Ending the Death Penalty: What one Catholic Supreme Court justice could do – Part I
I Was In Prison
Online Prison Ministry Newsletter
July 16, 2008
Dale S. Recinella, Catholic Lay Chaplain, Florida Death Row and Solitary Confinement
Susan M. Recinella, Clinical Psychologist for mentally ill adults, and Catholic Lay Minister to Families of the Executed

Ending the Death Penalty: What one Catholic Supreme Court justice could do – Part I
By: Dale Recinella

When the U.S. Supreme Court reinstated the death penalty in 1976, our nation embarked upon a grand experiment:

The hope was that new detailed procedures would result in a death penalty unaffected by the lingering racial bias of slavery and lynchings and impervious to arbitrary application. That experiment, however, has failed. DNA evidence alone has proved that some prisoners on death row were convicted of crimes they had not committed, and they have been exonerated. The question now is, How do we end the death penalty and extricate ourselves from this failed experiment?

One obvious answer is that our Supreme Court justices should change their position on the constitutionality of capital punishment. There is manifest legal justification for them to do so. And if just one of the five Catholic justices were to change his position on capital punishment, the use of the death penalty would end in the United States.

That became clear in June 2006 in a 5-to-4 Supreme Court decision in the case Kansas v. Marsh. The specific legal issue in the case concerned the Kansas death penalty statute, which makes death the default option. If a jury finds that the factors favoring a death sentence (aggravators) are equal to the factors against a death sentence (mitigators), the Kansas law requires the jury impose a death sentence. The five-justice majority on the Supreme Court sustained the constitutionality of the Kansas statute.

A closer examination, however, reveals that the issue actually being argued through the majority, concurring and dissenting opinions in Kansas v. Marsh regards executing the innocent. The four dissenting justices—none of them Catholics--expressed concern about the state of the American death penalty, its arbitrariness and the consequent great risk of executing the innocent.

The five Catholic justices, however, favored continuing the death penalty. The majority opinion, written by Justice Clarence Thomas, notes: "Indeed, the logical consequence of the dissent's argument is that the death penalty can only be just in a system that does not permit error. Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses." Thomas then proceeds to rely on precedent: execution of the innocent should not be of concern to the U.S. Supreme Court as long as proper procedures are followed.

In his concurring opinion, Justice Antonin Scalia addresses the dissenters without responding to their concern about innocence. Scalia implies that their concern would in fact end the death penalty in the United States, saying: "Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation." The three other Catholic justices, Chief Justice John G. Roberts and the associate justices Samuel A. Alito and Anthony M. Kennedy, joined with Thomas and Scalia to continue the U.S. death penalty. Scalia’s comment does not answer the concern of the dissent, which can be paraphrased thus: Why not let mistakes be a basis for sentences of life imprisonment, which is reversible, rather than execution, which is not?

New Opportunity Before the Court

A case has now been accepted for Supreme Court review which that offers a possibility for a re-examination of the death penalty. In Baze v. Rees, the court has agreed to consider the constitutionality of lethal injection as practiced in Kentucky. The specific issue is: Does the state's lethal injection process, the mix of drugs prescribed in Kentucky and in all but one of the 36 other states that allow the death penalty, violate the Eighth Amendment's ban on cruel and unusual punishment because it can inflict unnecessary pain and suffering? A court decision is expected before the end of June 2008.

As seen in Kansas v. Marsh, however, the Supreme Court will not be limited in its decision in Baze to the specific issue of lethal injection. The court could use this opportunity to hold the U.S. death penalty unconstitutional. There are ample sound legal reasons for it to do so.

For over 25 years, the U.S. Catholic Bishops have worked to end the use of the death penalty. The Church teaches that the death penalty should not be used unless there is no other way to protect innocent life in society--a situation that in modern American society is simply unimaginable. Yet one does not even reach the point of testing that requirement until "the guilty party's identity and responsibility have been fully determined." (Catechism of the Catholic Church, No. 2267) The thicket of U.S. legal precedents, doctrines and statutes prohibiting courts from hearing late-discovered evidence of innocence and mitigation makes it impossible to satisfy the first requirement of the Catholic catechism. This is especially true of the legal doctrine called "procedural bar," which limits or prohibits court review of such late-discovered evidence even, if it was hidden by the state.

Furthermore, U.S. death penalty jurisprudence contravenes the explicit commands of Scripture. There is no mandate in Scripture or the Judeo-Christian tradition for maintaining a system of flawed justice that knowingly risks the execution of the innocent. On the contrary, Scripture commands: "Do not execute the innocent." (Ex. 23:7) From a faith perspective, as well as a constitutional perspective, the U.S. death penalty is inherently defective because it unnecessarily creates the risk of executing the innocent.

One might be concerned that Supreme Court justices should not be influenced by the teachings of their faith in making decisions. For at least two reasons such a concern is not an issue in this case.

Next Week - Ending the Death Penalty: What one Catholic Supreme Court justice could do – Part II

Update Note: Baze v. Rees was decided by the U.S. Supreme Court the week before this article was published. The Court opted to make its decision on the narrowest possible grounds. (See the article “The Problem with Assumptions” in the June 25, 2008 edition of this Ezine.)

© America 2008 All rights reserved.
This article was originally published in America, April 28, 2008, and is reprinted here with the permission of America Press, Inc. www.americamagazine.org
Used with permission. All rights reserved.
No further reproduction or republication without prior written permission.


I Was In Prison
News & Updates
This ezine is targeted for people involved in prison ministry or in stopping the death penalty, we think you will find helpful information for people who are undecided about capital punishment, for those who have never experienced the inside of a jail or prison, and for those who feel called to participate through prayer and adoration.

Your name and information will never be used or sha#3333FF with anyone. We promise!

Dale S. Recinella, Catholic Lay Chaplain, Florida Death Row and Solitary Confinement
Susan M. Recinella, Clinical Psychologist for mentally ill adults, and Catholic Lay Minister to Families of the Executed

If you Like this Weekly Ezine - You will love Dale's Book!
Sr. Patricia Proctor
Paperback: 433 pages

Excellent book on the topic!,
June 13, 2005 Nathan Eanes
(Review from Amazon.com)

The Biblical Truth about America's Death Penalty is a must-read. It deals with Biblical standards of Capital Punishment and then compares them to the system used in America today. It is the best-researched, most faithful to scripture, and most evenhanded analysis I have ever read concerning the Death Penalty. Whatever your persuasion on the issue, this book will teach you a great deal. Recinella is a trained lawyer and committed Christian who now volunteers part-time on Florida's death row. He thus understands law, the Bible, and the system of execution in America. I challenge anyone who supports the Death Penalty to read this book.

This ezine edited by Sister Patricia Proctor, OSC - Poor Clare Sister
to support the IWasInPrison Outreach