'there can be no morally acceptable justification for vengeance

By Carolyn Dineen King, South Texas Catholic News

(Editor's note: Area judges, attorneys and members of local law enforcement
agencies gathered for the Oct. 4 Red Mass at Corpus Christi Cathedral. The
Mass, invoking the wisdom of God, who is the Supreme Law Giver, was hosted
by the diocesan Red Mass Committee and presided by Bishop Carmody. Special
guest speaker was Carolyn Dineen King, United States Circuit Judge for the
Fifth Circuit, who spoke on capital punishment. Leaders from several faith
communities served on the committee and participated in the liturgy.)

Following is the text of the talk presented by Judge King.

I want to share with you today my concerns about capital punishment. I
became a federal judge in 1979, seven years after the Supreme Court
effectively struck down all the capital sentencing laws in the nation and
three years after the Court took the first steps to approve newly-enacted
capital sentencing laws in several states, including Texas. The three states
in the Fifth Circuit - Texas, Louisiana, and Mississippi - all have capital
sentencing laws, as does the federal government. In my twenty-seven years as
a federal judge, I have participated in the disposition of appeals or habeas
petitions in scores of capital cases. So my concerns are informed by my
experience as a judge. They are also informed by my religious beliefs.

One of my concerns is driven by the way capital sentencing laws have
developed during the last 40 years. Let me set out for you the big picture
on that development, with a particular focus on Texas law. In the 1960s and
1970s, the nation experienced one of its periodic collective reevaluations
of capital sentencing. This particular reevaluation coincided with, or
really was a part of, the civil rights movement and its focus on the
disparate treatment of black citizens. As respects capital sentences, the
available evidence indicated that black defendants were disportionately
likely to receive the death penalty when compared to white defendants, and
that black defendants, who were uniformly poor, were unable to obtain the
same quality of representation as was available to at least some white
defendants.

In 1972, in Furman v. Georgia and two companion cases, one from Texas, the
Supreme Court effectively struck down all the capital sentencing laws in the
nation. But the Court did so in a way that did not bode well for the future.
The cases produced nine separate opinions, but no opinion of the Court. Five
justices voted to vacate the death penalties imposed in the cases, holding
simply that the imposition and carrying out of the death penalty constituted
cruel and unusual punishment in violation of the Eighth Amendment to the
Constitution. Four justices would have upheld the death penalties. Those
justices who voted to vacate the death penalty focused on several factors.
Among them were what they perceived to be the arbitrary and capricious
manner in which the penalty was applied, with comparatively few defendants
eligible for the death penalty receiving it and many defendants, seemingly
equally eligible, being spared. Also of concern, as I have mentioned, was
the disproportionate representation of black and poor citizens in the group
of those who received the death penalty.

Finally, justices focused on the absence of standards governing the
discretion which juries employed in assessing the death penalty. The
opinions make for interesting reading. Several drew on an earlier Supreme
Court case that described [t]he basic concept underlying [the Eighth
Amendment] as nothing less than the dignity of man. As Justice Brennan said
in his opinion, [t]he State, even as it punishes, must treat its members
with respect for their intrinsic worth as human beings. A punishment is
'cruel and unusual,' therefore, if it does not comport with human dignity.
He went on to say that the fundamental premise of the [Eighth Amendment is]
that even the vilest criminal remains a human being possessed of common
human dignity.

To summarize, although all extant death penalty statutes were effectively
declared unconstitutional, the Court clearly did not hold that the death
penalty itself was unconstitutional, even though two of its members would
have reached that conclusion. The Court, or at least a majority of the
justices, left room for a properly constructed death penalty statute.
Inauspicious, however, for that endeavor was the fact that there was no
opinion for the court. It was left to those state legislatures that wanted
to reinstate the death penalty to read the tea leaves and figure out what
would pass muster.

Several states, including Texas, accepted the challenge. Four years later,
in 1976, five cases went to the Court involving several different death
penalty statutes. As might have been predicted, in none of those cases was
there an opinion of the Court. One of those cases, Jurek v. Texas, focused
on the Texas death penalty statute. The Court upheld Jurek's conviction for
capital murder in two opinions, each concurred in by three justices. One
other justice concurred only in the judgment, and two justices dissented.
The newly-crafted Texas death penalty statute had narrowed the circumstances
in which the death penalty might be imposed to five situations, the most
commonly invoked - known as felony murder - being that the defendant
intentionally committed the murder in the course of committing or attempting
to commit kidnapping, burglary, robbery, forcible rape, or arson. If the
defendant is convicted of murder under one of the five circumstances
permitting a death penalty, then a separate sentencing phase ensues in which
the jury is normally asked two questions or special issues:

(1) whether the conduct of the defendant that caused the death of the
deceased was committed deliberately and with the reasonable expectation that
the death of the deceased or another would result; and

(2) whether there is a probability that the defendant would commit criminal
acts of violence that would constitute a continuing threat to society. If
the jury finds that the state has proved beyond a reasonable doubt that the
answer to each of the two special issues is yes, then the death sentence is
imposed. If any special issue is answered no, then a life sentence results.

