I enjoy looking through Patrick O'Donnell's bibliographies on various subjects, and this post -- with some thoughts (generally negative) about the relationship between capital punishment and certain religious ideas -- as well as the link to an instructive list of references, is both interesting and useful.
Sunday, August 19, 2012
O'Donnell on Capital Punishment and Religion
Monday, August 13, 2012
Ryan on Death and Rehabilitation
One of the most penetrating new writers in punishment theory is Meghan Ryan, particularly if one is interested in the relatively recent revanche of rehabilitation in Eighth Amendment law. Her latest piece should be of special interest to Catholic thinkers, as it explores the relationship between the death penalty and rehabilitation. Her core claim is that our understanding of the nature of rehabilitation has undergone fairly substantial changes. To oversimplify, Ryan argues that an earlier understanding of rehabilitation emphasized internal or characterological reformation, while the later, and contemporary, understanding emphasizes the external effects of rehabilitation (for example, successful reintegration and the elimination of recidivisim). It is these changes which account for the dissociation of death from rehabilitation. As something of a rehabilitation skeptic, my concerns about the extraordinary ambitiousness of rehabilitation as a punitive ideal for the state to pursue were set on edge by Ryan's piece. You should read her article in full (it isn't very long), but here is something to give you a sense of her ideas:
The Court’s presumption that capital punishment is completely irrelevant to rehabilitation, however, is faulty. Rehabilitation was one of the primary reasons that capital punishment was imposed in early America,and there are several stories of brutal murderers being rehabilitated on death row. Further, the idea that capital punishment is relevant to rehabilitation animates various legal doctrines. For example, the Eighth Amendment prohibits executing "insane" individuals because they lack the capacity to rehabilitate and ready themselves for death; the dying declaration exception to hearsay is rooted in the belief that an individual who believes his death is imminent will transform himself into a trustworthy source; and the value of finality, which is emphasized in much of courts’ capital habeas corpus jurisprudence, is premised on the belief that an offender must accept his sentence so that he can begin the desired rehabilitation process.
Aside from the importance of correcting the historical record, recognizing this overlooked relevance of capital punishment to rehabilitation highlights some important insights regarding the meaning of rehabilitation and its application in the capital context.
First, courts’ and scholars’ understandings of rehabilitation have changed over time. They have shifted from understanding rehabilitation as the offender’s character change to understanding it as revolving around an offender’s effects on society. Rehabilitation as character change animates the understanding of capital punishment in early America. It is also the species of rehabilitation that creates media frenzies around "transformed" death row inmates such as the killer Paul Crump, pickax murderer Karla Faye Tucker, and Crips co-founder Stanley "Tookie" Williams III. Further, character-change rehabilitation is at the root of various legal doctrines relying on death’s relevance to rehabilitation. Modern understandings of rehabilitation, though, focus more on an offender’s direct effects on society. This understanding of rehabilitation is, as courts and scholars have concluded, irrelevant to the death penalty, because executed individuals clearly cannot reintegrate into society and thus their effects on society are more indirect.
Additionally, recognizing rehabilitation’s relevance to capital punishment through its role in reforming offenders’ characters raises the question of whether a real opportunity for character transformation is an essential component of the human dignity to which every death row inmate is constitutionally entitled. The Court has repeatedly stated that the Eighth Amendment prohibition on cruel and unusual punishment is rooted in the idea that everyone—even a death row inmate—is entitled to human dignity.26 Scholars have suggested that this entails allowing even the worst of offenders to retain some autonomy, such as choosing their last meals and final words, and deciding who to invite to their executions. This autonomy also involves the opportunity to transform one’s own character—an event that benefits both the offender and society more generally.o have a true opportunity to reform, however, death row offenders should be provided with greater rehabilitative resources, such as the opportunities to worship and to improve their educations.
This Article attacks the long-held position that death is irrelevant to rehabilitation and asserts that our legal tradition is based on the notion that facing death spurs rehabilitation.An offender who is isolated from the general population for ten to thirteen years and who is facing a near-certain premature death is considered to have greater motivation to repent and reform his character than an offender who is not facing the solemnity of death or a possible confrontation with his Maker.
