"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, May 29, 2009

"I saw a body lying and I saw a gentleman walking toward me with a head in his hand"

Poor Virginia Tech... beseiged by homicidal nutjobs, like Haiyan Zhu, who in absolute cold blood calmly severed his friend, Xin Yang's head in the campus cafe in front of shocked students, who instead of gang-tackling this monster either fled the room or cowered behind a counter describing the decapitation in progress to the 9-1-1 dispatcher.

What they saw as they stood passively by? "Zhu was on top of Yang, who was on the floor. Zhu stared at Yang's face as he cut through her neck. It wasn't really an angry face at all," said [the witness], at that point the only witness to the gruesome events. "It was just a really blank, determined look."

The campus cop will no doubt never see again in her career the sight that greeted her upon her arrival: "'I saw a body lying and I saw a gentleman walking toward me with a head in his hand,'" testified Nicole Irvine of the Virginia Tech Police Department.
Irvine said he dropped the head when she ordered him to put his hands in the air."

"Gentleman"?

It's important continually to refer to actual crimes and the reality of their victims when discussing punishment, which far too often veers off into theory or into the defendants' pathologies. When the facts of these horrific cases are remembered, it tends to focus attention on the justice of the punishment. In this case, I can't imagine any reason why the taxpayers of this Commonwealth should suffer this monster to live on the dole in one of our fine correctional facilities for life.

How about instead some retributive justice for that Xin Yang, the poor girl who suffered such an unimaginable death?

Wednesday, May 27, 2009

Taking the Blindfold Off Justice



The shabby identity politics involved in nominating Supreme Court justices has just taken a large step forward, with Obama's naked pandering to "diversity" in nominating a hispanic female to the high court. Sonia Sotomayor may perhaps be the "best of the worst" from an originalist viewpoint, but someone who could even utter this phrase, "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," should not be a judge of any sort, much less a SCOTUS justice. This is someone who, like Obama, wants to divide the nation into what are essentially artificial and superficial categories, and make substantive decisions based upon those categories.

A judge, of any court at any level, should have only one thing in mind: applying the law fairly, according to its meaning as it was commonly understood at the time of its enactment, without consideration of any party's race, sex, religion, or any other legally irrelevant quality. If some judges have not lived up to that ideal, the solution is not to throw judicial neutrality overboard in favor of a race or group-based activism which seeks the correct "compassionate" result regardless of the facts or law.

In seeing how blatant President Obama is being with playing identity politics with the SCOTUS, I recalled my disgust at President Bush for committing the same offense with the nomination of Justice Clarence Thomas.

Much as I admire Thomas and his consistent application of the original understanding of the provisions of the Constitution, the only sure interpretive method for avoiding judicial tyranny, it seemed beyond question that Bush was picking this man based in large part on his race and the perception that the "black" seat on the Court must be maintained.

E pluribus unum and the melting pot are quickly becoming the lost ideals of American society, to be replaced apparently with an incessant struggle among various identity groups for recognition and political power.

Thursday, May 21, 2009

A Dust-Up Over Doctors

The problem I've got with some of the Catholic left when it comes to the death penalty is that they too often simply resort to cheap sloganeering. Take for example the issue of to what extent physicians should be involved with the execution process.

Mark Shea wants his readers to accept his decree that having a physician involved in the process is "weird." He links them to an article which attempts to compare physician involvement in the execution process in the U.S. with German physicians' complicity in Nazi atrocities. Yes, the old "reductio ad Hitlerum."

What has Mark and his buddies frothing? North Carolina's Supreme Court recently ruled that the state's medical board it overstepped its authority in threatening to sanction physicians who participate in the process of execution. The North Carolina board's position was the only one in the country absolutely forbidding physician participation in executions.

Let's look at some history: Executions used to be carried out by fairly plain methods: eletrocution, gas, hanging, firing squad, and the like. The process was a simple one where the jailers could easily carry out the physical motions that would cause the death of the inmate. The role of the physician would then be simply to verify that the death had occured, that is, that the inmate was clinically dead. It was easy for the physician to have a very limited role in the process.

