Bloodless Means: Capital Punishment, Public Safety, and the Pope

Darrell Mease is a convicted murderer. After confessing to the 1988 shotgun murders of a married couple and their 19-year-old handicapped grandson, he was tried, convicted, and sentenced to die for his crime.

Two weeks prior to Mease’s execution date of 10 February 1999, Pope John Paul II traveled to St. Louis. In a homily at the Trans Dome on January 27, the Holy Father spoke out against the death penalty. His encyclical Evangelium Vitae calls the need to execute “very rare, if not practically nonexistent.” His language in St. Louis was stronger, calling for a “consensus” to abolish capital punishment, which he called “cruel and unnecessary.” The following day he asked Missouri’s Governor Mel Carnahan to show mercy for Mease by commuting his death sentence. Governor Carnahan—who is not Catholic—obliged the pope and spared Mease’s life.

 

Crisis of Confusion

The pope’s comments in St. Louis have confused many Catholics. To understand this story (and the pope’s abolitionist comments) based on mainstream reports is to believe that the Church absolutely condemns the death penalty. Yet many Catholics know the Church has always taught that states have the right, under certain circumstances, to exercise this ultimate punishment. Thus, they are left asking, “What changed?” In short, the Catechism changed. The doctrine that states have the right to use capital punishment remains intact, but the bar has been raised regarding the circumstances required to justify the exercise of that right. Demonstrated guilt of a capital crime is no longer sufficient. Justification now requires executions to be “the only practicable way to defend the lives of human beings.”

The Catechism teaches that punishment has three requisite conditions. “The primary effect of punishment is to redress the disorder caused by the offense.” Additionally it serves to preserve “public order and safety of persons,” and “as far as possible it should contribute to the correction of the offender.” The Catechism and Evangelium Vitae both instruct that punishment ordered to secure the safety of persons should be of the least injurious method needed to guarantee that end, “and does not exclude … recourse to the death penalty” The pope further states in Evangelium Vitae that the absolute necessity for execution is rare due to “steady improvements in the organization of the penal system.”

What, then, are we to make of his statement in St. Louis, where he did not at all use modifiers such as “practically” or “rarely?” There he said plainly that the death penalty is “unnecessary”; that is, unnecessary to redress the disorder caused by the offense, unnecessary to preserve public order and safety of persons, and unnecessary for the correction of the offender. If so, such a statement does not indicate a change in doctrine but a change in circumstance. Msgr. William B. Smith, STD, a professor of moral theology at St. Joseph’s Seminary in New York, reinforces this idea. Regarding capital punishment and Catholic tradition, Msgr. Smith notes that St. Thomas Aquinas premised his justification of capital punishment on there not being any other way to defend the common good. Msgr. Smith says, “I think a lot of people today would say there are other ways to defend the common good, namely, lock people up for life. I don’t think that was an option in the Middle Ages. They didn’t even have prisons the way we have them.” The Holy Father has observed modern prisons and concluded that the state has acquired the means to meet its responsibilities, according to doctrine, without resorting to executions.

 

Public Safety

Of the three requisite conditions of punishment previously mentioned, that of preserving public order and safety of persons is the most problematic. In other words, are we safe? Do American prisons have the means necessary to protect order and safety without executing the most ruthless killers among us? While the state retains the right to execute in legitimate defense, does it still have the need? Unfortunately, the answer is not so clear.

Any discussion of crime and punishment in America must consider at least 53 juridical authorities: the 50 states themselves, the District of Columbia, the federal government, and the Uniform Code of Military Justice. At present the federal government and the U.S. military each have capital punishment statutes; the District of Columbia does not. Of the 50 states, 38 have such statutes, though eight of these have not put anyone to death since the death penalty was reinstated by the U.S. Supreme Court in 1976. Not only do methods of execution vary between states, but the definition of capital crimes, truth-in-sentencing laws, and severity of prison conditions vary as well. Thus there is no single, simple answer to any of the difficult questions that attend a discussion of capital punishment in America.

When does a life sentence really mean life without the possibility of parole? There has been a get-tough-on-crime trend in recent years. Joe Diamond of Parole Watch—an anticrime advocacy group— says many states are turning to determinate sentencing laws in an effort to ensure that someone is not given “25 years to life” only to be paroled well short of that. Determinate sentencing requires that a sentence be for 25 years, or life, but not for an indeterminate length of time, such as 10 to 15 years. Additional provisions require completion of six-sevenths or seven-eighths of a sentence before any type of early release is even considered. These statutes vary and are subject to legal challenges as well.

