April 17
USA:
We should preach about the death penalty on Good Friday
To avoid preaching about the evil of the death penalty on Good Friday is akin
to not preaching about the joy of the resurrection on Easter Sunday. The
central scriptural context of the liturgical readings is focused on the state
execution of Jesus Christ. And yet, if previous experiences are any indication,
anecdotal evidence suggests that few Catholics will hear their pastors deliver
a homily this Friday in which the Passion of the Lord is connected to the sin
of capital punishment.
The very nature and purpose of the Good Friday homily begs such an engagement.
As the General Instruction of the Roman Missal makes clear, the homily ought to
be an explanation of the readings that ties together the mystery we celebrate
in faith and the needs and contexts of the people gathered in assembly. But the
homily is not merely an opportunity for exegesis or catechesis, it is meant to
inspire, challenge, lift up and embolden the faith of the hearers.
The important 1982 U.S. bishops' conference document "Fulfilled in Your
Hearing," on the role of the homily in liturgy, reminds us that "the homily is
preached in order that a community of believers who have gathered to celebrate
the liturgy may do so more deeply and more fully — more faithfully — and thus
be transformed for Christian witness in the world" (no. 43). Likewise, in 2012,
the U.S. bishops' conference issued another document on the homily on the 30th
anniversary of "Fulfilled in Your Hearing." This text, titled "Preaching the
Mystery of Faith," states: "The purpose and spirit of the homily is to inspire
and move those who hear it, to enable them to understand in heart and mind what
the mysteries of our redemption mean for our lives and how they might call us
to repentance and change" (p. 30).
Given the purpose and place of the homily, the subject of the death penalty in
the context of the United States offers both the preacher and the assembly an
important opportunity. For the former, while it takes courage to discuss a
subject that will surely find a mixed reception in many congregations, it is an
opportunity to directly address the continued and pressing relevance of the
church's teaching on the inexcusability of capital punishment as borne witness
to in the Lord's passion and in the many hundreds of death-row inmates today.
For the assembly, it is an opportunity, as the U.S. bishops' conference
documents on preaching recall, to grow in understanding of the faith, see the
connection between that faith and an injustice in our midst, and thus move
toward greater transformation in order to be Christian witnesses in the world.
Beyond the homiletic impetus for it, the need to address capital punishment as
a pressing moral issue in our day is heightened by the recent Amnesty
International report on global trends in the death penalty, which was published
just last week. While some of the statistics will not be surprising — the
greatest number of state executions took place in nations like China, Iran,
Saudi Arabia, Vietnam, and Iraq — some of the report should be a particularly
disturbing reminder of how unjust the United States' judicial system remains.
For example, the report says that: "For the 10th consecutive year, the USA
remained the only country to carry out executions in the region [of North and
South America]."
Think about that for a minute. The national narrative and accompanying rhetoric
used by politicians on both sides of the aisle often claims that the United
States is a beacon of democratic hope and a model of integrity for the world.
Furthermore, many of our leaders and ordinary citizens alike enjoy thinking of
our country as a "Christian nation," but one of the starkest signs of our moral
hypocrisy is witnessed in the data that show we are the only nation in the
Western Hemisphere that sentences its own citizens to death. And, according to
the Amnesty report, as of 2018 the number of death sentences and executions
increased in the United States from 2017. We are in the worldwide minority of
countries that still maintains the death penalty, and those with whom we share
that appalling company include an embarrassing collection of dictatorships and
promoters of state terrorism.
One of the traditional go-to justifications for supporting the death penalty
among American Catholics had been a clause in the 1992 Catechism of the
Catholic Church that acknowledged the possibility that state execution of
criminals could be justified as a last resort and for the sake of the common
good. That document was promulgated under St. John Paul II, who was an
outspoken critic of the death penalty (including in the United States) and who,
according to reporting by Jesuit Fr. Thomas Reese, didn't want to include the
exception and would have preferred to see the practiced entirely abolished.