Now, for all intents and purposes, the universal method of execution is lethal injection. Was this method introduced because the Godless government wanted to dehumanize the inmate; to make execution more efficient for a Nazi-like road to mass extermination?

Uh, no.

Lethal injection arose specifically because it is widely viewed as a more humane alternative to the other methods. In that regard, it has to be noted that in states where inmates are given a choice of methods, lethal injection has been chosen by nearly 100% of the condemned.

Now if we grant that capital punishment is morally permissible, and if, as it appears, lethal injection is the most humane method that has been devised, then why the hyperbole about involving a physician? Which is more humane to the condemned man: a physician ensuring that the process is carried out correctly and with minimal pain or that a ham-handed prison guard insert the IVs and ensure the proper dosage and delivery of the various drugs?

A physician no more violates the adage, "do no harm" in overseeing the correct application of lethal injection than he would if he personally had to kill in self defense, or kill an enemy in battle during a war. The state executes an inmate in the exercize of social self-defense, and the physician who assists in this process is not only not violating his oath, he is fulfilling it by helping to ensure that his fellow citizens are protected against the offender.

The North Carolina Supreme Court correctly ruled that a group of unelected physicians with a policy disagreement about capital punishment overstepped their authority in attempting essentially to ban executions in North Carolina by bullying physicians away from carrying out a statutorily-mandated role in ensuring the integrity of the execution process.

What's actually "weird" is that any Catholic would villify these physicians as comparable to Nazis, and foster contempt for a punishment that is not only lawful, but in accord with Catholic teachings.

Wednesday, May 20, 2009

Principles, please

Some time ago, I took Virginia AG candidate Ken Cuccinelli to task for being less than forthcoming about his beliefs concerning capital punishment, since he had voted against a bill allowing for the death penalty in accomplice liability situations. He had opined that Virginia was executing "enough" offenders.

I thought, based on a clarification his camp issued that he was firmly in support of Virginia's capital punishment system.

Now we learn this about his views from a WaPo article in 2007 when he was running for the House of Delegates:
'I escape the conservative model on things like the death penalty, the mentally retarded and the mentally ill,' Cuccinelli said. He added: 'I am modestly more conservative than the district, but she is a lot more liberal than the district.'
Cuccinelli's opposition to most expansions to the death penalty and his support for increased funding for the mentally retarded stem from his Catholic faith, he said. His support for better mental-health services comes from representing clients with mental illness in commitment hearings.
Look, this is simple. Stick to your core values and beliefs and don't hide them for political expediency. If you believe the death penalty is immoral, don't be a weasel like Gov. Tim Kaine, who believes the death penalty is immoral but signs death warrants anyway.

Don't tell the Post in 2007 that your faith leads you to oppose expansion of the death penalty and turn around in 2009 and boast that you
voted to extend the death penalty to people who murder trial witnesses, judges and law enforcement officers. And as your Attorney General, I am committed to upholding the death penalty verdicts of our juries and will work to defend and strengthen our capital punishment law from intrusions and attempts by the left
to derail it.

People might conclude that whatever your actual position is, you don't have the moral will to be forthcoming about it.

Poster Child, Part XVII

Missouri executes Dennis Skillicorn for killing good samaritan:
In 1994, a car carrying Skillicorn, Allen Nicklasson and Tim DeGraffenreid stalled along Interstate 70 north of Fulton in Callaway County.
Drummond [the victim], from the northwestern Missouri town of Excelsior Springs, stopped to help, but was forced at gunpoint to drive the men toward Kansas City. On the way, the men stopped in a rural area, and Nicklasson shot Drummond in the back of the head.
Nicklasson and Skillicorn were convicted of first-degree murder.
Nicklasson is also on death row. DeGraffenreid, who was 17 when the crime took place, served time for second-degree murder.
Supporters wanted Skillicorn's sentence commuted to life in prison, calling him a role model for other inmates. But in denying a clemency request Tuesday, Gov. Jay Nixon noted that Skillicorn was on parole for another murder at the time Drummond was kidnapped, robbed and killed. Nixon also noted that Skillicorn was convicted of two subsequent murders in Arizona just days after Drummond was killed.

