there was the heinous nature of the murder--an innocent, helpless college freshman. I have three wonderful daughters (and two sons). One of my daughters had just begun her second year of law school at the time. My heart broke for the grieving families- first of the victim and then the apparent perpetrator.
But the knot in my stomach, and the pain in my heart, concerned a deeper death--the death of our national sense of conscience.
THE ISSUES PRESENTED BY THE "DEATH PENALTY"
The issues surrounding the propriety of the state's use of execution as "retributive punishment" or as a form of deterrence are real and must be faced. The Supreme Court's analysis in ATKINS v. VIRGINIA fails to address these deeper issues. Yes, they were correct in their ruling, we simply should not execute people who are retarded. It truly is cruel and unusual punishment within the meaning of the Eighth Amendment to the U.S. Constitution.
Also, as the rapidly growing "moratorium movement" (calling for a moratorium on capital punishment) has been particularly adept at demonstrating, there are serious concerns over the risk of killing the innocent and the disparity of the application of this kind of capital punishment. The statistics are clear and compelling. We execute more poor people and minorities than white middle class people like me.
Given the national tragedy of our past history of institutional racism and what Catholic theology calls the "structures of sin" imbedded in our social fabric we must pause and ask ourselves why this is the case. I cannot accept the cavalier explanation heard in some circles that these "kind of people" simply commit more of these types of crimes. I know better.
Finally, there is a serious debate, borne out by statistics from numerous social sciences, as to whether or not the death penalty actually deters crime, or ever properly restores a balance of justice. Such claims are not truly supportable.
However, as serious as all of these concerns are, there are deeper issues, particularly for Christians.
Let me state my position very clearly, I oppose the death penalty--always have and always will. It is a part of my deep, lifelong, abiding commitment to embracing and seeking to live out a consistent ethic of life.
However, I understand that some Christians do not share my conviction. Over the years that I have fought on the front lines of the pro-life cause, I have always promoted both the end of State endorsed and funded abortion and euthanasia as well as State endorsed capital punishment.
To some conservatives, my position was annoying and untenable. That mattered little to me. I have always been uncomfortable with being labeled a "conservative", both because of my concern for the poor and particularly because of this issue, the legitimacy of Capital Punishment.
I never officially registered as a "Republican"--though that other major party's love affair with the autonomous self and the so-called "abortion right", forced me to leave the ranks of contemporary "Democrats" long ago.
At least according to a modern definition of the term, I am not a "liberal". I have toyed with using the term and then explaining that I am a "classical" liberal. However, outside of the arena of the academy or think tanks, few people would find it even interesting.
However, some of my "conservative" friends don't think I am one of "them," either.
I regularly write about the need for a moral market economy and espouse such ideas as that "the market was made for man (and woman) and not man for the market." In this "post Enron" corporate climate, I hope that some of my conservative friends, particularly the Christian ones, have re-examined their quick embrace of a "laissez faire" market theory. I have long decried the creeping "libertarianism" of the conservative movement.
I was raised in an Irish, French, and Catholic and "Democrat" family. For many Catholics in my generation it all went together. However, since Roe V. Wade, and its creation of a so-called "abortion right" out of whole cloth, I have certainly not been welcomed in the Democrat party because of my unqualified opposition to abortion.
Support for this so-called "right" to abort, euthanize and otherwise treat persons as products is a foundational tenet of the Democrat party platform and current worldview of many of the party leaders. With a perverse consistency, many contemporary members of that party are adamant proponents of abortion at a whim as well as capital punishment according to the State's dictates.
What I am is pro-life, pro-family, and pro-poor. I am a Catholic citizen seeking to inform my political, cultural and social participation with the values informed by my faith.
I am neither "liberal" nor "conservative", I am Catholic.
The topic of the death penalty is an issue where many of the labels have most assuredly lost what little value they might have ever had. In their mutual rush to support what has been a multiplication of executions in some purported effort to lower the crime rate (another disputable claim) both Democrats and Republicans seem to be "out-toughing" one another in a race to the killing field.
BEYOND THE LABELS TO THE POINT
The death penalty is an issue that is confounding the old categories, revealing the shallowness of the labels and separating many, even in the pro-life and ecumenical Christian community!
Ironically, some contemporary "liberals" who still oppose the death penalty fail to see an extraordinary duplicity in their approach. They support a wholesale and unimpeded "right" to execute pre-born persons and oppose these other executions--that is, the state-sanctioned killing of (in most instances) guilty adults
Some of the new "conservatives" suffer from what I believe is "compassion confusion." They oppose the executions in the womb but support executions outside of it. Or, on their right flank (and closing in fast), are their newfound friends, the libertarians, who support both kinds of execution and see no role for the "government" in making any moral judgments in wielding the "sword" of execution, or, for that matter in doing much of anything else.
Even some of my well-intended Christian friends, especially some of my Catholic brethren, who correctly and compassionately oppose both kinds of execution, fail to make an ABSOLUTELY VITAL DISTINCTION between these two types of executions.
There is a different moral basis for the opposition found in Catholic teaching to both killing the pre-born and executing capital offenders. In failing to make this distinction they add to the ongoing confusion.
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. To hold any other position, no matter what is said or implied, is to be an unfaithful Catholic and, in some instances, to excommunicate oneself under Canon law.
However, Catholic opposition to capital punishment does not imply that it is intrinsically evil--rather, that it can no longer be justified, particularly in Western Societies, since bloodless means are available to protect society, promote the common good, and allow for mercy to preside over strict justice!
In other words Catholics recognize that the State, in promoting the "Common Good" and protecting its citizens may, in appropriate circumstances, exercise it's authority through the imposition of the penalty of death. This was the traditional teaching. HOWEVER WE ALSO BELIEVE THAT THESE CIRCUMSTANCES NO LONGER EXIST.