"But some in the Vatican were concerned about how the church would explain its
change in teaching," Reese explains. So, to avoid having to provide a difficult
explanation, "John Paul had the catechism say that the death penalty was only
permitted 'if this is the only possible way of effectively defending human
lives against the unjust aggressor.' The catechism quotes John Paul, who stated
that cases requiring the execution of the offender 'are very rare, if not
practically nonexistent' (no. 2267)."
Last August, Pope Francis accomplished what John Paul could not during his own
ministry as bishop of Rome. The pope instructed the prefect of Congregation for
the Doctrine of the Faith to revise paragraph 2267 of the catechism. This
summary of the church's teaching now reads:
2267. Recourse to the death penalty on the part of legitimate authority,
following a fair trial, was long considered an appropriate response to the
gravity of certain crimes and an acceptable, albeit extreme, means of
safeguarding the common good.
Today, however, there is an increasing awareness that the dignity of the person
is not lost even after the commission of very serious crimes. In addition, a
new understanding has emerged of the significance of penal sanctions imposed by
the state. Lastly, more effective systems of detention have been developed,
which ensure the due protection of citizens but, at the same time, do not
definitively deprive the guilty of the possibility of redemption.
Consequently, the Church teaches, in the light of the Gospel, that "the death
penalty is inadmissible because it is an attack on the inviolability and
dignity of the person" and she works with determination for its abolition
worldwide.
This week marks the first Good Friday liturgy since this clarification of the
church's teaching on the death penalty. I cannot think of a more auspicious
time to address it than when we gather in prayer and worship to commemorate the
time our Lord and Savior was executed as a victim of capital punishment. As we
call to mind the end of Jesus's earthly life, may we open ourselves to becoming
ever-more "pro-life," remembering that those on death row have as much dignity
and value as any other person, born or unborn; and that no one, not even the
state, has the right to take another's life.
(source: Daniel P. Horan is a Franciscan friar and assistant professor of
systematic theology and spirituality at Catholic Theological Union in
Chicago---- National Catholic Reporter)
****************************
Why the Death Penalty Has Lost Support From Both Parties----A generation ago,
most Democrats and Republicans backed capital punishment. But in New Hampshire,
lawmakers on both sides of the aisle just voted to abolish it, reflecting a
nationwide trend.
20 years ago, most politicians in both parties supported the death penalty. But
today, opposition to it has become increasingly bipartisan.
Democrats have always been more wary, but now more conservatives have also
become convinced that capital punishment is another failed government program.
In part, that's because the legal process for such cases is enormously
expensive, even though few executions are ever carried out.
“When you look at how much money we’re spending, no one looks at that and
thinks the death penalty works fine,” says Hannah Cox, national manager for
Conservatives Concerned About the Death Penalty, a pro-abolition group. “We’re
seeing a real escalation as far as the number of Republican legislators who are
sponsoring repeal bills.”
There’s evidence of declining political support for capital punishment all
around the country.
Last month, California Democratic Gov. Gavin Newsom declared a moratorium on
executions. In October, the Washington state Supreme Court struck down the
death penalty, finding it arbitrary and racially biased. In February, Wyoming's
GOP-controlled House passed an abolition bill, although it failed in the
Senate.
“This is far too much authority to rest in government,” GOP state Sen. Brian
Boner said during floor debate over the Wyoming bill. “Sometimes we wonder if
our government can deliver the mail correctly.”
Lately, the spotlight has shifted to New Hampshire, where last week the
legislature sent the governor a bill to repeal the death penalty. Both chambers
passed the bill by veto-proof margins, with bipartisan support. Once the
legislature overrides GOP Gov. Chris Sununu’s expected veto, New Hampshire will
be the 21st state to outlaw capital punishment. Colorado and Nevada could be
next -- both have repeal bills currently pending.
