"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, November 23, 2005

Don't tell the ACLU




"The first Thanksgiving occurred on the 4th of December 1619, at present-day Berkeley Hundred Plantation in Charles City County, Virginia, when Captain John Woodlief led the newly arrived English colonists to a grassy slope along the James River and instructed them to drop to their knees and pray in thanks for a safe arrival to the New World. Thirty-eight men from Berkeley Parish in England were given the instructions:

‘Wee ordaine that the day of our ships arrivall at the place assigned for plantacon in the land of Virginia shall be yearly and perpetually keept holy as a day of Thanksgiving to Almighty God.’ "

A happy Thanksgiving to all.

Thursday, November 17, 2005

Death Penalty Poster Boy




At the risk of sounding like a one-tune juke box, this is a story that cries out for the ultimate punishment:

A mechanic with a long criminal record was convicted Thursday of kidnapping, raping and strangling an 11-year-old girl whose abduction was captured by a car-wash security camera. Joseph Smith, 39, could get the death penalty. The jury took about five hours to find him guilty in the slaying of Carlie Brucia, whose half-naked body was found outside a church more than four days after the sixth-grader disappeared in February 2004 while walking home from a friend's house.
When asked if she was satisfied with the verdict, [the victim's mother] responded: "When he's dead. When he meets his maker."

Amen. It's a real shame this animal was out and about to commit this crime, given his criminal record and the fact that "[a]t the time of the slaying, Smith was in violation of the terms of his probation on a cocaine charge because he failed to pay $411 in fines and court costs. But a judge declined to put him in jail, saying Florida does not have a 'debtor's prison.'" Memo to judge: you're not putting him in jail for a debt, you're putting him in because he disobeyed a court order and because probation is a privilege, not a right. Nice work, your honor.



The monster



US Bishops Challenge Catholic Moral Tradition

Just a note of thanks... now that our Bishops have removed homosexual priests from the seminaries and the ranks of the clergy; have eradicated the problem of homosexual clergy abusing young boys; have stemmed rampant doctrinal dissent in our colleges and universities; have by their voice and example led a massive Catholic resistance to abortion on demand; have brought Catholics to accept the Church's teaching on the illicitness of contraception; have stifled liturgical abuses and restored reverence to the Mass; have made the priesthood attractive to normal Catholic young men.....Now that these feats have been accomplished, our good shepherds can finally tackle that ancient moral evil, capital punishment.

Since the bishops say they want to "encourage engagement and dialogue, which we hope may lead to re-examination and conversion," I've decided to accept the invitation and offer the following in the hopes that the bishops may indeed convert to the Roman Catholic religion.

In their new anti-DP offensive, the good bishops make several interesting assertions (note to bishops: find a good proof-reader-- maybe one of those nuns there are so few of now-- your document has a large portion of text repeated on the same page):

"The sanction of death violates respect for human life and dignity."

"State-sanctioned killing in our names diminishes all of us."

"The Catholic Campaign to End the Use of the Death Penalty is part of the Church’s broad commitment to defend human life from conception to natural death whenever and wherever it is threatened."

The problem with statements of this sort is that they are contrary to Catholic teaching. The Church in fact teaches that
Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.
(Cathechism of the Council of Trent). The Church thus does not limit the use of the DP to only those cases where it is the only way to debilitate the offender. The DP may morally be used in order to address the outrage of murder, to avenge the crime, and to restore the disruption caused to the moral order of society by the crime, by a just and proportionate penalty. Where murder is concerned, the proportionate penalty is ordinarily death. This is not my teaching, it is the teaching of 2,000 years of the Church's magisterium, or teaching authority. See another summary of this teaching here and a more comprehensive review here. A persuasive argument holds that this traditional teaching is of such antiquity, has been reiterated so often, and finds support in Scripture, the Church Fathers, the theologians of the Middle Ages, and in modern (i.e., up to the eve of Vatican II) papal teaching, that it is in fact a teaching of the Church belonging to the Ordinary Infallible Magisterium.

