Catholic Judges Have No Obligation to Recuse Themselves in Capital Cases.

• Author: Proctor, Ryan M.

Professor Amy Barrett captured national headlines as nominee to the Seventh Circuit Court of Appeals when Democratic members of the Senate Judiciary Committee questioned her fitness for office on the basis of her devotion to her Catholic faith. (1) "The dogma lives loudly within you," admonished Ranking Member Dianne Feinstein. "And that's of concern when you come to big issues that large numbers of people have fought for, for years in this country." (2) "Dogma and law," Senator Feinstein also said, "are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different." (3)

Although abortion and same-sex marriage dominated the news coverage of the hearing, many of the questions in the hearing itself were devoted to Professor Barrett's 1998 article Catholic Judges in Capital Cases, (4) which she co-authored with Professor John Garvey, then of Notre Dame Law School. (5) There they argued that, according to the principles of Catholic teaching, the use of the death penalty in contemporary America is morally wrong, because there are other ways of defending society against unjust aggressors that do not involve killing. (6) Consequently Catholic trial judges may not issue death sentences, even if the law commands them to. (7)

These conclusions do not mean that now Judge Barrett would replace the law with Catholic dogma. She and Professor Garvey do not, as many others have, (8) argue that the death penalty must be unconstitutional because it offends their own personal sense of justice. Nor do they advocate finding pretexts to overturn or avoid issuing death sentences whenever possible. (9) They have too much respect for the objectivity of the law and for limitations on judicial power to take this easy way out. Instead, they argue that Catholic judges should participate in capital cases when it is possible to do so in good conscience and recuse themselves when it is not. (10) Recusal is called for only when participation would involve directly participating in the evil of capital punishment by ordering the death of the defendant. (11) They therefore conclude that trial judges must recuse themselves from the sentencing phase of death penalty cases but may participate in the guilt phase. (12) Appellate judges, on the other hand, need not recuse themselves at all, because they never themselves issue death sentences; they only determine whether the trial court committed any legal errors over the course of the trial and sentencing. (13) Judge Barrett and Professor Garvey thus do not call for wide-ranging lawlessness but for conscientious objection in a narrow set of circumstances.

Nevertheless, Judge Barrett and Professor Garvey's conclusions have serious implications for Catholic judges at all levels. Catholic trial judges would on their view not be able to issue sentences according to the laws of the United States in many of the most serious criminal cases facing the nation. Every affirmation of a capital sentence by an appellate judge would enable, albeit indirectly, a grave violation of human dignity. Many Catholic judges may not be able to stomach such participation in an unjust system, (14) even if the Church's teaching did not outright forbid it, and others have disagreed with Judge Barrett and Professor Garvey that such indirect participation would be morally permissible under Catholic teaching. The late Justice Antonin Scalia, for instance, argued that if the death penalty were contrary to Catholic teaching, it would be wrong not only to issue death sentences but even to affirm them at the appellate level, whether on direct or collateral review. (15) Every Catholic judge who adjudicates capital cases at any level of the judiciary from state trial courts to the U.S. Supreme Court would instead have an obligation to resign from office. (16) For Justice Scalia, the question of whether Catholic judges can participate in capital cases--or serve as judges at all--ultimately hinged on whether the Church does in fact condemn the death penalty as immoral.17 And even if Judge Barrett and Professor Garvey have the better of the argument on what Catholic judges must do if the use of capital punishment violates Catholic teaching, this is to say nothing of Catholic prosecutors, jurors, elected officials, and voters, all of whom could face serious conflicts between the commands of the law and of their faith.

A close examination of Church teaching from its roots to the modern day, however, will reveal that any conflict between the Catholic faith and participation in death penalty cases is only apparent. From the book of Genesis to Pope Benedict XVI, the Catholic tradition has consistently acknowledged the legitimacy of capital punishment, not only as a kind of societal self-defense to be used in the last resort but as an affirmatively just and fitting punishment for grave crimes. The Old and New Testaments, the Fathers and Doctors of the Church, and popes across the ages from the fifth century to the twenty-first have all defended capital punishment's legitimacy as a form of punishment. At the same time, this defense of the death penalty in principle has always existed alongside the Church's efforts to limit or even eliminate the practice out of mercy and Christian charity.

