Religion-Based Arguments in Juvenile Life
Without Parole Cases
-- Joan
Gottschall
[Joan Gottschall is a United States District Judge
for the Northern District of Illinois, a member of the Visiting Committee to
the University of Chicago Divinity School, and a member of the Martin Marty
Center Advisory Board.]
Those interested in the intersection of religious
values and public policy, and particularly criminal justice policy, should take
note of a brief filed this past summer in the Supreme Court of the United
States in the joined cases of Graham v. Florida, No. 08-7412, and
Sullivan v. Florida, No. 08-7621, on behalf of approximately twenty
religious organizations as amici curiae or friends of the Court (see
endnotes for a full list of organizations). These two cases present the
issue of whether the Eighth Amendment to the Constitution’s ban on cruel and
unusual punishment proscribes the sentencing of juveniles convicted of
non-homicide offenses to life imprisonment without the possibility of parole,
as occurred in these two cases. Oral argument for the cases took place on
Monday, November 9.
The brief is noteworthy for a number of
reasons. First, it represents an effort by the diverse religious groups
involved to speak in one voice on a matter of faith and conviction. Second,
the brief locates as central to each of these faith traditions the values of
mercy, forgiveness and compassion, and the link between these values and
concepts of justice and charity: “In short,” the brief states, “religious texts
make clear that each of these three values–mercy, forgiveness, and
compassion–must guide interpersonal and societal relations, and are to serve as
the bedrock principles for a just and fair society.” Third, amici make
the claim, rarely heard in contemporary culture, that the duty of a judge, and
of a society imposing judgment, is to make adequate provision for these values.
The legal position advanced by the brief is also
remarkable, for amici argue that their shared religious values require the
Supreme Court to reverse the Florida judgments and to hold that it is a
violation of the Eighth Amendment to sentence juveniles convicted of
non-homicide offenses to life without the possibility of parole. The
brief reasons as follows: First, it reviews traditional religious
recognition of the distinction between children and adults, both in religious
teachings regarding crime and punishment and in other aspects of religious
law. It then summarizes the growing scientific support for this
distinction and reviews the widespread cultural recognition that “the physical
and mental immaturity of youth requires special treatment.” Third, it
argues that ignoring the special status of youth and condemning juveniles to
die in prison contravenes the fundamental religious values of mercy,
forgiveness, and compassion. The brief points out that all individuals
are entitled to these, but that the weak and vulnerable (such as children) have
a special entitlement to compassionate treatment. Indeed, it states that
“[J]uveniles who commit serious crimes often come from disadvantaged
backgrounds: many are poor, and frequently they have been the victims of abuse
and neglect. These are exactly the type of children the amici’s faith
traditions stress are most deserving of kindness and compassion.”
Finally, the brief discusses the religious problem
posed by a natural life sentence imposed on a juvenile offender. Such a
sentence is unjust, the brief argues, because it fails to recognize the
potential of juveniles to grow, develop, and be rehabilitated; it thus
contravenes the foundational concept of rehabilitation within each of the
amici’s faith traditions. The brief quotes the Florida judge who
sentenced Terrance Jamar Graham (sixteen years old when he committed the crime
for which he was sentenced) to life imprisonment without the possibility of
parole. The judge noted Graham’s “escalating pattern of criminal
conduct,” and concluded, “[T]here is nothing we can do for you.” This
“nihilistic view,” the brief argues, “is antithetical to the perspectives of
amici’s faith traditions and of American society at large.”
The amici observe that their religious traditions
recognize that “just punishment must allow for the offender to be rehabilitated
and restored to the community when possible.” Each of their traditions,
they write, embraces the principle of “restorative justice,” which involves
establishing a system of justice that, in the words of Michael L. Hadley,
“moves from punishment to reconciliation, and from vengeance against offenders
to healing for victims, from alienation and harshness to community and
wholeness, from negativity and destructiveness to healing, forgiveness, and
mercy.” The brief describes with detailed examples how the concept of
restorative justice is rooted in the faith traditions of the amici.
Anyone who has read the news of the last several
months is aware of the controversy ignited by the President’s remark that among
his criteria in selecting judges was empathy. As the pundits are fond of
pointing out, on this issue, even his Supreme Court nominee “threw him under
the bus.” In the context of our contemporary public discourse, the
importance of the argument of these amici curiae cannot be overstated.
Their insistence on the religious centrality of mercy, forgiveness, compassion,
and rehabilitation, and the relevance of these values to our system of justice,
is a message rarely heard.
Notes:
Quotations come from the Brief of Amici Curiae, and
from Michael L. Hadley, “Multifaith Reflection on Criminal Justice”,introduction
to The Spiritual Roots of Restorative Justice, ed. Michael L. Hadley
(SUNY Press, 2001).
