CA Judge declares death penalty unconstitutional

Another step toward the abolition of the death penalty, which is also a prolife issue if, like the Church, you practice a preferential option for life and ask not “When do we get to kill and harm?” but “How can we limit killing and harming to only those times when it is absolutely necessary?”

My only concern is that it was done by a judge and that there could be a popular backlash.  I’d prefer such moves be taken legislatively and express the popular will.  But I’ll take what I can get.

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  • Dave G.

    The popular part is important. In general, people are getting the uneasy feeling about so many things being decided, not by any popular appeal, but by judges.

    But in terms of abolition, it does raise a question about the idea of only executing when necessary. If we’ve abolished it, then we aren’t going to do it – even if necessary. Suggesting that we’re prepared for the innocent to die (a little throw back to Caiaphas – no, it isn’t good that one man die for the people, but we will let innocent die rather than execute a guilty man). And of course we don’t want to pretend as if there have never been cases where innocents have died at the hands of those who weren’t executed. That’s like saying no innocents have never been executed.

    I liked the Church’s stance at the time. Mercy at all costs unless necessary. Which is why you didn’t abolish the Death Penalty. You just used it as little as possible. That solved the dilemma for me. But to abolish it outright. I’m still not sold. At least not unless some other reasons for abolishing it are given, and quite frankly, a couple are dropped outright.

    • Andy

      If indeed was used a little as possible because there were no other options I would agree with you – but it is used far to often without thought of the possible innocence of persons executed for me to even think that it should be an option. Our fallen nature makes it far to easy to see execution as a means to an end, instead of the end that it is.

      • Dave G.

        And that is a valid concern. If it can’t be improved is there any other viable option? But could it be improved? That is a question worth considering. But our fallen nature is a more powerful argument than the idea that the time is right because the state is now able to prevent crime.

        • Andy

          My first thought as I Sadi above is to stop looking at prisons as punishment only and stop seeing the prisoners as less than human. We need prayer for many things, but if think we need to begin to pray that we move from our throwaway culture – it is this culture that devalues Human Life to the point where we are statistics. Those are the first two steps in my mind.

      • D.T. McCameron

        “without thought of the possible innocence of persons”

        I suppose this concern would not extend to those caught in flagrante delicto?

        • Andy

          I am opposed to the death penalty. It is my belief that we have the means to keep the person from causing harm to others. Please don’t respond with prison guards are in danger because part of the problem with prisons is that we look at them as only punishment and those who are incarcerated as less then people and then we bemoan the problems. We also need to overhaul our justice system, but heaven forfend we spend money to do so.

          • Dave G.

            That’s a fair observation. But to me, that only means our system is still far from perfect, and far from being able to effectively protect the innocent. Last year I pointed out that there were three people – two inmates and one civilian – killed by other inmates or escaped inmates within a two hour radius of where I live. Those lives count, too. If it’s all about being able to protect the innocent through other means, then we should wait until we get there before we call for the DP’s abolition. Otherwise, we have to reconcile the willingness for innocents to die at the hands of the guilty.

            FWIW, I think there is a way to do this, I just don’t think it is the way the Church has argued. That’s my beef.

            • Andy

              Our system is broken, I agree. My sense having worked a bit with a prison ministry that our penal system leads to many more problems then it “solves”. I really see our throwaway culture at the root of so many problems, that I believe begins the solution to the DP conundrum. I recognize the evil of the situation you shared, and I have no answer for it. The church, for me either accepts the DP or rejects it and offers insights. Failure to do that for me is a failure of leadership.

    • http://www.bewilderingstories.com/bios/thomas_r_bio.html Thomas R

      I think the idea of many Catholic leaders is that penal science and psychology have advanced enough it’s never necessary.

      I find this problematic because faith in the ability of modern psychology I think is part of what caused the priest scandal. I think some of them sincerely believed a bit of therapy and they would be “cured.” I respect that they want to believe all people can be “fixed” and made better. And I’d even agree that if that’s not true it has some troubling implications.

      But I nevertheless think it’s not really true. At least not yet. I think there are likely still a few cases where the only alternative to the death penalty would be something quite inhumane in its own right. Maybe more inhumane even. Although I admit I think such cases are very rare.

      Lastly we use the death penalty more than most countries, but this is partly because we’re one of the largest countries with it. The number of executions is, last I checked, declining and most executions occur in a relatively small number of states. Eleven of the states that have the death penalty look to have executed less than five people a piece since 1976. Five of those look to have less than ten people on death row. More than half of executions since 1976 look to have occurred in just three states: Oklahoma, Texas, and Virginia.

