Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, July 2, 2008

California's death penalty "dysfunctional"

By Rick Garnett

Story here: 

The California death penalty system, plagued by backlogs in appeals that routinely delay executions by more than two decades, is "dysfunctional" and in danger of collapse, a state commission concluded Monday.

The report by the California Commission on the Fair Administration of Justice offered a blistering indictment of the system, saying the state has fostered a "disrespect for the rule of law and weakened any possible deterrent benefits of capital punishment."

In the state that maintains the largest death row — currently 669 condemned inmates — the report determined that California could save up to $100 million a year by abolishing the death penalty. Yet the 22-member panel stopped short of recommending its elimination.

"Although outright abolition would be the cleanest, most definitive approach to death penalty reform … we recognize that, ultimately, a political judgment must be made about whether the time is right to seek a fresh electoral choice on whether California ought to have a death penalty," the report said.

Sen. McCain's response on faith-based programs

By Rick Garnett

We've been talking about Sen. Obama's recent speech, in which he endorsed the pre-Bush version of the faith-based initiative, and also about the reservations many religious-freedom advocates do and will have about the proposed roll-back of protections for organizations that hire for religious mission.  Here, for what it's worth, is a short response issued by Sen. McCain: 

John McCain supports faith based initiatives, and recognizes their important
role in our communities. He has cosponsored legislation to foster improved
partnerships with community organizations, including faith-based, to assist
with substance abuse and violence prevention. He also believes that it is
important for faith-based groups to be able to hire people who share their
faith, and he disagrees with Senator Obama that hiring at faith-based groups
should be subject to government oversight.

If Sen. Obama could persuade his fellow Democrats to drop their insistence on applying the same non-discrimination norms that (appropriately) bind the government to religious organizations that engage, with some help from public funds, in providing social-welfare services, he truly would have helped to "turn a page" in our politics.

Who's the Catholic-vote "natural"?

By Rick Garnett

It has been suggested that Sen. Obama is a "natural" for the Catholic vote.  Ryan Anderson argues here that, in fact, the Catholic-vote "natural" is Sen. McCain.  And around we go . . . .

Monday, June 30, 2008

Justice Breyer and the "culture wars"

By Rick Garnett

Orin Kerr has an interesting post, at the Volokh Conspiracy, comparing Justice Breyer's opinions in the school-voucher and gun-control cases.  In the former, remember, Justice Breyer concluded that, even conceding that the relevant legislature could reasonably have thought there were good policy reasons for school choice in Cleveland, the threat of "political divisiveness along religious lines" was too great, and so the voucher program was unconstitutional.

Contrast Breyer's Zelman dissent with his dissent in Heller. Here, the polarity of the culture wars has been reversed. And so has Justice Breyer's approach: Now he reasons that the possibility of a positive social impact of the law makes it constitutional. The political philosopher of Zelman is replaced with a careful and cautious social scientist who runs over pages and pages of statistics and scientific studies in Heller. So long as the legislature had a possible basis for thinking that restricting the constitutional right was a good idea, Breyer explains, the law should be upheld . . .

It's an interesting mirror image, I think. When the culture wars pointed one way, Justice Breyer thought that a "risk" of a "potentially harmful" adverse result was enough to strike the law down. When the culture wars pointed in the other direction, so did the burden of proof: now Justice Breyer must have his "confidence" in the reasonableness of the legislature "convincingly" "destroyed" before he would vote to strike down the law.

  To be clear, I'm not suggesting that Justice Breyer is alone in taking different approaches depending on which side of the culture wars the challenged law happens to fall. Plainly he is not. At the same time, I do think the contrast between these two dissents provides an unusually clear case of the difference.

All the more reason to think (as I've argued) that judges should not decide constitutional cases on the basis of predictions about "divisiveness".

"Methodist Retreat Against Gays"

By Rick Garnett

"Civil Union Dispute Pits Methodist Retreat Against Gays Who Aided in Its Rebirth," announces the headline of this New York Times piece.  The "Ocean Grove Camp Meeting Association" does not want to permit "civil union ceremonies from taking place on its property."  And so, it is being investigated by the state's Division on Civil Rights.  More:

Since 1989, Ocean Grove’s beach, boardwalk and oceanfront road have received tax-exempt status under the New Jersey Department of Environmental Protection’s Green Acres Program, which was created to encourage use of privately owned space for public recreation and conservation. In its original application for the exemption — which saves the group about $500,000 a year and is up for renewal on Sept. 15, according to Bernard Haney, the Neptune Township tax assessor — the association noted that the properties were open to the public and that the pavilion had been used by outside groups.

