Re the joint editorial on the death penalty

Like Professor Garnett, I am skeptical of the “joint editorial” of various Catholic publications that purports to call for an end to the death penalty. 1 The authors are not coy about the context that prompts their comments: Later this term, the Supreme Court will hear Glossip v. Gross, in which recent lethal-injection protocols are challenged. 2 I dissent because it is abundantly clear, given this context, that the Catholic publications are not calling for abolition of death penalty; they are calling for the Supreme Court to strike it down in an act of illegitimate judicial activism.

I should underscore that I accept Evangelium vitae and the subsequent amendment to the Catechism confining the death penalty to cases where the community cannot otherwise be protected. 3 I have recently circulated a petition to commute a death sentence and, in another place, suggested that a person who publicly advocates the indiscriminate use of the death penalty should be dismissed from lay ministerial roles in parishes, just as and to no less extent than those who dissent on any other point of the Church’s teaching. I concede that the application of this standard admits of legitimate diversity, 4 but I do not doubt the principle. 

Nor do I have the slightest doubt that public acts and public officials are bound by those teachings. 5 Qua legislator, I might well vote for a law abolishing the death penalty; qua trial judge, I would feel obliged to resign if required by law to impose a mandatory death sentence (happily, a result precluded by Woodson v. North Carolina); qua governor with discretionary clemency authority, I would feel obliged to exercise that authority to (at a minimum) commute all capital sentences for which commutation was requested. (Qua juror, the situation is complex.) The precise contours of how this might apply are open to question, but I do not doubt the principle.

Nevertheless, I dissent, at least in part, from the joint editorial. Its call is not for the abolition of the death penalty, which any state may do at any time by statute, but for the Supreme Court to illegitimately declare the death penalty unconstitutional—an entirely different matter. The justices are not called upon in this or any other case to decide the wisdom or morality of the death penalty or any particular means for its execution, but rather its legality. The original meaning of the Constitution certainly does not exclude the death penalty. (Nor, by the way, does the teaching of the Church.) Nor, even if we accept the doctrinal developments of the twentieth century, do the touchstones of proportionality and the “evolving standards of decency” (the phrase of Trop v. Dulles) of American society: There is scant evidence of a durable consensus in American society that the death penalty generally or lethal injection particularly is cruel and unusual. Moreover, such evidence as there is must be taken with a grain of salt because it has been manipulated deliberately: Results are likely to be skewed by recent “botched” executions that were engineered by anti-deathpenalty campaigners who worked to undermine the hitherto-stable three-drug protocol. By making it impossible to obtain the necessary drugs, they forced state officials (often bound by oath and statute to carry out the executions) into precisely the experimentation on which those campaigners now seek to predicate their constitutional claims. That is not an attractive posture. 

To declare the death penalty unconstitutional would be to do nothing more or less than to wrap one’s own policy preferences in a constitutional garb, a set of clothes that even the fabled Emperor might deem gossamer, and I can neither support it nor acquiesce in the tendentious characterization of the so-called Catholic publications. I do not understand why opponents of the death penalty are ready to try any strategy except the legitimate one: Persuade your fellow citizens, pass a law, and abolish it. That is the right way to proceed. Calls for judicial activism, illegitimate and illicit, are not. 

Notes:

  1. See Rick Garnett, “Capital Punishment Must End,” Mirror of Justice, March 6, 2015, http://mirrorofjustice.blogs.com/mirrorofjustice/2015/03/capital-punishment-must-end.html; Editorial: Catholic publications call for end to capital punishment, National Catholic Reporter, March 5, 2015, http://ncronline.org/news/peace-justice/editorial-catholic-publications-call-end-capital-punishment; Elizabeth Scalia, Patheos Catholic Joins Joint Call to End Capital Punishment, The Anchoress, March 5, 2015, http://www.patheos.com/blogs/theanchoress/2015/03/05/patheos-catholic-joins-joint-call-to-end-capital-punishment; see also Kathryn Jean Lopez, Making the case against the death penalty, National Review, March 7, 2015, http://www.nationalreview.com/article/415034/making-case-against-death-penalty-interview.
  2. See Glossip v. Gross, ScotusBlog, http://www.scotusblog.com/case-files/cases/glossip-v-gross.
  3. See Dodd, In re Colorado shooting, 2 MPA 54 (2012); Catholic social teaching and public policy, 1 MPA 151 (2012); but see What does the Church really teach about vaccines, n.5, Feb. 4, 2015, http://simondodd.org/blog/?p=1753.
  4. Cf. Joseph Card. Ratzinger, Memorandum to Card. McCarrick on reception of communion, July 2004, http://www.ewtn.com/library/CURIA/cdfworthycom.HTM (last visited March 18, 2015)
  5. Cf. Dodd, Judges and excommunication, 3 MPA 108 (2013).