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Legal Learning: Pope finally speaks out against death penalty

James Manahan

The pope has spoken. The Roman Catholic Church has now announced that capital punishment is “inadmissible because it is an attack on the inviolability and dignity of the person.” Pope Francis said the Church will work to abolish the death penalty worldwide, calling it an “inhuman measure” that is “contrary to the Gospel.”

The pope is right, in my opinion. Anyone who still supports capital punishment should read “Reflections on the Guillotine,” an essay written in 1957 by the French philosopher Albert Camus. His description of his father’s reaction to witnessing the execution of a convicted murderer will change just about anyone’s mind.

He points out that the threat of death does not deter anyone because most murders are not premeditated, and when they are planned the possible punishment is not sufficient because the murderer has already decided to act. And capital punishment, he says, is “the most premeditated of murders” and “egregious barbarism.”

Because of his essay, France abolished the death penalty in 1981, and it is now banned in the entire European Union. The United States is the only Western country that permits it.

Minnesota was the third state to abolish the death penalty, in 1911. Wisconsin beat us in 1853 and Maine in 1887. More recently, New Jersey repealed the death penalty in 2007, New Mexico in 2009, Illinois in 2011, Connecticut in 2012 and Maryland in 2013. The District of Columbia and Puerto Rico have abolished the death penalty for all crimes. However, we still have 31 states and the federal government that allow capital punishment.

In 1972, it looked like the U.S. Supreme Court was going to declare the death penalty a violation of the 8th Amendment prohibition against “cruel and unusual punishment.”

In Furman v. Georgia, the court ruled 5-4 that the inconsistent application of the penalty violated the Constitution. However, four years later, in Gregg v. Georgia, the court ruled 7-2 that a jury could impose the death penalty as long as it was done during a separate trial.

Since that decision, more than 7,800 defendants have been sentenced to death in this country. Interestingly, 161 of those were exonerated before their execution.

Since then, the Supreme Court has been chipping away at the practice:

  • In Coker v. Georgia (1977), they barred the death penalty for rape.
  • In Godfrey v. Georgia (1980), they ruled that there must be aggravating factors to justify capital punishment.
  • In Atkins v. Virginia (2002), they ruled that execution of intellectually disabled inmates is unconstitutional.
  • In Roper v. Simmons (2005), they struck down executions for offenders under age 18 at the time of the crime.

Just hours after the pope announced the change in Catholic Church doctrine, Cardinal Blase Cupich of Chicago spoke at the annual meeting of the American Bar Association. He had an interesting thought: If Supreme Court Justice Antonin Scalia, a devout Catholic, had lived to hear the pope’s proclamation, he might have reconsidered his position supporting capital punishment.

Justice Scalia once said, speaking about the death penalty, that “for the believing Christian, death is no big deal.”

Well, now that the pope has said that it is a big deal, and if Scalia were still alive, the Supreme Court might vote 5-4 to outlaw capital punishment. Cardinal Cupich said this at the ABA meeting: “When the state imposes the death penalty, it proclaims that taking one human life counterbalances the taking of another life. This is profoundly mistaken.”

Besides being a poor deterrent, as Albert Camus noted, capital punishment runs the risk that innocent people will be put to death. The execution itself can take a long time and cause great suffering, even with the use of deadly chemicals. And because of appeals, the process can take many years and cost millions of dollars.

But the best argument against it is the one made by Pope Francis: It is an “inhuman measure.”

Maybe the pope’s new announcement will push the remaining 31 states or the Supreme Court to get rid of this barbaric practice once and for all.

James H. Manahan is a Harvard Law School graduate. He handles family law, wills and probate in and around Lake County, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. The opinions expressed in this column are those of its author and are not to be attributed to his employer. He can be reached at jimmanahan@gmail.com.

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