A killer killing again, not having been "rendered harmless" by the justice system the first time around. Three people senselessly murdered because this guy was allowed to live after taking someone's life.

The sad truth is, some offenders will not stop killing until they themselves are justly executed.

Thursday, May 14, 2009

Hmmm...

Now how can I get my Scout Troop involved in this?

Assumptions

I've always been suspicious of attempts to portray prosecutors as unyieldingly in favor of whatever outcome results in convictions, and defense attorneys as unyieldingly in favor of whatever outcome results in acquittal of the accused. It seems like sloppy generalization, and as the Supremes have demonstrated recently, characterizations such as "liberal" and "conservative" don't always neatly apply to appellate judging. Often the divide seems to involve a more libertarian, strict or original constructionist viewpoint vs. a more outcome-oriented philosophy less wedded to the meaning or purpose of a given law.

This divide was recently illustrated in our own Court of Appeals, where, in an en banc opinion of the whole Court, the question arose of what kind of conduct would be sufficient to establish an "overt act" which, together with agressive words, can constitute an "assault" in Virginia law. The question was a rather technical one and the facts made it a very close case, but the interesting aspect of the majority opinion affirming the conviction was that it was authored by arguably the most "liberal" member of the Court, a judge who more readily reverses convictions than his colleagues.

The dissenters argued that the Commonwealth had not met its burden in showing that the defendant's actions rose to the level of an "overt act" and therefore her words alone could not legally constitute an assault.

The dissenters? Two former 20+ year Commonwealth's Attorneys and a new appellate judge who as a trial judge had no problem convicting defendants in closely contested cases.

One trend I've noted in reading reversal opinions from former prosecutors is that there is often a reference to what the trial prosecutor should have done or could have done differently. Indeed, in this case the dissent offers their advice in a footnote that the prosecutor could have elected to prosecute under a different statute entirely!

I've personally noted this habit in my days as Assistant Attorney General, where in a stalking case the three judge panel, in a two-judge majority opinion authored by a long-time former prosecutor, reversed the conviction. (fortunately the en banc Court decided, 9-2, to reverse the panel and affirm the conviction). The former prosecutor-turned appellate judge had many questions during oral argument centered around why the prosecutor did this or that or did not do this or that, and in his dissent in the en banc opinion noted, "the prosecutor failed to produce more than speculative allusions to evidence of either the appellant's specific intent or the victim's specific fear."

In short, one comes away with the impression that sometimes what sticks out to these former elected chief prosecutors is the quality of the trial prosecutor's performance more than the legal sufficiency of what is actually proven.

A poorly prosecuted case may not be a thing of beauty to a former boss-prosecutor, but it may still be enough to get the job done.

Monday, May 11, 2009

Incarceration: Rendering Offenders Harmless?

Maryland imperils citizens; effectively bans the death penalty by allowing it only when prosecutors have DNA evidence, videotaped evidence or a voluntary videotaped confession.

I guess Maryland never has to deal with someone like Thomas Ivey, executed on Friday by the state of South Carolina:

Authorities say Ivey’s crime spree began in January 1993, when he and another inmate escaped from the Barbour County Jail in Clayton, Ala., where Ivey was
being held on a murder charge
. Ivey and Vincent Neuman busted out of jail, stole a truck and drove to South Carolina, ending up in Neuman’s hometown of Columbia.There, authorities say the pair kidnapped businessman Robert Montgomery, who was working downtown with his janitorial service. Ivey and Neuman drove Montgomery to rural Orangeburg County. Neuman later testified that while there, Ivey shot Montgomery in the head and chest, leaving his body to be
discovered by hunters.Two days later, the pair visited a mall in Orangeburg, where a clerk accused them of trying to pass a stolen check. Harrison responded to the call but let Ivey go when he realized Neuman was trying to use the check.Ivey told police a handgun in his pocket fired accidentally as he walked away, and the bullet ricocheted off the floor, hitting Harrison in the leg. Ivey said he then panicked, shooting the officer five more times, according to court records.