For the 1st time since the death penalty was put back into practice during the
1970s, a majority of Americans now live in states that have abolished the
practice or imposed a moratorium on it, according to the Death Penalty
Information Center, which researches the issue.
Still, support for capital punishment has not vanished. Polls show that a
majority of Americans continue to back it.
President Trump has called for executing drug dealers as part of his plan to
address the opioid epidemic. And last week, the U.S. Supreme Court -- where a
majority of justices have repeatedly vented frustration with delays in
executions -- ruled that Alabama can carry one out despite concerns that the
state's method of lethal injection could cause excruciating pain.
But the number of executions has come down fast from its peak 20 years ago. The
number of death sentences being imposed has also dropped dramatically.
“The successful abolition efforts have been bipartisan,” says Robert Dunham,
executive director of the Death Penalty Information Center. “Democrats are more
likely to support repeal than Republicans, but we’re getting to the point where
more and more Republican legislators are introducing bills to abolish the death
penalty and signing onto bills in states where the repeal effort is
bipartisan.”
Responding to Crime Rates
Back in 1992, while running for president, Democratic Gov. Bill Clinton flew
back to Arkansas to preside over the execution of Ricky Ray Rector, a man so
badly brain-damaged that he said he was saving part of his last meal “for
later.”
“Democrats were still supportive of the death penalty,” says Douglas Berman, a
law professor at Ohio State University. “They certainly believed it would be a
political killer not to be vocal in saying that, at least in some cases, the
death penalty would be appropriate.”
Violent crime rates peaked in the early 1990s, and the tough-on-crime response
embraced by Democrats and Republicans at the time culminated in the 1994
federal crime law, which made dozens of additional federal crimes punishable by
death.
But by the time the bill had passed, crime rates were already beginning to
fall. According to the FBI, violent crime rates plummeted by 49 percent between
1993 and 2017. Property crime rates dropped even more.
The steep national decline in violent crime and murders over the past
generation has made it possible for politicians to do something other than seek
the maximum possible sentence at every turn. As with the broader criminal
justice reform effort, reexamining the ultimate punishment has become a
bipartisan project.
“There’s a natural alliance with Democrats,” says Cox of Conservatives
Concerned About the Death Penalty. “There are not a lot of issues where the two
sides are coming together.”
Concerns About Cost and Innocence
Appeals are filed as a matter of course in capital cases. Relatively few of
them result in sentences of death. Among those convicted, DNA evidence has been
used to exonerate more than 160 death row prisoners. 1 prisoner is now
exonerated for every 9 executions that are carried out.
“It’s well-known that it’s more expensive to put people to death than to keep
them in prison for the rest of their lives,” says Daniel LaChance, an Emory
University historian who studies the issue. “It all adds up to a really
expensive big-government program. There has been a sense, particularly in
places that use the death penalty infrequently but have big death rows, of what
is this all for?”
California has the largest death row in the nation, with more than 700
prisoners, but the state hasn’t executed anyone since 2006. New Hampshire
hasn’t carried out an execution since 1939. In Wyoming, it’s been more than 25
years.
“If you have a sentence on the books, you want it used, and it’s not being
used,” says Brandon Garrett, a law professor at Duke University. “The only
point of the death penalty is to execute people quickly or it does seem
arbitrary.”
Supreme Court justices and politicians sometimes express frustration and even
anger about the long delays involved with executions -- the endless rounds of
appeals, the legal challenges that have blocked execution methods.
"We need to accelerate the process as much as we can," Mississippi GOP state
Rep. Mark Baker, who is running for state attorney general, told the Clarion
Ledger recently. "Stories abound of inmates on death row and they're just not
moving."
But a growing number of politicians wonder whether preserving the death penalty
is worth the cost.
“When you talk about death penalty, a lot of people immediately want to have a
criminal justice angle on it or a morality angle,” Chad McCoy, the Kentucky
House Republican whip and sponsor of an abolition bill, told The Hill. “Mine is
purely economics.”
