Friday, October 13, 2017

Bear's Last Words on the Death Penalty

If you might enjoy a legal memoir, here is a brief version of the Bear's story, some of which has not been revealed. It's mainly about how a conservative prosecutor came to be a death penalty defender. And it summarizes Pope Francis' magisterial teaching, including three reservations the Bear holds, all in its own more coherent way. If you're tired of the whole thing, give it a pass. The Bear is turning off the comments light. We've already argued enough, and while he enjoyed it, he doesn't want to do it again already. He does, after all, have another dubious novel to complete.

Wherein Bear Admits his Bias, But Dishes Professional Dirt

The views of the Bear are unavoidably informed by both spiritual insights (which Bear believes are genuine; God knows) and practical considerations from years dealing with death penalty cases.

The first death penalty case the Bear ever did was as a prosecutor. He sent an evil murderer of a mom and her young teenage daughter to death row and was quite pleased with myself. He was technically "second chair," but did all the heavy lifting, including the sentencing argument for death. The defendant spat right in the Bear's furry round ear.

Afterward, the "first chair," from the Chicago AG office, one of those "city of broad shoulders" skyscraper men as big as the Bear, took scissors and cut the tie Bear was wearing. The Bear had the remnant and the sentencing order framed and displayed it in his office: a trophy of his first "kill," as was the custom.

One of his  first chair's favorite stories was how he violated a judge's order regarding a certain photograph in a murder case by "accidentally" giving the jury a good look at it anyway. The prosecutorial ethos overall in the Bear's slice of the picture was ends-justifies-the-means, although many individual state's attorneys were honorable.

But Illinois was facing a death penalty legal meltdown. 

Death Penalty Nightmare in the Land of Lincoln

During one period Illinois executed 13 and exonerated 12 innocent men from death row. Think about it: playing Russian Roulette with a bullet in every other chamber. The Bear had a front row seat for the DNA revolution.  DuPage County police and prosecutors were charged with deliberately convicting a man they knew was innocent. The infamous Commander Burge in Chicago was literally torturing confessions out of suspects. Death penalty defense lawyers were underfunded, inexperienced, overmatched and overwhelmed.

The steady accumulation of unthinkables shocked the legal system and the state government.

It was a scandal that impressed the Bear with the reality of prosecutorial and police misconduct, and the fallibility of the system. To his credit, the governor commuted everyone on death row to life in prison without parole (LWOP) and Illinois enacted a series of reforms that addressed most of the sources of wrongful conviction. The Bear was part of that process.

But he has never been a starry-eyed, bleeding heart crusader. He did want to be part of a system that was as reliable as humanly possible. He was not an abolitionist until much later. He mostly just had a strong objection to the state killing any of his clients. He had his paws full with that, and did not question the actual penalty once things were fixed.

But the Bear gets ahead of himself.

The Bear Becomes "Mr. Death Penalty"

He left the AG's office and hung out his shingle. As a new solo practitioner, the Bear committed the common mistake of doing a little of everything but mastering nothing. He realized he needed to establish himself as an expert in something. To find a niche other lawyers had overlooked. He already had one death penalty under his belt, as a prosecutor. The ABA had made it clear that "death is different," and had issued non-binding guidelines.

The Bear shopped his threadbare experience and those guidelines around the First Circuit and got appointed to one case, then another, and soon found himself "Mr. Death Penalty." Someone judges could trust not to get a case bounced back due to "ineffective assistance of counsel." (Appellate lawyers hold the trial record in their soft lily-white hands and make up all sorts of nasty things about real courtroom lawyers in every case. The Bear never had a case bounced back on his account, but Bears are slow to forgive.)

The scandal in Illinois demanded reforms. A large capital litigation fund was established to pay for the costs of death penalty cases, including lawyers. High standards were established for counsel, and a special "capital litigation bar" was established by the Illinois Supreme Court. Only the most experienced and specially trained criminal defense lawyers could do death penalty cases. That cadre amounted to less than one percent of all Illinois lawyers. It was the Bear who scrutinized and signed off on them in Fifth Appellate District in southern Illinois.

Later, until its abolition in Illinois in 2011, the Bear lived and breathed death penalty cases as one of a half dozen consulting experts on the state payroll. Ironically, it was an appendix of the hated Appellate Defender's Office.

Turning Monsters Into Persons & Shaking Rosaries at Lawyers

The basis of the Bear's strategy had always been to make people believe his client was a person. His theory was that people who only know about a case from the press, i.e. potential jurors, would see his client as a monster, not a person. Looking back, Bear realizes his powers of reasoning were groping toward a realization of the image of God without knowing it.

