Sentencing Law and Policy

Texas executes John Henry Ramirez, months after SCOTUS win on RLUIPA execution claims

John Henry Ramirez earlier this year prevailed in the Supreme Court, by an 8-1 vote, with his claim that Texas was required by federal law to allow his long-time pastor be allowed to pray with him and lay hands on him during his execution.  (SCOTUS ruling discussed here.)  This evening, as reported in this AP article, that execution went forward:

A Texas death row inmate whose case redefined the role of spiritual advisers in death chambers nationwide was executed Wednesday, despite the efforts of a district attorney to stop his lethal injection.

John Henry Ramirez, 38, was executed at the state penitentiary in Huntsville. He was convicted of killing 46-year-old Pablo Castro in 2004, as he took out the trash while working at a convenience store in Corpus Christi.

In March, the U.S. Supreme Court sided with Ramirez, saying states must accommodate the wishes of death row inmates who want to have their faith leaders pray and touch them during their executions.

In the execution chamber, his spiritual adviser, Dana Moore, placed his right hand on the inmate’s chest, and held it there for the duration. With his back to witnesses, Moore offered a brief prayer. “Look upon John with your grace,” he prayed. “Grant him peace. Grant all of us peace.” As Moore’s prayer ended, Ramirez responded: “Amen.”

After the prayer, Ramirez addressed five of Castro’s relatives -- including four of his children -- as they watched through a window a few feet from him. “I have regret and remorse,” he said.” This is such a heinous act. I hope this finds you comfort. If this helps you, then I am glad. I hope in some shape or form this helps you find closure.”

Ramirez expressed love to his wife, son and friends, concluding with: “Just know that I fought a good fight, and I am ready to go.”

As the lethal dose of pentobarbital took effect, he took several short breaths then began snoring. Within a minute, all movement stopped. Ramirez was pronounced dead 14 minutes later, at 6:41 p.m. CDT.

Prosecutors said Ramirez robbed Castro of $1.25 then stabbed him 29 times. Castro’s killing took place during a series of robberies conducted by Ramirez and two women following a three-day drug binge. Ramirez fled to Mexico but was arrested 3½ years later....

On Monday, the Texas Board of Pardons and Paroles unanimously declined to commute Ramirez’s death sentence to a lesser penalty. According to his attorney, Ramirez had exhausted all possible appeals and no final request to halt the execution was filed with the U.S. Supreme Court.

The lead prosecutor at Ramirez’s trial in 2008, Mark Skurka, said it was unfair that Ramirez had someone praying over him as he died when Castro didn’t have the same opportunity. “It has been a long time coming, but Pablo Castro will probably finally get the justice that his family has sought for so long, despite the legal delays,” said Skurka, who later served as Nueces County district attorney before retiring....

Ramirez’s case took another turn in April when current Nueces County District Attorney Mark Gonzalez asked a judge to withdraw the death warrant and delay the execution, saying it had been requested by mistake. Gonzalez said he considers the death penalty “unethical.”

During a nearly 20-minute Facebook live video, Gonzalez said he believes the death penalty is one of the “many things wrong with our justice system.” Gonzalez said he would not seek the death penalty while he remains in office....

Also in April, four of Castro’s children filed a motion asking that Ramirez’s execution order be left in place. “I want my father to finally have his justice as well as the peace to finally move on with my life and let this nightmare be over,” Fernando Castro, one of his sons, said in the motion....

In June, a judge declined Gonzalez’ request to withdraw Wednesday’s execution date. Last month, the Texas Court of Criminal Appeals declined to even consider the request.

Ramirez was the third inmate put to death this year in Texas and the 11th in the U.S. Two more executions are scheduled this year in Texas, both in November.

"A Catholic Perspective on Prison Conditions and Human Dignity"

The title of this post is the title of this new article authored by Meghan J. Ryan now available via SSRN. Here is its abstract:

Criminal offenders in the United States are often reviled. Instead of viewing them as individuals who need help, many view them as “irredeemable,” “dirt,” “slime,” “scum,” “animal[s],” “sewer rats.”  As Catholics, though, we are taught to resist such impulses.  We are called to put aside our overwhelming grief and fear when facing offenders and resist seeking revenge.  We are instead asked to reach out our hands to sinners and offer them our forgiveness.  This may be difficult to do, but walking in the steps of Christ requires just that.

In following Jesus’ path not only are we working against our natural instincts of fear and revenge, but we are also working against the mass machinery of the American criminal justice system.  Today, in the United States, there is often the mentality of locking up an offender and throwing away the key.  Out of sight, out of mind.  We generally keep offenders behind closed doors and, as measured against the practices in other countries, we keep them there for very long periods of time.  Indeed, with nearly two million people, or approximately 0.6% of our population, behind bars, we incarcerate more individuals per capita than any other country in the world.  Further, prisons are often located out of town, in remote locations; prison visits are relatively rare, and there is often little mainstream reporting of what goes on behind prison walls; and some incarceration facilities have even claimed trade-secret protection over their policies.  Once an individual has been accused, convicted, and sentenced, he is often erased from most of society’s consciousness.