Fewer Prosecutors Seek Death Sentences
It’s not only lawmakers who have grown more skeptical about capital punishment.
Prosecutors have, too.
In part due to the costs associated with capital cases, the death penalty has
essentially disappeared from rural counties, says Garrett, author of End of Its
Rope: How Killing the Death Penalty Can Revive Criminal Justice. Fewer than 2 %
of the counties in the nation are responsible for half the death row
convictions, according to the Death Penalty Information Center.
Not long ago, jurisdictions like Philadelphia County, Los Angeles County and
Harris County, which includes Houston, were imposing 10 or more death sentences
apiece per year. If Harris County were a country, it would have spent years
ranked among the world's top 10 for death sentences.
But there’s been a changing of the guard in many large counties over the past
two or three years, including Harris and Philadelphia. Voters are electing
reform-minded prosecutors who are less likely -- or completely unwilling -- to
seek execution as a punishment. Last year, no county in the United States
imposed more than 2 death sentences.
During the mid-1990s, there were more than 300 death sentences imposed annually
for three years running. Last year, the total was 42. There hasn’t been more
than 100 since 2010.
“There have been zero defendants sentenced to the death penalty in cases
prosecuted by this administration,” says Dane Schiller, spokesman for Harris
County District Attorney Kim Ogg, who was elected in 2016. (One defendant
received the death penalty in a case handled by an independent prosecutor due
to a conflict of interest in the DA’s office.) “Three Harris County inmates
have been executed, in decades-old cases, since we took office.”
Last year, 8 states executed a total of 25 prisoners -- down from a peak of 98
in 1999. So far this year, 3 prisoners have been put to death: 2 in Texas and 1
in Alabama.
Not only is the death penalty only being used in a limited number of places,
it’s also declining in those places.
Texas and Florida used to impose more than 40 death sentences per year -- now
the number is less than 10. Georgia, another leading death penalty state in
recent years, hasn’t imposed a death sentence since 2014. Virginia hasn’t
sentenced anyone to death row for nearly 8 years.
During the George W. Bush administration, the federal Justice Department
actively sought to pursue capital cases in states where the death penalty was
moribund. That’s not happening under Trump, even though he was elected on a
pro-death penalty platform in 2016.
“His Justice Department has done nothing, to my knowledge, to speed up
executions at the federal level or help at the state level with speeding up
capital systems or executions,” says Berman, the Ohio State law professor.
In 2016, the same year Trump was elected, Nebraska voters overturned a death
penalty repeal that had been passed by the legislature, while California voters
rejected a ballot measure to end capital punishment. But if 2016 seemed to
signal a shift back in favor of capital punishment, the momentum hasn't been
sustained.
Under Trump, just 3 federal prisoners have been sentenced to die. In last
year’s elections, 2 governors who imposed moratoriums on the death penalty --
Democrats Kate Brown of Oregon and Tom Wolf of Pennsylvania -- both won
reelection.
Conversely, 2 governors who vetoed abolition bills -- Republicans Pete Ricketts
of Nebraska and Chris Sununu of New Hampshire -- also won reelection. (Sununu
vetoed an abolition bill last fall, when both chambers were still controlled by
Republicans, and legislators failed to override him.)
“No one’s yet to see any significant backlash on either side for being either
abolitionist or disinclined to support the death penalty,” Berman says.
Mile Wide and an Inch Deep?
Last year, Gallup found that 56 % of Americans support the death penalty. That
was a point higher than in 2017 but still below the level of 60 % or higher
that Gallup found every other year dating back to 1976 -- including 80 %
support in 1994, the year of the federal crime law.
Support for capital punishment has weakened, among both juries and the public
at large, due to the spread of the sentence of life without the possibility of
parole.
“In a place like Texas, a big part of the story is life without parole, which
they didn’t have until 2005,” says LaChance, the Emory historian, and author of
Executing Freedom: The Cultural Life of Capital Punishment in the United
States. “For so long, juries were voting for death because they didn’t trust
the system, they didn’t want revolving-door justice.”