The religious organizations joining in the amicus
curiae brief include the American Association of Jewish Lawyers and Jurists,
the American Catholic Correctional Chaplains Association, the American Friends
Service Committee, the Buddhist Peace Fellowship, the Engaged Zen Foundation,
the General Synod of the United Church of Christ, the Islamic Shura Council of
Southern California, the Mormons for Equality and Social Justice, the National
Council of the Churches of Christ in the United States of America, the Office
of Restorative Justice of the Archdiocese of Los Angeles, Prison Fellowship
Ministries, and the General Board of Church and Society of the United Methodist
Church, among others. The brief was prepared by lawyers at the law firm
of Fried, Frank, Harris, Shriver & Jacobson, LLP, led by Michael B.
deLeeuw.
----------
Sightings comes from the Martin Marty Center at the
University of Chicago Divinity School.
I think Father Kevin Flannery's article on capital punishment is well worth reading. Here. He discusses problems with the explantion of the teaching on capital punishment in Evangelium Vitae and in the Catechism. In particular, he explains the errors in discussing capital punishment as analogous to personal self-defense and as resting on the principle of double effect.
Hear hear to Rick's Iran post. This fellow to whom Rick refers seems labor under an all too oft-encountered confusion -- a confusion that I suspect amounts to a symptom of what our colleague Steve Shiffrin calls 'public reason disease.' The public reason idea, of course, is that citizens in a pluralist polity should make policy arguments to one another in a common idiom, and make appeal to grounds that are accessible to all. But 'accessible' is never defined, and there appears to be a working assumption on the part of those who demand that accessibility that people who hail from faith traditions enjoy some mysterious, radically inaccessible episteme. Not surprisingly, these people also quite typically charicature the kinds of arguments made by those who are prompted to political action in part by their moral-theological commitments. It is as if I were to say, 'I just saw a burning bush. Therefore, feed the poor.' This is not the nature of moral and political argumentation engaged in by people of faith, and to say that the presence of political argumentation proceeding on moral-theolical grounds just is theocracy is to blunder into the most vulgar of conflations. I'm all for 'public reason' in any polity, especially a pluralist one. But most of the moral-theological reasons we encounter both within religious traditions and between members of distinct such traditions or even no such traditions *are* public reasons. As Terrence, I believe, put it: Nihil humani me alienum puto.
[Michael Sean Winters writes:] Timothy Stoltzfust Jost, a professor of law at Washington and Lee University, thinks issues of Church and State are involved. He writes: "For Congress to have to look to a particular church for permission to move legislation is frightening. Religious persecution is a very real issue for many throughout the world today. We have been very fortunate in the United States to have been largely spared its ravages. But the only guarantee that we will continue to enjoy religious freedom is the jealous protection of the separation principle. If any religion dominates politics, it has the power to dominate other religions as well. Let us not become another Iran." This is pure baloney. No one looked to the Church for "permission" and America is scarcely in danger of becoming another Iran.
This kind of thing has been rampant throughout the blogosphere -- and even, as Rob reported, in some quarters of Congress.. It would be silly were it not so frightening and dangerous. A great many educated, respectable, influential, engaged, and riled-up people appear to believe that there was something illegitimate, even "theocratic", about the leaders and members of the world's oldest non-state institution making their case for (i) health-insurance legislation that (ii) does not fund the destruction of unborn human life. (There is nothing similarly illegitimate, though, about, say, the AARP's -- or, for that matter, Planned Parenthood's -- lobbying.) Religious liberty is vulnerable in such a climate, I fear.
An update: The Washington Post characterizes as an "ultimatum" the Church's expressed concern that the lack of a meaningful religious-liberty exemption to the same-sex marriage law working it's way to passage in DC will require the Church to get out of much of its social-service work. According to some DC legislators, it is "childish" for the Church to think that it should not have to surrender her right to hire-for-mission in order to help the City help the poor.
My friend and former student, Stephen Wallace, has posted on SSRN his paper, "Why Third Party Standing in Abortion Cases Deserves a Closer Look." Here is the abstract:
Third-party standing, the out of the ordinary ability for a litigant to bring not only his own claims to court but those of an absent party as well, is a powerful legal device that demands close attention by judges applying difficult, fact-based tests. Too often since the split decision in Singleton v. Wulff (1976), federal courts have not engaged in a thorough analysis when abortion providers have sought third-party status to present the interests of current or prospective clients. In those cases, the third-party claims were often decisive to the final outcome, making the initial third-party standing determination one of great importance.
This Note argues that the United States Supreme Court decision in Kowalski v. Tesmer in 2004 is not only the new governing law on this question, but is also better in tune with the purposes of standing law than the Singleton plurality opinion. It further argues that most abortion providers’ third-party standing claims will not pass the much more rigorous Kowalski test, and includes some practical suggestions for litigants on using the new standard.
Many thanks to Michael and Rick for the stimulating thoughts on capital punishment. I'm not as smart as you fellows, Finnis, or anyone else you have mentioned, so I'll simply say that the gut horror I've always experienced in contemplating CP is probably best articulated as Michael has done in describing the book, while my own attempts to justify opposition to CP rooted in that horror have often taken a shape rather like Rick's.