Behind the tall prison walls topped with razor wire, there is much that Catholics should be concerned about.  Some prisons lack air conditioning and adequate plumbing, leaving inmates suffering in blistering conditions and wading through sewage.  Many prisons suffer from severe overcrowding, contributing to unlivable conditions where vulnerable inmates are neglected and left in unsanitary conditions.  Most prisons offer insufficient healthy food and inadequate medical care.  Prison violence, including sexual assault, is a frequent occurrence. And prisons regularly place inmates in solitary confinement even though the practice is known to cause severe and permanent physical and mental health problems.

In his recent encyclical letter Fratelli Tutti, Pope Francis suggested that Catholics should work to traverse the wall of secrecy surrounding prison conditions and push to improve them: "All Christians and people of good will are today called to work not only for the abolition of the death penalty, legal or illegal, in all its forms, but also to work for the improvement of prison conditions, out of respect for the human dignity of persons deprived of their freedom." Today’s prison conditions are often abhorrent, and we have much work to do.

Applying RLUIPA, Supreme Court rules 8-1 in favor of condemned Texas inmate seeking religious touching in execution chamber

The US Supreme Court handed down a lengthy and notable death penalty administration ruling today with Ramirez v. Collier, No. 21-5592 (S. Ct. Mar. 24, 2022) (available here). Chief Justice Roberts authored the opinion of the Court, which every Justice other than Justice Thomas joined. Justices Sotomayor and Kavanaugh did author concurring opinions.  Here is the start and end of the Court's opinion:

A Texas jury sentenced John Ramirez to death for the brutal murder of Pablo Castro. In this litigation, Ramirez does not challenge his conviction. Nor does he challenge his sentence. He asks instead that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. He says that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq., requires this accommodation. Ramirez sought a preliminary injunction ordering Texas to permit his religious exercise if the State went forward with his execution. The District Court and Court of Appeals declined to grant such relief. We then stayed the execution and granted certiorari....

We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Here is the start of Justice Thomas's dissenting opinion:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25.  Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas.  This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

Pope Francis speaking out again on behalf of "our brothers and our sisters who are in prison"

This new AP article, headlined "Pope on prisons: No inmate should ever be deprived of hope," reports on some of the latest comments from Pope Francis about prisons and prisoners.  Here are the highlights along with some Italian backstory that may account for the pope's latest remarks:

Pope Francis issued a plea on behalf of prison inmates Wednesday, saying they should never be deprived of hope and always be given the opportunity to redeem themselves.

In remarks at his weekly public audience at the Vatican, Francis told the faithful that “we risk being imprisoned in a justice that doesn’t allow one to easily get back up again and confuses redemption with punishment.”

“For this, I want to recall today in a particular way our brothers and our sisters who are in prison,” the pontiff said. “It’s right that those who have made a mistake pay for their mistake, but it’s even more right that those who have done wrong should be able to redeem oneself from their mistake. There can’t be sentences without windows of hope.’’

Francis didn’t cite the prison policies or justice systems of any particular countries as problematic. Catholic teaching holds that the death penalty has no justification in modern society. During his papacy, Francis has made attention to the needs of communities on society’s margins, including prison populations, a priority.

“Let’s think of our incarcerated brothers and sisters, and let’s think about the tenderness of God for them and pray for them so that they may find in that window of hope a way out toward a better life,” Francis said in concluding his remarks Wednesday.

Italy’s justice minister, while briefing lawmakers in Parliament on criminal justice reform Wednesday, decried overcrowding in the country’s prisons, describing it as the most serious of all the problems plaguing the penal system.  Justice Minister Marta Cartabia said Italy’s prisons were 14% overcrowded. “It’s a condition that aggravates the relationships among inmates and which makes the work of prison personnel, often victims of aggression, even more difficult,” she said. “Overcrowding means greater difficulty in guaranteeing security and greater difficulty in proposing activities that facilitate paths to rehabilitation.”

Cartabia said reforms were under way to allow for sentences that provide alternatives to prison. But she noted that 69,000 persons are already serving their sentences outside prison walls, compared to some 54,000 inmates in Italy’s criminal justice system.

Notably, the United States has about 5 times the population of Italy, but has about 25 times as many prisoners.  According to this site, the US violent crime rate and murder rate is also five times the rate in Italy.

