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No Defense: A Catholic lawyer argues against the death penalty

The death penalty degrades us as a community. Most importantly, it belies the truth that every human person is a child of God and the kin of Christ.

Electric Chair
Early on I learned that the death penalty and religion can be an odd mix. It was a spring night in Birmingham, Alabama, the city where I spent more than five years defending death-row inmates and capital defendants. After many tries I had finally managed to catch up with an eyewitness whose testimony had put my new appeals client on death row. The eyewitness was an elderly woman without family.

Troubling circumstances made me wonder whether the right man had been convicted, but there was no doubt this decent, innocent woman had gone through a terrible ordeal. Her housemate had been murdered, and she herself had been brutally beaten. I was deeply grateful she would even speak to me.

I was downright moved when, at the end of a long conversation, the woman said to me: "Mr. Doyle [pronounced Dole in Alabama], tonight you will be in my prayers." Yes, I was moved and, I now confess, began to get a bit puffed up. Pride tempted me to think this fellow believer could discern in me the conviction behind my efforts. I was giving off "faith vibes"!

In her next breath, however, the woman put me in my place: "Yes, tonight I will ask the Lord to punish you for what you are doing."

Such experiences make me wary. Still, when asked to explain why I oppose the death penalty, I cannot help but answer as a Roman Catholic. For my opposition to the death penalty really boils down to three basic propositions:

1. Human beings are fallible.
2. Racism is mortally sinful.
3. Human life is sacred.

These are not exclusively Catholic understandings or beliefs, but I do think they have a special resonance in the Catholic tradition.

1. Human beings are fallible.

In the 19th century, when there was less ecumenical etiquette, a mainline Protestant church published a pamphlet contending that Catholicism really was not a Christian religion at all; rather, it was a "religion of human nature, congenial and delightful to fallen man." Frankly, there is some truth in that.
When I was down South, my Baptist friends struck me as having a more black-and-white view of things. One was saved or was not saved; born again or not born again. You were either a shooin for heaven or bound for hell.

Catholics see a lot more gray. We believe that the line between good and evil does not run between individuals but, rather, through the human heart. Error, misunderstanding, and sinfulness are never a surprise for us. I think that is one of the reasons why we have great spiritual writers like Saint Ignatius of Loyola and Thomas Merton and why we have great fiction writers like Flannery O'Connor, Graham Greene, and Mary Gordon.

In any event, we understand the fallibility and frailty of the individual.

We also have-or darn well should have-a strong understanding about institutional fallibility. Because, after all, as Catholics we believe that Christ entrusted his word to us in a special way; we believe the institutional church has endured and evolved through history as a special repository of faith. Right? We believe ours is the truest expression of Christ's message—not the perfect expression, not that we do not have a lot learn from other faiths, but the truest expression.

Yet look at our church's history. We have had geopolitical misadventures in the form of the Crusades, reigns of terror in the form of the Inquisition, and blasphemous commercialization of our doctrines in the form of indulgence sales.
There is not a lot of room for Catholics to kid themselves about the fallibility of institutions. Therefore, if you bring a Catholic understanding and sensibility to the death penalty, it sort of hits you in the face just how faulty things are on a systemic level.

Many labor under the notion that capital defendants enjoy plenty of rights and safeguards. In most capital jurisdictions, nothing could be farther from the truth. The defense fight put up in most death-penalty cases mocks the ideals of adversary justice and equal protection.

To be sure, every state has able trial lawyers. For instance, I was privileged to work with many fine, talented men and women in Alabama. But, no matter how dedicated attorneys might be, undertraining and underfunding will inevitably drag down the quality of representation. Economic conserva tives are right: In the long haul, you only get what you pay for.

And most states simply refuse to pay what it takes to ensure that indigent suspects on trial for their lives are well represented. Alabama, for instance, pays capital lawyers $40 an hour for their in-court time and $20 an hour for work done outside the courtroom, with a "cap" of $1,000 for such out-of-court work. An hour in court earns a Maryland capital lawyer $35, an hour out of court $30.

Now, for perspective, set these paltry figures against my billing rate during the late 1980s when I litigated for a Wall Street law firm. For two years I defended not the lives of the poor but the property of the rich. As a mere associate, my time was billed out at $200 an hour!