Sunday, August 12, 2012
District Court Enjoins Philadelphia from Enforcing Outdoor Food Distribution Ordinance against Christian Groups
Here's an interesting case from Philadelphia involving the religious mission to feed the homeless. The City of Philadelphia enacted a local ordinance prohibiting the distribution of food free of charge to three or more people anywhere in the Fairmont Park System (picnics for individual families, school trips, and so on, as well as special events, were exempted from the ordinance). The City's reasons for the ordinance had to do with civil order, sanitation, and also an asserted dignitarian interest on behalf of the homeless. Several Christian religious groups had for decades distributed food to the homeless in the parks, but the mayor wanted these programs moved indoors. A temporary relocation effort of one of the religious groups' food-sharing programs resulted in a drastic reduction in the number of homeless people who partook of the food-sharing services.
Plaintiffs sought a preliminary injunction prohibiting the City from enforcing the ordinance, alleging that the ordinance violated their rights under the Pennsylvania Religious Freedom Protection Act (PRFPA), which is essentially Pennsylvania's version of the federal Religious Freedom Restoration Act, as well as the First Amendment. Readers will know that RFRA (as well as PRFPA) reinstated the interest-balancing test which preceded Employment Division v. Smith. (One interesting feature of PRFPA is that it requires "clear and convincing evidence" as its standard for the "substantial burden" component).
The Court granted the preliminary injunction on PRFPA grounds (it avoided the constitutional issue). It held that the plaintiffs (1) have a sincere belief that it is their religious obligation to "provide sustenance to the poor and needy" (and, added the Court, "Plaintiffs are not unique in this respect. Acts of charity are central to Christian worship"); (2) the ordinance constitutes a "substantial burden" on the free exercise of plaintiffs' religion; (3) the dignitarian "compelling interest" offered by the City was "difficult to comprehend": "I am at a loss to understand how taking choice away from the homeless advances their dignity"; (4) even if reducing litter and other waste is a "compelling interest" (about which the Court expressed some skepticism, though my own view is that this is an appropriate and important concern), the City had not used the least restrictive means to achieve that interest (portable restrooms, trash compactors, additional maintenance staff, and other methods were raised by the Court).
One noteworthy item, which may have various broader applications. In response to the City's claim that it did not burden the plaintiffs' free exercise because it did not impose "restrictions upon praying or preaching or reading the Gospel or engaging with the homeless [in the Park]," the Court said:
What defendants fail to appreciate is that to plaintiffs, sharing food with the poor is as much a form of religious worship as is prayer, preaching, or reading the Bible . . . . But defendants' argument is not persuasive for an additional and more fundamental reason. Essentially, defendants have assumed the authority to ascribe [to] some of plaintiffs' religious activities more religious significance than others, irrespective of the significance that plaintiffs themselves ascribe to their own religious activities. Defendants compound this error by offering to grant Rev. Little a limited exception for the food and drink she uses during her Communion service, which they characterize as a “core component of a religious service,” but not for the food Rev. Little shares with the homeless after the service despite the fact that Rev. Little considers this food an ongoing representation of the Communion observed during the service . . . . It is no more appropriate for defendants to “presume to determine the place of a particular belief in a religion” than it would be for me to do so.
The case is Chosen 300 Ministries, Inc. v. City of Philadelphia, 2012 WL 3235317 (E.D. Pa. Aug. 9, 2012).
Monday, August 6, 2012
John Milton on Secularized Law
Something light for the August heat. From Paradise Lost, Book 5. An exchange between Satan and the
angel Abdiel -- "than whom none with more zeal adored The Deity" -- after Abdiel angrily asks, "Shall thou give law to God? shalt thou dispute With him the points of liberty, who made Thee what thou art, and formed the Powers of Heaven Such as he pleased and circumscribed their being? . . . . His laws our laws; all honor to him done Returns our own."
Whereat rejoiced th’ Apostate, and more haughty thus replied:
That we were form’d then, say’st thou? and the work
Of secondary hands, by task transfer’d
From Father to his Son? Strange point, and new!
Doctrine which we would know whence learn’d: who saw
When this creation was? Remember’st thou
Thy making, while the Maker gave thee being?
We know no time when we were not as now;
Know none before us, self-begot, self-raised
By our own quick’ning pow’r, when fatal course
Had circled his full orb, the birth mature
Of this our native Heav’n, ethereal sons.