The lead plurality opinion in Jurek, joined by three justices, held that by
limiting the availability of the death penalty to five situations, the Texas
legislature had acceptably narrowed the circumstances in which the death
penalty may be imposed and had focused the jury on the particularized nature
of the crime. Drawing on another of the five cases decided the same day,
Woodson v. North Carolina, the plurality held that the Texas statute
provided the individualized sentencing determination required by Woodson,
noting that a jury must be allowed to consider on the basis of all relevant
evidence not only why a death sentence should be imposed, but also why it
should not be imposed, that is, a jury must be able to consider mitigating
circumstances.

The Texas statute did not explicitly speak in terms of mitigating
circumstances; it directs only that the jury answer the two special issues
or questions that I just set out. In a sentence that portended much for
future cases, the plurality opinion noted that the constitutionality of the
Texas procedures turns on whether the enumerated questions allow
consideration of particularized mitigating factors.

The plurality opinion noted that the Texas Court of Criminal Appeals had
indicated that it would interpret the second question, on future
dangerousness, so as to allow a defendant to bring to the jury's attention
whatever mitigating circumstances he may be able to show. But what turned
out to be the 64,000 dollar question for the future of the Texas statute and
Texas capital cases, however, was whether the structure of the statute,
focused as it was only on the answer to the two special issues, allowed the
jury to give effect to the mitigating evidence that the defendant was able
to adduce. Specifically, if the jury were to answer the two special issues
yes, but nevertheless believed that the mitigating evidence introduced by
the defendant outweighed the aggravating evidence introduced by the state
and that the defendant did not deserve to die, could the jury give effect to
that belief? The 64,000 dollar question was not answered in Jurek; indeed,
the question itself was barely suggested.

To summarize, in Jurek, the new Texas statute made it through the analytical
framework that was beginning to emerge in the Supreme Court post-Furman, but
that framework was in an embryonic state, as was the Texas statute. Further
development was both needed and inevitable.

Fast forward to Penry v. Lynaugh, a 1989 decision of the Supreme Court, also
involving the Texas statute. In Penry, the Court held that a new trial was
necessary because a juror presented with the two special issues could not
have given effect to the full scope of the mitigating evidence that had been
presented at the sentencing phase. Penry offered mitigating evidence of a
low I.Q., indicating likely mental retardation; an organic brain disorder
that prevented him from appreciating the wrongfulness of his conduct or
conforming his behavior to the law; a troubled, abusive upbringing; and an
anti-social personality disorder. In granting habeas relief, the Court held
that it is not enough simply to allow the defendant to present mitigating
evidence to the sentencer. The sentencer must also be able to consider and
give effect to that evidence in imposing sentence. Only then can the
sentence imposed 'reflect a reasoned moral response to the defendant's
background, character, and crime.' The Court held that the evidence of
Penry's mental retardation and abusive childhood had mitigating relevance
beyond the scope of the deliberateness and future-dangerousness special
issues, because it spoke to Penry's moral culpability. Without a special
instruction enabling the jury to give effect to the impact of Penry's
mitigating evidence on his moral culpability, the jury lacked an adequate
vehicle through which to express its reasoned moral response to this
evidence.

It is fair to say that my court and the Texas Court of Criminal Appeals
struggled for many years and in many cases with squaring Penry, which held
that the Texas death penalty statute as applied to Penry was
unconstitutional, and Jurek, which upheld the facial constitutionality of
the Texas death penalty statute. In 1992, in Graham v. Collins, my court
developed an intricate analytical framework that, in the name of giving
effect to Jurek, attempted to confine the Court's holding in Penry to its
facts. We applied that framework for twelve or more years to uphold the
death penalty in numerous cases. Six of our court's thirteen judges, myself
among them, dissented from our court's opinion in Graham, arguing that the
Texas capital sentencing scheme did not allow the jury to give effect to
evidence that mitigated against the death penalty in that the special issues
did not provide a vehicle for the jury to express its reasoned moral
response to Graham's mitigating evidence in rendering its sentencing
decision. We might as well have been baying at the moon.