Naturally, justice-on-the-cheap leads to bad mistakes. Because we literally bury those mistakes, it's hard to say how often we are getting it wrong. Here, however, is what I believe is just the tip of the iceberg: Between 1900 and 1962 there have been hundreds of soundly documented instances of wrongful capital and potentially capital convictions. More than 20 wrongful executions in this century have been similarly documented.

We Americans like to scapegoat certain regions. So maybe you think such errors only occur in a terrible, backwards frontier Texas or a reckless, racist South. Well, for sure, these places have a good share of errors. I can still recall the day my boss in Alabama, Bryan Stevenson, and my colleague, Michael O'Connor, managed to free an innocent black man named Walter McMillian after he had spent eight years on death row for the murder of a young white woman. And in 1993, the United States Supreme Court gave Texas the green light to execute Leonel Herrera, despite a sworn affidavit from a former judge that another person had confessed to the murder for which Herrera was put to death.

Still, Illinois is not in the South. And there, for every person who had been executed, they had to let someone else off the row because of compelling evidence of innocence. And here in New York, the death penalty has been restored to the books despite our holding the all-time record for the most documented instances of wrongful executions: eight.

Nationally, from 1973 to 1999, roughly 6,000 people were put on death row. According to the Death Penalty Information Center, more than 60 had to be released in the wake of evidence pointing to innocence. That is a 1-percent error rate.

For a second, take this out of a context where the lives in jeopardy are predominantly poor people and minorities and put it into a different setting: Say you designed an airplane and went to the Federal Aviation Administration and said, "I want you to license this plane. Oh, and, by the way, on every 100th landing the passengers will almost get killed.'' What would happen?

Or say you went to the Food and Drug Administration and said, "I have a drug that has no demonstrable benefits, a completely unpredictable reaction on at least 12 percent of the population, and 1 percent of the time it causes near-lethal side effects." What would happen?

Given the quality of the current capital system, no wonder the American Bar Association has called for a moratorium on executions.

Finally, even if America guaranteed top-notch lawyering for every capital defendant, even if the system was as good as it could be, the unique dynamics of a death case create pitfalls for even the well-trained, amply equipped, and fairly paid attorney.

Upon conviction for first-degree murder there is a penalty phase after which a jury typically chooses between a sentence of life without parole and a sentence of death. This involves jurors' factual determination but, even more, their moral judgment. Such moral judgment must reflect an understanding of the defendant's life. To take just one key area of investigation: What kind of start did he have? Did this person turn away from a sound moral upbringing to pursue a life of crime? Or did family patterns of abuse, addiction, and mental illness shunt the defendant toward a bad end not wholly of his choosing?

Getting at the truths of family history is not so easy. Most families do not readily air dirty linen, especially to lawyers who come from a separate social universe.

This point was driven home for me one sunny Southern morning as I asked a client's mother about the numerous father figures surrounding my client as he grew up. My questions were circumspect and the mother could not have been nicer. Her current husband, though, took the occasion to enter the living room and show off his "over-under" hunting gun (a shotgun/.22 combo). He did so by aiming the rifle in my direction and saying he did not have to "put up with this nonsense" (actually, nonsense was not the word he chose).

This gesture helped me. Apart from proving my own family wrong about me—there are indeed moments when I will defer debate—it hinted to me that I was on the right investigative track. Such a dramatic tip-off, however, is rare. Most families hide their secrets behind silence, under euphemism, and in the shadows of selective recall. Of course, the worst secrets-those most helpful in explaining how a defendant went wrong-are the best hidden.

When I was young, I thought Christ's injunction "Judge not lest ye be judged" was saying: "Be nice." The older I get the more I realize that what he was really saying was: "Hey, you're not very good at judging. If you don't have to do it, don't do it." Our Lord was being prudent, not just charitable.

2. Racism is mortally sinful.

The Catholic record on race is a mixed one. Not only is it mixed, it is often misunderstood and misrepresented. Sometimes we give the church too little credit, sometimes too much.

For many years, as a good liberal Catholic, I accepted the conventional wisdom that the Vatican during the Second World War callously turned its back on the European Jewish communities targeted by Hitler for slaughter. After over 10 years of research and writing on this, I believe that is simplistic nonsense.

