"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

Friday, December 22, 2006

More Death Penalty Thoughts

I promise: I am not morbid; but it seems that the swell of activism against the death penalty is reaching a fever-pitch, even among otherwise level-headed Catholics. Few seem interested in defending the system, and consequently, here is Part III of my exploration of whether the death penalty in this country meets the "updated" or "revised" Catholic teaching expressed in Evangelium Vitae (EV) and the Catholic Catechism (CC). This post will further define what the current relevant texts state and what it means in concrete terms for our justice system. In a later post, I will look at some concrete cases to see if our system measures up with what the Church authoritatively proposes (as opposed to what some activists and even bishops or group of bishops wish the Church would propose).

To review briefly, the kernel of this purported "development" about use of the death penalty is found in these two key texts:

Pope John Paul II in EV:
It is clear that, for these purposes [defending public order and ensuring safety] to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.
And the Catechism:
If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.
Recall, if you will, that from these texts I distilled the following principles:
1) Recourse to the death penalty is moral generally speaking;
2) The death penaly should be avoided when "non-lethal" means can protect society; and,
3) Recourse to the death penalty even where "non-lethal" means suffice to protect society is moral, but less in conformity with human dignity and would be justified only where exceptional circumstances render it necessary and never for reasons less than those included in the traditional ends of punishment (the "common good").
For purposes of this argument, I will assume that EV and the CC are binding moral principles and not merely hortatory exhortations built upon flawed social science.

Note, however, that I take the texts at face value, and do not expand their meaning. This is vital to understand, because much political agitation by bishops and even by recent popes has proceeded from a failure to construe these passages strictly with a view to reconciling them with the strong tradition of a much broader moral justification for resort to the the death penalty.

An example of an abusive interpretation is this Live Blog session, where Jeff Caruso, Executive Director of an organization called the Virginia Catholic Conference (the two Virginia Catholic Bishops' lobbying arm) explained the Virginia bishops' call for the abolition of the death penalty in Virginia thusly:
The late Pope John Paul II, the U.S. bishops, and the Virginia bishops have all specifically called for an end to the use of the death penalty in countries like ours. That's because the teaching of the Church is that the death penalty cannot be justified whenever nonlethal means are sufficient to protect society from an unjust aggressor. In other words, things like deterrence and the heinousness of the crime are not valid considerations in determining whether the death penalty is appropriate. The only appropriate consideration is whether we could protect society without using it. The US and Virginia bishops are convinced that, with our prison system and the life without parole alternative, the death penalty is not needed in our country and therefore should not be used.
(Emphasis added).

The claims made by Caruso are flat out false. Neither EV nor the CC state that use of the death penalty for deterrence is immoral or impermissible. The strongest textual claim that can be made is that the CC asserts that refraining from use of the death penalty in all but public safety cases is "more in conformity with the dignity of the human person." EV expressly allows that in cases of necessity in order to defend society, the death penalty is appropriate. EV then refers to improvements that purportedly make such necessity rare, but EV does not state that life without parole (LWOP) as an alternative punishment means that there are no cases of necessity. Nor does it state that the specific deterrence of a particular offender is an illegitimate aim of the death penalty.

While LWOP might in certain cases remove the "necessity" of execution, neither EV nor the CC state that a LWOP alternative to execution is always a fact that renders "necessity" to defend society by execution irrelevant. In fact, LWOP does not guarantee that society will be defended, and thus cannot possibly be the "improvements" referred to by EV which supposedly make the proper use of the death penalty rare.

Here are some cases where LWOP did not adequately defend society.

Indeed, as I've mentioned before, it's not unusual for convicted murderers to re-offend either while in prison or after they escape or are released.

That's right: released. The fact of the matter is that most states have mechanisms for parole even of so-called LWOP convicts. In Virginia, for example, a very tough-on-crime state, the law provides for furloughs and even for "geriatric" parole in some murder cases where juries thought they were imposing no-parole sentences. Executive clemency, moreover, allows governors to veto a LWOP sentence and that veto is non-reviewable.

Finally, in the politically volatile atmosphere in which we live, it's not hard to imagine current death penalty abolitionists arguing, should they succeed in stopping the death penalty, that LWOP is a cruel and unusual punishment under the 8th Amendment. I've mentioned this tactic before and indeed, other countries have already abolished LWOP as being cruel. This is all the more craven because LWOP has all along been a ploy by the abolitionists to pry juries away from choosing the death penalty, even though it results in much lenghtier sentences for non-capital defendants. Human Rights Watch goofed and got off-message too soon, and spilled the beans about this next phase for the abolitionists: abolishing life without parole.

So whatever we may think, surmise, or conjecture about, it seems that when EV refers to "steady improvements in the organization of the penal system" which render the public safety need for executions "rare if not non-existent," it surely cannot be referring to LWOP. Perhaps a future authoritative clarification will illuminate just what it is Pope John Paul II was imagining rendered murderers definitively harmless.

In the meantime, of 38 states which allow a death penalty option, 37 states have a LWOP alternative (New Mexico will likely soon have it as well). What this means is that the fact-finder (judge or jury) and always, ultimately, the judge, has the ability to sift through the evidence and determine whether the defendant before him will be a future threat to society.

Sometimes no doubt this consideration involves looking at the depravity of the conduct involved in the case as a "predictor" of future violent conduct. Viewed in this light, we will be able to see that most death sentences in fact are addressed to incapacitating a dangerous offender.

Monday, December 18, 2006

We're All a Little Safer Today

How germane to my upcoming discussion of execution of those who are still pose a threat despite incarceration. Much hubaloo has been made over the "botched" execution of Angel Diaz in Florida (although since he is now dead, I'm not sure you could call the execution "botched"). It appears it took an extra dose of chemicals and 30 extra minutes to carry out the sentence. This unusual circumstance has led to howls of protest from the usual pro-criminal crowd, even though no one can really say whether the process caused Diaz any pain. Almost certainly, however, he did not feel as much pain as the man he shot to death or a prior victim he stabbed to death.

Now, while we all wish executions would occur flawlessly, the fact of occasional human error in administering lethal injection is hardly a compelling argument for abolition. In fact, lethal injection is still the preferred choice of condemned killers in places like Virginia where they are offered a choice between injection and other methods, such as the electric chair.

What's missing in all the hand-wringing and sobbing about Angel Diaz from the abolitionist lobby is, as usual, any mention of his crimes or his criminal history.

He was convicted of shooting to death a manager of a business, Joseph Nagy, during a robbery. Although some have claimed there is doubt about his guilt as the triggerman, Diaz himself admitted he was present at the crime armed with a gun. Although he claimed not to have fired the fatal shots, witness testimony conclusively established that all three robbers fired their weapons during the robbery. "Diaz was considered a major participant in the robbery: arming himself with a large caliber weapon equipped with a silencer, casing the bar from his seat for a long time, firing shots in the air that almost struck a dancer, and abducting a waitress to the back office to open the safe, according to court documents." So, enough about "actual innocence." This guy, even assuming against the evidence he was not the triggerman, was in no sense "innocent" of the murder.

But of greater interest to me were these under-reported facts about the dearly-departed Mr. Diaz:
In 1978, Diaz was sentenced in Puerto Rico to 10 to 15 years in prison for the second-degree murder of a prison drug rehab director. Diaz stabbed the man to death while he was incarcerated for armed robbery.
He escaped custody a year later and fled to Florida. In 1981, he fled the Hartford Correctional Center in Connecticut by holding one guard at knifepoint while another was beaten as he and three other inmates escaped.

Ahem.

Excuse me, but is this not exactly the type of criminal who most merits the death penalty? Indeed, even under the most restrictive interpretation of the novel Catholic revision of the teaching about use of the death penalty, this guy would be exhibit #1 for a justified use of the death penalty.

