Catholic Judges and Capital Punishment

This, from the Dayton Daily News, may be of interest to MOJ readers:

Guest column: Judge was correct to step aside in death penalty case

Tuesday, June 22, 2010

This commentary was written by Michael Merz, U.S. magistrate judge serving the U.S. District Court of Southern Ohio.

The Dayton Daily News recently criticized Montgomery County Common Pleas Judge A.J. Wagner’s decision to disqualify himself in a death penalty case (“Can judge refuse to hear capital cases?” May 21).

Wagner said he does not believe in capital punishment and, thus, couldn’t decide any case where the punishment could be death. The DDN asked “whether somebody who can’t follow the law should run for a position as a common pleas judge.”

The editorial also asked whether Wagner could have done something short of getting off the case. It quoted Lori Shaw, assistant dean of the University of Dayton Law School, who suggested he could have heard the case, then declared the death penalty unconstitutional.

I have been a judge for more than 30 years and have decided more than 50 cases where defendants challenged their death-penalty convictions. Like Wagner, I am a Roman Catholic. I comment from those perspectives.

The paper opined that a judge must “proceed on a case-by-case basis” and “follow the law.” That’s just what Wagner did. The Ohio Code of Judicial Conduct requires a judge to disqualify himself when he or she cannot apply the law fairly. If a judge knows he or she will be unable, as a matter of conscience, to follow the law, getting off the case is the only option.

It would be wrong, as U.S. Supreme Court Justice Antonin Scalia has written, for a judge to be a “stealth” opponent of the death penalty, presiding in a capital case, then refusing to impose the sentence.

I applaud Wagner’s candor in disclosing his reasons for removing himself. Some courts have a practice of allowing judges to take themselves off a case without giving reasons. That’s appropriate in simple conflict-of-interest cases, but less so when the decision is a matter of conscience. The public and Wagner’s colleagues have a right to know why he cannot handle a particular case.

I don’t agree with Wagner that the death penalty is unconstitutional or with Shaw’s suggestion that Wagner could have made that ruling, either before or after trial.

While every judge takes an oath to uphold the Constitution and has the authority to declare a law unconstitutional when that is an open legal question, Wagner and all trial judges are bound to obey decisions of appellate courts. The Ohio and United States Supreme courts have repeatedly said Ohio’s death penalty is constitutional.

The suggestion by some critics that Wagner should resign if he cannot handle capital cases is extreme. This is the only case in his eight-year career in which he stepped aside for this reason. If a judge could never sentence someone to prison, then it’s time for a replacement.

The Catholic tradition does not dictate Wagner’s conclusion. Although I am of the same faith, I do not consider myself obliged to disqualify myself from death penalty reviews and indeed have asked to be assigned to those cases.

In fact, Catholic moral teaching requires individuals to carefully form and then follow their own consciences.

On the other hand, the Catholic tradition is not irrelevant on this issue. I share Wagner’s belief, informed by that tradition, that all human life is sacred.

If the life of the unborn child is inviolable simply because it is a human life, as so many Catholics and others passionately believe, then the life of the condemned murderer is just as sacred.

Not all Catholics accept that position. But Catholicism is not the lockstep sort of tradition many — both inside and outside the Church — believe it to be.

I agree with many of Wagner’s policy points. Capital punishment is enormously expensive, much more so than even life imprisonment. Whether someone is sentenced to death depends a great deal on where a murder is committed and who the victim is.

Finally, no one has proved that capital punishment has a significant deterrent effect.

Juries seem to be slowly abolishing the death penalty. Only one man was sent to death row in Ohio last year. At the same time, we are preparing as a state to execute about one person a month for the rest of this year. That seems to me to be a public moral anomaly that the public ought to resolve.