On the other hand, Catholics may get too much credit in this country. To be sure, the American Catholic bishops were out ahead of the United States Supreme Court in denouncing segregated education. Once desegregation got under way, furthermore, some bishops—like one in New Orleans—used excommunication against recalcitrant segregationists.

As a result of these actions by the institutional church, the non-Catholic American public wrongly assumed that the Catholic laity in America were prophets for racial justice. Polling of Catholic Americans showed otherwise. And the violent reaction of Boston Catholics to the desegregation busing in the 1970s finished off any remaining doubt.

The Catholic record on race is mixed, but the teaching is certainly not. No other church aspires to greater inclusivity than does our Catholic Church. After all, the word catholic means universal, and the Catholic Church may be the most racially and ethnically diverse institution in the history of the world.

If you bring those sensibilities to the death penalty, it's impossible to miss that on every death row in this country the statistics are out of whack. On every death row minorities are grossly overrepresented, given general population patterns.

Of course, it is not just the defendant's race that counts; it is also the race of the victim that heavily determines who ends up on the row. When I was in Alabama, more than 80 percent of the folks on the row—and I suspect this is still true—were there for killing white people. Yet in the overwhelming majority of cases, homicide victims in Alabama are black people. This indicates whose lives society values, and whose lives it does not value.

Further, even though it is absolutely important to understand that it is African Americans who still bear the brunt of capital injustice in this country, it is also important to realize that it has not just been African Americans and much, much more important to realize that it has not just been in the South where this injustice has occurred.

If you go through a list of the folks who were executed in New York over the years, you can recognize certain phases. During one period in this century, for instance, there was a run on executing Italians, then other immigrants.

In 19th-century New York City, of course, it was folks with names like mine who were going to the gallows. Today we have Charles Murray and Richard Herrnstein's racist bestseller The Bell Curve and other lame camouflage for racism and racism's damage. Back then, too, they made excuses for racial disparities.
Newspaper editor Horace Greeley openly opposed the death penalty. Nonetheless, he felt obliged to explain why the Irish were going to the hangman in disproportionate numbers. He claimed the Irish simply drank themselves into homicidal rages, and numerous hangings were the natural consequence. If we refuse to see the forest for the trees in today's death rows, we are doomed to attempt the same kind of excuse-making today.

Just as racism is embedded in the history of the death penalty in this country, I think everybody who has defended capital cases knows that race is inherent in the dynamics of individual capital cases. In the penalty phase of a trial, as often as not, winning a life verdict instead of a death sentence means getting the jury to say: "There but for the grace of God go I."

Make no mistake. The defense aim is not to have the sentencing jury excuse the crime or to explain away what the defendant has done. The aim is, though, to forge some empathic link that can be a conduit for mercy. And whether it is the human condition or the American condition, it is nonetheless a fact that barriers of race and class prevent empathic connections. Even Supreme Court Justice Antonin Scalia acknowledged that racism and racial prejudice are simply inherent in the capital-justice system in this country: "The unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions, and [hence] prosecutorial decisions, is real, acknowledged in the decisions of this court, and ineradicable."

3. Human life is sacred.

I think for a Catholic the sacredness of human life means two things.

First, it means that you may not rope off some parts of humanity and selectively deny them human rights.

Of course, the church itself has committed this sin at times. At its best, though, the church has given witness to the universality of human rights and the sacredness of all human life: in the eighth century with the establishment of foundling hospitals as an alternative to infanticide; in the 15th century when Pope Pius II condemned the particularly brutal Portuguese slave trade; and in this century, today here in America, both with respect to the death penalty and the issue of abortion.

One need not ignore how the church has compromised its own credibility on abortion due to sexism in the church and its reluctance to confront it. And reasonable minds can differ about how exactly prolife ethics should translate into law. Nonetheless, honor the church for keeping alive an ethical dimension on the abortion issue, for reminding people it cannot simply be written off as a matter of turning the clock back on an unwanted pregnancy.