It's a shame that he was not executed after he killed someone in jail and then escaped prison: Joseph Nagy might still be alive. But alas, in some circles Nagy's life and the life of his earlier victim are apparently worth less than the political points that can be scored off the botched but nevertheless highly merited and just execution of Diaz.

Friday, December 15, 2006

Capital Punishment: "Rare, if not practically non-existent"

Alright, it's a long-time in coming, I'll grant you. But here is my Part Two offering of why the capital punishment system in this country actually conforms even with a "strict" view of contemporary Catholic teaching, which would have it that we should execute "rarely" and only if non-lethal means are unavailing. (Part one of this saga is here).

The first observation is the easiest: the death penalty is in fact a "rare" occurence in this country by any standard.

In 2005, about 16, 692 people were murdered in this country (bet you had no idea this crime was so prevalent). 60 inmates were executed in 2005, which is about average, although the number of executions is in slow decline.

Even my substandard math skills tell me that means that .3 % of murders are punished by an execution.

Granted, this is a rough approximation, since the 60 executions were not carried out in punishment of murders occurring in 2005; they were carried out for murders occurring over several different years prior to 2005. In actuality, therefore, the number of executions as a percentage of the number of homicides is actually even less, since the number of executions in any given year punish murders which occur over a span of different years.

Nevertheless, even viewed as a trend over ten years, we see that since 1995, an average of 77.2 executions were carried out per year, while the average number of homicides per year over the same time period was 18, 916. So taken over a ten year time frame, the average execution-to-murder-committed-rate is a scant .4%. Yes, that's right, less than one-half of 1% of murders are punished by an execution.

Now, "rarity" is commonly defined as "coming or occurring far apart in time; unusual; uncommon; thinly distributed over an area; few and widely separated." As a factual, pragmatic, concrete observation, therefore, there can be no question that executions in this country are only "rarely" carried out in any meaningful sense of that word, as it relates to punishment for homicides.

The anti-death penalty crowd have in fact been boasting about how many fewer executions have been carried out in recent years. NPR just the other day ran a segment trumpeting recent declines in cases where the death penalty is imposed as evidence of a general rejection of capital punishment. In reality, however, homicide rates have declined to the lowest level since the 1960's; in general terms, with fewer homicides you will find fewer death penalty cases. Also, parenthetically, one must wonder whether the resurrected use of the death penalty has something to do with the drop in the homicide rate.

So then, as to the contemporary Church position that executions should occur "rarely," case closed.

Next time, in Part III, we'll see whether the American system of capital punishment on the whole executes those who, unless they were executed, it "would not be possible to otherwise defend society."

Horrors of War

I'm not a moral philosopher or theologian, so I dunno, maybe the war in Iraq is an unjust war and the pres and his minions in Iraq just brutal torture-mongers.

In fact, you can really plumb the depths of the brutality of our unjust warriors and torturers in
this explicit set of photographs documenting the depredations our troops inflict on the innocent Iraqi people. WARNING: explicit content.

Tuesday, December 12, 2006

Gracias



You saved your beloved Chile from Allende, who vowed to make it a Communist state like his friend Castro's Cuba. Unlike the third-world backwater that Cuba has become under Communism, you made of Chile an economic powerhouse that even the Washington Post has to admire. Unlike the permanent dictatorship of Castro, you stepped down peacefully after after only a dozen or so years, allowing democratic elections, and remained out of politics: having saved Chile, you returned to private life.

Wednesday, December 06, 2006

"Malingering"

This is a word that the public should be more familiar with. It means: "the act of intentionally feigning or exaggerating physical or psychological symptoms for personal gain."

Malingering in personal injury cases has caused enormous social costs: "The total cost of health insurance fraud in the United States (including untruthful claims by patients and medical personnel) was more than $59 billion in 1995, resulting in a cost of $1050 in added premiums for the average American family."

Recently a man faked retardation for twenty years so he could receive disability benefits.

Consider now the case of Percy Walton, which has been mentioned before here. I've pointed out before the salient facts:

Jessie and Elizabeth Kendrick, a couple in their 80s, and 33-year-old Archie Moore were Walton's victims. The victims were robbed and shot in the head; Mr Kendrick face down in the carpet listened to his wife beg on her knees for her life before being shot in the head with the gun muzzle pressed against her skull; then he himself was shot in the back of the head the same way as he lay crying. Moore was shot in a separate murder and stuffed in a closet.

Walton plead guilty to capital murder and was sentenced to death. Now his lawyers, aided by the usual crowd of activists and the religious left and even, bizzarely, by the Christian "conservative" Rutherford Institute (which has bought into the liberal religious activist anti death penalty mentality), are pointing to an array of bizzare conduct by Walton and some professionals' opinions that he's nuts, and arguing that his late-found lunacy should spare him from his fate.

Yet fifteen different judges have reviewed this case and agreed that Walton was competent to plead guilty and understands what his punishment is.

In May of 2004 the Federal District Court summarized the facts supporting Walton's competency and sanity both for purposes of pleading guilty and for understanding the nature of his punishment:

When Walton was seventeen, he received the Wechsler Adult Intelligence Scale -Revised (“WAIS-R”) IQ test and achieved a full-scale score of 90, placing him in the “average” range of intelligence. When Walton was eighteen, he completed the WAIS-R IQ test again and achieved a full-scale IQ of 77, placing him in the “low average” range, but not in the mental retardation range. When Walton was twenty, he was again given the WAIS-R IQ test and scored a full-scale IQ of 69. Finally, when Walton was twenty-four, he received the “GAMA” test and scored a 66, a result considered “well below average.” In a footnote, the court observed that the GAMA test heavily relied upon by Walton was generally used as a screening device and was not one of the standardized tests of intellectual function recognized by the Virginia Department of Mental Health. The court also considered the opinions of Dr. Stanton Samenow and Dr. Patricia General, both of whom opined that Walton was not mentally retarded.This court has already found that Walton understands why he is being punished and that he will be punished by execution. Furthermore, the court also finds that Walton has consistently selected electrocution as a method of execution and that he understands that electrocution will result in his death. Before pleading guilty, Walton stated “the chair is for killers”and that he wanted to plead guilty, get “the chair” and “go out like a man.” Dr. Samenow testified that Walton understood that a capital murder charge can result in the death penalty ‘by electric chair or needle.’” More recently, Dr. Mills, the psychiatrist appointed by this court, testified that Walton expressed a preference to die by electrocution. Particularly revealing is the testimony of Allen Glasgow, a rehabilitation counselor who was with Walton on May 23, 2003–just a few days after Walton selected his method of execution. Glasgow testified that Walton communicated well, completed a visitor’s form without assistance, and stated that he wanted his mother to receive his remains upon his death.
Moreover, the Court noted that the defendant had been through a plea colloquy with the trial judge before his guilty pleas were accepted, a colloquy which satisfied the court that Walton understood very specifically what was happening to him.

So isn't it interesting how these professional anti-death penalty advocacy groups tell their audiences only about the supposedly crazy conduct Walton engages in, without mentioning the inconvenient facts that have led the courts to conclude that, in effect, he's nothing but a snivelling malingerer? (We'll leave to another day discussion of the curious concept that a vicious killer should escape death if he's mentally ill).

Governor Tim Kaine, who is personally opposed to capital punishment, has now deferred the execution date of Walton for eighteen months, a time which will be spent desparately trying to produce "findings" that Walton is genuinely mentally deficient, which of course, will give Kaine the political cover he needs to grant clemency to a death row inmate and commute his sentence to life imprisonment.