When Penry's second capital sentence came before the Supreme Court in 2001,
it was struck down, with Justice O'Connor writing for the Court and holding
that the jury must be able to give full consideration and full effect to
mitigating evidence and that the jury can do that only when it is given a
vehicle for expressing its reasoned moral response to that evidence in
rendering its sentencing decision. Undismayed, my court continued on with
our Graham test. Finally, in 2004, in Tennard v. Dretke, the Supreme Court
explicitly rejected a key component of our Graham test, and excoriated my
court for invoking its own restrictive gloss on the Court's initial Penry
decision by uniformly applying a standard that has no foundation in the
decisions of this Court.

In 1991, the Texas legislature amended our capital sentencing scheme to add
the special issue that was plainly required after Penry. Specifically, in
addition to two special issues, the jury is also asked whether, taking into
consideration all of the evidence, including the circumstances of the
offense, the defendant's character and background and the personal moral
culpability of the defendant, there is a sufficient mitigating circumstance
or circumstances to warrant that a sentence of life imprisonment rather than
a death sentence be imposed. My court still has in the lengthy habeas
process several cases that raise the Penry issue - namely, whether, under
the capital sentencing scheme that was in effect until September 1991, the
jury was able to give full effect to the defendant's mitigating evidence by
rendering a judgment about the defendant's moral culpability. Time will tell
whether we have gotten the message.

Thirty years have gone by since Jurek and its companion cases that began to
delineate the circumstances under which the death penalty could be
constitutionally exacted. From an inauspicious beginning in which the Court
was unable to come up with a majority opinion, the Supreme Court has
struggled, using the common law method of case-by-case adjudication, to
define and develop a coherent body of capital sentencing law that will
permit the death penalty to be exacted. There is no question that the body
of law that has evolved over so many years is more enlightened and presents
less risk of the arbitrary and capricious assessment of the death penalty
than the law that obtained before 1972. But the attendant costs have been
dreadful.

For one thing, the delay between the imposition of the death penalty in an
individual case and its carrying out is significant. It is not uncommon for
a capital defendant to spend two decades on death row, usually to then be
executed but occasionally to be freed. When the law, being developed on a
case-by-case method, is uncertain and in flux, delay is inevitable. But
apart from the impact on the defendant coming from not knowing whether or
when he will be executed, the toll on the victim's family, which is unable
to achieve closure, is itself horrific.

You will remember that one of the features of the pre-Furman environment
that resulted in the death penalty laws being struck down was the rarity of
a death penalty being assessed, a rarity which led several justices to
conclude that the laws were being applied capriciously. Perversely, the
result of the new capital sentencing laws has been a substantial increase in
the number of defendants sentenced to death.

Too, the injustice of executing capital defendants under laws that were for
so many years undeveloped and in flux is troubling. Think about it. My
court's opinion in Graham, which unacceptably narrowed Penry's requirement
of giving the jury a vehicle, a special issue, by which it could express its
judgment about the defendant's moral culpability, was on the books for
twelve years before the Supreme Court struck it down. During those twelve
years, many defendants were executed without the constitutionally-required
judgment by the jury on whether the defendant was sufficiently morally
culpable to be sentenced to death. That is not to say that those defendants
were innocent of the crimes for which they were convicted. But it could
certainly lead one to ask why, if the jury's judgment about moral
culpability was constitutionally required, so many went to their deaths
without it.

Also profoundly troubling is the risk that an innocent man will be executed.
I must say that from my experience with capital cases, there is usually a
great deal of evidence that the defendant is, in fact, guilty. But the
lengthy investigation of the Houston crime lab, which exposed evidence of
serious problems such as falsified test results, including DNA test results,
and the tailoring of reports to fit police theories, certainly suggests that
even scientific evidence, to which we normally attach considerable
confidence, can be flawed. Only God's justice is perfect justice. The
assessment of the death penalty, however well designed the system for doing
so, remains a human endeavor with a consequent risk of error that may not be
remediable.

Now I want to talk briefly about the Catholic Church's views, and my
religious views, about the death penalty. Before I begin, I want to make one
point very clear. My religious views play no role, and in my view, can play
no role in the judgments I am called upon to make as a judge. I am sworn to
uphold the constitution and laws of the United States. Nearly all the death
sentences I have reviewed have been state court sentences reaching me by
habeas appeals where my only question is whether the state complied with the
constitution, as interpreted by the Supreme Court. So that is my only
decision.