Is life without parole adequate punishment for repetitive, ruthless, and sadistic killers? Are some crimes redressed only by execution? There are some institutions that can and do provide severe punishment. Referred to as “supermax” prisons, they are prime targets for human-rights activism. One such facility is the H-Unit at the Oklahoma State Penitentiary.

This is how a 1994 Amnesty International report describes H-Unit:

In November 1991, male prisoners under sentence of death in Oklahoma were transferred to H-Unit, a new unit on the grounds of Oklahoma State Penitentiary (OSP), the state’s maximum security prison at McAlester, 100 miles east of Oklahoma City. H-Unit was designed by a committee of prison staff to create a super-maximum security facility within OSP. Constructed entirely of concrete and sited so that the living accommodation is effectively underground, it is an electronically controlled facility designed to minimize contact between inmates and prison staff. Prisoners are confined for 23 or 24 hours a day in windowless cells allowing virtually no natural light and no natural air. No work, recreational or vocational programs are provided.

The same report indicates that non-death-row inmates were subsequently moved into H-Unit to relieve over-crowding. H-Unit does not represent typical prison conditions, and, with so many American jurisdictions, there likely is no average prison condition. However, administrative policies of the Federal Bureau of Prisons (BOP) and the California Department of Corrections (CDC) provide some insight into prison life.

Both BOP and CDC have four basic levels of security: minimum, low, medium, and high in the former; levels one through four in the latter. In addition, to these, there are extra-secure capabilities commonly referred to as super-max (a term not recognized by CDC).

Both systems assign prisoners to a particular security level using a point system that considers such factors as the nature of their crime, length of sentence, gang or organized crime association, violent behavior in prison, and conviction history. Higher scores pro-duce higher security assignments, resulting in decreased privileges and movement within the system. All BOP prisoners are allowed at least some movement, are required to work, and have access to common areas with televisions. The exception is the supermax facility in Florence, Colorado. Because of increased security and limited movement, prisoners do not work and must purchase their own televisions, which are kept in their own cell.

In 1997 there were more than 112,000 inmates in the federal system. Of these, 36.9 percent were in either medium or high security status. Of the 161,000 current CDC inmates, 42.7 percent are similarly assigned. Amnesty International reports that in 1997 there were 13,000 American supermax prisoners.

Oklahoma’s H-Unit has made some changes due to Amnesty International’s visit. Still, life in H-Unit hardly falls short of adequate punishment for any crime, and at the very least satisfies state responsibility for redressing disorder and correcting offenders. Further, it appears that such an institution adequately provides for the protection of public order and safety of persons. Yet, even if all jurisdictions met this or some similar and mutually agreed upon standard, the problem of assuring safety will not go away.

 

Prison Violence and Escapes

According to wire reports, on December 28, 1998, six inmates—including four murderers—escaped from Tennessee’s Riverbend Maximum Security Prison. All were captured after being at-large for up to a day-and-a-half. Seven death row killers escaped from Texas’s Ellis Unit near Huntsville on January 21, 1999, only six days prior to the pope’s homily in St. Louis. After escaping from death row, six of the murderers were stopped by gunfire. The seventh escaped altogether by climbing over two 10-foot fences. He was found dead from drowning a week later.

On June 28, convicted murderer Clifford Jones escaped from the high-security section of the Estelle Unit, which is within view of the Ellis Unit. Jones, who is serving a 26-year sentence for murder, dodged bullets and scaled two 12-foot fences to escape. He was at-large for 49 hours before being captured. While no innocent people were harmed during these escapes, it is unreasonable to believe such men would think twice about killing an innocent person to avoid capture, especially when they have already murdered and risked their lives to escape, and often face execution upon their return.

These recent examples illustrate the state’s inability to control absolutely the physical movements of living killers within the general public. Yet, Harris County District. Attorney John Holmes is not overly concerned about prison escapes. Holmes, the man prosecuting suspected railroad serial killer Angel Maturino Resendez in Houston, is described by the Washington Times as the man “who has sent more people to death than any prosecutor in Texas history.” He says, “I wouldn’t concern myself about the escapes because they’re rarer than hen’s teeth, frankly, but what you don’t know and what will appall you if you find out … [is that] it is utterly amazing how many assaults and murders and rapes they have with people in lock-down conditions.” According to the Department of Justice, in 1997 there were 3,335 prisoners under a sentence of death for murder. Of these, 76 were incarcerated, 38 were escapees when they committed the crimes that merited the death penalty.