  • HornOrSilk

    My problem is not the ends (stop the death penalty), but the means. Saying what the Constitution allows is unConstitutional (under no uncertain terms, or debates, the Constitution speaks of the death penalty) is not going to help anyone. Be honest with the law of the land, from all sides; admit what it says. But of course, this is also the problem which develops when a man-made document (The Constitution) which has good and bad in it is treated as some kind of Holy Scripture. The bad within it is seen as divinely inspired and so this is the end result.

    • http://robertfking.wordpress.com/ Roki

      As I understand it, the court did not declare the death penalty itself unconstitutional; rather, they declared California’s methods and use of it to be unconstitutional. This leaves open the possibility of criminal justice reform, and the eventual re-establishment of the death penalty.

      Note: I am not arguing that the death penalty should be re-established. I am simply saying that, as I understand it, the court made a limited judgment about a particular situation – as courts most often do. This is not the big deal that the media is spinning.

  • Eric

    No, the death penalty is not unconstitutional. I agree it should be done away with, but not by ignoring facts. Don’t just prefer the legislative path…demand it. Otherwise, we just practice/promote our own brand of judicial activism.

    • iamlucky13

      It is also not uncatechetical, although Catholic teaching, in a very clearly reasoned manner, leaves very little room for it in a society with the resources to protect others that the US has.

      “CCC 2267: Assuming that the guilty party’s identity and
      responsibility have been fully determined, the traditional teaching of
      the Church does not exclude recourse to the death penalty, if this is
      the only possible way of effectively defending human lives against the
      unjust aggressor.”

      One of the few possible cases I can think of was the murder of a guard at the local state prison a couple years ago. He’d been in jail multiple times before, always acted like a perfectly reformed inmate, but then assaulted another woman relatively shortly after release. He apparently made a conscious effort to create opportunities to harm people. In his last sentence before the murder, he behaved himself perfectly for 8 years before the state concluded it was safe to move him to medium security. From there, over the next 2 years he apparently watched and learned the guards habits, used that to find an opportunity to get into an area he wasn’t supposed to be, and strangled his victim. Completely senseless, but premeditated and ruthless. He is currently on death row.

      Executing him isn’t “the only possible way” to defend human lives, so I suggest it very hesitantly, but it is the only certain way for somebody who makes so much effort to kill even when he is behind bars.

  • BHG

    Your hypocrisy is showing. You will take what you can get in judges who overstep their bounds in your favor but squeal like a stuck pig when they cut against you in abortion and same sex marriage. An evil means pollutes a righteous end. Shame on you Mark.

    • http://robertfking.wordpress.com/ Roki

      The means isn’t evil so much as less than ideal and possibly imprudent. It is not hypocrisy to acknowledge something good while noting the problems that accompany it.

      • BHG

        Are you so sure? Subverting the legislative process and taking from the people their participation?

        • http://robertfking.wordpress.com/ Roki

          Yes, I’m sure. Our constitution is not divine revelation, and does not define good and evil. There are other valid forms of government, and a government is only good or bad insofar as it serves or betrays true justice.

          Now, it does seem imprudent, because it seems to undermine the basis of our government, which is – as you note – based on the participation of the people in the legislative process rather than judicial fiat. (Although, not being a lawyer, I am open to correction on my understanding of this case.) Undermining one’s own authority is a risky venture, at best.

          That said, there is good in the decision. It will put an end to unjust executions. This good is not lost just because the means are less than ideal.

          • Cypressclimber

            Whether our constitution is “divine” or not seems a red herring to me.

            If a judge oversteps the bounds of his authority under the constitution, the constitution doesn’t have to be “divine revelation” for that action to be wrong.

            “By any means necessary” is not a moral injunction.

            • http://robertfking.wordpress.com/ Roki

              I agree that judicial overreach is wrong. But it is a wrong that is debatable, corrigible, and ultimately restricted to matters of human prudence. It does not rise to the level of “an evil means.” There is nothing inherently evil about judges making a judgment on a case set before them.

              Particularly in a case where the judgment is about whether a particular law or implementation of that law is just or not, the worst that can be said about the court is that it made a wrong decision. Unless you are arguing that judicial review is itself unconstitutional?

    • chezami

      Meh. I regard human law making as a crude approximation of conformance to the divine law. It’s sausagemaking at it’s best. As I say, I wish it had been done democratically, but I’m not going to complain super loud if it works. It’s not like the judge broke the law.

  • jaybird1951

    How can it be unconstitutional when the men who actually wrote the Constitution accepted capital punishment? This sounds more like a judge forcing his own private opinion on the society at large. Much like those judges who force their gay marriage views on the states and ignore or disqualify the actual votes of the citizens.


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