Of course, these facts are highly inconvenient to the American bishops, and consequently they ignore them utterly in their document, even though they devote a whole section to "Catholic Teaching and the Death Penalty." They pretend that the current Catechism, with its practical suggestions for when the DP should be inflicted, is the only source Catholics need consult to inform their consciences about this issue. Worse, the bishop's document actually makes a lame effort to garner Scriptural support for their abolitionist position, citing Genesis 2:7, 21-23, while ignoring Genesis 9:6:

“Whoso sheddeth man’s blood, by man shall his blood be shed for in the image of God made He man."

This passage was used by most subsequent theologians and magisterial documents to support the use of the DP. Since man is made in God's image, the crime of murder is viewed as almost an attack on God Himself, and a crime so horrible that death is an appropriate punishment for it.

These are my initial thoughts on reading the bishop's document. It is very sloppy intellectually, mixing outright denial of Catholic teaching with a host of pragmatic observations adduced to convince us the DP is too fraught with error to be reliable. One wonders though why this last point is relevant to them: if the DP is such a moral evil, because it "violates respect for human life and dignity" then that should be the end of the story, and whether it operates well or poorly is immaterial from a Catholic point of view. Perhaps the bishops realize what shaky ground they are on theologically, so they argue more like sociologists or politicians than pastors of souls who are supposedly safeguarding Catholic teaching as they received it, not changing it to suit their personal policy preferences.

Are Capital Punishment's Days Numbered?

Doug Berman at Sentencing Law and Policy believes that there is a shift occuring in public perceptions and the politics of the death penalty. He bases this belief in part on this op-ed piece in The Hill. The Hill piece acknowledges that the DP was not an issue in the recent NJ governor's race, but points to the Virginia election where, as I commented upon several times, Tim Kaine was cloaking his anti-DP stance with his professed Catholic religion (a position I argued does not square with Church teaching). The Hill claims that Kilgore was punished for being pro-DP. The problem with seeing some kind of shift on the DP by looking at the Virginia results is that Kaine was running as the next Mark Warner, the current Virginia governor, who has not hesitated to carry out executions. Kaine went to great lengths to try to convince voters that he also would not hesitate to sign death warrants. He did not run on an anti-DP position, to the contrary, he tried (and apparently succeeded) to paint himself as someone who would in fact support the death penalty despite his private convictions. What the voters punished Kilgore for was an unfocused campaign that concedely relied overmuch on so-called negative ads, only some of which dealt with Kaine's personal opposition to the DP.

Seen in this light, it is wrong to conclude that the Virginia election was some type of bellwether for support of the DP. Prof. Berman's other piece of evidence to demonstrate "that the American culture of the death penalty is in the midst of significant transformation" is the fact that the American Catholic Bishops are waging a new anti-DP campaign. That's akin to suggesting that abortion views are changing because Planned Parenthood is launching a new pro-abortion campaign. We expect partisan political players like the U.S. Bishops to walk the road they've been walking for the past thirty years. It's old news that they oppose the DP in principle; they have, as I say, for the past thirty years, despite the fact that abolition is not the authentic position of the universal Church.

What further undercuts Berman's wishful prognosis is the remarkable fact that despite the onslaught of the MSM, the entertainment industry, most of academe, and Church liberals, support for the DP remains high:
An October 2005 Gallup Poll found that only 64% of Americans favored the death penalty for those convicted of murder. The last time the poll found a lower support was in 1978 when 62% favored the death penalty. The high point for public endorsement of the death penalty came in 1994 when 80% supported capital punishment. This most recent poll result is consistent with Gallup Polls taken in October 2004 and 2003, both registering a 64% support of the death penalty.
Of course, only a true believer like the DPIC (the source of this quotation) could modify 64% with the adjective "only." Given the incessant anti-DP campaign being waged in the media 64% might as well be 90%. That the left has failed to make a significant dent in support for the DP must be one of their greatest disappointments, but no doubt their attempts to separate the public from their common sense will continue.

Wednesday, November 09, 2005

Next for Kilgore?