The DSM-IV-TR states that malingering is suspected if one or more of the following are observed:
1) Medicolegal context of presentation.
2) Marked discrepancy between the person’s
claimed stress of disability and the objective findings.
3) Lack of cooperation during the diagnostic evaluation and in complying with
prescribed treatment regimen.
4) The presence of Antisocial Personality Disorder.

Are any one of these factors present here? "Medicolegal context" is a fancy way of saying that lawyers or legal concerns might have suggested to this person that he should make up symptoms. That circumstance is strongly indicated in this case, where Walton has had access to lawyers and a law library either one of which might have informed him that under Supreme Court precedent, if he does not understand what is happening to him when he is executed, the execution may not proceed.

Second, there is certainly a discrepancy between the claim that Walton cannot understand what is happening to him and the observations of trained medical professionals, observations and conclusions which convinced many different judges that there is no mental deficiency precluding execution.

The third indicator, lack of cooperation, is apparently not present in Walton's case.

Walton could be the textbook example of the fourth indicator, antisocial personality disorder (defined as: "a psychiatric condition characterized by chronic behavior that manipulates, exploits, or violates the rights of others. This behavior is often criminal.").

Hence, not only one, but probably three clinical indicators of malingering are present in this case!

People malinger for financial gain; is anyone surprised that Walton might malinger for his own life?

If Kaine wants to be a creduluous sucker on his own time, fine. But he's defying the will of the judicial process which has found no bar to Walton's sentence being carried out; and he's endangering the public (inmates escape death row from time to time), the prison staff, and other inmates by forcing them unneccessarily to be in constant close contact with a merciless killer.

Wednesday, November 29, 2006

Peace on Earth, But About that Good Will stuff...

Good Lord, if anyone can stand more of this... I'm not really up on this in-house Catholic- converts-turned-professional-apologists industry, but apparently Mark Shea's boss is someone named Jimmy Akin, a cowboy-hatted apologist for Catholicism who apparently is considered a guru by many in the Catholic blogosphere. Akin and Shea both earn their daily bread at a lay-run outfit called Catholic Answers. At any rate, there is much consternation among said "St. Blogs" because Akin has weighed in on the torture "debate," and concluded, like Fr. Brian Harrison and Cdl. Avery Dulles, that not all physical coercion constitutes morally prohibited "torture." Now you would think that this Akin gentleman is some type of mouthpiece of the Almighty given the quivering anticipation that some bloggers have had awaiting his utterances on the torture issue.

But alas, he's disappointed many of them, and for the sin of agreeing with a pontifical professor of theology (Harrison) and an orthodox Cardinal (Dulles) and disagreeing with Shea and those who follow his interpretation of Veritatis Splendor Akin is already being excommunicated by the combox cardinalate. As for Mark Shea, who is the high priest of torture orthodoxy and will admit of no legitimate disagreement or even of parsing out exactly what VS and the contemporary Church is proposing for our assent, he's in the most uncomfortable position of having to explain why Akin is not a torture heretic like Shea's other opponents (like myself).

But wonder of wonders, Shea now admits that "there may be, in some other world, a way to get to something that looks an awful lot like torture but is not intrinsically immoral and therefore not necessarily condemned by Veritatis Splendor." Of course, he won't concede that America would ever really act in a way that is not intrinsically immoral in concrete circumstances: Bush and his minions are still reckless, lying purveyors of death, indiscriminate mayhem, and are probably responsible for the obesity epidemic, too. Whatever.

Nevertheless: debate over: we all agree on the fundamental proposition: not all pysical coercion is immoral torture; all else concerns peripheral issues like "how much" coercion; "what circumstances" justify it; "who" may use, and like questions.

Of course, it's nothing but a tempest in a teapot and no doubt of little concern to anyone outside this feverish little blogging community, but it's a pertinent reminder of why faithful Catholics follow the Church, not personalities, and why humility before the long and venerable intellectual tradition of the Church is preferable to the loud shouting of guys who not long ago thought the Church was the whore of Babylon and who haven't taken the time to plumb the depths of her intellectual tradition of moral reasoning, but rather, in true Evangelical fashion, simply wave a proof-text in our faces and utter denouncements.

These types have no patience for the slow and careful process of actually discerning what the Church has said in the past, and how and in what way She proposes adjustments to Her teachings, and what weight is assigned to these "adjustments." It's as if the mental habits accured from being in the anti-intellectual millieu out of which many converts come has remained with them.

Akin, for his part, is to be congratulated for his serious efforts to find out exactly what the Church has said and is saying, right down to his latest contribution, an interesting study of the Latin (and hence authoritative) text of VS and how that text is not as definitive on torture as the proof-texters assume.

Most of all, he's to be congratulated for being the catalyst for Mark's grudging concession which effectively resolves the kernel of this debate.
Continuing today's Anglophile theme, Gavin, the British defense solicitor yells at the telly when there's a legal drama on. Apparently the legal dramas over there are no more accurate about actual courtroom practice than our shows, which have drawn the ire of some of some domestic blawgers.

''I'm a right-wing Tory, and proud to be a right-wing Tory''

The common sense of the majority of people lead them to support the death penalty-- they instinctively realize that certain heinous crimes call for the ultimate punishment, not because of bloodlust, but because justice calls for a congruent satisfaction in order to restore as much as possible the moral damage done by the perpetrator. They know, too, that such a penalty can be a marginal deterrent and is certainly a specific deterrent for particular dangerous criminals.

England is no different than any other country in this regard. Like in America, where the academy, the mainstream media, and the Christian leadership all conspire to thwart the oft-expressed will of the people for moderate, fair, and reliable capital punishment laws, in England this same coalition of oligarchs have impeded these common-sense laws.

Comes now Priti Patel, a 34-year old political novice, who is making a strong bid to become the first Asian female MP and who is a Conservative Party member.

She makes the following observations:

"If you had the ultimate punishment for the murder of policemen and other heinous crimes, I am sure it would act as a deterrent," she said. "We must send a clear signal to people that crime doesn't pay. The punishment must fit the crime and yes, I do support capital punishment. "For far too long the law has been on the side of the criminal. Law and order is breaking down in Britain and we must do something about it."
To put the icing on the cake, she also favors retention of the British pound against the Euro, saying "I said I would never vote for the euro because I want to see a Britain that is governed by the British for the British."

There may yet be hope for the mother country. If nothing else, restoring capital punishment might give pause to the Islamists who are striving to introduce Sharia, with its throat-slitting "honor killing" tendencies, into England and other European countries.

HT: Crime and Consequences.

Wednesday, November 22, 2006

Reconciling the Old and the New

Even if one takes for granted that the "modified" or "updated" or "developed" position of Evangelium Vitae and the Catechism (#2267) with regard to the death penalty is absolute, true, correct, and binding always and everywhere as the only moral justification for the death penalty, the death penalty in this country is still in conformity with that position. This first of two posts will examine the new position of the Church on the death penalty; in a subsequent post I will show how this new position, correctly understood, does not conflict with American capital punishment jurisprudence and practice.

To recap the new, "modified" position as summed up by Pope John Paul II in EV:
It is clear that, for these purposes [defending public order and ensuring safety] to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.
And the Catechism:
If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.
Note that the famous statement that death cases should be "rare" or "non-existent" is a statement that rests on the premise that "improvements" in the penal system, or "non-lethal means" have the ability to protect the public from the offender. Now what's interesting about this observation of both EV and the Catechism is that the limitation placed on the death penalty is not a philosophical or theoretical one, but a practical one. While the Catechism refers to a non-death sentence as "more" in conformity with the dignity of the human person, it does not state that use of the death penalty is not compatible with human dignity.