Some see an inherent conflict between the association seeking tax-exempt status as a public open space with one state agency while suing another state agency for violating its rights as a private religious group.

This story suggests, it seems to me, that it is not unreasonable to be uneasy about, at the very least, the future tax-exempt status of religious institutions that refuse to assimilate same-sex relationships and marriages.

Babies and Europe's future

By Rick Garnett

An interesting read -- "No Babies?" -- in the Times magazine this weekend.  A bit:

There is no shortage of popular explanations to account for the drop in fertility. In Athens, it’s common to blame the city’s infamous air pollution; several years ago a radio commercial promoted air-conditioners as a way to bring back Greek lust and Greek babies. More broadly and significant, social conservatives tie the low birthrate to secularism. After arguing for decades that the West had divorced itself from God and church and embraced a self-interested and ultimately self-destructive lifestyle, abetted above all by modern birth control, they feel statistically vindicated. “Europe is infected by a strange lack of desire for the future,” Pope Benedict proclaimed in 2006. “Children, our future, are perceived as a threat to the present.”

Sigh.  Does the writer really think the Pope is thinking, "I feel statistically vindicated!"  This will likely ring true to many MOJ-ers:

The broad answer to the “Where are all the European babies?” question thus begins to suggest itself. Accompanying the spectacular transformation of modern society since the 1960s — notably the changing role of women, with greater opportunities for education and employment, the advent of modern birth control and a new ability to tailor a lifestyle — has been a tension between forces that, in many places, have not been reconciled. That tension is perfectly apparent, of course. Ask any working mother. But some societies have done a better job than others of reconciling the conflicting forces. In Europe, many countries with greater gender equality have a greater social commitment to day care and other institutional support for working women, which gives those women the possibility of having second or third children.

But then, a twist:

one other factor affecting the higher U.S. birthrate stands out in the minds of many observers. “There’s much less flexibility in the European system,” Haub says. “In Europe, both the society and the job market are more rigid.” There may be little state subsidy for child care in the U.S., and there is certainly nothing like the warm governmental nest that Norway feathers for fledgling families, but the American system seems to make up for it in other ways. As Hans-Peter Kohler of the University of Pennsylvania writes: “In general, women are deterred from having children when the economic cost — in the form of lower lifetime wages — is too high. Compared to other high-income countries, this cost is diminished by an American labor market that allows more flexible work hours and makes it easier to leave and then re-enter the labor force.” An American woman might choose to suspend her career for three or five years to raise a family, expecting to be able to resume working; that happens far less easily in Europe.

So there would seem to be two models for achieving higher fertility: the neosocialist Scandinavian system and the laissez-faire American one. Aassve put it to me this way: “You might say that in order to promote fertility, your society needs to be generous or flexible. The U.S. isn’t very generous, but it is flexible. Italy is not generous in terms of social services and it’s not flexible. There is also a social stigma in countries like Italy, where it is seen as less socially accepted for women with children to work. In the U.S., that is very accepted.”

Interesting.

Churches and Sprawl

By Rick Garnett

Eduardo raises some interesting questions in his post, "Churches and Sprawl."  Among other things, he asks:

Would it make sense for the Church to impose a moratorium on opening new suburban parishes in an effort to avoid encouraging Catholics to move out to places where they are guaranteed to spend a lot of time driving?

As Eduardo himself notes, I suspect that, in the Catholic case, parishes are following people.  And, once Catholics are in the suburbs, it would be kind of, well, un-Catholic to tell them that they have to drive to "their" parishes for the sacraments.  Still, I'm a partisan for cities, and think the Church *does* have a role to play here.  It will not likely surprise any MOJ readers to learn that, in my view, the Church could help reduce sprawl by investing in urban Catholic schools.

The Death Penalty and Deterrence

By Rick Garnett

Check out this op-ed by Cass Sunstein and Justin Wolfers on the death penalty and deterrence.  (We've discussed -- here and here, for example -- Sunstein's claims about these matters before here at MOJ.)  Here's the basic point:

A prominent line of reasoning, endorsed by several justices, holds that if capital punishment fails to deter crime, it serves no useful purpose and hence is cruel and unusual, violating the Eighth Amendment. This reasoning tracks public debate as well. While some favor the death penalty on retributive grounds, many others (including President Bush) argue that the only sound reason for capital punishment is to deter murder.