How bout Jerry Kilgore for United States Attorney for the Eastern District of Virginia, now that current U.S. Attorney Paul McNulty has been tapped for the number two spot at Justice?

Gilbert Wins

One bright spot in yesterday's results: My friend Todd Gilbert handily won his race for the 15th House district in Shenandoah County. He will be a solid law and order voice in Richmond, and I think we'll be seeing more from him in the years to come.

Time Will Tell

Well, Virginians, hold on to your wallets. Tim Kaine is Governor-elect and you can bet he's gonna go after your money. His mentor Mark Warner promised NOT to raise taxes and gave us the biggest hike in state history. Kaine has refused to rule out taxes, so one can only imagine the flood of tax and spending he has in mind. Time will tell.

Will Kaine continue the precedent set by Warner in handing out restoration of felons' voting rights like they were candy? Time will tell.

Time will tell also if he will be a man of his word about signing death warrants. Given that Warner's signature achievement, the historic tax increase, was predicated on a broken promise, I don't hold out great hope that Kaine can be trusted to abide by his promises.

On other social issues, will the Catholic bishop of Richmond clearly and forcefully lay out the duties of a Catholic statesman in the areas of protection of innocent life and fostering a culture that favors that basic social unit, the family consisting of mother, father, and children? Will he take Kaine to the mat when Kaine violates these principles to pander to the Democratic base? Or will he allow Kaine to violate them and still claim to be a Catholic?

Time will tell.

Friday, November 04, 2005

"outrage, horror and outright panic"

as the left continues to deal with the prospect of the relatively conservative Samuel Alito becoming the next Associate Justice of the SCOTUS. Why? Because as an appellate judge he has ruled against criminal defendants in some cases-- why this is remarkable is unclear, since most appellate judges, even liberal ones, routinely find no error in lower court convictions. It's inherent in the posture of an appellate case, where the lower court action is usually reviewed on a standard of abuse of discretion or some like standard depending on the issue involved, which makes the bar much higher for a appellant, be they a criminal defendant or the government.

Thursday, November 03, 2005

Prosecutors are from Neptune, defense attorneys are from Pluto?

Rod Smolla, the dean of U of Richmond School of Law (thanks to Jaded JD for the correction), has penned a very interesting article on the psychological and world-view differences between defense lawyers and prosecutors. He makes several interesting comments, but one I think is a misrepresentation. He takes Virginia Republican gubernatorial candidate Jerry Kilgore to the woodshed for trying to make hay out of the fact that his opponent, Democrat Tim Kaine, worked on a death row inmate's appeal. Smolla very piously recites the boilerplate about how everyone is entitled to a defense, blah, blah, blah.

Yes, but the point is that Tim Kaine sought out and volunteered to represent a death row inmate, something he did not have to do, something he was doing pro bono, something he was doing despite the fact that his practice area was not criminal law. The implication Kilgore is making is that Kaine is an anti-death penalty activist; someone who sought out death cases. Kaine was not simply the next defense lawyer schlub on the court-appointed list who simply drew the case and had to do his best professional job. No, he was an activist seeking to vindicate his anti-death penalty philosophy by taking a case outside of his firm's practice area. To point this out is not to criticize defense attorneys for representing criminals. It is to point out that Kaine is an ideologue on this issue to such an extent that he would go to extraordinary means to take a case to further his personal ideological agenda of death penalty opposition.

The other very interesting item in Smolla's article is his unabashed apologia for defense attorneys acting in ways they personally know are contrary to the truth in order to advance their client's defense. For example, they will not hesitate to make a victim or witness appear untruthful even if they know the witness is not being untruthful:

defense counsel has no comparable obligation to ascertain or present the truth. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. More often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. As part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

And quoting Lord Brougham, obviously the Johnnie Cochran of his day, describing his perceived duty to his client:

To save that client by all means and expedients, and at all hazards and costs to other persons. And in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.

Uhh, right.