The rationale in both texts for restrictive use of capital punishment is the assertion of actual social conditions as the authors believe them to be. The statement that certain unspecified "improvements" in the penal system render the death penalty largely unjustified is entirely different than a proposition such as "human dignity demands that executions be rare or non-existent." It would be a problematic and theologically difficult and delicate matter to question a presumptively magisterial assertion that there is an intrinsic component of morality rooted in the nature of man that renders the death penalty unjust. Neither text, however, makes that statement.

The strongest theoretical claim occurs when the Catechism enjoins refraining from the death penalty when it can be done without endangering society, and that this refraining is "more" in conformity with human dignity. This leaves the possibility that use of the death penalty is still "in conformity with human dignity" but only less so, when it simply the right and just course to vindicate the common good even if the offender could be otherwise rendered harmless.

Returning to the justifications posited by both texts for restricting the death penalty, what of the assertion that some characteristic of a specific existing social institution ("the penal system") renders recourse to a particular penalty more or less justified? Do the texts enjoy any special protection from error about such detailed judgments of concrete social conditions? What studies or surveys did the authors rely upon to come to the conclusions they rely upon? Are their observations to be taken as universally valid? Has the penal system of Iraq or of Afghanistan evolved or "improved" so as to mirror that of France or Italy or other Western European nations?

What if the two documents are simply wrong as a matter of social science about the perceived level of improvements rendering the chance of harm "non-existent" or "rare?" It would not seem to constitute an attack of a magisterial statement to assess the continuing validity of the sociological, not philosophical or theological claims that "improvements" have rendered the death penalty obsolete.

Interestingly, where EV affirmatively claims that these "improvements" have rendered the death penalty mostly unjustified, the Catechism uses conditional language: "if non-lethal means are sufficient...". Thus, the Catechism seems to avoid the more categorical language of EV and leaves the judgment of when or if non-lethal means should suffice to the competent authorities, i.e., the public prosecutor (and of course, ultimately the jury and the sentencing judge).

Seen in this light, perhaps the harmonizing of the prior teaching and the current one rests on an understanding that the current position is predicated in large measure upon the purely contingent social conditions of "the" penal system (of course, there is no "the" penal system; there are hundreds of individual penal systems, all possessing differing capacities to render offenders harmless), and that what is contingent may change. Indeed, contingent circumstances of social institutions are subject to myriad reasonable yet differing conclusions. While the teaching authority of the Church is absolute in Faith and Morals, in sociological questions such as the efficacy of the penal system, the contentions of the Church's representatives are subject to reasonable debate and disagreement.

The new "teaching" if it can be called that, is then, not so much the positing of a new moral position as it is a reference to concrete circumstances coupled with an observation that the death penalty should optimally only be used to protect society, not to protect the larger concept traditionally referred to as the "common good."

While the Catechism does refer to human dignity, it does so only to state that prescinding from execution is more in conformity with human dignity when public safety is secured by other means than death; it does not claim that other uses of the death penalty are not in conformity with human dignity; the negative implication of the Catechism is that the traditional use of the death penalty would simply be less in conformity with human dignity, not that it would be unjust or immoral per se.

In this light, the two positions, old and new, can be reasonably seen as not in contradiction: where the former position did not particularly emphasize under what circumstances the death penalty optimally should be used, so long as it was at least justified by the common good; the new position stresses that the highest or best use of this punishment is where public safety alone demands it, while in other situations it would be still a morally permissible but less-than-perfect option.

Needless to say, the headline-driven, case-by-case abolitionist hard-line espoused not only by Pope John Paul II, but by Cdl. Martino and numerous American and European bishops is purely dicta as lawyers would say, and detracts nothing from the actual teaching of the Church.

In sum, the principles I deduce from the forgoing as guiding Catholics (and all Christians) in when the death penalty would be justifiably used, are:
1) Recourse to the death penalty is moral generally speaking;
2) The death penaly should be avoided when "non-lethal" means can protect
society; and
3) Recourse to the death penalty even where "non-lethal" means suffice to protect society is moral, but less in conformity with human dignity and would be justified only where exceptional circumstances render it necessary and never for reasons less than those included in the traditional ends of punishment (the "common good").
The next posting will examine whether, broadly considered, the death penalty in this country conforms with these principles.

Monday, November 20, 2006

A Gentleman and a Scholar?

You pay $23, 0000 to have your little darling attend UCLA. You're so proud of little Mostafa Tabatabainejad; he's now a senior and knows that to get into the campus library, he has to present a student ID. Your little dear is of Iranian descent, and even though he surely must have been asked to present his ID before, this time he refuses, because he feels he's being "profiled" because of his race.

Not surprisingly, the student volunteer working at the library asks him to leave. He refuses. A campus police officer asks him to leave and he refuses. He starts shouting about the Patriot Act and his rights and demanding that the officer take his hand off of him as he's being escorted out the door. He drops to the ground in defiance of the officer and begins yelling and asking the other students to join in his "protest."

He holds onto furniture so the officers cannot drag him away. Even when he's eventually handcuffed, he resists their efforts to drag him away. So, to try to gain his compliance, the police officers stun your baby boy with a taser device, which delivers an electric shock.

Tasers are controversial because the ACLU and other pro-criminal groups do not like them. Police like them because they safely immobilize offenders short of using more lethal methods like batons or firearms. In fact, the UCLA police won a life-saving award from the manufacturer of Taser for a situation where "officers subdued a patient who allegedly threatened staff at the campus' Neuropsychiatric Hospital with metal scissors."

Although apparently some isolated deaths have occurred after tasers have been used, most reputable studies conclude that there is an extremely low risk of death or injury from use of such devices. Of course, any physical interaction with the police could result in unintentional death or injury because police cannot know in advance what hidden ailments an offender might suffer from. (This incident, obviously coercive of Mostafa's will and upsetting to his dignity, and clearly violative of the "golden rule" may, however, constitute torture under some interpretations.)

Back to our story: recall, if you will; your little 23k darling is exercizing his right to practice civil disobedience against the Patriot Act by not producing his ID at the school library and by shouting and carrying on and resisting removal by the police. They taser him a couple of times to attempt to get him to cease resisting. Little Mostafa's friends in the university community start expressing solidarity with Mostafa by closing in on the police, yelling at them and generally coming very close to obstructing justice. Eventually the police are able literally to drag your little dear out of the library amidst the shouting and complaining of the lad's fellow scholars.

UCLA education: $23,000.

Having a stunning evening at the campus library: free.

Suing UCLA for big bucks? Priceless.

At least they're teaching them something at UCLA-- when you precipitate an incident in which you cause the police to have to give you a kick in the pants, sue.

It's the American (Civil Liberties Union) way.

The (Law) School of Hard Knocks

The secret to success at being a criminal trial dog? Not what school you attended, but whether:
[you] take [your] job seriously and try to learn new techniques every chance [you] get - [you] go to trial advocacy classes, [you] watch lawyers [you] admire on trial, [you] ask experienced lawyers for advice and [you] actually LISTEN to their advice.

This from Blonde Justice but applicable to any one aspiring to more than mediocrity. Criminal litigation is more than just the nuts and bolts of substantive law and evidence. It's knowing when to shut up, when to not ask a question, how to handle a judge who won't rule correctly, how to gauge a witness and decide if a confrontational approach or a gentle approach is better: is the witness coming off sympathetically to the jury/judge? So many lawyers do not take Blonde Justice's modest road of learning from those who know better than we; some are too arrogant to imagine they need continually to learn and hone their abilities, others are simply interested in scoring rhetorical points to advance whatever agenda they're pushing (usually not the agenda of "what's best for my client?")