People will kill a monster, he thought. They will not kill a person. 

That insight proved not only an effective strategy, but over time, he learned the truth of it. It remains his firm belief that all of his clients were persons and bore the image of God. To sound much holier than he is, he saw the face of Christ even in murderers. He thinks it is a gift. If it is not, it is a delusion. God knows, Bear does not. He only knew a couple of other death penalty lawyers who believed the same.

They were both Catholic, too.

Bear doesn't think that's an accident. He remembers John O'Gara, a well-known criminal defense lawyer from Belleville, Illinois, now a judge, pulling his rosary from his pocket and shaking it at 150 criminal defense lawyers at a conference. If you don't believe believe in God, he told the astonished audience, you will never "get" the job, and it will eat you alive.

Much later, O'Gara told the press he saw the face of Christ in Chris Coleman, (link to CBS news story) the defendant in what is easily the most horrific case in which the Bear was ever (here slightly) involved. The Bear is still troubled by it and probably always will be.

Anyway, public reaction to O'Gara's statement was predictable. He was pilloried.

The Fundamental Division

The death penalty is a conservative litmus test, and, for some, a litmus test of orthodoxy. The Bear wishes others would acknowledge their bias with the same frankness as the Bear acknowledges his. It exerts a powerful emotional hold on many far out of proportion to its status as a tiny legal relic in the West.

The Bear has never understood why conservatives are so fond of the ultimate expression of the power of the state over its citizens. After all, with LWOP, an offender comes out of prison in a box, too. It isn't as though they aren't punished. 

The Bear realizes on this issue he is in the company of liberals. The difference is, they don't know any more about the realities of the death penalty than conservatives do. They have just swallowed abolition along with every other SJW cause.

The Bear may have one foot over the line, but it is an honest stand. Bears always make up their own minds, and speak as truly as they know.

The Bear  thinks the Church, as an institution existing in time under human hands, has grown in respect for the person even as the West abandoned slavery, torture, and other denials of the image of God that grants dignity to each person. The slaveholders had their proof texts, too, you know. Among the things the West has abandoned is capital punishment. It is used in only a tiny percentage of murders in a handful of U.S. states and (rarely) the federal government. It is pursued with vigor only in the Islamosphere.

ISIS is quite creative in developing crowd-pleasing methods of execution to keep the act from getting stale and decorates cities with heads on spikes.

The West at least keeps its few executions decently hidden from public view. Dickens wrote a letter to the Times complaining about the indignity of hangings before 30,000 jeering spectators. He would be pleased at our discretion.

Even so, the Bear would not care to be a cheerleader for capital punishment under today's realities.

There is no doubt that the Church has previously taught that capital punishment was acceptable. Part of the issue, then, is whether you believe the Church can ever legitimately develop her teachings. Bear does get that.

There is also no doubt the death penalty is in the Old Testament penal statutes and various other places in scripture. It was a rough-and-ready community affair suited to a culture with a small population, no prisons, and only a trace of due process. (One also finds the clear demand that adulterers be stoned.) Thus, another part of the issue is proof texting, an often dubious exercise which usually lacks context.

And yet, here are three odd things proponents of capital punishment should consider.
  1. The same God who spoke of shedding the blood of murderers so unambiguously goes out of his way to preserve the life of the first murderer, Cain, by placing a special protective mark on him.
  2. The woman caught in adultery had to be stoned to death under the law. She was caught in the very act. There was no question. The law was clear. Jesus does not directly change the law, but he saves the woman's life and lets her off with a warning.
  3. The Good Thief was forgiven during his capital punishment, and even promised a direct translation to Paradise to be with Jesus.
As we focus on a contentious issue, we should not lose sight of opportunities for mercy. In the only mock jury in which the Bear participated (he considers them a waste of time and money) the sentencing argument that worked best was a simple plea for mercy. The Bear was surprised and pleased. Of all the fancy arguments we could come up with, people had mercy in their hearts. It was almost enough to restore his faith in humans.

For a variety of reasons, then, capital punishment remains a powerful and emotionally satisfying symbol for many who can find support in Scripture and past Church teaching.

The West Is Already Abolitionist

The Bear will say this. Those who cite an absolutist he-who-sheds-the-blood-of-man-by-man-shall-his-blood-be-shed are living in a fantasy. Even if we wanted to, the modern legal system, hedged about with so many due process protections, could not possibly handle every murder case as a death penalty case. It would cost tens of billions of dollars and massive training programs in this complex specialty. It would also require mass executions.

