By Matt Hadro
South Bend, Ind., May 10, 2017 / 23:00 pm
Among the newly announced federal judges selected by President Donald Trump is a Catholic law professor who once co-wrote a law review article on Catholic judges sitting over death penalty cases.
"Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases," Professor Amy Coney Barrett of Notre Dame Law School wrote in an article published in the Marquette Law Review in 1998.
Barrett was nominated on Monday by President Trump to the Seventh Circuit Court of Appeals, one of nine nominations to federal courts made by the president. Other picks included Justice David Stras of the Minnesota Supreme Court and Justice Joan Larsen of Michigan's Supreme Court.
Barrett clerked for the late Justice Antonin Scalia and teaches law at the University of Notre Dame. She has twice been honored as "Distinguished Professor of the Year."
In 2015, ahead of the Ordinary Synod on the Family, she signed a "letter to synod fathers from Catholic women" that upheld Church teaching on marriage, family, and the human person, and decried "ideological colonization."
"We see the teachings of the Church as truth – a source of authentic freedom, equality, and happiness for women," the letter stated. "We stand in solidarity with our sisters in the developing world against what Pope Francis has described as 'forms of ideological colonization which are out to destroy the family' and which exalt the pursuit of 'success, riches, and power at all costs'."
In a 2006 address to law school students, she exhorted them to make it their "life project to know, love, and serve the God who made you."
In a 1998, Barrett, along with colleague John Garvey – who would later become dean of Boston College's law school and president of The Catholic University of America – wrote about the moral conundrum Catholic judges face when presiding over capital cases.
These judges, they wrote, "are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty. They are also obliged to adhere to their church's teaching on moral matters."
Both Barrett and Garvey cited Pope St. John Paul II's 1995 encyclical "Evangelium Vitae" in the article, which explored the culpability of Catholic judges in capital cases, where they either chose a death sentence for a defendant or affirmed the jury's decision in favor of a death sentence.
The article cited from "Evangelium Vitae," from statements by the U.S. bishops' conference, Saints Augustine and Aquinas, and from other Catholic thinkers and theologians.
First, the authors explored the morality of the death penalty itself. There is no "absolute" prohibition on the death penalty as there is against abortion and euthanasia in Church teaching, they said.
At the time, the new edition of the Catechism of the Catholic Church had been released, citing the teaching on the death penalty from "Evangelium Vitae," which said that the death penalty may only be used by society when no other means exists of enforcing justice and protecting the citizenry.
With regards to criminal justice, "the primary purpose of the punishment which society inflicts is 'to redress the disorder caused by the offence', Pope John Paul II wrote, adding that there must be "an adequate punishment for the crime."
However, he continued, the punishment "ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent."
"The appeal to general deterrence is a claim that we should do evil for the good that may come of it, and that is an impermissible suggestion," Barrett (then Amy Coney) and Garvey wrote in 1998 of appeals to the death penalty for "deterrence" of future crime.
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Regarding the use of capital punishment to ensure security, prisons in the U.S. have the ability to securely detain criminals from harming society again, they wrote, and arguments in favor of the death penalty here "will work only in parts of the world far less developed than the United States."
Then the authors explored the question of the culpability of Catholic judges who preside over capital cases in the U.S., judges who might have to affirm or issue death sentences despite the statements of the pope and bishops against use of the death penalty except in rare cases which might not even apply in the U.S.
For instance, a judge who issues a death sentence based upon the recommendation of the jury "is a straightforward case of formal cooperation, one in which the judge sets the wheels of injustice in motion," they wrote.
"Once the judge enters the order, the government is authorized – indeed unless there is a pardon, bound – to put the defendant to death," they explained. "And the judge intends that this should happen."
A judge would also engage in formal cooperation in cases without a jury, where he selects the sentence.
"The moral problem with suspending judgment in a capital sentencing hearing is like this. It would be wrong for a judge to place himself at the service of evil by getting in a position to go where events may take him," they wrote.
For a judge to preside over a "guilty" hearing, however, before a sentence is considered, that would be "morally justified," they said.
On an appeals court, a judge considering a conviction in order to determine "the fairness of a trial" is "on balance," a "material cooperation that is morally acceptable." However, his act of affirming or remanding the lower court's decision that includes the sentence of death "has some room to affect the defendant's fate," they added. "To affirm the sentence is not to approve it, but to say that the trial court did its job."
However, that might not be how it appears in public, as many would see an appeals court's affirmation of a death sentence as its approval, possibly causing "scandal."
"Considerations like this make it exceedingly difficult to pass moral judgment on the appellate review of sentencing," the authors wrote.
However, they continued, if Catholic judges have moral qualms against issuing death sentences, are they obliged to recuse themselves from such cases?
In a capital case where a jury recommends death, "there is no way the judge can do his job and obey his conscience," they wrote. "The judge's conscience tells him to impose a life sentence; federal law directs him to impose death." Thus, federal law "directs him to disqualify himself," and this should happen "before the [sentencing] hearing, not after it."
Catholic judges should also recuse themselves in cases without a jury where they can give death sentences, for "if a judge cannot honestly consider death as a possibility, he is 'prejudiced,'" according to federal law, "and should recuse himself."
However, when considering cases of guilt and not capital sentences, Catholic judges can sit on such cases if their "objective is to deal justly with the defendant." They would be finding if someone is guilty of murder, not whether they should receive a death sentence. In appeals court cases, however, "if one cannot in conscience affirm a death sentence the proper response is to recuse oneself," they wrote.
In conclusion, they wrote, "judges cannot – nor should they try to – align our legal system with the Church's moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church's standard."