We concur with Scalia that if a strong deterrent effect could be demonstrated, a plausible argument could be made on behalf of executions. But what if the evidence is inconclusive?

We are not sure how to answer that question. But as executions resume, the debates over the death penalty should not be distorted by a misunderstanding of what the evidence actually shows.

I agree.  And, I think this is advice that those who write on crime and punishment for the Catholic bishops should take to heart.  That is -- as I explain here -- I worry about pastoral teaching on capital punishment that makes too much depend on contestible claims about deterrence.

Wednesday, June 25, 2008

A blog of interest

By Rick Garnett

I came across a blog -- one that was new to me -- that might be of interest to MOJ readers.  "Libertas et Memoria" is "a blog on law, politics, faith, culture and the joys of the Inland Northwest."  Check it out.

The Court's death-penalty case

By Rick Garnett

Today, in Kennedy v. Louisiana, the Supreme Court invalidated a state law which authorized the death penalty for aggravated child-rape.  Justice Kennedy, writing for a 5-4 Court, concluded that the death penalty is unconstitutional except in cases involving what he called “the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life.”  (He left open, in other words, the possibility of the death penalty for non-homicide claims "against the state").

I'm sure that much will be made of the fact that four of the Court's five Catholics were in dissent.  I do not believe that the question whether the *U.S. Constitution* authorizes the death penalty for aggravated child-rape is answered by Church teaching, though.

Clearly, today's decision is consistent with the Court’s approach in recent death-penalty cases.  It is widely thought, that the Supreme Court overreached, in the early 1970s, when it attacked the death-penalty head-on.  Today, the Court majority’s approach is instead to focus on limiting the death penalty’s reach – for example, by invalidating its use in cases involving developmentally disabled or juvenile offenders. 

In his decision, Justice Kennedy emphasized not only the legislative trends and sentencing practices in the states – concluding that they suggested a consensus against the death-penalty for child-rape – as well as the Court’s own moral judgment about the purposes of punishment.  The Justices conceded that, of course, the rape of a child is a depraved act and even admitted that there are "moral grounds for questioning" a rule that limits the death penalty to homicide crimes.  (I agree.)  Still, the majority concluded that our "evolving standards of decency" and the principle of proportionality in punishment, preclude the use of the death penalty in child-rape cases.

As I wrote here, several years ago, after the Court's decision involving the death penalty for developmentally disabled offenders -- and here, after the no-executing-juveniles case -- this case presents (for me) an opportunity for one cheer (I oppose the death penalty) but not three.  Our Constitution has much more to say about the processes of the criminal law – search-and-seizure, interrogation, jury trials, and so on – than about the substantive problem – which is inescapably a moral problem – of justifying punishment.  The Court’s death-penalty cases are one of the relatively few arenas in which we see the Justices grappling with the fascinating, challenging questions of moral desert, deterrence, and state power.  At the same time, as the dissenters in today’s case reminded us, our Constitution for the most part leaves the hard work of assigning blame and meting out punishment to legislatures and juries.  The challenge for the Court is to enforce carefully the Constitution’s safeguards and limits without overstepping, and improperly substituting its own views for that of the People and their representatives.

In this case, it seems to me,

even an observer who opposes – as I do – capital punishment could have some reservations about Justice Kennedy’s methodology, about his understanding of the judicial role, and about some of the factors on which he and the majority relied in reaching their conclusion.  Even some who believe that the death penalty is not morally justified will question the Court’s view that the Constitution has removed from legislators the decision whether or not to authorize capital punishment in cases of aggravated child-rape.  That said, today’s decision is clearly consistent with the Court’s recent precedents, and has the merit of affirming, for death-penalty purposes, a relatively clear constitutional line between homicide crimes and other serious offenses.  It is clear that a majority of the Justices are uncomfortable with capital punishment as a general matter.  However, today’s decision confirms that these Justices have decided that it is better course to cabin and constrain capital punishment than to aggressively impose a death-penalty ban.  Even though today’s decision limits the reach of the death penalty, it leaves the general debate about capital punishment, and the question whether the death penalty is sensible policy or morally defensible, in the hands of the public.

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