Jurisprudence That Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse

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. INTRODUCTION 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. …