Jurisprudence that necessarily embodies moral judgment: the Eighth Amendment, Catholic teaching, and death penalty discourse.

Author:Denk, Kurt M.
Position:Introduction through II. U.S. Death Penalty Jurisprudence, p. 323-370

Despite obvious differences, certain historical and conceptual underpinnings of Catholic death penalty teaching parallel core elements of U.S. death penalty jurisprudence, particularly given the Supreme Court's expansive yet contested moral reasoning in Kennedy v. Louisiana, which stressed that Eighth Amendment analysis "necessarily embodies a moral judgment.'" (1) This Article compares that jurisprudence with the Catholic Church's present, near-absolute opposition to capital punishment, assessing how the death penalty, as a quintessential law and morality question, implicates overlapping sources of moral reasoning. It then identifies substantive concepts that permit Eighth Amendment jurisprudence and the Catholic perspective to be mutually translated, presenting this approach as a means to advance death penalty discourse.


The legal implications of religion's often contested presence in the public square remain at the forefront of national consciousness. Prominent examples of this within the past year include debate over the Obama administration's decision not to exempt all but a narrow class of religiously-affiliated employers from the new health care law's mandate to provide insurance coverage for contraception, (2) and the Supreme Court's interpretation of the Religion Clauses' application to employment decisions in Hosanna-Tabor Evangelical Lutheran Church v. EEOC. (3)

Religion's salience to both the form and substance of important legal debates is no less the case with respect to the death penalty. As Professor David Garland has argued, "religiosity and moralism" are among "recurring themes that feature prominently in the American public sphere ... [a]nd ha[ve] a bearing on the punishment of offenders and on death penalty politics." (4) Accordingly, "[t]o understand today's American death penalty ... we must try to see its moral power, its emotional appeal, its claim to be doing justice." (5)

In comparing U.S. jurisprudence with Catholic death penalty teaching, this Article aims to contribute to such understanding. (6) Over four years after Baze v. Rees (7) ended a brief, de facto national moratorium on executions, (8) the moral, including religious, dimensions of capital punishment remain both poignant and contested. (9) Death penalty opponents succeeded at placing an abolition initiative on the November 2012 ballot in California--both the nation's largest state and the state with the largest population of inmates awaiting execution--and secured over 100 endorsements of repeal from faith and religious organizations. (10) In Connecticut, which in April 2012 became the most recent state to repeal its death penalty statute by legislation, New York Times coverage included a photo of religious leaders opposed to capital punishment praying at a rally as Connecticut's Senate debated the abolition bill. (11) Senator Gayle Slossberg, a one-time death penalty proponent, was described as "wrestling with the moral implications of capital punishment" before concluding that its abolition "'set[s us] ... on the path to the kind of society we really want for our future.'" (12) Senator Edith Prague, also an initial opponent of repeal who considered the death penalty to be "a moral issue," attributed her changed position to discomfort at the prospect of "'be[ing] part of a system that sends innocent people ... to the death penalty.'" (13)

In declaring in November 2011 that he would permit no executions to proceed while still in office, Oregon Governor John Kitzhaber explained that he "cannot participate ... in something [he] believe[s] to be morally wrong." (14) In March 2011, longtime death penalty supporter Governor Pat Quinn expressly acknowledged his Catholic faith in forming his decision to sign a bill abolishing the Illinois death penalty. (15) Whether coincidental or not, the state that abandoned the death penalty prior to Illinois was New Mexico, in 2009, where analysts cited strong religious opposition behind abolition, and where the governor who signed the legislation, Bill Richardson, is also Catholic. (16) New Mexico's predecessor in repeal was New Jersey, in 2007, where death penalty opposition by the Catholic Church--the state's largest denomination--also was among pro-abolition forces. (17)

Religion does impact public thinking about capital punishment. According to the Pew Forum on Religion and Public Life, 62% of Americans support capital punishment for murder, and while 22% "with an opinion about the death penalty ... cite their education as [the] most important" factor, 19% "say that religion is the most important influence on their thinking." (18) Religiousness per se does not necessarily predict a given view: majorities of white evangelicals, mainline Protestants, and Catholics favor the death penalty; majorities of black Protestants and Hispanic Catholics do not. But 32% of death penalty opponents--and 31% of Catholic death penalty opponents--cite religion as the top influence on their views, versus 13% among death penalty proponents. (19)

