Tuesday, October 28, 2014

The Death Penalty

It is rare that the Bear gets to address a topic he actually knows something about. The Bear has defended many (and prosecuted one) death penalty cases. He was appointed by the Illinois Supreme Court to screen death penalty lawyers, and has presented at death penalty seminars from one end of the state to the other.

Only one of his cases wound up on death row -- the one he prosecuted.

The Pope has just mentioned the death penalty. ("Mention" is the weightiest description one can ascribe to the Pope's incessant commentary.) The Bear thought he would toss his own few biscuits into the brunch.

  • The more traditionalist the Catholics (or conservative the Protestants) the more favorable they are to the death penalty. The Bear has found it ironic that a religion whose chief symbol is a man being executed should not find some spill-over compassion on the practice in our own day. Are political leanings always or necessarily a predictor of religious views?
  • In one mock jury done in trial preparation, the most effective argument in favor of life was mercy. People still respond to an appeal to the sheer grace of mercy.
  • The best argument against the death penalty is that we know for certain innocent people are occasionally imprisoned, usually through one or both of mistaken eyewitness evidence or false confession. Many wrongfully imprisoned prisoners have been freed. The Bear cannot recall a wrongfully executed person come back to life.
  • Long imprisonment is, indeed, a severe punishment. Sometimes it seems like the fight is over execution vs. letting someone go entirely. The Pope even spoke against life without parole (LWOP). While the Bear thinks it is proper for the Pope to be the voice of mercy in this matter, he has no strong feelings about LWOP. As a practical matter, few senior citizens are a menace to society, and the Bear sees no harm to promising inmates a light at the end of the tunnel, however remote. A man with hope is more likely to incline to good than a man who knows he will only leave prison in a box.
  • The father of all murderers was Cain, whom God did not only decline to kill, but forbade others from killing. Of course, the later code provides for execution for nearly anything, including fighting with your parents! The Bible certainly does not forbid capital punishment, nor was the Church a stranger to it.
  • Capital punishment made more sense before the modern corrections system made long-term imprisonment a practical reality.
  • Everyone imagines the appeal to victims' families' "need for closure," or revenge is a strong argument. But since when do we allow the most interested parties' indulgence in their worst -- if perfectly understandable -- instincts to drive policy? For, surely, we can agree that the grieving parent who forgives a murderer is heroically like Christ, who forgave his murderers? Isn't that the better course, for those who can? If someone -- God forbid -- harmed a family member of the Bear, heroic charity is the last thing you would see. But he would have to admit he was more of a Bear, and less of a Christian. Why should the law be driven by the desires of the very most interested parties, rather than step back and act disinterestedly?
  • Capital punishment is not a deterrence. It's just not. The Bear has studied many murders in minute detail, and got to know many murderers better than their own mothers. Fact: people who kill other people are not thinking ahead. Of course, there are always exceptions, but the typical murderer is stupid and drunk and/or high and kills on the spur of the moment, or with a poorly though-out plan that leaves out important details like how to dispose of the body or escape. These are not masterminds who will consider the death penalty before killing. For one reason, they don't think they'll be caught, or don't even consider the possibility.
  • There are particularly heartless, selfish, and premeditated crimes that seem to bury the Pope's words in their sheer enormity. One thinks of Chris Coleman, who pleaded guilty to an elaborate scheme to murder his lovely wife and two beautiful sons in order to run off with a dog track waitress. It is an odd thing to compare murders, although lawyers find themselves having to do it all the time. Every murder leaves a hole in the world, and in people's heart, but seem seem particularly wicked. A hard discussion on capital punishment can't leave out those crimes, but emotion shouldn't dominate policy.
  • There are psychopaths, who are intraspecies predators. There is evidence that their brains function differently. They don't get better, and they aren't treatable. They are dangerous on the outside, but what if their brains rob them of empathy and otherwise predispose them to violence? Oddly, they couple the best arguments for both sides: they are the "mad dogs" if ever there were, yet they also aren't completely responsible due to (research strongly suggests) brains that don't work right.
  • The current experiment with drawn-out and botched lethal injection is a failure. If we're going to do it, there are older, and surer, methods.
You might imagine the Bear would be an ardent opponent of capital punishment. His career has undoubtedly made him more willing to listen to the Church on this matter, but he isn't much of a movement Bear.

From his own experience, the Bear can say one thing. He has seen a criminal on television, and felt the visceral hatred rise, only to end up representing that very person. The more you learn about someone, the more you see him as a person, albeit a person who has committed a murder. It is hard to contemplate someone you know being executed. Those who support the death penalty always deny the humanity of the accused. "Monster," or "inhuman," or "animal" are words you will always hear around a murder case.