For a prosecutor, this "extra-legal" training means assessing a case and determining its true "value." It means assessing the credibility and demeanor of the prosecution's witnesses. It means finding creative ways to tell citizen complainants/victims that there is no crime that is provable in court, or that what happened to them is not a felony carrying penitentiary time, but a misdemeanor that will not result in jail time.

These things are not, and cannot be, taught in law school. They are where the law intersects with common sense, discretion, and good judgment, characteristics which often elude the intellectually brilliant or the stridently ideological, but are surprisingly often found in those of modest intellect.

The legal knowledge to do this job is easily mastered; the intangibles are not.

Thursday, November 16, 2006

Back to Legal Stuff

Blonde Justice has quandry. Her co-counsel in a joint trial of co-defendants is apparently incompetent. Even the lawyer's client is begging Blonde to let the trial judge know. I'm sure the trial judge probably does know, but can't realistically do much about it. The shame is, even if the state gets the conviction, the case might end up being re-tried should a reviewing court agree that the attorney's performance was ineffective. Often in such cases I try to intervene as tactfully as possible to prevent at least the grossest mistakes... but it's hard for a prosecutor to get too much into second-guessing whether an attorney is just incompetent, or actually pursuing some type of trial strategy.

One proposed (at least partial) solution for Blonde's problem would be to allow appellate defenders to raise ineffectiveness claims in conjunction with the direct appeal rather than the current method of having to exhaust the direct appeal and then institute a separate habeas action, a cumbersome, lengthy, expensive state of affairs.

Call it one-stop shopping for addressing trial errors.

Sunday, November 12, 2006

Pounding Tables (again)

There is certainly much invective involved for taking the position that the Church has always believed the common good to be a prime justification for the death penalty, and not simply defense of society.

Let's see... I hate John Paul II, am a fool and a bloodthirsty American opposed to Polish Euro-weenies; I'm "orgasmic" about the death penalty (yes, that on Shea's Catholic blog), etc, etc.

A few gentle reminders: I am a prosecutor. This is not a hypothetical discussion for me. When I was a state trooper, one of my friends and colleagues was gunned down. As a prosecutor, I have had to sit with the families of murder victims and witness first hand the social, moral, and personal destruction wrought by murderers. Last week, our office saw off to his reward John Schmitt, who killed a bank guard during a robbery. I have personally prosecuted capital cases. I do not sit behind a computer and simply sling my intellectual hash. I have personally seen the devestation wrought to the common good by the sin and crime of murder.

Am I "obsessed" or "orgasmic" about the issue, then? Hardly. But I believe, as a faithful Catholic, that the proportionate, careful use of the death penalty is important to vindicate the lives of victims, to exact a fitting punishment proportionate to the crime, and yes, to protect society from further harm. A few short years ago, this would have been entirely unremarkable and a simple statement of correct Catholic belief. Now it makes me a "fool" to some.

Do I document cases where the death penalty is appropriate to illustrate these principles? Do I defend the use of the death penalty when the liberal political establishment challenges it? Do I defend the right use of the death penalty when even Catholics misstate the teaching of the Church? Absolutely, on all counts. Cdl. Martino's remarks are prime examples of this. A Curial cardinal, mind you, not some rogue bishop in the hinterlands, states that the death penalty must be abolished in order for a society to be considered civilized. This is an outright falsification of Catholic teaching, even that of EV and JPII.

It bears remembering also, that even if one cannot see beyond 1978 and will accept nothing in the body of moral teaching that predates JPII, the death penalty is in fact "rarely, if ever" used. Of all the murders in this country, a scant one-tenth of one percent are punished by death sentences. Yet the ecclesiastical establishment still hyperventilates over every eminently justified execution. So rest assured, if you care nothing for the common good, don't worry. We don't execute enough murderers to vindicate it. We barely execute enough to protect society.

Yet to point this simple fact out becomes something over which one is thrown to the combox lions. The smear machine is up and running, and I am called every name in the book, and don't forget guilt by association, whereby I am supposed to have adopted every statement made by every commenter who supports my position on the death penalty. Shea, of all people, with his comboxers, should know how dubious making that connection is.

It's the old legal saw: when you have the law, pound the law, when you have the facts, pound the facts, when you have neither, pound the table.

I have not changed, the Church's perennial teaching has not changed, the natural law has not changed.

All I can hear from the other side is table-pounding.

Saturday, November 11, 2006

More on Tradition and Capital Punishment

Wow. Quite alot of misunderstanding out there among the combox cardinalate. The Pope cannot simply change prior moral teachings. The folks who were disappointed at Humanae Vitae learned that. It's pretty basic.

As to the death penalty, here's a post I wrote last year, just to remind everyone that I'm not talking about my teaching, but the irreformable teaching of the Church:

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. That 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 weight and longevity of this teaching. (see, E. Christian Brugger’s recent book, “Capital Punishment: Roman Catholic Moral Tradition.”).

So much for Part One. The Church's teaching on the death penalty, then, is much broader than a reading of one source (the latest Catechism) or two (Evangelium Vitae) would suggest.

See also here for more on this and additional references laying out the traditional teaching.

In sum, yes, of course, protection of the community is ONE justification advanced by the Church for use of the death penalty. I never maintained otherwise. John Paul II's innovation is to reduce the teaching to that one justification only and to ignore the other, more substantial justifications offered by the magisterium.

Why did he see fit to ignore the "sanctity of life" and "rendering justice" rationales (without, note, expressly rejecting them)? Is it so unreasonable to assume that it is precisely because he wished to reduce the opportunity for recourse to the death penalty?

His own interventions in specific capital cases during his life, and the continued political agitation by high Curial officials like Cdl. Martino, certainly lead to a reasonable conclusion that the European churchmen who dominate the decision-making on such issues, have been imbued with the anti-death penalty mindset which is fashionable among contemporary liberal European secular society.


Thursday, November 09, 2006

Vatican: "Saddam is the Real Victim"

So the powers that be in the Vatican don't think Saddam Hussein should be hanged. His lengthy trial and sentence are an "unjustifiably vindictive reaction", according to Cardinal Renato Martino , who also expressed disappointment that Iraq has "not yet made the civilised choice of abolishing the death penalty."

Remember, now, they're going to bat for a guy who was sentenced to hang for committing crimes against humanity by ordering the deaths of 148 Shi'ites from a northern Baghdad village, after a 1982 assassination attempt against him. But Cardinal Martino, head of the Pontifical Council for Justice and Peace, said that "punishing a crime with another crime - which is what killing for vindication is - would mean that we are still at the point of demanding an eye for an eye, a tooth for a tooth."

This is a perfect example of how the Church's teaching on the death penalty has become distorted beyond recognition. The short story is that the Church always viewed the death penalty not in terms of societal self-defense (the premise of the "modified" teaching of John Paul II and the modern Catechism) but upon the twin principles that the sacredness of life is best vindicated by following the Divine command to punish murder by having the murderer forfeit his own life ("For whoso sheddeth man's blood, by man shall his blood be shed for in the image of God made He man") , and by the observation that "justice demands that the offended moral order be repaired and restored by a congruent satisfaction."

John Paul II and the authors of the recent Catechism understood that this teaching was of such antinquity, of such weight, and so universal that it could not be simply wished away. Thus they only modified the rationale offered for the legitimacy of the death penalty, from a moral vindication of the sacredness of life and the requirements of justice, to a mere "defense of society" rationale. This neat trick allows them to conclude that if there is no self-defense issue in a particular case (i.e., the prisoner can be effectively "neutralized" through incarceration), there is no rationale for execution. Et viola! Practically no executions are permitted under this line of reasoning.

Never mind that this is not the traditional teaching of the Church: the end for these innovators (fewer executions) apparently justifies the means (distorting and misstating the traditional teaching of the Church about the death penalty).