This witness is all the more important in our culture and in our market-driven world where pressures mount to measure human beings only by their utility. Workers are secure only so long as they are optimally profitable. Patients are more likely to hear about a right to assisted suicide than a right to medical care. And for all its feminist pretensions, the mass media constantly bombard young women with the message: "You're only as good as you are attractive. You're only as good as you are a source of pleasure."

The idea that the value of human beings derives simply from their usefulness, their economic value, or their pleasure-giving promise is horrific but pervasive. Our church deserves great credit for giving witness to a different view, one that emphasizes the inherent dignity of the human person, whether that person is born or unborn, sick or well, advantaged or poor, guilty or innocent.

Second, the sacredness of human life means that not only the lives of the executed are sacred but also the lives of the executioners. Catholicism is the 20th-century caretaker of the Natural Law tradition, and that tradition emphasizes that the greatest impact of immoral acts is not on the actee but on the actor. So what we do as moral actors shapes us, humanizes or dehumanizes us. And you can't miss the degree to which exercising the death penalty on a fellow human being warps and numbs those involved.

Spend some time around capital cases and you will be struck with the Orwellian doublespeak. A state attorney general will not be so direct to ask an appellate court to send an inmate to the electric chair; instead, the judges are asked to "allow this case to reach its just, final conclusion."

In a Northeastern region generally blessed with many fine judges and lawyers, a trial judge issued a written reprimand to a defense lawyer who, seeking more time to file motions, observed that, after all, the capital prosecutor "wants to kill my client." Such bluntness could make the courtroom a place in which the assistant district attorney was not "comfortable," the judge said.

On a higher level, the numbing and warping results in the refusal of some states to bar the execution of retarded inmates. It resulted in a U.S. Attorney General who personally opposed the death penalty in principle, yet sought it in over 80 federal cases. It resulted in a Democratic president who worked with a Republican Congress to gut the safeguard of federal habeas corpus for death-row inmates. It resulted in Florida's chief law-enforcement officer approving of electric-chair malfunctions as adding the risk of burning to deterrence.

The death penalty degrades us as a community. It fouls our ethical and spiritual ecology. It hobbles us as we try to become the first successful multiracial democracy in the history of the world. It inflames a society where too often our courts are theaters of spectacle rather than temples of justice and healing. Most importantly, it belies the truth that every human person is a child of God and the kin of Christ.

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December 10, 2003

Kevin Doyle heads the Capital Defender Office in New York. The views expressed in this article, however, are his personal ones.

Copyright 2003, U.S. Catholic. Reproduced by permission from the August 1999 issue of U.S. Catholic. Subscriptions: $22/year from 205 West Monroe, Chicago, IL 60606; Call 1-800-328-6515 for subscription information or visit http://www.uscatholic.org. Photo by Zuma Press.

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READER COMMENTS
09.08.06   bulletin_news says:
This comment is very much after the fact; I just now came upon this. I was searching for something to put in the "Today's Reflection" portion of our church bulletin; the scripture readings this Sunday deal with judging others. I enjoyed your past and present translation of "Judge not lest ye be judged." The entire piece, of course, was well written and thought provoking. I quoted two portions of it to print in the Sunday bulletin. I credited you and sited the website as well. Thank you.

02.08.04   sem says:
We're not supposed to let those guys off the hook because they say "sorry" to God or to us or to both.We're supposed to let them off the hook because it is not our right to kill them. It is within our right (and obligation) to punish them, imprison, etc.-- but not to kill. It is not only a disrespect for life, but it also closes the door on forgiveness. When Jesus teaches us to forgive-- he is not only thinking of the person who committed a sin or a crime. He is thinking about and is concerned with our souls as well. When we refuse to forgive, we lift ourselves up to a lofty height. This self-lifting is false and haughty. About LIFE as the absolute measure:I don't mean LIFE as in living. I mean LIFE as in every human life is sacred solely because they are a human life. This is a quality that every person has no matter what. I'm sorry if I didn't make that point more clearly before. Human life is sacred from conception to death = the only safe and sure standard. I, too, have been guilty of sometimes focusing more on the DP, rather than on abortion. Why? Because I am selfish in my fear of this volatile issue? Because I think sometimes that if headway can be made in a less volatile life issue- then it could somehow be carried over into the abortion issue? I think the abortion issue contains an element of proximity (to some degree in most peoples lives?) that occurs on a widespread basis compared to the proximity that occurs with even a mass-murderer. This needs to be addressed in a way that is caring and respectful, while still adhering to the truth. I'm glad to know you don't go around killing folks, but if you did-- and you were under lock and key-- I wouldn't want you killed. Peace,sem