Until 1995, the Catholic Church took a permissive view about the death
penalty. In the 1970's, after Furman, while new capital sentencing laws were
under consideration, the Catholic Church and Catholics generally could have
made a major contribution to the debate over whether, or how, those laws
were to be developed. But the Church and Catholics were silent. When I asked
one of my friends, who is a professor of theology at the University of St.
Thomas, about that, he said that in view of the Church's rather speckled
history, one could understand why the Church might not be out front on this
issue. Well, I can't understand it. Redemption is possible, even for the
Catholic Church.

Moving ahead, in 1995, Pope John Paul published his encyclical on human
life. The Pope begins by reaffirming a traditional moral principle: The
commandment 'You shall not kill' has absolute value when it refers to the
innocent person. While the right to life is always precious, he mentions two
instances when it is not absolute. First, he repeats the Church's common
teaching on the right to legitimate self defense. Second, he allows for the
possibility of morally legitimate capital punishment. But John Paul states
that we 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. He foresees extremely few instances when
capital punishment can in fact be justified. He says: Today . . . as a
result of steady improvements in the organization of the penal system, such
cases are very rare, if not practically nonexistent. To summarize, the
Church's position is that the state ought not to execute a person unless
there is no other way to defend the prison population, guards and inmates,
from that person. While there are some capital defendants who are so
dangerous that the prison system may be unable to protect itself from them,
many defendants who are executed today do not represent threats to an
adequate prison system. Yet we continue to execute them.

Catholics, the people of life, have an opportunity to advocate to our
legislators changes in our laws that will align them more closely with the
moral law. For the solution to the problems that we face with the death
penalty is a political one (not a judicial one), and each of us, as a
Catholic citizen and voter, is called upon to promote it.

One of the forces that powers the drive for the death penalty, and that is
independent of concerns for the protection of society and deterrence, is
vengeance or retribution. Defendants are put to death because they deserve
it. Death is the only fit punishment for capital crimes and this retributive
purpose justifies its infliction. The need for vengeance is particularly
strong, and more understandable, in the families of victims. But it
permeates the explanations of death penalty adherents. Vengeance was
discussed in several of the opinions in Furman, with some justices taking
the position that the Eighth Amendment does not require that we renounce
vengeance and others saying forthrightly that [r]etaliation, vengeance, and
retribution have been roundly condemned as intolerable aspirations for a
government in a free society. But a couple of Sundays ago, the first reading
and the Gospel were about vengeance and forgiveness. The first reading was
from Sirach:

Wrath and anger are hateful things,

yet the sinner hugs them tight.

The vengeful will suffer the

Lord's vengeance,

for he remembers their sins in detail.

Forgive your neighbor's injustice;

then when you pray, your

own sins will be forgiven.

Should a man nourish anger

against his fellows

and expect healing from the

Lord?

Should a man refuse mercy to

his fellows,

yet seek pardon for his own

sins?

If he who is but flesh cherishes

wrath,

who will forgive his sins?

The Gospel was from Matthew. Peter came up and asked Jesus, Lord, when my
brother wrongs me, how often must I forgive him? Seven times? No, Jesus
replied, not seven times; I say, seventy times seven times. And of course,
we have the Lord's Prayer: forgive us our trespasses as we forgive those who
trespass against us.

Jesus has told us that vengeance is to play no part in our lives, that
forgiveness is what we should aspire to.

The Catholic bishops have recently issued a call to the Catholic community,
inviting every Catholic to join in the Catholic Campaign to End the Use of
the Death Penalty, not as a partisan campaign but as a moral commitment.
They ask Catholics to join the campaign by taking several steps, including:

1) praying for victims of crime and their loved ones, for those awaiting
execution and their families, for our leaders, for those who work in the
criminal justice system, and for one another - that we might help bring an
end to the culture of violence and build a culture of life in our nation and
throughout the world.

2) reaching out to the families of those whose lives have been taken away
through violence, ministering to their spiritual, physical and emotional
needs.

3) advocating for public policies that better protect society from
perpetrators of violence and do not resort to the death penalty.

4) changing the debate and decisions on the use of the death penalty by
building a constituency for life, not death, and by calling on lawmakers to
lead, not follow - to defend life, not take it away.

The Church's campaign has been long in coming, centuries long, but at last
it is here and all of should actively and prayerfully support it.

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Source : South Texas Catholic News (Carolyn Dineen King is an United States
Circuit Judge for the Fifth Circuit)

http://www.goccn.org/stc/articles/article.cfm?article=550