But I have a feeling there are guys like Ivey in Maryland too.


R.I.P, Robert Montgomery and Sgt. Harrison.

Thursday, May 07, 2009

Chip, chip, chip

The Supremes will look at a case where the issue is whether life imprisonment without parole violates the Eighth Amendment's prohibition against cruel and unusual punishments, where the offender was 13 years old when he committed his crime.

The case is Sullivan v. Florida (summary), and I predicted here that it's the first battle in a long campaign to convince the SCOTUS to chip away at LWOP sentences under the guise of the Eighth Amendment.

This is how the law is used by social engineers who can't succeed in the court of public opinion. Can't democratically outlaw a form of punishment you don't agree with? Chip away at it in the courts.

As this case demonstrates, elimination of the death penalty, a long-time goal of legal activists, is only one part of the agenda for the criminals' lobby. So when they preach LWOP as an alternative negating the need for capital punishment, remember this case and the other sure to follow.

LWOP and "rendering offenders harmless"

From California, another real-life example of why capital punishment in this country is morally consonant with Catholic teaching that we can only justly use death when the criminal justice system cannot "render[] one who has committed an offense incapable of doing harm,"
Officials at the California Department of Corrections and Rehabilitation announced Tuesday that they believe 41-year-old David Martinez killed his cellmate, 51-year-old James Lambert. Lambert was found unconscious in his cell on April 19, and died on May 1.
Martinez is serving a life sentence without parole from Los Angeles County
for first-degree murder.

Maybe some other country has figured out how to render these violent offenders incapable of doing harm, but clearly, we haven't.

Hat tip: Crime and Consequences.

Wednesday, May 06, 2009

Pounding the Table

There's an old lawyer's yarn about trial argumentation: when you don't have the facts, pound the law; when you don't have the law, pound the facts; when you have neither, pound the table.

“Consequentialism”-- this is the term that is supposed to neatly and quickly dispose of anyone who disagrees with Mark Shea or others on the Catholic left who insist that “torture” has been condemned by the Catholic Church as intrinsically evil.

Consequentialism in the pejorative sense meant by this group means basing one’s conclusion about the morality of an action solely by reference to the good end supposedly achieved by the action. In modern times, consequentialism of this kind derives from the utilitarianism of John Stuart Mill, which holds that an action’s practical effects on society are the sole criterion for judging its morality.

This type of utilitarian or consequentialist thinking has wreaked havoc on society, and is used to justify all varities of immoral actions on the grounds that some perceived good lies at the end of the action. So, for example, the bombings of Hiroshima and Nagasaki are viewed as morally good because although they directly resulted in indiscriminate loss of non-combatant life, they shortened the Pacific war and saved perhaps thousands of lives of U.S. troops. Or, the “hard case” of a pregnant mother who will die of complications if the child is brought to term; the child is aborted to avoid the mother’s death; or homosexual marriage, where the "good" of the parties' loving union or the value of "equality" is said to outweigh the societal benefits of traditional marriage.

So it is no surprise to find that some who support the use of methods that might constitute torture resort to straight-out improper consequentialist thinking; it seems to be a common moral error, even among Catholics, probably due to the pervasive influence of this error in society at large.

Sadly some in the torture "absolutist" camp have resorted to shabby straw-man argumentation, claiming that the whole “religious right” (i.e., those who deny that torture is intrinsically immoral) share the same consequentialist rationale as the worst example that can be dug up of that rationale. It’s the simple logical fallacy of guilt by association: If this guy supports torture on consequentialist grounds, all who believe that torture is not intrinsically evil also are guilty of consequentialism.

In this same category of straw man illogical argumentation is the attempt to paint all who support enhanced interrogation methods with the broadest brush possible by citing Charles Krauthammer’s untenable standard, "if you have the slightest belief" torture will save a life, a moral duty exists to use it.