Needless to say, there are plenty of people, like Papa Shea, who don't care about this highjacking of tradition, and behave as if the pope is infallible in his every act and utterance. In fact, a pope's primary function is simply to guard the deposit of Faith and hand it down intact to his successor, not to refashion whatever in that Deposit he (or the zeitgeist) doesn't personally care for.

The reaction to Hussein's sentence shows these people for what they are: radicals who really favor outright abolition but could not accomplish that "officially" so they must voice their opposition in every case where someone is sentenced to death. To my knowledge, there has not been a case in the last 20 years in which the Vatican has pronounced that a sentence of death was justified; the examples are legion of pronouncements about how so-and-so should not be executed because the death penalty should be abolished and civilized counries have already done so.

So Rome "officially" allows that the death penalty is permissible, but in practice acts as if it never possibly could be, even in the limited circumstances laid out in their "modified" teachings: it must be abolished entirely in a civilized nation.

Bizzarely, under this morally bankrupt teaching, Hitler, Stalin, and Hussein avoid death because we can squirrel them away for life in some prison, while your garden-variety sociopath convicted murderer who vows to kill his guards or escape confinement could actually be executed as an ongoing threat to society.

Mission Accomplished


So the Dems take over by winning some very, very close races (like the 1/2 of 1 percent margin in the Virginia Senatorial race).

One fella worked hard to suppress the conservative Catholic vote, hoping to voice his displeasure with the evil torture-meister George Bush... and now the gutless wonder who advocated seeing no evil, hearing no evil, speaking no evil, Mark Shea, has the gall to say, hey, I had nothing to do with it!

By the way, lest anyone doubt the repercussions, the Supremes are considering whether to allow states to outlaw partial birth abortion. A swing vote of only one Justice is likely the margin between success and failure. What type of Justice will the Dems be likely to confirm?

Wednesday, November 08, 2006

Mixed Signals

Well the world financial markets certainly know that the dems in charge is not good news (Wall Street also knows what's coming down the pike). And in my own little corner of the world, George Allen looks likely to go down to down by half a percentage point to noted bawdy author Jim Webb.

The satisfying news is that the voters of Virginia have defied the pollsters, who said the issue was much closer, and overwhelmingly approved an amendment to the state constitution defining marriage and barring so-called civil unions.

Certainly Virginians have sent a mixed message: Webb, a legitimate Vietnam combat hero, has bent over and become an absolute tool of the dem party line: abortion rights, tax the hell out of the most productive elements of society, homosexual "rights," to include civil unions/marriage, and turning tail to let the jihadis take Iraq.

Friday, November 03, 2006

Deterrence

A man convicted of murdering a 5-year old boy and trying to kill the boy's mother pulls his time and now has murdered a 16-year old girl.

I suspect the death penalty is a general deterrent, at least marginally.

Applied to this killer, it indisputably would have deterred the death of this child.

HT: Crime and Consequences.

Thursday, November 02, 2006

A Plea for Help

Strange Justice

It takes some real chutzpah for a law professor of all people to suggest that so-called "procedural injustice" can be winked at so long as "substantive justice" is done.

When a judge goes behind the back of the prosecutor and cuts a leniency deal with a defense attorney to reduce an already-imposed sentence on a child sex offender (46 year old man with three counts of sodomizing a 7 year old girl), and specifically asks the attorney not to inform the prosecutor, that's not some trivial "procedural injustice;" it's judicial misconduct and should result in the judge's removal and suspension of her law license. (She violated this provision of the Utah Code of Judicial Conduct).

What would be the reaction if the shoe were on the other foot? Imagine a judge in an ex parte conversation assuring the prosecutor in a case that the judge will impose a sentence that the prosecutor wants. Would the defense bar and the legal academy applaud the judge for obtaining real justice despite her disregard of "mere" procedures like public trial and representation of all parties in a case?

The problem is the assumption that 1) procedural justice is a concept only to be applied in favor of the defendant, not the state; and 2) that cutting an otherwise lawful sentence is in fact, "substantive justice." One could easily argue that someone who sexually assaulted a seven year old girl deserves every minute of his original 30 year sentence, and that it was truly an injustice to reduce secretly that sentence by 10 years without so much as a phone call to the prosecutor.

That's not justice, that's moral cowardice.

Wednesday, November 01, 2006

A Hate Crime by any Other Name

Defense attorney: Oppose homosexuality, and you deserve to die. But hey, killing a Christian because she tried to convince you of the immorality of your lifestyle is not a hate crime. Those are reserved for only the "correct" types of victims; Christians need not apply.

Tuesday, October 31, 2006

In the Ghetto

Where to start? With Shea’s breathtaking sliming of a good, orthodox priest, Fr. Brian Harrison? This priest has had to suffer the slings of the uber-trads because he maintains that Vatican II’s teaching on religious liberty (Dignitatis Humanae) can be reconciled with previous teaching on the Social Kingship of Christ.

He now has to suffer the arrows of the neo-Catholic left, typified by Mark Shea smugly dismissing him as if he were an… I dunno, uncredentialed convert (what are your qualifications, Mark?) rather than someone who has studied theology professionally for years, holds a doctorate in Sacred Theology and teaches the subject at a pontifical university. This neo-Catholic leftism is perfectly illustrated by Shea in his latest diatribe, where yet again he insists that if anyone questions Shea's interpretation of Pope John Paul II’s teaching on torture, let him be anathema.

(Shea joins such luminaries of the religious left as Sister Helen Prejean, another one-issue wonder who thinks that her private views on an issue [capital punishment], also supported by fairly absolute language of John Paul II, trumps anyone’s reservations about the weight and exact meaning of that Pope's new teaching.)

Shea has gone so overboard in his hatred of Bush and Cheney that he now wants to slink off to a convenient ghetto, where he and his combox pals can sit in a circle and hurl anathemas at the rest of the Christian world that has not followed them. They will not vote in the election, no, that would make them ritually impure. You see, voting for the Republicans means voting for torture, an intrinsic evil. Voting for the Democrats means voting for abortion, also an intrinsic evil. See? The parties are morally equivalent! They will stay in their circle and pray before the tabernacle, thanking God they are not like other men.

Meanwhile, Catholics who have not lost the ability to discern, who know they must be “wise as serpents,” know that when two candidates are up for election, and neither entirely upholds Catholic moral principles, then the principle of proportionality permits, indeed demands, that we vote for the politician who will most closely follow the moral teachings of the Church and will most probably save more lives by opposing abortion on demand.

Now which party supports abortion on demand? All together now, the Democrats. Elect them and we guarantee maximum state support for abortion. Elect them and the federal judiciary slips even further into activism, especially on social issues like marriage and abortion.

On the other hand, we have the Republicans. Does this party support the Catholic moral agenda in all respects? All together now, “no.” They are, however, less likely on the whole to support abortion rights promiscuously and throw state sanction behind them. They are less likely to appoint judges who will produce opinions like Lawrence v. Texas (striking down Texas’ sodomy law), Roe v. Wade (abortion); Griswold v. Connecticut (striking down Connecticut’s anti-contraception law); and, soon to come, successful challenges like this one against state bans on homosexual marriage.

Now does voting for the Republicans imply agreement with every policy they pursue? No. Will voting for Republicans at least marginally improve the chance of public policy reflecting Catholic principles? A reasonable Catholic could conclude so. Shea on the other hand has become so wrapped up in the torture issue that he would sit by in his ghetto and watch the Democrats come to power, all because he supposes that a Catholic cannot vote Republican because they support torture.

