Fifth Circuit Judge Says 'No Vengeance"

Today's must-read is a speech delivered by Fifth Circuit Court of Appeals Judge Carolyn Dineen King in Corpus Christi at the annual Red Mass.  It's reprinted in the South Texas Catholic newspaper.  LINK  Two lengthy excerpts are below:

I want to share with you today my concerns about capital punishment. I became a federal judge in 1979, seven years after the Supreme Court effectively struck down all the capital sentencing laws in the nation and three years after the Court took the first steps to approve newly-enacted capital sentencing laws in several states, including Texas. The three states in the Fifth Circuit - Texas, Louisiana, and Mississippi - all have capital sentencing laws, as does the federal government. In my twenty-seven years as a federal judge, I have participated in the disposition of appeals or habeas petitions in scores of capital cases. So my concerns are informed by my experience as a judge. They are also informed by my religious beliefs.

One of my concerns is driven by the way capital sentencing laws have developed during the last 40 years. Let me set out for you the big picture on that development, with a particular focus on Texas law. In the 1960s and 1970s, the nation experienced one of its periodic collective reevaluations of capital sentencing. This particular reevaluation coincided with, or really was a part of, the civil rights movement and its focus on the disparate treatment of black citizens. As respects capital sentences, the available evidence indicated that black defendants were disportionately likely to receive the death penalty when compared to white defendants, and that black defendants, who were uniformly poor, were unable to obtain the same quality of representation as was available to at least some white defendants.

In 1972, in Furman v. Georgia and two companion cases, one from Texas, the Supreme Court effectively struck down all the capital sentencing laws in the nation. But the Court did so in a way that did not bode well for the future. The cases produced nine separate opinions, but no opinion of the Court. Five justices voted to vacate the death penalties imposed in the cases, holding simply that the imposition and carrying out of the death penalty constituted cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. Four justices would have upheld the death penalties. Those justices who voted to vacate the death penalty focused on several factors. Among them were what they perceived to be the arbitrary and capricious manner in which the penalty was applied, with comparatively few defendants eligible for the death penalty receiving it and many defendants, seemingly equally eligible, being spared. Also of concern, as I have mentioned, was the disproportionate representation of black and poor citizens in the group of those who received the death penalty.

Finally, justices focused on the absence of standards governing the discretion which juries employed in assessing the death penalty. The opinions make for interesting reading. Several drew on an earlier Supreme Court case that described [t]he basic concept underlying [the Eighth Amendment] as nothing less than the dignity of man. As Justice Brennan said in his opinion, [t]he State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is 'cruel and unusual,' therefore, if it does not comport with human dignity. He went on to say that the fundamental premise of the [Eighth Amendment is] that even the vilest criminal remains a human being possessed of common human dignity.

And:

Now I want to talk briefly about the Catholic Church's views, and my religious views, about the death penalty. Before I begin, I want to make one point very clear. My religious views play no role, and in my view, can play no role in the judgments I am called upon to make as a judge. I am sworn to uphold the constitution and laws of the United States. Nearly all the death sentences I have reviewed have been state court sentences reaching me by habeas appeals where my only question is whether the state complied with the constitution, as interpreted by the Supreme Court. So that is my only decision.

Until 1995, the Catholic Church took a permissive view about the death penalty. In the 1970's, after Furman, while new capital sentencing laws were under consideration, the Catholic Church and Catholics generally could have made a major contribution to the debate over whether, or how, those laws were to be developed. But the Church and Catholics were silent. When I asked one of my friends, who is a professor of theology at the University of St. Thomas, about that, he said that in view of the Church's rather speckled history, one could understand why the Church might not be out front on this issue. Well, I can't understand it. Redemption is possible, even for the Catholic Church.

Moving ahead, in 1995, Pope John Paul published his encyclical on human life. The Pope begins by reaffirming a traditional moral principle: The commandment 'You shall not kill' has absolute value when it refers to the innocent person. While the right to life is always precious, he mentions two instances when it is not absolute. First, he repeats the Church's common teaching on the right to legitimate self defense. Second, he allows for the possibility of morally legitimate capital punishment. But John Paul states that we 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. He foresees extremely few instances when capital punishment can in fact be justified. He says: Today . . . as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically nonexistent. To summarize, the Church's position is that the state ought not to execute a person unless there is no other way to defend the prison population, guards and inmates, from that person. While there are some capital defendants who are so dangerous that the prison system may be unable to protect itself from them, many defendants who are executed today do not represent threats to an adequate prison system. Yet we continue to execute them.

Catholics, the people of life, have an opportunity to advocate to our legislators changes in our laws that will align them more closely with the moral law. For the solution to the problems that we face with the death penalty is a political one (not a judicial one), and each of us, as a Catholic citizen and voter, is called upon to promote it.

One of the forces that powers the drive for the death penalty, and that is independent of concerns for the protection of society and deterrence, is vengeance or retribution. Defendants are put to death because they deserve it. Death is the only fit punishment for capital crimes and this retributive purpose justifies its infliction. The need for vengeance is particularly strong, and more understandable, in the families of victims. But it permeates the explanations of death penalty adherents. Vengeance was discussed in several of the opinions in Furman, with some justices taking the position that the Eighth Amendment does not require that we renounce vengeance and others saying forthrightly that [r]etaliation, vengeance, and retribution have been roundly condemned as intolerable aspirations for a government in a free society.