Thus, a broad range of voices fills the death penalty's moral contours. Troy Davis's September 2011 execution illustrates this: his innocence claims, which various courts and Georgia's Board of Pardons and Paroles rejected, spurred 630,000 letters pleading for a stay of execution, and clemency appeals from Pope Benedict XVI, Archbishop Desmond Tutu, former President Jimmy Carter, dozens of members of Congress, and even prominent death penalty supporters. (20) In his final words, Mr. Davis maintained his innocence, urged a "deeper [look] into []his case ... [to] see the truth," and closed in benediction: "For those about to take my life, may God have mercy on all of your souls. God bless you all." (21)

This Article offers three contributions to this discourse. Part I asserts that because the U.S. death penalty has significant religious roots and resonance, and given how enmeshed Kennedy v. Louisiana is in its moral contours, it remains a quintessential law and morality question. (22) But that premise simply begs further inquiry: to what extent might religious sources of moral reasoning be relevant? Parts II and III compare U.S. death penalty jurisprudence and Catholic death penalty teaching, via critical exegesis of Kennedy as a text of judicial moral reasoning. (23) This comparison focuses on both the expansiveness and limitations of Kennedy, buttressing the claim that Catholic teaching's relatively recent trajectory towards near-absolute opposition to capital punishment makes it both relevant and potentially useful to the U.S. context, especially because its reasoning is not coterminous with theology. Part IV argues that "translatable" categories of moral reasoning thus permit secular and religious perspectives to be in dialogue, thereby advancing death penalty discourse.


    For decades, the Supreme Court has affirmed that the Eighth Amendment's ban on cruel and unusual punishment, which governs a large swath of death penalty jurisprudence, "'draws its meaning from the evolving standards of decency that mark the progress of a maturing society.'" (24) In 2008, Kennedy v. Louisiana stressed that this jurisprudence "'necessarily embodies a moral judgment.'" (25)

    Kennedy's use of this phrase is instructive, and inspired this Article's title. For it appears to adopt, as a principle of constitutional law, Chief Justice Warren E. Burger's passing observation about moral judgment three dozen years prior in his dissent in Furman v. Georgia, (26) where he remarked that "[a] punishment is inordinately cruel, in the sense [relevant to Eighth Amendment analysis],... chiefly as perceived by the society so characterizing it. The standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment." (27) By comparison, a majority of the Court in Kennedy set forth that the Eighth Amendment "draws its meaning from the evolving standards of decency that mark the progress of a maturing society. This is because the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment." (28) No Supreme Court case prior to Kennedy quoted this phrase, much less presented it as central to Eighth Amendment analysis as this Article argues it does. (29)

    Shortly before Kennedy was decided, Professor Michael Moore argued that "Eighth Amendment jurisprudence reveals that judges continually engage in moral reasoning." (30) Kennedy fits his thesis that this jurisprudence consists of "miniature essays in judicial philosophy, so [that] Eighth Amendment interpretation is ... theorized as a moral enterprise by [its] judges." (31) And of what do its "difficult questions rooted in morality" (32) consist? The Court in Kennedy found it to consist of theories of punishment, proportionality, and culpability; inquiry into whether someone "deserves" to die; and the weighing of aggravating or mitigating factors, including an offender's own moral agency. (33) Such are the moral reasoning dimensions of death penalty jurisprudence.

    Some scholars and jurists deny the validity of judges' moralizing--including Justice Antonin Scalia, whose views Professor Moore addresses. (34) But Justices do decide cases based on their "independent judgment," at least in part. (35) This Article assesses how Kennedy does so quite expansively--even if, in some ways, with insufficient coherence. (36) Kennedy's mixed bag of moral reasoning thus shows how capital punishment remains a law and morality question par excellence.

    1. Capital Punishment as a Law and Morality Question

      Commentators routinely address capital punishment as a law and morality question. However, it is not always clear what this means. Disagreement between the Kennedy majority and dissenters thus may simply echo a broader socio-cultural "search [for] a unifying principle." (37) In any event, broad social discourse is relevant...

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