Little wonder that "non-legal" "laymen" view this aspect of lawyering as downright slimy. No wonder people question a person's moral compass when they can twist the truth to make it look like deceit. In every other context, this is dishonorable. The notion that an honest witness should be subjected to such effectual defamation of character is indeed a troubling one, and the defense bar has yet to convincingly explain why this aspect of their work is valuable, since indeed, it distorts the search for the truth not by appeal to facts and evidence, but by attacking the personal character of a witness. It makes me squirm to see how the personally decent defense attorneys themselves squirm when they feel they have to go after a witness in this fashion, or suggest police misconduct at their client's insistence when they know the officer in question is honest. Worse is watching the attorneys who relish this type of tar-slinging.

UPDATE: Comments to this post have challenged the assertion that Kaine volunteered to represent DP inmates. Although his firm may have been court appointed, Kaine personally got involved in these cases even when they were being handled already by other lawyers. For example, in the Whitley case, Kaine actually sought the case out and agreed to handle it even though it was not in his field of practice:

Kaine researched death penalty cases as a law intern, but he wasn’t prepared for the telephone call asking him to handle Whitley’s appeal. He initially refused, pleading that he had been practicing law for only five months.
“But then it kind of worked on me that I had said no because my feeling is, well, I say I’m against the death penalty,” Kaine said. “ If I say that’s my belief but I say, ‘Nah, I’m not going to do it,’ then I’m a hypocrite.”

The RTD put it ths way: “Instead of assisting, however, Kaine at first became [Richard Lee] Whitley’s only lawyer… Although he normally handles civil cases, he volunteered his services because of his opposition to the death penalty.” (Richmond Times-Dispatch, 7/12/87).

Kaine himself has said (in an interview with Tim Kaine for WAVY-TV cited here): “I handled hundreds if not thousands of cases. Three times, I did accept appointments, um, to work with folks on death row. Now, voluntarily? They couldn’t have forced me to do it. I could have turned the court down and said ‘no.’”

Clearly Kaine was very comfortable seeking out appointment to such cases, and the fact that his firm made itself available to the courts for such appointments itself shows his activism, since as I understand it, Kaine was a partner in the firm. He and his firm could have chosen not to involve themselves in these cases. That they appeared eager to do so is just stating the obvious: Kaine is an anti-death penalty activist. What's so difficult about admitting it?

Wednesday, November 02, 2005

Catholicism and the Death Penalty, Part One

Ken Lammers over at CrimLaw has put up a podcast wherein he argues against my position that the DP as used in Virginia is in accord with Catholic principles. For the non-religious, this issue may not be that interesting, but even to a religious non-Catholic, the principles involved should be of some interest.

I propose a two-part response. First, I will show that the teaching Ken cites, while accurate as far as it goes, short-changes the perennial Catholic teaching on the DP, which is far more expansive than the one document cited by Ken. In the second part, I will argue that even accepting the narrow view currently in vogue, our DP system adequately meets the criteria proposed by the Catechism.

Ken begins by reciting the pertinent sections of the Catechism of the Catholic Church pertaining to the DP. Of course he acknowledges, as does the Catechism, that the Catholic position even now is not that the DP is inherently immoral or can never legitimately be used. This first point is the most important, since the catalyst of my comments here and here was Tim Kaine's claim that his opposition to the death penalty is "faith based" because of his Catholicism. So Ken's comments certainly support my position that Kaine is falsely using Catholicism as a shield for what would otherwise be just an unpopular liberal policy preference against the DP. Kaine is clearly hoping that by invoking religion, and hiding as it were behind the Pope's cassock, he will be innoculated politically against the expected public disapproval of his abolitionist stand.