There's a reason the vast majority of all cases are resolved by plea bargain. The system can only support so many jury trials. Everybody in the system knows this. And that is one reason we are already a virtually abolitionist West. We are already far from the OT demands and past Church practices.

And that brings us to the main problem the Bear has with those who love to argue for the death penalty. They do not know nor do they care to educate themselves on the practical issues without which any such discussion is meaningless. It is like arguing for dirigible passenger service without knowing the first thing about dirigibles, or why there is no dirigible passenger service today.

Not everything the West has decided is wise or moral. The West accepts abortion for the innocent even as it has eliminated the death penalty for the guilty. The Bear recognizes this. But we should also realize when the West gets something right. Civil rights came only after a bitter struggle that saw the federalization of national guard units to escort black children into schools.

Finally, Pope Francis: Three Reservations

Regarding the abolitionist position of Pope Francis (whose abolitionist views are magisterial, having appeared in Amoris Laetitia) the Bear has three reservations, although he agrees with abolition in the developed West.

The first is the Pope is also against life in prison without parole (LWOP). That means convicted murderers would be released back among innocent people. Abolition without LWOP is a non-starter even for this abolitionist. The Bear's "perfect record" in death penalty cases may not seem so perfect to his defendants (save one acquittal) all of whom pled guilty in return for LWOP and will come out of prison in a box.

The second applies to whatever countries, if any, still lack prisons. St. Pope John Paul II made a practical concession regarding the death penalty if it was the only way to keep dangerous murderers separated from innocent members of the community. To the extent this nuance is important today (the Bear is not an expert in third-world penology) it is a wise one that Pope Francis would seem to erase.

The third reservation relates to the Catechism of the Catholic Church itself. The Bear frequently consults the CCC and finds it quite useful. He cringes at the idea of it becoming a bloated, ever-evolving vehicle to introduce and perpetuate the hobbyhorses of a series of Popes. The vague comment that capital punishment should have "a more adequate and coherent space in the Catechism of the Catholic Church" seems a bit odd. The Bear finds the Article 5 on the Fifth Commandment quite coherent already, including its treatment of the death penalty. 

God forbid it gets cluttered up with climate change and the like.

You Know, Everybody Dies

Those reservations excepted, the Bear find Pope Francis' rationale based on the dignity of every person who bears the image of God is in line with his own personal experiences, which can be truly understood by few.

Everybody dies. Even Bears. A few still die from a dubious lethal cocktail administered by the state. Everyone else dies some other way. The Bear is confident in his informed position regarding abolition where possible.

His other concern is what a death penalty mentality does to people and the culture in which they live. He does not like the company we keep as a death penalty country. He believes that, while our culture is being deranged, overall, human beings are respected more than in times past. It seems only natural that the Church would reflect, indeed, lead such legitimate changes based on human dignity.

It's not the "seamless garment," exactly, but recognizing the Imago Dei,  however deformed, in all human relations is not a bad thing, is it? And it is a very Catholic thing. What a wonderful witness not just to life, but the Imago Dei. If we cannot see it where it is most distorted, we do not really understand the indelible image that is tied to our source and end, who can only be God.

The devil has taken good developments to evil extremes in creating ever new classes of victims to divide and undermine our country and the Christian religion. This is his perversion of the notion of the Imago Dei. The Bear is a sharp observer of human folly, as readers know. He is acutely aware of this. From the tattoo craze to euthanasia, man is busy trying recreate himself in his own image, right down to changing sexes. But that should not blind us to some real good that is still at work despite all that.

We do not need the death penalty. The only purposes it serves are retribution and incapacitation, which LWOP can do at less expense (yes, that's right) without dulling our sense of the Imago Dei.. We barely have a death penalty at all. We will not miss it. It has already snuck into a dark corner of the past, leaving only the tip of its tail in view. Cutting it off to eliminate it would be as painless as cutting a tie in celebration of it.

And it would make a worthy trophy of a West that is still inherently different from places where people are executed in great numbers and spectacular ways. That difference is Christianity.


  1. I agree with your reservations. Whatever one thinks about the efficacy or justice (in practice) of the death penalty, I believe Bergoglio and other liberals and Modernists are interested in it simply as weapon to erode traditional Catholic moral principles and the Magisterium in general.

    I have found your discussion of the issue and your practical observations very interesting, important and illuminating, even if I reserve the right to quasi-disagree on the empirical question (from a position of far less direct experience, obviously).

    Thank you for the work you have put into these posts.

  2. No comments on this piece as announced because we have just had a lot of discussion and Bear does not feel like getting sucked into more. How Oakes managed Bear does not know but there won't be any more.


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