Hard data concerning murders committed by previously convicted murderers are hard to come by. According to the Justice Department, 1 in 12 death row inmates have prior murder convictions. On the other hand, Amnesty International reports that of the paroled murderers in the United States, less than 1 percent were subsequently convicted of homicide. If both of these figures are correct, the majority of those 1 in 12 prior murder convictions were for murders committed either after a completed sentence, during an escape, or while inside prison. The 1 in 12 figure does not include non-death row inmates serving time for murder who also have prior murder convictions. Even if all of these murders were perpetrated on other prisoners, and no innocent citizens or correctional officers had been harmed, the state is still remiss in protecting people. This is especially so in a system that would be predicated on the idea that no prisoner should be executed. In that case, society is saying that while prisoners have justly lost their right to liberty, their right to bear arms, etc., they explicitly have not lost their right to life.

As it stands, the state is responsible for protecting inmates from violence and death, short of an execution resulting from due process of law Some authorities in this country simply are not meeting this responsibility. District Attorney Holmes tells of a prisoner who made a bomb out of a cola can, match heads, an electrical appliance cord, and packing materials. After packing the can with the match heads and the exposed end of the electrical cord, the inmate then wrapped this crude explosive device as a package while leaving the electrical cord and its plug exposed. The inmate, while retaining the end of the electrical cord, passed the package down the cell block to his intended victim, who evidently expected some sort of gift. The assailant instructed his victim to indicate when he had this “gift” in hand. When the package was on target the cord was plugged into an electrical socket. The consequent explosion reduced the victim’s hands to two bloody stumps. Holmes adds, “This is in absolute, solitary, lock down in a prison system. You would be shocked at how much of that occurs. I was, and I’ve been doing this a long time.” In 1998 state prisoners in Texas assaulted other prisoners 1,510 times and assaulted staff 1,674 times. Certainly, life in prison is dangerous, so it is ironic that, in one respect, death row may be one of the safest places to live in prison.

 

Fighting for Life

Documentary photographer Ken Light spent three weeks in 1994 among the prisoners of death row in Huntsville, Texas, documenting life and living conditions in the Ellis Unit there. Light says,

The guards will tell you it’s actually safer, at least for a guard, to be on death row than it is to be in the general population. The general population is much more dangerous in terms of stabbings, and killings, and guard assaults than death row. The types of remarks I had [previously] heard were ‘Oh they’re on death row, they have nothing to lose.’ That’s something that’s been portrayed in the movies and the media: ‘They’re brutal killers, they have nothing to lose because they know they’re going to die.’ That wasn’t the experience I found.

Indeed, prisoners on death row expect one another to fight for life. The long appeals process exacts a tremendous emotional toll on the prisoners, with each lost appeal seeming like a fresh sentence of death. But as long as the appeals process is in motion, life is prolonged. When one man is executed, they are all closer to death. Therefore, one is expected to fight to the end. This expectation is best illustrated by the case of Richard Beavers.

As Light tells it, there was a fundamentalist minister who came into death row preaching that, “if you repent and in fact give up your legal appeal and you’re executed … you’re going to be forgiven when you get to the other side.” Beavers, who had become a Christian, followed this advice, dropped his appeal, and was executed. When the preacher returned after the execution, he was met by angry prisoners yelling things like, “You killed this man. Look what you’ve done. What type of God would kill this man?” Light says the inmates were angry with Beavers as well. “They said, if he was a man, he would have killed himself rather than allowing the state to do it. They felt that, by him giving up the appeals, [he] jeopardized other inmates and moved the process forward?’ It was with a nascent sense of the common good that the condemned rightly saw the preacher’s false teaching as a threat not only to Beavers, but to themselves as well. In contrast, the non-death-row prison population shares no such sense of the common good. Instead, the common element to be found there seems to be extortion, rape, and murder.

 

Cost of Living

No one reasonably denies the well-established fact of prison violence. Cost-effectiveness of capital punishment, on the other hand, is a very contentious issue. Is it really cheaper to lock up killers and throw away the key than it is to execute them? That depends on whom you ask.