Death penalty opponents like to say that support for executions is a mile wide
but an inch deep. A majority of people will reflexively say they’re in favor of
it but will support alternatives like life without parole, if given a choice,
or be troubled by the number of exonerated death row prisoners.
If crime rates increase, support for the death penalty could make a comeback.
And many politicians and prosecutors want to keep execution available for
punishing the “worst of the worst.” In Florida, for example, prosecutors are
seeking the death penalty for the alleged shooter in last year’s Parkland high
school massacre.
Death penalty experts agree that the practice will not be completely abolished
anytime in the foreseeable future. But both the use of the death penalty and
political support for it has declined markedly since the 1990s, when it was a
wedge issue that moved many voters. The list of states abolishing the death
penalty continues to grow.
“I see the death penalty ending with a whimper, not a bang,” Garrett says. “It
may be that the best thing is to allow states and communities to decide what’s
best for them.”
(source: governing.com)
US MILITARY:
Court Rejects 2 Years of Judge’s Decisions in Cole Tribunal
A federal appeals court on Tuesday threw out more than 2 years of a military
tribunal judge’s decisions in the case of the man accused of plotting the
bombing of the destroyer Cole, finding that the jurist wrongly hid his pursuit
of an immigration judge job while sitting on the war crimes case.
The decision by the United States Court of Appeals for the District of Columbia
Circuit was a major setback in the oldest death-penalty case at Guantánamo Bay,
and yet another twist in a winding and fraught case that has come to symbolize
the government’s difficulties in pursuing prosecutions of detainees through the
military tribunal system.
Abd al-Rahim al-Nashiri, 54, who has been in American custody since 2002, has
been represented by military commission defense lawyers since 2008 and was
formally charged in 2011. Mr. al-Nashiri, a Saudi, is accused of being the
architect of Al Qaeda’s suicide bombing of the Navy destroyer Cole off Yemen on
Oct. 12, 2000. Seventeen American sailors died, and dozens more were wounded.
But more than seven years after Mr. al-Nashiri’s arraignment, the case is still
in pretrial hearings to determine what law and evidence would apply at a
capital trial by the military commission. The decision means a new military
judge will have to revisit defense challenges to the charges, what evidence
prosecutors must provide Mr. al-Nashiri’s lawyers and fundamental
constitutional questions about the legality of the military commission system.
The crux of the issue confronting the appeals court was whether the judge, the
now-retired Air Force Col. Vance Spath, was wrong not to disclose that he had
applied for and obtained an immigration court job with the Justice Department
while sitting on the case, which was being jointly prosecuted by Justice and
Defense Department lawyers.
The three-judge panel found that he was and threw out all of Colonel Spath’s
decisions from November 2015 to February 2018, when the judge suspended the
case pending higher court review. His Justice Department job offer was still
secret at the time.
Judge David Tatel wrote in the appeals court’s 31-page opinion that the court
recognized “the burden” that the decision “will place on the government, the
public, and al-Nashiri himself.”
“Despite these costs, however, we cannot permit an appearance of partiality to
infect a system of justice that requires the most scrupulous conduct from its
adjudicators,” Judge Tatel said.
Ron Flesvig, a spokesman for the military commissions, said on Tuesday that
prosecutors had no immediate comment on whether they would seek a review by the
full appeals court of the question or challenge the decision at the Supreme
Court, developments that could even further delay the start of the
death-penalty trial. Colonel Spath did not respond to a message left seeking a
comment at his Arlington, Va., immigration court office.
Capt. Brian Mizer, a defense lawyer for Mr. al-Nashiri, said based on the
latest development it would be nearly impossible to predict when the case would
come to trial.
“I would hate to hazard a guess,” Captain Mizer said. “Eleven years of
litigation to get where we are now would suggest Mr. al-Nashiri’s trial defense
team may be in high school right now. Which is a tragedy for everyone
involved.”