Of course, no orthodox Catholic is suggesting or adopting a consequentialist rationale for enhanced interrogation, that is, that despite the inherent evil of the act, the good end makes the act morally acceptable. Rather, the point they make is simple: the Church has not clearly ruled out torture as an intrinsic evil. The task before us then, is the tough work of moral theology, which is to delineate exactly when and under what circumstances could enhanced methods of interrogation be morally permissible. This analysis of circumstances, proportionality of means, and intent, is the bread and butter of Catholic moral theology, and is used to evaluate use of force in just war and self-defense, what economic practices are moral, and a vast array of moral questions where an act can be moral or not, depending on the intent of the actor, the circumstances, and whether the means are proportional to the ends.

I suspect (for reasons beyond the scope of this posting) that with respect to enhanced interrogation or torture, the conclusion is these methods are moral “only rarely, when other methods have not worked, when an imminent and reasonably discernible threat to life is present, and using methods narrowly tailored to achieve the information sought.”

That's not consequentialism. Quit pounding the table.

Abolition Effort Falls Short


Kudos to the Democrat-controlled Colorado legislature for defeating an attempt to abolish capital punishment there.

Colorado is very sparing in imposing death sentences, with only two men on their death row.

One, Sir Mario Owens, ambushed and murdered an engaged couple because the male victim was about to testify against Owens' friend in the friend's trial for a separate murder.

Not surprisingly, Sir Mario was already a convicted murderer.

The second inmate is Nathan Dunlap, who mass-murdered four people in a Chuck-E-Cheese restaurant. This poster boy had previously been convicted of armed robbery and kidnapping.

Thank God the legislature didn't take the counsel of Archbishop Chaput, and declined to imperil the citizens of Colorado by taking away this important tool for protecting the public.

A Matter of Scale

Check out this simple illustration of our federal budget situation. I couldn't directly embed it for some reason.

Friday, May 01, 2009

Absolutists and Catholic Morality

Since the issue of torture has become prominent again due to the Obama administration releasing Bush-era memos on the subject, the morality of the methods of interrogation used in the fight against militant Islam has gotten a lot of play on the Catholic blogosphere. Some of the "anti" enhanced interrogation coverage has been of the frothing at the mouth variety while others like Feddie find a way to oppose these practices without impugning the good faith of those who disagree.

I say "enhanced interrogation" by the way, because there is still, at this late date, a great deal of ambiguity about what the term "torture" encompasses. In terms of Catholic morality, "torture" has never been actually defined authoritatively, much less condemned, until (apparently)Veritatis Splendor, an encyclical letter of John Paul II written in 1993. In #80 of that letter, opponents of "torture" find this support for their position:

the Church teaches that "there exist acts which per se and in themselves, independently of circumstances, are always seriously wrong by reason of their object". The Second Vatican Council itself, in discussing the respect due to the human person, gives a number of examples of such acts: "Whatever is hostile to life itself, such as any kind of homicide, genocide, abortion, euthanasia and voluntary suicide; whatever violates the integrity of the human person, such as mutilation, physical and mental torture and attempts to coerce the spirit; whatever is offensive to human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution and trafficking in women and children; degrading conditions of work which treat labourers as mere instruments of profit, and not as free responsible persons: all these and the like are a disgrace, and so long as they infect human civilization they contaminate those who inflict them more than those who suffer injustice, and they are a negation of the honour due to the Creator".
This is to my knowledge the first and only authoritative source for the claim that torture is intrinscally immoral. Oddly, VS #80 cites to the Second Vatican Council document "Gaudium et Spes" as authority for the claim that the list of wrongs in #80 is intrinsically evil.