Got that? Partial birth abortion, tax-funded abortion, activist judges, homosexual marriage, all coming to a country near you, if Mark has his way and all good Catholics abstain from voting, because he wants to make a point about (what he thinks to be the case) a few rotten Islamic terrorists supposedly being tortured.

There's proportionality for you.

Never mind, by the way, that his whole case is a house of cards. As I've pointed out, the Vatican and the U.S. both share a common definition of what constitutes torture.
The United States has bound itself to refrain from acts falling under this definition of torture, while setting up detailed guidelines to delimit the types of interrogation tactics that we will use.

Aside from an off-handed comment by Cheney about “dunking” which the White House has expressly disclaimed as signaling support for waterboarding, Mark has absolutely no grounds to accuse the administration of supporting torture, or of wishing to re-define it in a way that’s inconsistent with the shared Vatican-US definition. Says Mark:
The United States of America has engaged in and continues to engage in acts which no reasonable person can deny are torture. Men have (repeatedly) died from such acts. The United States has now passed legislation which effectively disengages the US from the obligation to abide by the Geneva Convention by giving the guy ordering the torture the final authority to define what is and is not torture. I have named three acts which any sane person (except George W. Bush) recognizes as torture: waterboarding (which the Veep himself boast about while denying he is doing so), cold cells and Palestinian hanging. The President has lied by declaring "We do not torture" while authorizing these and other intrinsically immoral acts and continuing to do so.

Shea may think Bush is lying because there was a limited use of such methods in the past; but unless he has proof that right now, post-Military Commissions Act, the administration is still using such methods he needs to stop, pause, and re-consider.

To help this process, let's consider this Military Commissions Act of 2006. According Justice Mark Shea of the Court of Hasty Judgments, the Act is objectionable because the court gets to determine who is an illegal enemy combatant and that the whole world is subject to this arbitrary determination ("I believe that once the precedent is set that the Executive has the right to arrest and detain anybody it likes for as long as possible on suspicion of being an enemy in the war on Terror, history shows that language will only become more flexible when the Executive has sole discretion in deciding what "enemy" or "material support" means.).

What does the Act actually say? ‘‘Any alien unlawful enemy combatant is subject to trial by
military commission under this chapter." Emphasis added to show that this act applies only to non-U.S. citizens. Again: U.S. citizens are not subject to the Act.

Moreover, under the Act, the accused gets a defense attorney, is afforded the right to have compelled statements excluded (i.e., statements shown to result from torture will be excluded from evidence), has the right to review the government's evidence and cross-examine witnesses against him and subpoena his own witnesses. Perhaps most significantly:
the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter.
In other words, unlawful enemy combatants (i.e., jihadi terrorists) have access to civilian appellate courts. So although the non-U.S. citizen unlawful enemy combatants do not have habeas corpus rights under this Act (is there some compelling reason they should?), they have full direct appeal rights to civilian courts.

Does the President under this Act have the authority to decide what specific methods constitute torture under the Geneva Convention? Yes. Is this some nefarious Bushie plot to overthrow democractic government? No-- to go back to civics 101 for a moment, the executive branch is charged with enforcing treaties. The President has always had the authority to determine in what manner the treaties we enter into should be interpreted, especially where, as with the Geneva Convention, the treaty expressly deals with conduct of executive branch employees, i.e., the military.

To bring this full circle, then, here is what the administration has in the past determined are appropriate interrogation methods. Rumsfeld and the administration specifically drew up this list and it excludes waterboarding and if you read it, you will see that the methods approved are pretty mild and uncontroversial.

Whatever methods the Administration now adopts, moreover, must be published in the Federal Register and will be subject to judicial review. The Administration already knows that a bipartisan majority of Congress believes that waterboarding and extreme temperatures constitute torture, and so will have to abide by that or risk further, explicit legislation outlawing those methods.

So Mark Shea needs to stop hyperventilating about the President and acting like Chicken Little, as if torture chambers are just around the corner for all of us. In point of fact, while publicly wishing to say little or even to allow an impression to remain for our enemies that the methods Shea objects to might still be available, the fact of the matter is that the Administration has never expressly adopted the methods in question, and almost certainly will not do so now.

The "Bush is a torturer" thing may be a nifty paradigm for the left to suppress the vote for the upcoming election, but is a disservice to the truth and a cartoonish mischaracterization worthy of the hyperbolic rantings of the flower power 60's radicals. Grown-up Catholics on the other hand have a vital interest in defeating the real party of death.

A Solution?

To the clerical abuse situation, that is:

"A cleric or monk who seduces youths or young boys or is found kissing or in any other impure situations is to be publicly flogged and lose his tonsure. When his hair has been shorn, his face is to be foully besmeared with spit and he is to be bound in iron chains. For six months he will languish in prison-like confinement and on three days of each week shall fast on barley bread in the evening. After this he will spend another six months under the custodial care of a spiritual elder, remaining in a segregated cell, giving himself to manual work and prayer, subject to vigils and prayers. He may go for walks but always under the custodial care of two spiritual brethren, and he shall never again associate with youths in private conversation nor in counseling them."

--Rule for the Benedictine Monastery of Compludo (11th century)


This remedy might even escape the label of torture since it is a punishment not an interrogation method. Still, it probably would qualify as an example (from Veritatis Splendor) of "whatever violates the integrity of the human person, such as... attempts to coerce the spirit" and hence be considered intrinsically evil. Therefore it would never be countenanced by the current ecclesiastical regime.

But they sure knew how to handle things more directly in the bad old days.

Cargill Forced to Back Down

Luis Padilla, the Cargill employee fired for expressing his pro-marriage views, has, with the help of the Valley Family Forum and a wave of public outrage, prevailed against the hateful, intimidating tactics of that anti-marriage corporate giant.

According to a release from Virginia For Marriage,
...How Did It End? Luis and the Forum met with Cargill on Oct. 24 at their
invitation. They agreed to: 1) reinstate Luis to his position, 2) restore his back pay, 3) expunge from his personnel file all reference to this situation, including charges of insubordination, 4) express regret to Luis and his family, and 5) issue new guidelines to prevent a recurrence of this sad experience.

Congratulations to Mr. Padilla.

Friday, October 27, 2006

Defining Terms

Sigh... Papa Mark is really a one note wonder about this whole torture thing. He is very anxious to smear everyone who does not immediately and unquestioningly accept his view that because Veritatis splendor #80 apparently says torture is intrinsically immoral then we all must accept it fully and not question its theological weight.

Oodly, after protesting that he could not possibly define torture, he now refers us to the dictionary, to interrogation manuals, and to the golden rule while accusing his opponents of not being willing to accept a definition of torture (since a fundamental problem of VS#80 and all the other modern teachings purporting to condemn torture is that they nowhere define it).

So in the hope that we might at least understand what exactly we are talking about when we're trying to figure out if torture is intrinsically immoral or sometimes immoral, I offer the following attempt at a serious, workable definition that all or most might agree on. Torture is very well defined, as I pointed out some time ago, in international law to which the U.S. has committed itself, as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

(U.N. Convention Against Torture). Torture is moreover defined in U.S. domestic federal law in very similar terms:

(1) “torture” means an act committed by a person acting under the color of law
specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of
mind-altering substances or other procedures calculated to disrupt profoundly
the senses or the personality;
(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.


So, please-- no golden rule or Merriam Webster definitions. Torture is fairly well defined in international and domestic law. Since the Holy See maintains a presence at the U.N. and has ratified the U.N. Convention Against Torture it is fair to assume that the Vatican itself would accept this type of definition.

What of it? Two points. First, granting for argument's sake that torture is intrinsically evil, as Shea would have it, a fair conclusion is that this is what John Paul II had in mind when he called torture "intrinsically evil" in VS #80.