Millions Misspent—a report issued by the Death Penalty Information Center, an anti-death-penalty organization—draws heavily from newspaper sources and bar association reports to conclude that executing a criminal costs millions more than life without parole. On the other hand, the report Death Penalty and Sentencing Information, issued by the pro-death-penalty organization Justice For All, argues the opposite. Using side-by-side cost comparisons, Justice For All (citing Time magazine) lists annual death-row cell costs at almost twice that of “life without parole” cells. For trial costs, death penalty cases are figured at 20 times more costly than similar “life” cases. Even then, the cost for life after 50 years with a 2 percent annual cost increase is $3.01 million, while the death penalty case over 6 years is $1.88 million. (The Justice Department reports that the average stay on death row is more than 9 years.) These figures apparently demonstrate that even with greatly increased initial costs, execution tends to be cheaper than incarceration for life. What is missing, however, is recognition of where the brunt of these costs fall. Regardless of the comparative costs of incarceration and execution—costs predominately borne by state authorities—the exorbitant costs of trial often fall upon small jurisdictions possessing limited and strained finances. Millions Misspent is replete with examples of small jurisdictions overwhelmed by expensive death-penalty cases. In Sierra County, California, authorities had to cut police services in 1988 to pick up the tab of pursuing death-penalty prosecutions. The county’s district attorney, James Reichle, complained, “If we didn’t have to pay $500,000 a pop for Sacramento’s murders, I’d have an investigator and the sheriff would have a couple of extra deputies and we could do some lasting good for Sierra County law enforcement. The sewage system at the courthouse is failing, a bridge collapsed, there’s no county library, no county park, and we have volunteer fire and volunteer search and rescue.” The county’s auditor, Don Hemphill, said that if death-penalty expenses kept piling up, the county would soon be broke. Just recently, Hemphill indicated that another death-penalty case would likely require the county to lay off 10 percent of its police and sheriff force.

Evaluating the financial impact of capital punishment is, in one respect, a question of prudence. If justice demands death in a particular case, should a community pursue a lesser justice if the expense of pursuing death will ruin the local government? More importantly, cost analysis from another perspective would be the height of injustice. If executions are demonstrably wrong, should we kill murderers nonetheless in order to save money? Of course not. The question of cost is a prudent one to be dealt with only after more fundamental questions, such as safety, have been settled. And that question still stands: Are we safe?

 

Bloodless Means

In a country of approximately 260 million, what is an acceptable recidivism risk regarding convicted murderers? With about 3,565 people presently on death row, the figure of 1 in 12 death-row inmates with prior murder convictions translates into 297 murders by men previously convicted of killing (assuming only one murder per subsequent conviction). In addition to exceptions previously mentioned, this number does not represent murderers not discovered, not reported, not prosecuted, and not convicted. No one knows what the final number is and what percentage of the population it represents. Whatever the number, secular and pluralistic America will never reach a consensus on such an emotionally charged issue.

The pope, while not clear as to what constitutes a successful, legitimate defense of society, is very clear regarding innocent life. The second chapter of Evangelium Vitae states, “I confirm that the direct and voluntary killing of an innocent human being is always gravely immoral.” Innocent human life possesses “absolute inviolability” Msgr. Smith echoes this, “Killing the innocent should never be compared to killing a convicted murderer, because by definition they’re not innocent…. Capital punishment should be argued on its own merits…. Now I think frankly it is arguable whether this is the only way to protect society. But I’m not sure then that you’re arguing theology”

The Catechism and Evangelium Vitae declare that authorities must limit punishment to instrumenta incruenta—bloodless means—when such means are sufficient for defense and safety. That is theology. The legitimate authority evaluates the availability and efficacy of such means. That is practicality. A gang member serving time for dealing drugs is hardly innocent absolutely (no one is), but he is innocent enough that the state is responsible for protecting him from harm. Prudentially, the evidence is far from convincing that American prisons are up to the task of protecting the safety of people. If, for faithful Catholics, the ability to protect the innocent is the last consideration in deciding to execute the guilty, what is to be made of a convicted killer in solitary confinement who has managed to kill again? In such cases there are reasonable arguments against applying the last full measure of punishment. They simply cannot be found in the Church’s teaching on the death penalty

Author

  • Norris Archer Harrington

    At the time this article was published, Norris Archer Harrington was a senior at Thomas Aquinas College.

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