A short response to Rick

My gratitude is extended to Rick for his thoughtful reflection on my earlier post regarding judges. It is my impression that most folks realize that all American Catholics are addressed in the CDF’s note. Of course, the nature of the particular Catholic citizen’s role in public life depends on the individual’s role as citizen, legislator, lawyer, or judge. And all are citizens. I do not think it is possible to chart specific courses for each person in these groups; however, we are all guided by the same first principles of faith and our Church’s teachings. At this point, I think it productive to recall some of the earlier discussions that raised the role of virtue in the American Catholic’s public life. I, for one, believe that virtues are essential to how a Catholic lives his or her life in right relation with God and the neighbor. Reliance on them helps each of us deliberate issues and make decisions. As I have suggested in some of my earlier work, I believe that reliance on virtues is vital to the work of judges and members of the legal profession in general.

Allow me to make a few remarks about Rick’s questions regarding the role of the Catholic judge in capital cases. Like the legislator or any other citizen who is confronted with an existing legal structure, the Catholic judge ought to be mindful of what the note and Evangelium Vitae instruct. Some consideration should also be given about whether the judge is a trial judge or an appellate judge, for each has different responsibilities in assessing the legality and propriety of capital punishment. Indeed, in some jurisdictions for particular crimes, capital punishment is the law. All of us are cognizant of this. So, what does the Church teach? Its position contains nuance, but I think it is evident that as of this moment the Church would prefer life imprisonment to execution even though the latter is not condemned outright.

And what does the judge do in light of this? Well, most of us were on the face of this planet when the Supreme Court stopped capital punishment in Furman v. Georgia. Judges could certainly undo what they undid in the past. I have already suggested this in the context of Roe. Not being a man who wagers, I shall forego discussion about the probability of this happening.

Given the current context of capital punishment and Church teachings, the Catholic judge does not contravene the teachings of the Church by permitting the state to execute the convicted. Neither does the judge flaunt the law by exercising what judicial discretion is at his or her disposal. But the matter does not stop there. As there are different theories about punishment (retribution, rehabilitation, etc.), so there are different approaches for the Catholic judge to consider. One sensible approach might be akin to a Catholic version of the secular rehabilitation perspective. Is there some chance that the convicted who could be executed might some day sincerely seek forgiveness for the heinous crime that could be punished by execution? Both the judge who is operating from a foundation of Catholic teaching and the judge who is not are dealing with different versions of the same issue when the rehabilitation perspective is at work. In the meantime, the convicted person continues to be punished by being deprived of liberty etc. in prison, which is usually not a particularly nice place to spend the rest of one’s earthly life. But the convicted still retains an extended opportunity to seek forgiveness.

I have not addressed many of the issues that Rick has raised, but I hope I have contributed a thought or two that can help us see that Catholic judges and non-Catholic judges just might have some appropriately shared options in capital cases based on issues of faith and points from secular legal theory. I would like to make one final point that I think Catholics and believers from other faiths would agree: there is still one more tribunal to go after the Supreme Court of the United States, and that is a tribunal which each of us must face some day. Might we ponder an exhortation that applies to us all: the Lord is kind and merciful, slow to anger and rich in compassion.   RJA sj