Wanted to say a bit by way of linking this conversation to some thoughts that occurred in the immediate aftermath of 9/11, but alas am a bit pressed for time again so will try to write more thoughtfully on that later. In the meanwhile, I thought you might all enjoy the "observations" on CP made by this distinguished statesman -- http://www.daveschultheis.com/ -- a Colorado state senator. If you look to the bottom of that homepage, you will find what would appear to afford reasons for resuming the 30 Years War. If you look to this issues page -- http://www.daveschultheis.com/ISSUES/Crime/Index.html -- you will find calls both for "more prompt and sure use of the [capitalized!] Death Penalty" and "increased clergy involvement," which I suppose means, on pain of incoherence, that Catholic clergy will not be among those "involved." And finally, if you have a look at this lovely "tweet" that he sent out earlier today -- http://www.coloradopols.com/diary/10793/sounding-the-bottom-with-dave-schultheis -- you will find that the US is now Pan Am Flight 93, which the duly elected US President has "hijacked" and "we" -- we? -- are to wrest away from him by storming the cabin.
Just a quick note in response to Michael's mention of the Brugger book: My own view is that the position at which the late Pope John Paul II seemed to have arrived (at least in print) was not quite satisfactory. (How's that for chutzpah?). A "Catholic" position on capital punishment, it seems to me, needs to candidly engage the fact that killing by the public authority, as justified retributive punishment, was long thought justified, and not merely in cases where it was / is analogous to self-defense or killing-in-just-wars. Of course, this disagreement is hardly one that matters, since (i) I oppose capital punishment and (ii) I am not as smart as John Finnis, Christian Brugger, and Michael Perry.
The best treatment of the Roman Catholic tradition and capital punishment with which I am familiar is this book, written at Oxford under the supervision of John Finnis: E. CHRISTIAN BRUGGER, CAPITAL PUNISHMENT AND ROMAN CATHOLIC MORAL TRADITION (Notre Dame, 2003) (here). Brugger makes a powerful case that by the papacy of John Paul II, the Tradition had developed to the point where capital punishment is morally beyond the pale not merely as a prudential matter but as an entailment of the premise that one may never intentionally destroy a human life--full stop. No "innocent" in front of "human life". And, of course, although there is a "doctrine of double effect" justification for some killing in self-defense or in a just war, there is, as Brugger carefully explains, no DDE justification for capital punishment.
For my own position--or at least for what was my position a few years back--see my "Capital Punishment and the Morality of Human Rights," 44 Journal of Catholic Legal Studies 1 (2005) (based on a lecture I was privileged to give at St. John's University School of Law in October 2004). That paper is downloadable here.
Michael Perry beat me to it, but . . . a few thoughts on the Muhammad execution, and it's connection to the larger debate about the content and implications of our -- that is, of Catholics' -- pro-life commitment:
First, it seems to me that the execution of Muhammad (like the execution of, say, Tim McVeigh) is a challenge to abolitionists (like me) to reflect carefully on the reasons why we oppose capital punishment. After all, Muhammad committed horrible crimes (there is no danger, in this particular case, so far as I know, that the wrong person was executed) and I am not aware of any troubling deficiencies in his representation or in the review of his case. Why, exactly, should he not be executed?
The answer is probably not, I think, "because it is never justifiable, given the dignity of the human person, for the public authority to kill a human being." Punishment can be morally justified and the Church has always taught (and still, so far as I understand it, still teaches) that capital punishment can also, in some (exceedingly rare) circumstances, be justified. So, why shouldn't we impose this punishment? It is simple to say "because this is not one of those exceedingly rare circumstances." Why not?
Now, what happened to John Muhammad is not, I think, the same thing, morally speaking, as what happens when a doctor causes the death, by abortion, of an unborn child; what happened when Virginia's lawmakers authorized capital punishment for aggravated murders, or when it was decided that Muhammad's was such a murder, was not the same thing, morally speaking, as what happens when legislatures decide to exclude unborn children from the law's protections against lethal private violence. Still, I think our laws should not authorize, and we should not impose, capital punishment. Why?
Some reasons are easy: Capital punishment is very expensive (and its "benefits" do not seem to outweigh its "costs"); it seems (even more so than punishment generally) difficult to distribute in a way that maps with the exactness we should want onto culpability; it is final (and so mistakes cannot be corrected); etc. What else?
For me, two lines of thought do most of the work. (I think I owe both of them to Cardinal Dulles, but I might have him wrong): First, opposition to capital punishment expresses my commitment to the idea that the modern state is not absolute, though it has troubling pretensions to absolute-ness; second, a society that manages to restrain itself from imposing capital punishment might turn out to be (though, it is far from clear that it will in fact turn out to be) more pro-life generally; a society that is able to say "we will not execute, though we could, and though we would gain some benefits from doing so, even a duly convicted murderer" might also manage to say "we will not indulge the pernicious idea that some people have a fundamental moral right to cause the deaths of other vulnerable people who depend on them, just because it seems beneficial to do so."
UPDATE: Over at National Review Online, Kathryn Lopez has these thoughts about her opposition to capital punishment. Bottom line: "We can do better."