THE CLARITY OF THE CATECHISM
The plainly written and eminently helpful Catholic Catechism puts it all so well:
(Paragraph 2266) "The State's effort to contain the spread of behaviors injurious to human rights and the fundamental rules of civil coexistence corresponds to the requirement of watching over the common good. Legitimate public authority has the right and duty to inflict penalties commensurate with the gravity of the crime. The primary scope of the penalty is to redress the disorder caused by the offense. When his punishment is voluntarily accepted by the offender, it takes on the value of expiation. Moreover, punishment, in addition to preserving public order and the safety of persons, has a medicinal scope: as far as possible it should contribute to the correction of the offender." This merciful approach is further affirmed in next paragraph in the Catholic Catechism: (PARAGRAPH 2267) "The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor.
"If, instead, bloodless means are sufficient to defend against the aggressor and to protect 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 to the dignity of the human person.
"Today, in fact, given the means at the State's disposal to effectively repress crime by rendering inoffensive the one who has committed it, without depriving him definitively of the possibility of redeeming himself, cases of absolute necessity for suppression of the offender 'today ... are very rare, if not practically non-existent.'
The Catholic Catechism was amended to more strongly emphasize that the use of "capital punishment" is no longer justified and in fact 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 our public explanations of our opposition, as Catholic Christians, to the death penalty, we should therefore not say that "capital punishment" is "intrinsically" evil, but we can and must oppose it. In the current climate, the exercise of this awesome power to take away the life of an offender is no longer justified. There are other means available and Mercy should trump justice! For example, life in prison without parole both punishes the offender and protects the society. If capital punishment was ever justifiable (and there have been divergent views on this discussion throughout Christian history) it certainly is not now. Our Catholic social teaching presents the clearest explanation of our opposition. We have an obligation to share it with other Christians who do not have the gift of a fully formed social tradition or a clear direction from a "magisterium", a teaching office.
It is time Catholics understood the teaching, embraced it and shared it with others.
I remember how delighted I was years ago when Pat Robertson, an evangelical Christian leader, who once consistently and publicly supported the death penalty, opposed the execution of Carla Faye Tucker in Texas. She had repented and had undergone an extraordinary conversion. He urged mercy over justice!
I was also impressed when he later supported the call of a Republican Governor for a stay on all executions because of the irrefutable evidence of both disparate misapplications racially and the danger of killing of the innocent. I sincerely hope that he and other sincere Christians who have in the past supported the imposition of the death penalty will take the next step and oppose all of the killing
Since its beginning, the moratorium movement has spread like a wildfire and brought together people from across the political spectrum to call for a moratorium on executions. Additionally, more and more Christians from other traditions, churches and communions have joined with Catholics in opposing Capital Punishment.
A DIFFERENT WAY
It is time for a different way. A Catholic Christian position holds that someone like Derek Bernabei should also have been shown mercy. Not because many, myself included, still believe that he was innocent; not because he had a dramatic conversion like Karla Faye Tucker (though as a Catholic deacon I was heartened by his having spent his last moments with a Catholic priest); nor because he had a lower intelligence quotient like a Daryl Renard Atkins; but because allowing the State to execute him, or anyone else for no matter, no longer serves any legitimate purpose, if such an approach ever did. There is a different way.
Yet, the State did execute Derek Barnebei with a lethal injection of poison. Since then, Virginia and several other States have executed many more persons through the administration of poison, high dosages of electricity or through asphyxiation by toxic gas.
With this Supreme Court opinion in ATKINS v. VIRGINIA, we will now stop executing those with diminished intelligence. It is the prevailing consensus that as a result of the opinion in RING v. ARIZONA, and it's insistence that only a jury can impose the death penalty, that many of those on death row will soon have their sentences commuted to life in prison and that fewer juries will impose this penalty in the future.
These are both welcome steps in the right direction.
However, we should simply stop the practice altogether. The death penalty should be put to death, for mercy's sake.
In the ATKINS opinion the Supreme Court once again reaffirmed in its reasoning that "retribution and deterrence of capital crimes" is a legitimate basis for continuing the practice of Capital Punishment. The weight of evidence and our national experience disproves this faulty thesis.
If, as a free and civilized people, we continue this practice it is actually for another reason, vengeance. Vengeance is not a proper reason nor is it ever our prerogative.
Vengeance always has another victim, it kills our collective conscience.
The Supreme Court ruling in ATKINS v. VIRGINIA presents us all with another moment in our post 911 American climate within which to pause and ask ourselves the important existential questions. One of those questions is whether it is finally time to put the death penalty to death? The answer is "Yes".
In this age of a growing "Culture of Death," every execution kills what little is left of our national conscience.
Rev. Mr. Keith A Fournier, the founder and president of "Common Good", is a constitutional lawyer. Long active in political participation, Fournier was a founder of Catholic Alliance and served as its first President. He is a pro-life and pro-family lobbyist. He was the first Executive Director of the ACLJ (American Center for Law and Justice). He also served as an advisor to the presidential campaign of Steve Forbes. Fournier holds a Bachelors degree (B.A.) from Franciscan University of Steubenville in Philosophy and Theology, a Masters Degree (M.T.S.) in Sacred Theology from the John Paul II Institute of the Lateran University, a Juris Doctor (J.D.) from the University of Pittsburgh and an Honorary Doctor of Laws (L.L.D.) from St. Thomas University. Fournier is the author of seven books on issues concerning life, faith, evangelization, ecumenism, family, political participation, public policy and cultural issues.
http://www.commongoodonline.com VA, US
Deacon Keith Fournier - Founder/President, 757 546-9580
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