A survivor of the Cole bombing, retired Navy Senior Chief Joe Pelly, said he
was “kind of shocked” by the decision. He added that he was particularly
disappointed for “the parents of the children that were killed,” a reference to
the young sailors who were killed in the bombing, which struck the ship’s
galley for enlisted sailors.
“I just believe that we, the Cole survivors, and the Gold Star family members
have just been a pawn in this whole process,” he said. “But hopefully our time
shall come that we can move forward in this case.”
Captain Mizer, a Navy reservist, was returned to the case last year at Colonel
Spath’s request. All of Mr. al-Nashiri’s civilian counsel quit the case in
October 2017 in an ethics dispute with the judge.
His civilian lawyers had found a microphone hidden in the wall of their meeting
room at the United States Navy base prison, but Colonel Spath prohibited them
from investigating its purpose or telling their client about it as a potential
violation of attorney-client confidentiality because the information was
classified. Prosecutors eventually disclosed the discovery in a court filing
that called the microphone a “legacy” listening device, and said nobody
eavesdropped on the team.
The 3-judge panel faulted Colonel Spath, case prosecutors and a Pentagon
appeals panel called the United States Court of Military Commission Review.
“Criminal justice is a shared responsibility,” the panel wrote, adding that in
this case, only Mr. al-Nashiri’s defense team had shouldered it.
First, the judge failed to disclose his job pursuit. Later, prosecutors
rejected a request by Mr. al-Nashiri’s lawyers for information about Colonel
Spath’s quest to find a civilian job before retirement, and the Pentagon panel
agreed that defense lawyers were not entitled to it.
That information emerged through a Freedom of Information Act request for
Colonel Spath’s immigration court application and supporting materials filed by
the news organization McClatchy. Defense lawyers appended it to their appeal.
The court found it “especially troubling” that Colonel Spath issued most of his
classified rulings in the national-security case “in a flurry” after Jeff
Sessions, then the attorney general, agreed to his appointment to be an
immigration judge in March 2017.
At military commissions, prosecutors can present the judge directly with
classified information and get permission to use a substitute for original
evidence, citing the need to protect national security.
To undo those secret substitutions, the appeals courrt turned the clock back.
Once back on track, a new judge will have to reconsider Colonel Spath’s
invalidated decisions and revisit a prosecution request to pre-admit hundreds
of pieces of physical evidence F.B.I. agents tagged from the wreck of the ship
in Aden, Yemen, as well as several safe houses in Aden. In both instances,
hearing testimony showed, sailors on the heavily damaged destroyer and Yemeni
police or intelligence agents got to the evidence first.
Also apparently thrown out was a closed-court deposition Colonel Spath took at
Guantánamo Bay from a confessed Qaeda terrorist. Ahmed Muhammed Haza al-Darbi
testified against Mr. al-Nashiri before being repatriated in May to serve a
prison sentence his native Saudi Arabia.
It was unclear how far-ranging the effects of the Cole case decision would be.
But a defense lawyer in the Sept. 11 capital case, James Connell, said on
Tuesday that he would renew an objection to that case’s trial judge, Col. Keith
Parrella of the Marines, because the colonel had done a 2014-15 fellowship as
an on-loan prosecutor at the counterterrorism section of the Justice
Department’s National Security Division.
They had argued that the colonel’s earlier role presented a particular ethical
conflict because 4 of the 9 prosecutors on the Sept. 11 case work for the same
unit.
Government lawyers defending Colonel Spath’s decisions had argued that the
Executive Office for Immigration Review was a far-removed division of the
Justice Department, so the colonel had no obligation to disclose his job
pursuit.
The appeals panel, however, found that “the attorney general was a participant
in al-Nashiri’s case from start to finish: He has consulted on commission trial
procedures, he has lent out one of his lawyers and he will play a role in
defending any conviction on appeal.”
(source: New York Times)
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