The Bear learned that there are no monsters. There are only people who are capable of doing very bad things, and that the difference between him and a murderer is one of degree, not kind. He honors the image of God in the victim, but also in the killer, no matter how disfigured it may be. It is easy to kill a monster. Few people ever get to know the unique person facing execution, or they might think twice.

So these, then, are the Bear's thoughts on the death penalty. They have been formed by an unusual career, and articulated by the Church. The Bear does not expect anyone to agree with him, nor does he think anyone has to. You probably have to have been there to get some of this. The Church's position on the death penalty is in some ways a novelty, although the Bear thinks it is sound.


  1. Interesting article. My brother was murdered thirty years ago, the perp never caught. For reasons I'll not go into I've always believed it was a contract killing, even if the actual murderer was discovered his "employer" would still be scot free for this particular crime. I say this to preface my own opinion; that I believe in the death penalty EXCEPT for whoever was involved with my brother's demise. Believing (as all Catholics do) in the possibility of deathbed conversions I'd be a bit peeved to have these particular felons enter the Pearly Gates whilst my mother and I still feel the loss of my sibling. Nope, what I'd like to do is have them "enjoy" life without parole. I'd be sure to visit them once a year, hiring some scantily clad hardbodied babe to stand in the background whilst I regaled the prisoner with tales of my family, gripe about the cost of the prime rib I'd recently eaten and opine about the latest flicks. Then I'd ask how they were enjoying life.

  2. Bear, I strongly suggest you read this piece. The Catholic Church's position on capital punishment -- articulated by John Paul II -- contradicts centuries of teaching from Scripture and Tradition:


    1. Oh, I never thought for a moment that the Church condemned the death penalty throughout her history. The Papal States were enthusiastic practitioners of it. But neither is is de fide that we must execute people. Flogging was also a common punishment, but we recognize that sensibilities change. The sense of the Church is against the death penalty now, and I don't expect that to change. I think we our free in our consciences on the matter. But I would never be one to insist that "the Church is against the death penalty." My own life experiences have led me to a certain position that is informed by the Church as she teaches now.

    2. Bear, the Church is -- for all intents and purposes -- abolitionist in its approach toward capital punishment. This is a *direct* and *intended* result of John Paul II's activism on the issue. Yes, I know what the catechism says. Given that far more Catholics pay attention to papal pronouncements than either to Scripture or Tradition -- and given that the bishops are, for all intents and purposes, company men whose career prospects are linked to support for papal initiatives (or they wind up like Cdl. Burke) -- they are less likely to pay attention to the catechism than we might think.

      Francis is trying to do to marriage and homosexuality what John Paul II did with capital punishment: Use his office in an arbitrary manner to turn his revisionist approach into doctrine.

      Yes, I know the implications of what I'm saying.

      BTW, why isn't Genesis 9:5-6 (which I hope you will read for yourself) de fide concerning the execution of murderers if Scripture is divinely inspired?

  3. Whatever one thinks of the death penalty, I find this new development deplorable and unsupportable. Is this Mark O'Gara still? (Do I have the name right?) [I think he also defends a man who recently attempted to abduct a child in Columbia, who had been pending trial for attack of a boy at a Target in Fview Hts a few years earlier...mentally disabled, it sounded like.]


    1. I don't know if O'Gara is doing the appeal or not. These are issues that were litigated before trial. Personally, I don't think there was any need to cloud the record with the "salacious" pictures and videos of Coleman and his girlfriend. The evidence was they were having an affair -- so what, I need to draw you a picture? The biggest problem is "Drew's Law."

      It is supposed to allow hearsay to come in where a person is accused of murdering a witnesses because he or she is a witness.

      The court misinterpreted it in a way so that anyone can step up in any murder case and use hearsay provided by anyone, attributed to the victim on the ground that the murder victim would have been a witness at her, uh murder trial... if she wasn't... er, murdered. This is just bad law. It doesn't take much to imagine the potential for abuse.

      I'm a trial lawyer and just not a big fan of appeals. An appellate lawyer is like someone who comes on the scene after the battle and shoots the wounded (defense lawyer).

      That said, appeals are the places where legal errors are set right, because we have a system of laws, not men. Don't see this one going anywhere. It isn't enough to identify a mistake. It has to have had to make a difference. I think most people believe people "get off on appeal" FAR more than really happens, which is far less than those who get off at trial, which is again, FAR less than really happens (as in almost never).

  4. Got it. I have learned in regulatory work that appeals cannot address issues of fact, but of procedure, law or constitution, etc.


Moderation is On.

Featured Post

Judging Angels Chapter 1 Read by Author

Quick commercial for free, no-strings-attached gift of a professionally produced audio book of Judging Angels, Chapter 1: Last Things, read...