But Gaudium et Spes itself makes no such claim, only stating the following:

Furthermore, whatever is opposed to life itself, such as any type of homicide, genocide, abortion, euthanasia or willful self-destruction, whatever violates the integrity of the human person, such as mutilation, torments inflicted on body or mind, attempts to coerce the will itself; whatever insults human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children; as well as disgraceful working conditions, where men are treated as mere tools for profit, rather than as free and responsible persons; all these things and others of their like are infamies indeed. They poison human society, but they do more harm to those who practice them than those who suffer from the injury. Moreover, they are a supreme dishonour to the Creator.
These things are styled "infamies" but the precise claim is not made that they are intrinsically evil, that is, always and everywhere forbidden, regardless of circumstances.

The troubling aspect of the anti-"torture" position is the weight it puts on VS #80's labelling of torture as intrinsically immoral.

It is troubling because the language of VS #80 is exceedingly imprecise, and if one literally takes the view adopted by what we might call the absolutists, certain untenable conclusions follow, as can be illustrated thus:

VS#80 calls "intrinsically evil" the following:

"attempts to coerce the spirit" -- this phrase is ambiguous, but if we take the position of the absolutists who insist on a very strict interpretation of the document, it would seemingly condemn as intrinsically evil even the modest coercion routinely used in police interrogation, where mild methods like temporary isolation in a small room, insistent questioning, and use of verbal trickery are all employed to "coerce the spirit" to obtain a confession. Parents are under a duty at times to "coerce the spirit" of their children through punishment, counselling, persuasion, and invocation of authority. Those in authority in many different contexts rightly attempt to coerce the spirit of those for whom they are responsible.

"deportation"-- Again, strictly reading the document as a condemnation of the named practices as intrinsically evil would lead to the surely absurd result that nations could no longer deport even the worst violators of the public order who enter the country illegally. Again, there is no support in any prior teaching of the Church for the position that deportation is an evil of any sort, much less an intrinsically evil practice that can never be justified in any circumstances. Indeed, even the United States Conference of Catholic Bishops, not noted for being particularly "rightist" or conservative about immigration, acknowledges that in some situations deportation is permissible.

The most unusual application of the "intrinsic evil" label is to what VS #80 in the official English translation calls "homicide." I wondered whether the English rendering "homicide" might be a mistaken translation for a Latin word more properly rendered as "murder," which would make sense when talking about intrinsic evil. I found that VS #80 actually quotes Gaudium et Spes here, and the Latin word used in that document (and in VS) is "homicidia." Homicidia can mean "murder," but is more accurately rendered, as it is the Vatican's own English translation does, "homicide." There are several words more specifically denoting "murder" in Latin, but these are not used in Gaudium et Spes or in VS.

So we are left with VS #80 classifying "homicide" as an intrinsic evil. This is problematic for several reasons, primary of which is that it would directly contradict the Church's long and clearly authoritative approval of Just War, proportional use of force for personal self-defense and defense of others, and the prerogative of the State to resort to capital punishment.

Now VS #80 does list some things that are in fact intrinsically evil, and we know they are because moral reaoning and the Church's long tradition have demonstrated them to be; examples of these are: genocide, abortion, euthanasia, suicide, and arbitrary imprisonment.

But the other items are not clearly intrinsically evil.

Yet the absolutists rest their case on a document which is riddled with ambiguities. There is in VS a mix of some actions that are, and always have been intrinsically evil, and which the natural law itself condemns. There are other things we must conclude are listed as intrinsic evils, which are clearly not, at least in the unqualified way in which they are presented: deportation and homicide, and probably torture itself; and there are items which are hard to describe as intrinsically evil, even while they might be often evil, such as subhuman living conditions, and perhaps torture, if we assume that the word describes a broader range of interrogation methods than the harshest practices it can be used to denote.

So VS in the end is a house of cards upon which to base an objection to torture based on Catholic moral principles. Which is not to say that torture or enhanced interrogation might not be worthy of condemnation for some other reason, or that we might define torture in such a way as to render it intrinsically immoral.

But the attempt by some to paint those who are not hasty enough to denounce all enhanced interrogation methods as lying, foolish, or sinful, based upon their absolutist reading of a very oddly worded encyclical, strikes me as unwarranted.