The death penalty is always political


The snow has stopped falling in Boston – finally.  It’s melting in fact.  People are taking bets whether there will still be snow piled on the sidewalks at the time of the Boston Marathon to be run on April 20.  The trial of Dzhokhar Tsarnaev, the surviving Boston 2013 Marathon Bomber, will still be running.  Some of his surviving 264 victims have been giving gut wrenching evidence here in the federal court house.  The death penalty has been the talk of the town, just as it has been in Australia with people focused on the plight of Andrew Chan and Myuran Sukumaran during many weeks of legal and political manoeuvring with Jakarta.  

Some of the Australian commentary on the Indonesian justice system has been understandably very critical.  But living here in the USA for a year, I have come to realise that the death penalty infects every justice system no matter how good and robust it is.  In the end, the death penalty is always political.  That’s why I am very grateful to Pope John Paul II who changed his position on the death penalty saying that there is no warrant for its use, provided only you can guarantee the protection of the community by the long-term incarceration of the unrepentant serious offender.

It took over two months to empanel a jury for the marathon bomber.  They had to find 12 jurors and 6 replacements who were ‘death ready’.  They had to be jurors who would be prepared to impose the death penalty if some of the federal offences were proved.  That’s hard in the state of Massachusetts where they have abolished the death penalty. The court drew from a jury panel of 1,350 persons.  They had to complete a 28 page questionnaire as part of the selection process.  Except for the death penalty, Tsarnaev would have pleaded guilty.  His trial would be long finished; he would now be serving life imprisonment, and people would be spared the months of agony debating his death sentence.  

The US Supreme Court has a few horrific death penalty cases coming up this month.  Two cases come out of Alabama where the state judges are elected, often on law and order platforms.  The state judges have the power to override the jury decision on the death penalty.  Since 1976 when the Supreme Court reinstated the death penalty, Alabama judges have imposed the death penalty 101 times when the jury has recommended only life imprisonment.  Meanwhile they have overridden the jury recommendation of the death penalty only 10 times.  

The jury for Courtney Lockhart who had spent 16 months as a soldier in Iraq voted unanimously that he serve life imprisonment because, as Justice Sotomayor of the US Supreme Court wrote, his life had been ‘influenced by mitigating circumstances relating to severe psychological problems he suffered as a result of his combat in Iraq’.  64 soldiers from his brigade never made it home; 12 who did have been arrested for murders or attempted murders committed since their return home.

The other case is from Oklahoma where they use a three drug protocol to kill the prisoner.  The first drug which is supposed to induce the coma is midazolam which is not approved for general use as an anaesthetic.  Recently the administration of the drug was botched and a prisoner took 40 minutes to die writhing in pain.  The second drug is supposed to paralyse the prisoner, and the third drug stops his heart.  The Supreme Court has been asked to decide if it is constitutionally permissible for a state to carry out an execution using these drugs when ‘there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma like unconsciousness’.  

The death penalty is barbaric and unfair. You can never get it right.  It’s just so wrong.  The Americans are not for changing – yet.  We Australians should do all we can to convince our neighbour Indonesia to join the world trend towards abolition of the death penalty.  President Joko Widodo provided a slight opening during the discussion of the plight of the two Australians on death row when he said, ‘The Constitution and existing laws still allow [the death penalty] but in the future if it is necessary to change it and [if] the people really want it, why not?’  I hope Myuran Sukumaran was being prophetic when he inscribed his painting of Joko Widodo with the words, ‘People can change.’  I will not miss the horror of the death penalty and the garish court discussions of it when I return to Australia where our last execution was 48 years ago.  Thank God.

Frank Brennan SJ, professor of law at Australian Catholic University, is concluding his term as Gasson Professor at the Boston College Law School.  This piece first appeared in the Canberra-Goulburn Archdiocese newspaper The Catholic Voice, April 2015

Topic tags: Frank Brennan, Death Penalty, Sukumaran, Andrew Chan, Dzhokhar Tsarnaev



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Existing comments

The death penalty as a very rare, last resort, certainly. As for saying, “You can never get it right”, I hesitate. Did Adolf Eichmann deserve to die? Hannah Arendt attended his trial and, in my view, wrongly came up with the concept of “the banality of evil”, suggesting that Eichmann was a mere bureaucratic cog rather than a senior participant in the design and execution of mass murder. Also, judicial systems that continually give bail or parole to rapists and killers like Peter Dupas and Adrian Bayley in Australia, or Ed Kemper in the US, allowing them to commit worse crimes, bespeaks incompetence and callousness which does not ensure community protection. Terri Schiavo died a decade ago—31 March 2005. Mrs Schiavo had been in her condition for 15 years so there could be no compelling reason to kill her. But the courts treated her like a Death Row prisoner who’d exhausted all her appeals. By court order her feeding tube was disconnected and she was starved to death over two weeks in what must have been the longest public execution in American history. Any consideration of the death penalty should include Mrs Schiavo and the victims of abortion.
Ross Howard | 01 April 2015

Rulers are rightly expected, by their position, to hate evil; for their power is sustained by righteousness.
Proverbs | 01 April 2015