02.04.04   deprofundis says:
Obviously only God knows how sincere Saddam's hypothetical repentance is. If it is real, then he will go to heaven, after his death. If he is capitally punished as a repentant sinner, that is both justice and redemption being carried out. Not vengeance. I think it is asking too much to ask the victims of Saddam of Hitler, or Idi Amin, or Castro, or Pol Pot to ALL be so nice as to let these guys off the hook just because they say, "Sorry about that". Life on this earth is not the end all. If we are going to use LIFE as the absolute measure, then let's keep eternal LIFE in perspective. Think of the following scenarios:a. If a fear of the death penalty causes some to repent before they are executed, that is good in the eternal view of things. b. And if some who remain unrepentant because the threat of losing their life never causes them to really face up to their sins, then that is a bad thing in the eternal scope of things. The previous two scenarios support the death penalty, but there are other scenarios that would go against using it, if waiting for a bit longer would be what it takes to get someone to repent, then that would be a case for at least delaying the death penalty until the guy repents.Now you make the jump from Saddam to the annoying rabble rouser. I was not willing to do that. I merely proposed that certain notorious cases like the men listed above, Saddam in particular, might just fit the type of exception that the Church allows for us when it comes to exercising the death penalty.I am also working from a bias based on an observation I have made among people in the world today. How can it be, I wonder, that some people like Mario Cuomo or John Kerry to name a few Catholics, get more worked up about fighting the death penalty than they do about putting an end to abortion? There is something wrong with being more upset at the death of Charles Manson or Saddam Hussein than at the murdering of an innocent baby. And there are many other Catholics like them who can say, "As a Catholic, I believe that abortion is the killing of an innocent human being, but I'm not going to push my morality down other peoples throats", and then they say, "I think we should put an end to capital punishment no matter how notorious the murderer is." This reflects a strange pair of stands that I believe stem from making LIFE an absolute standard. Charles Manson and Saddam are more clearly ALIVE than babies in the womb. A sense of justice, as human and as fallible as that has proved to be, must be taken into consideration. I agree that humans can never apply standards of justice perfectly, but we must try to do so, even when human lives are at stake.In short, I want to live in a society that will put ME to death if I go out and shoot-up a McDonalds indiscriminately killing dozens of people. I want that society to put ME to death if I go around murdering people in a premeditated fashion, stalking, raping, terrorizing others. I don't do that, I think you'll be glad to know, but if I ever did, please kill me! Give me a few hours of advance notice so I'll have time to repent.Pax,

02.03.04   sem says:
If Saddam repents, what threat would he be to us? Why would we need to kill him? If he repents and we still want to kill him-- wouldn't that be motivated by an unchristianlike desire for revenge? We are called to forgive. The martyr scenario: We should kill Saddam because of what other people might do if he lives? That leaves the door wide open for potential abuse, I think. For example, what about undemocratic governments who use that type of reasoning in order to arrest and shoot righteous rabble-rousers who might otherwise incite "dissension" among the suffering civilians? The government assassins feel perfectly justified-- and by their human standards, they are. However, I hardly think that we, the civilians, or God sees their actions as just. In other words, the reasons for killing in these two examples become rationalizations, since we cannot truly justify them. God is perfectly just. We humans just aren't. Criteria of Life alone vs. Justice: (also see above)God asked Jesus to pour his life out, in agony, on the cross. Jesus said yes. This particular crucifixion was justified as only God (not humans) can justify. Jesus was completely sanctified by his perfect acceptance of God's will. So the Cross provides a dual-example here, if you will:1) Our sanctification is made possible by Jesus's sanctification, and by his/our openness to living the will of God (not our own).2) Jesus places the decision of life and death into God's hands.Peace,sem