Judge Barrett and Professor Garvey based their view on the writings of Pope John Paul II, who urged public authorities to limit the use of the death penalty to "cases of absolute necessity: in other words, when it would not be possible otherwise to defend society." (18) From these writings they concluded that "only reasons analogous to self-defense can justify capital punishment." (19) But John Paul II never questioned the state's right in principle to punish grave crimes with death, and he analyzed the question of the death penalty within the framework of the Church's traditional teaching on punishment. He instead made a prudential judgment that it would be more conducive to the common good if public authorities refrained whenever possible from exercising their right to punish malefactors with death. (20) Pope Benedict xVI taught likewise, reaffirming the retributive end of punishment, including capital punishment, while exhorting states to avoid bloodshed. (21)

In August of 2018, almost one year after Judge Barrett's confirmation hearing, Pope Francis issued a revision of the Catechism of the Catholic Church that has reignited debate among Catholics over the moral status of capital punishment. The revised text of the Catechism now calls the use of the death penalty "inadmissible" in all cases in contemporary society. (22) While sweeping in the scope of its judgment, the revised Catechism still expresses only a prudential judgment and does not deny the legitimacy of capital punishment in principle. (23) The abolition of the death penalty may be the policy that best promotes the common good in today's world, but it is not outside of the legitimate authority of the state to impose it. For this reason Catholic judges have no moral obligation to recuse themselves from capital cases.

Part I of this Note outlines the Church's teaching on the purposes of punishment. Retribution is the primary and justifying purpose of punishment; a punishment is just if it is deserved. Part II examines the Church's historical and current teaching on capital punishment in particular. Scripture, the Fathers and Doctors of the Church, and the teachings of popes across the centuries all affirm public authorities' right to execute serious offenders. Pope Francis has not denied this right and does not have the authority to change the Church's teaching on this point even if he wished to. Part III applies the Church's teaching on capital punishment to the context of modern American judges. Judges may in good conscience issue death sentences, even if they personally favor the abolition of the death penalty. Part IV briefly concludes.

1. THE PURPOSES OF PUNISHMENT

   Under the Church's traditional teaching, the primary purpose of punishment is retribution. (24) "Punishment," taught Pope Pius xII, "is the reaction demanded by law and justice against crime; they are like blow and counter-blow. The order of justice which is disrupted by the crime demands to be re-established and restored to its original equilibrium." (25) According to Thomas Aquinas, "the act of sin makes man deserving of punishment." (26) The wrongdoer pays for his crime by suffering an evil that is proportionate to the evil he committed. (27) Pope John Paul II reaffirmed this traditional understanding, teaching that the "primary purpose of the punishment which society inflicts is 'to redress the disorder caused by the offence' ... by imposing on the offender an adequate punishment for the crime." (28) The ordinary Christian, of course, must "not repay anyone evil for evil," (29) but the state may exact retributive punishment, because it is charged with maintaining the civil order and safeguarding the common good. (30)

   Judge Barrett and Professor Garvey deny that retribution can justify capital punishment. (31) In their view, in the rare instances where capital punishment is warranted, it is not justified qua punishment but qua some other kind of legitimate killing, like self-defense. (32) As we shall see in Part II, however, Church authorities, including Pope John Paul II, have traditionally analyzed the death penalty within the framework of punishment. These same authorities have furthermore considered some crimes to be so heinous that death would be a just and proportionate response to the evil committed.

   Although retribution is the primary purpose of punishment, it is not the only consideration that civil authorities must take into account. Punishments in this life may serve other "medicinal" purposes, such as restoring public order, defending public safety, and rehabilitation of the offender. (33) These secondary considerations, aimed at "improv[ing] those that...