Maybe the problem, Fr Frank, is that we are reluctant to forgive injustice against us and seek only revenge. Perhaps that may be part of the reason our modern society prefers a holiday with chocolates delivered under darkness by a giant, elusive rabbit capable of visiting the world's 6 billion people in 24 hours, to contemplation of the great Christian Easter message
john frawley | 01 April 2015

The death penalty is never right, not ever. People have done, and will continue to do, evil things that we correctly abhor. I sometimes read about people torturing and killing children and I feel myself welling up with distraught feelings, contemplating the pain and powerlessness of these suffering children. The death penalty does not stop people committing horrendous crimes. Addressing social problems is more likely to have some positive impact.
Anna | 01 April 2015

'In the end, the death penalty is always political.' Quite a sweeping generalisation! Not one I would expect from a Jesuit and a lawyer to boot. Surely the death penalty depends on what moral principles a society embodies in its laws? If one accepts the moral axiom of Thomas Aquinas: 'Nor is it necessary for salvation that a man omit the act of moderate self-defence to avoid killing the other man (the aggressor), since one is bound to take more care of one's own life than that of another.' Of course there could be political reasons why a government or law makers would not agree with Aquinas's axiom and the implications it has for protecting society, both with certainty and economy, against psychopathic murderers by executing them.
Uncle Pat | 01 April 2015

The basileia tou theou requires absolute non-violence according to Jesus, so I agree with you Frank. When will we Catholics embrace the principle of non-violence so obviously espoused by Christ and stop participating in war (as Christians did pre Constantine?)
Cameron Gaffney | 02 April 2015

On 23 October 2014, Pope Francis addressed the International Association of Penal Law. On the death penalty, he said: ‘It is impossible to imagine that States today fail to employ a means other than capital punishment to protect the lives of other people from the unjust aggressor. St John Paul II condemned the death penalty (cf. Encyclical Letter Evangelium Vitae, n. 56), as does the Catechism of the Catholic Church (n. 2267) as well. There are many well known arguments against the death penalty. The Church has duly highlighted several, such as the possibility of judicial error and the use made by totalitarian and dictatorial regimes who use it as a means of suppressing political dissidence or of persecuting religious and cultural minorities, all victims who, in their respective legislation are termed “delinquents”. All Christians and people of good will are thus called today to fight not only for the abolition of the death penalty, whether legal or illegal, and in all its forms, but also in order to improve prison conditions, with respect for the human dignity of the people deprived of their freedom. And I link this to life imprisonment. A short time ago the life sentence was taken out of the Vatican’s Criminal Code. A life sentence is just a death penalty in disguise.’
Frank Brennan SJ | 02 April 2015

I should add that I am not quite with Pope Francis on his bald assertion, 'A life sentence is just a death penalty in disguise.' It would be if there were absolutely no prospect of release for good behaviour. And there are offences committed by some offenders which warrant life imprisonment with no prospect of release because the offences are so heinous AND the offenders are so unlikely to reform, being a permanent threat to society.
Frank Brennan SJ | 03 April 2015

Notwithstanding what Pope Francis said at the International Association of Penal Law, the Catholic Church’s Magisterium does not and never has advocated the unqualified abolition of the death penalty: “not excluding, in cases of extreme gravity, the death penalty” (CCC 2266). Of course if “preserving the common good of society” can be attained by effectively incarcerating criminals there is no need for capital punishment. But this raises two questions. Firstly, a judicial system fails to preserve the common good when judges and parole boards grant bail or parole to criminals who continually reoffend. Perhaps making them liable for the criminal’s next offence might remedy this. Secondly, there is the question of proportionality. By the time I’ve finished writing this, more innocents will have been killed by abortion than criminals killed by capital punishment in the last hundred years. Pope John Paul II said: “Woe to you if you do not succeed in defending life.” So why spend time to help, say, sadist Lawrence Bittaker, on Death Row for the kidnap, torture (with pliers), rape and murder of young girls, who pursues nuisance “rights” litigation costing taxpayers thousands, and who proudly signs his mail as “Pliers Bittaker”, ahead of pro-life works?
Ross Howard | 04 April 2015

There is a problem in eradicating life imprisonment with regard to the true diagnosed psychopath. Such are literally, born genetic recidivists without inbuilt controls of guilt, shame,anxiety,empathy and the like, thus psychopathic killers [as distinct from e.g. paranoid schizophrenic murderers etc] cannot be helped by medication and intensive therapy. It is very high risk to release such psychopaths on society-Thank goodness international expert on psychopaths Dr Robert Hare has devised his Psychopathy Checklist or Hare Psychopathy Checklist-Revised, now the Psychopathy Checklist—revised (PCL-R), a psychological assessment tool most commonly used to assess the presence of psychopathy in individuals. It is a 20-item inventory of perceived personality traits and recorded behaviors, intended to be completed on the basis of a semi-structured interview along with a review of 'collateral information' such as official records. Such is used at parole evaluation to protect society by refusing parole and remaining a lifer! --accordingly avoiding the death penalty while protecting society. Such psychopathic recidivists are not cured by traditional psychoanalysis nor by behavioural conditioning etc! It is true in wrong hands at parole injustice can result. But Hare is doing all to counteract such disastrous incompetence of some poorly trained parole officials re PCL-R .

Father John George | 05 April 2015


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