02.02.04   deprofundis says:
A couple of thoughts in reply.1. I also doubt it, but what if Saddam repents? Would you then allow for the death penalty? In this case we have waited for him to be redeemed so he can go in peace.2. The opposite side of the "martyr" case is that as long as this guy is alive, there are many who fear his potential return, and they act accordingly. They will not contribute to the efforts of the US or the UN to restore freedom for fear of some future backlash.3. There is a danger to making LIFE the only criteria, and letting that totally trump considerations of JUSTICE. Christ gave his life as the perfect atonement for the sins of the world. He received capital punishment because of my sins and yours. This was not a waste of a life. We shouldn't doubt God's wisdom in this plan and possibly believe that God should only have given Christ life in prison for our sins.

01.22.04   sem says:
I don't think so.We have the Church's statement (as you already noted but I'm going to repeat): The following is a quote from the Catechism: "the cases in which the execution of the offender is an absolute necessity 'are very rare, if not practically non-existent.'" The other half of the reasoning behind that is that we (Church) don't want to take away an opportunity for repentance. Do I have my doubts that Hussein would repent? Sure. But I would never like to close the door on the possibility of him (or anyone) repenting and receiving God's mercy. Another reason to keep him alive, and this may not be the noblest of reasons-- but I do not want to make a martyr out of this guy. I think the Church's stance is consistent. I think it's important to make LIFE the only criteria. This is the criteria set by God and Church. As soon as you apply any externally defined (man-made) critera, such as justice, or even something as seemingly benign as innocence, then you're changing the ballgame. You're creating a ballgame where anyone can win and anyone can lose-- because humans are setting the standard (or lack of) instead of God.Of course, all wee babes are innocent. But what about Grandpa Joe who might have shot a guy in the back? Sorry, Grandpa Joe might not be too innocent, but he still deserves this intrinsic right to life (and a dignified, salvific death). I do think you're right that there is an added fervor to the anti-abortion and death-with-dignity causes; but I think it's due to the fact that wee babes and (so many) dying folks have no voice.Peace, Prayers, and Blessings,sem

01.21.04   deprofundis says:
I agree with many of the points made, but I believe the "Catholic" stance needs to be made a little more clear than what we get from this article. As Catholics we believe the death penalty IS morally justifiable on the same grounds as killing in self-defense, but it is something we should avoid if at all possible due to the points that the writer of this article has made very well. And the pope has further gone on to say that in modern society with our prisons and other measures in place to safeguard society from threatening people who have been apprehended, this option is virtually never needed. But this "Catholic" stand is different than our "Catholic" stand against abortion and euthynasia which we are against because they are the taking of "innocent" human life. The value and sacredness of human life is a common point in all of these issues, but there is also a sense of "justice" that we have that makes us want to treat innocent people differently from the unrepentant evil-doer. As for Saddam Hussein, an issue taken up in other threads, is his case one of those rare exceptions that the Catholic Church allows us? I don't know.

12.19.03   sem says:
Yes, your second point makes a ton of sense. There are some wonderful articles on this site. I find new gems to read everytime I visit....Peace,sem

12.17.03   David Morrison says:
I agree. I think there are two issues at play in the death penalty discussion right now. First, the conceptual. Can we, as a society, take to ourselves the authority to kill our citizens, even those deemed guilty of grievously breaking the law and harming others? Second, the practical. Can we as a society, even if we approved of the death penalty as a concept, remotely support the way it is being put into place in this nation? I don't think we can, or at least I don't think I can as someone who seeks to follow Christ.David Morrison

12.14.03   sem says:
Saddam Hussein has been caught. I'm sure the cry for his blood to be spilled will echo loudly throughout the country, etc.But no matter how evil he is; no matter how much he has turned away from God-- God will never turn away from him. How can we think we could ever justify taking a life from God's hands?Even in the case of the use of self-defense during imminent danger, the goal is to stop the threat-- not kill. And if self-defense results in death then it is still not right. There is just a lesser degree of culpability due to the mitigating circumstances. As a martyr, Hussein could be a bigger threat than he would if he were running around free. Killing always feeds a wrong appetite.Peace,sem

12.11.03   Godspy says:
The death penalty degrades us as a community. Most importantly, it belies the truth that every human person is a child of God and the kin of Christ.

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