Second: Anything milder than what would fall under this definition is not torture, and thus does not fall under the condemnation of VS #80.

Although these two conclusions do not eliminate the debate over the development of teaching represented by VS#80, it at least gets us to a point where we can stop calling anything which makes us uncomfortable "torture."

Hence, aggressive interrogation techniques would be permisible, such as these actual methods now approved for use by US interrogators:

"change of scenery up; change of scenery down; dietary manipulation; environmental manipulation; sleep adjustment (reversal) ; isolation for 30 days"; and a technique known as "false flag," or deceiving a detainee into believing he is being interrogated by someone from another country. The other 17 techniques are approved in standard military doctrine and carry these names: direct questioning; incentive/removal of incentive; emotional love/hate; fear up/harsh; fear up/mild; reduced fear; pride and ego up and down; futility; "we know all"; establish your identity; repetition; file and dossier; good cop/bad cop; rapid fire; and silence.
Four of the tactics required interrogators to notify commanders in advance of their use. They are: isolating a detainee from peers; pride and ego up or down, which means attacking someone's personal worth and sense of pride; and "fear up/harsh," in which interrogators could yell at prisoners, throw things around the interrogation room and convince a detainee that he has something to fear, sleep deprivation, loud music, standing for lengthy periods of time, use of deception, isolation from peers, use of cold or unpalatable food....
Expressly excluded are methods such as waterboarding. Note however, that waterboarding, for all of Shea's histrionics, does not necessarily induce "severe mental pain or suffering." That is, it does not inflict any actual injury to the person but only causes a person to feel that he will drown. As has been pointed out in several places, US personnel themselves undergo the method in training, so as to understand its effect. Are they being tortured?

At any rate, with these definitions in mind, hopefully St. Blogs can narrow the discussion to those methods (which the US has disavowed) which are truly torture, that is, which inflict severe mental pain or suffering. Shea can come up for air and stop making not-so-veiled threats against the Vice President (the Secret Service might take exception): the administration's own laws disavow any intent to commit torture as the Holy See and the U.N define it. And the so-called Bushies can cease worrying: the administration proposes to do nothing contrary to the novel teaching of VS#80. Sadly, I get the impression that Shea likes using this issue to vent his hatred of Bush and Cheney, and will not let it go even if the administration expressly disavows torture (as it has).

No wonder St. Thomas was a stickler for definitions. It clarifies matters, no?

Carry on.

Class in Session

I don't suppose I should have expected better from Talk Left: but hasn't the argument that pro-lifers should, to be consistent, oppose the death penalty been answered, like, a million times over by now?

Sigh. Pro-lifers (for the most part) are not pacifists. There is a difference between an unborn human child who is the very exemplar of innocence, and people like this or this or this or this or this, who are the very exemplars of evil and guilt.

There is a time when life is rightly taken by the state. Just war and capital punishment are two examples. Abortion takes an innocent life. Any questions?

Thursday, October 26, 2006

Requiem for Marriage in New Jersey

Here it is: New Jersey Supremes predictably hold that equal protection provision of the state constitution requires that homosexual couples be afforded the full rights and privileges of normal marriage. While superfluously holding that there is no fundamental right to marry conferred by the due process clause of the constitution (hoping no doubt to head off the polygamists and others), the Court nevertheless holds that there is no basis for the state to deny all the privileges of marriage to homosexual couples, with the exception that the state need not call their couplings "marriage." Well, then, all is well.

The Court's opinion sounds like an episode of "Oprah," adoringly giving us the life stories of the seven homosexual plaintiff couples, apparently in a bid to support the Court's contention that the "plaintiffs lead lives that are remarkably similar to those of opposite-sex couples." There's great legal reasoning for you. Don't try it at home, boys and girls, you need a special license to engage in such sophisticated lawyering.

Ummm, excuse me, Mr/Ms. Justice, but I don't know of a single heterosexual couple where (like one of the NJ couples you glorify) both were artificially inseminated to produce their two children. I also don't know of any heterosexual pairing premised by its very nature on the absence of either a mother or a father. By definition, these supposed "just like us" families are designed to be fatherless households (in the case of lesbian couples) or motherless households (in the case of male homosexual couples). True, heterosexual families sometimes end up dissolving into single parent situations, but they are not deliberately designed in advance to exclude the presence of an opposite sex parent in the household.

Yet astoundingly, the NJ robed gods did not see this simple fact as justification for the state's continued fostering of normal marriage. Of course, it's not all the Court's fault. Apparently, the NJ “Attorney General disclaim[ed] reliance upon promotion of procreation and creating the optimal environment for raising children as justifications for the limitation of marriage to members of the opposite sex.” Huh? (Although the "acting" AG is on the brief, the case no doubt was prepared under the corrupt former AG, one Zulima Farber, who resigned in disgrace before the case was argued. I know you'll be shocked to find that Farber was a past- state board chairperson for NARAL Pro-Choice America)

The rationale of the NJ court was that since the NJ legislature had enacted several laws favoring homosexuals, such as a domestic partnership law, a "hate-crimes" law, liberal adoption standards, and the like, the state could not withold the additional benefits conferred by marriage consistently with equal protection principles. Ironically, the message there might be that legislatures should not take a single step down the road conferring any unique protections on homosexuals as such, lest the courts conclude, like NJ, that once you give them a bite, you have to give them the whole enchilada. As pointed out by Dale Carpenter, this may cause a retrenchment in other states worried about judicially imposed homosexual marriage.

The bad news is that all it takes is some creative writing from our judicial masters to finagle the equal protection argument any way they like. Virginia's constitution, like New Jersey's, guarantees equal protection of the laws. Unlike NJ, however, Virginia does not by statute grant adoption rights to homosexuals, and our courts have thusfar denied them that right. But at the insistence of the homosexual lobby, the Virginia Housing Development Authority has removed a restriction to their Single Family Loan Program which had required co-borrowers be related by blood, marriage or adoption, thus excluding homosexuals.

Moreover, previously Va. Code § 38.2-3525 had limited healthcare insurance coverage to the employee and a limited group of defined dependents—even where a private employer chose to offer broader benefits. The 2005 General Assembly passed a law signed by former Governor Mark Warner allowing private, employer-based health insurance to be extended on a voluntary basis to individuals living in the same household as the employee, i.e., homosexuals.

And in 1999 the Virginia Supremes ruled in Bottoms v. Bottoms that homosexuality of a parent is not a per se disqualification to custody rights.

So although Virginia has not gone as far as NJ in giving express statutory entitlements to homosexuals, there has been some movement favoring their initiatives. It is not difficult at all to imagine a 4-Justice Virginia Supreme Court majority ruling that equal protection concerns trump whatever remains of the state's concern in fostering traditional marriage and family life.

If you're a Virginian and believe the people, not judges, should decide what marriage in this state should look like, the constitutional amendment on the November ballot is the solution. It forbids the establishment of so-called civil unions, or "marriage-lite." Marriage, at least as a public, civil institution as it has been known from time immemorial is now dead in New Jersey. Why? Because their legislature enacted a domestic partnership law that gave many benefits of marriage to homosexual couples. The NJ Supremes yesterday said that since homosexual couplings are not disfavored, the state cannot deny them the full benefits afforded to heterosexual couples. In Virginia, even though a statute forbids homosexual marriage, other laws and judicial rulings seem to afford some protection to homosexual couples. And we all know that a mere statute cannot trump the constitution!

In Virginia, when the proposed marriage amendment is adopted, the fundamental uniqueness of traditional marriage will be reaffirmed and "marriage-lite" civil unions will be unconstitutional. The New Jersey tactic will be unavailaing here, because no legal argument could then be made that since Virginia favors partial homosexual cohabitation rights, it must confer them in full.