With that being understood, let's look at the Catholic teaching about the DP. First, it has to be noted, and Ken does not even acknowledge this, that the historic teaching of the Church is far deeper than the Catechism passages he cites. It is, in sum:
Justice demands that the offended moral order be repaired and restored by a congruent satisfaction; and therefore the duty devolves upon the leaders of the Republic to take care that grave crimes are punished by proportionate penalties; for otherwise the moral order is disturbed and endangered. Certainly there are crimes of such gravity committed which, in the general estimation, will only be able to be expiated by means of the death penalty; of such a kind especially is murder cruelly committed after mature deliberation; for crimes which are the greatest affront to the moral order, and encompass the greatest harm, require of their nature the greatest punishment, that is, capital punishment. And therefore this rule is established by common sense: ‘Whoso sheds the blood of man, shall by man have his blood shed.’[Gen 9:6]

I could replicate this encapsulated statement of the Church's traditional teaching by citing Scripture, by citing the Church Fathers, by citing the medieval schoolmen such as St. Thomas Aquinas, by citing Papal writings and standard theology manuals (and I have such a compendium of these sources at hand), all of which strongly concur with the exemplary passage just cited.

It cannot be denied that the Church has consistently through the ages taught that use of the DP is justified not simply under a "self-defense" or utilitarian view, but rather it is seen in the traditional thinking as deeply rooted in a vindication of the sanctity of life and in the requirements of justice. The Catechism of the Council of Trent puts it this way:

The murderer is the worst enemy of his species, and consequently of nature. To the utmost of his power he destroys the universal work of God by the destruction of man, since God declares that He created all things for man’s sake. Nay, as it is forbidden in Genesis to take human life, because God created man to his own image and likeness, he who makes away with God’s image offers great injury to God, and almost seems to lay violent hands on God Himself.t is, since God is the creator of life, and human life is his most precious creation, the violation of that life by a murder is seen as akin to an attack on God Himself.

This underlying view of the evil of murder is what informs the teaching that justice requires congruent satisfaction for this crime, a satisfaction that the Church has always taught includes the use of the DP, regardless of whether it is necessary to defend society from the further harm posed by the culprit.

Thus, the first interesting thing to note is that up until the pontificate of John Paul II, the teaching on the DP was that it was NOT restricted solely to cases where it was necessary for society's physical self defense. The traditional teaching is predicated upon consideration of what is just with respect to punishment. The new teaching is strictly utilitarian, holding that we should only execute when it's the only way to defend against a criminal who might re-offend. Moreover, it is by no means clear that the new teaching, couched in utilitarian language, should be read to overrule the traditional teaching. As a perennial teaching touching on a matter of morals, it is impossible to avoid the conclusion that the Church’s traditional teaching on the death penalty belongs to the Ordinary Magisterium of the Church. It is a teaching to which the following statement of the Fathers of Vatican I applies:

[T]he Church would lose its immutability and dignity and it would cease being a life-giving society and a necessary means of salvation if it could wander from the safe path of truth in matters of faith and morals, and if, in preaching and explaining these matters, it could deceive or be deceived.

In other words, if the Church had been so wrong about the rightness of the DP, it would have failed in its Divinely constituted mission to lead men to heaven. Such a state of affairs is impossible, so the conclusion follows that the traditional teaching must belong to the infallible set of truths constituting the Ordinary Magisterium or body of fundamental Church teachings. This conclusion is not just mine, it is shared by other commentators (e.g., Rev. Thomas Williams, L.C., “Capital Punishment and the Just Society” in Catholic Dossier, Vol. 4, No. 5 (Sept./Oct. 1998). Even those who think it is not an infallible teaching acknowledge the longevity of this teaching. (see, E. Christian Brugger’s recent book, “Capital Punishment: Roman Catholic Moral Tradition.”).

So much for Part One. In sum, the Church's teaching on the death penalty is much broader than a reading of one source (the latest Catechism) would suggest.

Tuesday, November 01, 2005

"fear and loathing "

That's how the ever-compassionate, diverse, and rainbow-coalition left describes their feelings about Judge Samuel Alito, the new nominee for Supreme Court Justice. Why this "fear and loathing" from the birkenstock crowd?

"Guess how he spent his entire pre-judicial career? You got it, as a prosecutor."

Heavens. Can't get much lower than that form of life.

I'll be loving every minute of watching these warmed-over 60's types get apoplectic as Alito ascends to the high Court.