Our puissance is our own; our own right hand
Shall teach us highest deeds, by proof to try
Who is our equal: then thou shalt behold
Whether by supplication we intend
Address, and to begirt th’almighty throne
Beseeching or besieging. This report,
These tidings, carry to th’Anointed King;
And fly, ere evil intercept thy flight.
Wednesday, August 1, 2012
Corporate Exercise of Religion and Other Thoughts on the RFRA Claim in the Mandate Litigation
There has been a curious silence in the news and on the blogs about the preliminary injunction in Newland v. Sebelius. True, there are some unique issues involving the nature of the plaintiffs, but the case may indicate the direction that courts which get over the ripeness hump and do reach the RFRA claim might tend (and, as in all things, ripeness will come with time). Here are two questions that interested me.
First, on the issue of substantial burden, I was struck by the fact that Judge Kane did not really answer the question at all. He seemed to assume the substantial burden -- or perhaps to hold the "difficult questions" about substantial burden in abeyance. One of those difficult questions, he said, was: "Can a corporation exercise religion?" Three reactions:
- The answer to this question, posed in this way, must be yes. The Catholic Church is a non-profit corporation, and it certainly can exercise religion -- the free exercise component of the holding in Hosanna Tabor would make no sense if it and other religious non-profits could not. Indeed, some folks have made something like the claim that corporate free exercise, rather than individual free exercise, is the foundational right.
- Though the doctrine is controversial, we do say that corporations have rights of free speech. See Citizens United. If a corporation can speak in a way that is protected by the Speech Clause, why can it not exercise religion in a way that is protected by the Free Exercise Clause? And by extension, why can it not suffer substantial burdens on its free exercise under RFRA?
- Still, there is an interesting issue about who is exercising religion when what we've got is a publicly traded corporation. Suppose the shareholders do not care at all about the religious issue that the corporation has taken a stand on. What does it mean to say in that circumstance that the corporation is exercising religion?
Second, I was surprised at the court's skepticism with respect to the question of compelling interest. The court found that the plaintiffs were likely to succeed on the merits because the government did not show that its interest in the mandate was compelling. The reason: the many exceptions created by both Congress and HHS itself. "[T]his massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs." More reactions:
- The court did not need to reach out and decide the question of compelling interest. Here the court really could have just assumed that the mandate advanced a compelling interest and moved right to least restrictive means. That the court found that the plaintiffs were likely to succeed on the compelling interest issue is noteworthy.
- Perhaps the most interesting thing of all to me: (richly deserving the hot pink highlight) note that the court decided the question of compelling interest by making the argument which I have claimed could ground a free exercise challenge as well. That is, that because the regulation contains hundreds of exceptions, it is not generally applicable and therefore falls outside the Smith framework (I have called this the individualized assessment exception to Smith, but for a much more thorough treatment of it, you will need to wait for my book, Tragedy & History: The Quality of Religious Liberty, due out in the spring (sorry for this and all future plugs, of which there will be many)).
- Of course, as a practical matter, courts may just avoid the constitutional question and just focus on RFRA. But to the extent that any do reach the free exercise question, the fact that the individualized assessment argument is already in the air as applied to the RFRA claim might be important.
Tuesday, July 31, 2012
Videos of Conference on State-Sponsored Religious Displays in the US and Europe
You can catch the video of our conference with the Libera Università degli Studi Maria SS. Assunta in Rome (including terrific presentations by Tom Berg and Judge Diarmuid O'Scannlain, as well as a lucid and deeply insightful talk by Silvio Ferrari) here.
Friday, July 27, 2012
Plaintiffs Obtain Preliminary Injunction in HHS Mandate Suit
The U.S. District Court for the District of Colorado has issued a preliminary injunction against the federal government in a lawsuit brought by a private corporation, Hercules Industries, Inc., and its owners and several individual plaintiffs, alleging that the HHS Mandate violates their religious liberty. These plaintiffs, unlike many of the plaintiffs in the other suits, were never within the safe harbor and do not qualify for the "religious employer" exemption of the HHS regulations. Hercules is a for-profit, secular employer whose owners have objections of religious conscience. And Hercules is self-insured.
