Catholics and capital juries

[fre803]

May a Catholic serve on a capital jury? Does anyone have any thoughts on this?

It is argued that the answer is yes because the jury merely finds facts; at most, the jury makes a sentencing recommendation, and not always that much; it is the judge who sentences.

Let’s make two assumptions: That the threshold of CCC ¶ 2267 for legitimate recourse to the death penalty cannot be met in the United States,* and for the time being, assume for sake of argument that we were having this conversation before Sumner v. Shuman eliminated death as a mandatory minimum sentence.

Now imagine that you work as a nurse in a hospital that requires, as a prerequisite to a doctor carrying out an abortion, that a nurse certify that the patient is, in fact, pregnant. A doctor decides to abort; you are asked to perform the certification requirement. No one would argue that the nurse performs the abortion, but by “finding a fact” critical to the execution of the abortion, she is a but-for cause of the abortion, an essential cog in what Justice Blackmun called the “machinery of death.” Is that not material cooperation (see, e.g., ascensionhealth.org/index.php?option=com_content&view=article&id=82%3Aprinciples-of-formal-and-material-cooperation&Itemid=171) in abortion? And if so, how might we distinguish the seemingly-identical posture of the juror in a mandatory death penalty case?

Now, of course, the mandatory death penalty was an oddity before *Sumner *and was by it extinguished. Trial judges necessarily retain the power to choose a lower sentence. Nevertheless, that sentence is still absolutely conditioned on the threshold finding of fact by the jury (that’s the teaching of *Apprendi *and its progeny—a judge cannot, to take the example of Ring v. Arizona, “upgrade” an otherwise death-ineligible defendant to death based on a sentencing factor that hasn’t been found by the jury). If the judge imposes the death penalty, does her intervening discretion of suffice to break the chain of moral responsibility, or does the juror, by finding the fact necessary to the determination to impose that sentence, afford mediate material cooperation in the death penalty?

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• The contrary suggestion that a Catholic is Witherspoon-qualified unless she “believes [that] the death penalty is never appropriate under any circumstances … which is neither the position of the Catechism of the Catholic Church,” Gerard Uelmen,* Catholic Jurors and the Death Penalty*, 44 J. Cath. L. Studies 355, 361-62 (2005), seems parochial insofar as it conflates “under any circumstances” with “under any reasonably-foreseeable circumstances in the United States.”

 

[fre803]

A procedural note: This was originally posted as a comment in a separate thread on the understanding that this forum disfavors new threads when there is an existing one that is on-point and which has not been closed. That was error. A moderator noted that “reviving threads after a protracted period of inactivity is discouraged,” that “it is best accomplished by initiating a new thread that draws on recent events and can be posted to contemporaneously,” and suggested that in such circumstances, the issue be raised by “open[ing] a new thread on the subject….” I hope that I have now brought my question into compliance with forum norms and apologize for any violation thereof in my original posting.

 

[JerryZ]

I like an interesting conversation like the best, but I would like to know what is the point of asking to assume conditions that cannot possibly be met currently in supplying possible opinions.
It seems to be futile at best.

Material cooperation is hardly at work here and I cannot see why is even considered.
Who makes the decision to impose the death sentence? certainly it is not the jury’s job.

They are only required to reach a veredict (guilty/not guilty) that is based on facts and preponderance of evidence.
It is the state that decides what to do with the result.
As for the nurse performing the pregnancy test again she is not the one performing the abortion. What the patient does with the information aquired through the nurse is completely under her responsibility as is the direct responsibility of the doctor and any nurses that assist in the actual abortion.

At best you could claim remote material cooperation if the nurse knew positively that the patient intented to perform the abortion if she resulted positive for the pregnancy test.

It would be different if the nurse WORKED at the abortion clinic and performed the test there. Since in that case she would be an ASSISTANT to the performing Dr.

–

 

[fre803]

Hi Jerry,
The first assumption is that in the United States today, cases in which “non-lethal means” will be insufficient “to defend and protect people’s safety from the aggressor” are so rare as to not merit consideration. It is a reasonable assumption insofar it is the understanding of the many, many Catholics who read Evangelium vitæ and paragraph 2267 of the Catechism as confining the death penalty to more barborous times and places such as the wild west or Africa, in which government is too unstable to hold prisoners over the long term.

I appreciate and understand that there are those who have a different understanding of the teaching, or who simply don’t believe that the teaching is authoritative (see, e.g., Scalia, God’s Justice and Ours, First Things, Jan. 2007). That’s a defensible conclusion, but my question really isn’t addressed to those who so believe—from their perspective it is, naturally, moot—save to the extent that they can stipulate, for sake of argument, the assumption for which I asked.

Perhaps it will help to reframe my original question with greater precision: May a Catholic who believes that the church’s teaching generally excludes the death penalty in America today serve on a capital jury in America today?

(Respectfully, while I recognize that you might wish to discuss whether those Catholics have correctly understood the teaching, might I request that you pose it in a separate thread?)

The second assumption is used purely to impose a procedural simplicity and clarity as we work through the problem. In the hypothetical, the nurse’s finding triggers a third-party action that is certain, but in a modern jury trial, the imposition of the death penalty is uncertain even when it is highly likely. The assumption thus temporarily suspends that difference to allow us to consider this question, which is antecedent to the question that I really want to get to: In the event that a nurse’s finding prompts a third-party to impose an abortion, that could certainly be argued to be material cooperation; if it is, is there any difference between the nurse’s situation and that of a juror who serves on a jury in a case where death is a mandatory minimum? Because if that’s material cooperation and there’s no difference, then the juror commits material cooperation.

If the answer to either of the questions posed by the hypothetical is no, then it seems to follow that a Catholic may serve on a real jury, in which death is never certain. But if the answer is that the hypothetical nurse commits material cooperation and that there’s no material difference between the hypothetical nurse and the hypothetical juror, then we have to consider how the hypothetical relates to a real juror. And it seems to me that the right way to consider that relationship is the the second question that I posed: If our hypothetical juror committed material cooperation in the hypothetical case, what happens if we eliminate the mandatory minimum—is the interposition of a judge with discretion to impose a lower sentence sufficient to break the chain of moral responsibility?

I hope this helps clarify the purpose of the question and the utility of the hypotheticals.

 

[Irish_Cabbie]

May a Catholic serve on a capital jury? Does anyone have any thoughts on this?

It is argued that the answer is yes because the jury merely finds facts; at most, the jury makes a sentencing recommendation, and not always that much; it is the judge who sentences.

I’m not a lawyer and I’m not sure what the laws are in other states. I’m only writing here about what I know.

In Pennsylvania, only death-qualified jurors can serve in capital cases. During jury selection – a process known a voir dire – each potential juror is asked whether he or she has any reason, moral or otherwise, that would prevent them for voting to impose a death sentence. Anyone that states that they could not, in good conscience, vote to sentence a defendant to death is, as per law, excused and is not permitted to serve as a juror in that particular case.

In Pennsylvania, only a unanimous jury can sentence a a defendant to death. If 11 jurors vote in favor of a death sentence and just 1 juror votes in favor of a life sentence, the defendant would be sentenced to life in prison without parole. This will happen regardless of what the trial court judge thinks the sentence should be.