Judge Carolyn Dineen King of the U.S. Court of Appeals for the Fifth Circuit was the main speak­er at the ​“Red Mass” on October 4 at the Catholic cathe­dral in Corpus Christi, Texas. The Red Mass is an annu­al litur­gy held for mem­bers of the legal pro­fes­sion near the begin­ning of the judi­cial term. Its tra­di­tions extend back to 13th cen­tu­ry Europe. Judge King spoke about the death penal­ty, both from her per­spec­tive as a judge and as a Catholic. In both areas, she raised strong con­cerns about the appli­ca­tion of the death penal­ty in the U.S.

Judge King described the recent legal his­to­ry of the death penal­ty, with a par­tic­u­lar empha­sis on Texas’ statute. She not­ed that the court of which she is a mem­ber mis­tak­en­ly inter­pret­ed a Supreme Court rul­ing, and then many exe­cu­tions occurred over many years before the Supreme Court cor­rect­ed the error. She also expressed seri­ous mis­giv­ings about the risk of exe­cut­ing the inno­cent. Judge King stated:

[T]he injus­tice of exe­cut­ing cap­i­tal defen­dants under laws that were for so many years unde­vel­oped and in flux is trou­bling. Think about it. My court’s opin­ion … was on the books for twelve years before the Supreme Court struck it down. During those twelve years, many defen­dants were exe­cut­ed with­out the con­sti­tu­tion­al­ly-required judg­ment by the jury on whether the defen­dant was suf­fi­cient­ly moral­ly cul­pa­ble to be sen­tenced to death. That is not to say that those defen­dants were inno­cent of the crimes for which they were con­vict­ed. But it could cer­tain­ly lead one to ask why, if the jury’s judg­ment about moral cul­pa­bil­i­ty was con­sti­tu­tion­al­ly required, so many went to their deaths without it.

Also pro­found­ly trou­bling is the risk that an inno­cent man will be exe­cut­ed. I must say that from my expe­ri­ence with cap­i­tal cas­es, there is usu­al­ly a great deal of evi­dence that the defen­dant is, in fact, guilty. But the lengthy inves­ti­ga­tion of the Houston crime lab, which exposed evi­dence of seri­ous prob­lems such as fal­si­fied test results, includ­ing DNA test results, and the tai­lor­ing of reports to fit police the­o­ries, cer­tain­ly sug­gests that even sci­en­tif­ic evi­dence, to which we nor­mal­ly attach con­sid­er­able con­fi­dence, can be flawed. Only God’s jus­tice is per­fect jus­tice. The assess­ment of the death penal­ty, how­ev­er well designed the sys­tem for doing so, remains a human endeav­or with a con­se­quent risk of error that may not be remediable.

In dis­cussing her moral views as a Catholic, she clear­ly indi­cat­ed that those views did not dic­tate her con­sti­tu­tion­al rul­ings from the bench. Nevertheless, she finds a strong denun­ci­a­tion of the death penal­ty in the U.S. in Catholic teach­ing, espe­cial­ly giv­en the alter­na­tive sen­tence of life in prison with­out parole. Under that teach­ing, vengeance is not a legit­i­mate jus­ti­fi­ca­tion for the death penal­ty. She stated:

Catholics, the peo­ple of life, have an oppor­tu­ni­ty to advo­cate to our leg­is­la­tors changes in our laws that will align them more close­ly with the moral law. For the solu­tion to the prob­lems that we face with the death penal­ty is a polit­i­cal one (not a judi­cial one), and each of us, as a Catholic cit­i­zen and vot­er, is called upon to pro­mote it.
…
The Catholic bish­ops have recent­ly issued a call to the Catholic com­mu­ni­ty, invit­ing every Catholic to join in the Catholic Campaign to End the Use of the Death Penalty, not as a par­ti­san cam­paign but as a moral com­mit­ment.
…
The Church’s cam­paign has been long in com­ing, cen­turies long, but at last it is here and all of should active­ly and prayer­ful­ly support it. 

(South Texas Catholic News, Oct. 20, 2006). Read Judge King’s entire state­ment. See New Voices and Innocence.

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