Of the four elements for obtaining a preliminary injunction, the most interesting is the likelihood of success on the merits. The court declined to address the plaintiffs' constitutional claims (free exercise, establishment, and speech clauses) and instead resolved the case on the basis of the statutory claim under the Religious Freedom Restoration Act. Although it was comparatively non-committal on the question of substantial burden (holding that the question of whether a corporation could "exercise religion," as well as several others, "merit more deliberate investigation"), it was clear that the government would likely fail on both the issues of furthering a compelling interest and least restrictive means. Here's the Court on compelling interest:
Thursday, July 26, 2012
From Gibbon's Volume 2: Christianity and the Civil Authority
Until Judge Posner's recent dissent in Elmbrook School District, I don't think I can remember the last time a judge cited to Gibbon's Decline and Fall of the Roman Empire (a quick Westlaw search shows only a handful of citations). If evidence were needed that Judge Posner writes his own opinions, one could probably stop with that quotation. I've got an old 1925 edition of the seven volumes edited by J.B. Bury which had been gathering dust here at home, and I started paging through it last night (a 12-volume on-line set may be found here). The beginning of Volume 2 (Chapters 15 and 16) is all about the rise of Christianity and the early Christians' view of the existing Roman civil power. Here's a bit from Chapter 15 where Gibbon's, one might say, ambivalent view of the early Christians shines through:
The Christians were not less averse to the business [of war] than to the pleasures of this world. The defence of our persons and property they knew not how to reconcile with the patient doctrine which enjoined an unlimited forgiveness of past injuries and commanded them to invite the repetition of fresh insults. Their simplicity was offended by the use of oaths, by the pomp of magistracy, and by the active contention of public life, nor could their humane ignorance be convinced that it was lawful on any occasion to shed the blood of our fellow-creatures, either by the sword of justice or by that of war; even though their criminal or hostile attempts should threaten the peace and safety of the whole community.* It was acknowledged that, under a less perfect law, the powers of the Jewish constitution had been exercised, with the approbation of Heaven, by inspired prophets and by anointed kings. The Christians felt and confessed that such institutions might be necessary for the present system of the world, and they cheerfully submitted to the authority of their Pagan governors. But, while they inculcated the maxims of passive obedience, they refused to take any active part in the civil administration or the military defence of the empire. Some indulgence might perhaps be allowed to those persons who, before their conversion, were already engaged in such violent and sanguinary occupations; but it was impossible that the Christians, without renouncing a more sacred duty, could assume the character of soldiers, of magistrates, or of princes.
* The same patient principles have ben revived since the Reformation by the Socinians, the modern Anabaptists, and the Quakers . . . . [MOD note: see Philip Hamburger's piece about 6 years ago, Religious Freedom in Philadelphia, for parallel disagreements between the Revolutionaries and the Quakers on the question of conscientious objection to military service]
Tuesday, July 24, 2012
For Wisconsinites (and other Church-Staters)
I'll be on Wisconsin Public Radio's "At Issue With Ben Merens" from 5-6 pm eastern time, talking about the separation of church and state in the public school context as well as the 7th Circuit's Doe v. Elmbrook School District decision discussed below.
UPDATE: You can find the podcast here (just look for the phonetic spelling of my name).
Seventh Circuit: Holding a High School Graduation in a (Richly Iconographically Religious) Church Violates the Establishment Clause
The Seventh Circuit has come down with a ruling that holding a public school graduation in a church violates the Establishment Clause when the church has an indeterminate number of religious icons and other material which run afoul of the standards that the Supreme Court has encrusted on the Establishment Clause. It was undisputed that the choice to hold the graduation in the church was made for the sake of convenience, price, and accommodation of the large number of students, and not for any religious reason. It was also undisputed that no reference was made to religion during the graduation ceremony.
Do read Judge Ripple's sensible, moderate, and absolutely convincing dissent. But by far the most pungent lines appear in Judge Posner's dissent -- and boy are there a lot of them. Taking the prize:
The best that a judge of determined neutrality faced with a case such as the present one can do is to be guided by Gibbon’s aphorism (from chapter 2 of the Decline and Fall) that “the various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.” For “the Roman world” substitute “the United States” and for “the magistrate” substitute “the judge” and one has the right starting point for the analysis of this case. The judge should not be concerned with the truth or falsity of any religious faith but should regard the various faiths as “equally useful” from the standpoint of society, in recognition of the importance that Americans attach to religion, the diversity and intensity of their religious beliefs and observances, and the bitterness and strife that the government’s taking sides among competing faiths would engender.
Other memorable lines from Judge Posner's dissent:
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