A few prior related posts about Pope Francis'  "sentencing advocacy":

• Pope Francis, speaking to Congress, urges abolishing death penalty (and LWOP)
• Pope Francis categorically condemns death penalty as "inadmissible" in today's world 
• Papal prison priorities: "to care for wounds, to soothe pain, to offer new possibilities" 
• Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty 
• Pope Francis' new encyclical clearly condemns the death penalty (as well as life imprisonment)

Pope Francis' new encyclical clearly condemns the death penalty (as well as life imprisonment)

As reported in this new article from America, which is headlined "Pope Francis closes the door on the death penalty in ‘Fratelli Tutti’," there are new papal teachings that have much to say about extreme punishments.  Here are the details:

Pope Francis’ new encyclical, “Fratelli Tutti,” does something that some Catholics believed could not be done: It ratifies a change in church teaching. In this case, on the death penalty.

In 2018, Pope Francis ordered a change in the Catechism of the Catholic Church, the official compendium of church teaching, when he termed the death penalty “inadmissible.”  Today the pope placed the full weight of his teaching authority behind this statement: The death penalty is inadmissible, and Catholics should work for its abolition.  A papal encyclical is one of the highest of all documents in terms of its authority, removing any lingering doubt about the church’s belief.

“There can be no stepping back from this position,” says Francis, referring to the opposition to capital punishment expressed by St. John Paul II. “Today we state clearly that ‘the death penalty is inadmissible’ and the Church is firmly committed to calling for its abolition worldwide.”...

In past centuries, the church was generally accepting of the death penalty. Both St. Augustine and St. Thomas Aquinas declared it licit not only for the sake of punishment, but also as a way for the state to protect itself, ideas that took hold in the church and influenced civil society. In the Roman Catechism, written after the Council of Trent in the 16th century, the church supported the death penalty for those two reasons: “Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent.”

As recently as the 1990s, the Catechism of the Catholic Church said that the state could still use capital punishment to protect people from violent criminals: “The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor.”

In 1995, however, in his encyclical "Evangelium Vitae," St. John Paul II tightened the restrictions, saying that the times that the state needed to use capital punishment to protect other citizens were “very rare, if not practically non-existent.” Four years later, he called for its abolition. So did Pope Benedict XVI, in 2011. The door to the death penalty was gradually closing. Today it was shut. It is a clear example of the development of doctrine over the centuries.

In his new encyclical, Francis also traces a lesser known counternarrative, showing a theological thread that has always been against the death penalty: “From the earliest centuries of the Church, some were clearly opposed to capital punishment,” he writes and includes commentary from St. Augustine, who argued for mercy in the case of two assassins.

In “Fratelli Tutti,” the pope grounds his opposition to capital punishment not only in mercy, perhaps his most characteristic spiritual theme, but also in opposition to revenge. “Fear and resentment can easily lead to viewing punishment in a vindictive and even cruel way, rather than as part of a process of healing and reintegration into society,” he writes.

Moreover, he bases the teaching in the inviolable dignity of each person—including the person on death row. “Let us keep in mind that ‘not even a murderer loses his personal dignity, and God himself pledges to guarantee this,’” he says, quoting “The Gospel of Life” (“Evangelium Vitae”). Francis continues: “The firm rejection of the death penalty shows to what extent it is possible to recognize the inalienable dignity of every human being and to accept that he or she has a place in this universe.”

Today Pope Francis also condemned life imprisonment, which he calls a “secret death penalty.” George Williams, S.J., who served for many years as a Catholic chaplain at San Quentin Prison in California and worked with inmates on death row, praised the pope’s stance, saying "In nearly 30 years of prison ministry, I have witnessed the soul-killing damage caused by sentencing men and women to life in prison without the possibility of parole. I believe it is crueler to sentence someone to prison with no hope of ever getting out than it would be to execute them outright. Executions kill the body, but life without parole kills the human spirit."

With “Fratelli Tutti” Francis has moved opposition to the death penalty into the foreground of Catholic social teaching, completing the church’s long journey of mercy and reconciliation.

The full text of this new encyclical is available here in English, and the discussion of the death penalty starts at paragraph 263.  Here is the text of subsequent paragraph discussing both the death penalty and life imprisonment and prison reform:

268. “The arguments against the death penalty are numerous and well-known.  The Church has rightly called attention to several of these, such as the possibility of judicial error and the use made of such punishment by totalitarian and dictatorial regimes as a means of suppressing political dissidence or persecuting religious and cultural minorities, all victims whom the legislation of those regimes consider ‘delinquents’.  All Christians and people of good will are today called to work not only for the abolition of the death penalty, legal or illegal, in all its forms, but also to work for the improvement of prison conditions, out of respect for the human dignity of persons deprived of their freedom.  I would link this to life imprisonment… A life sentence is a secret death penalty”.

Because I am not at all a scholar of Catholic teaching or documents, I am not sure if this new encyclical is a consequential new development in what I have long seen as the Catholic Church's modern categorical opposition to capital punishment.  But I am sure this might be one more thing for Senators to consider discussing with SCOTUS nominee Amy Coney Barrett in light of her   co-authored article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.

SCOTUS stays Texas execution based seemingly on clergy claim

As reported in this AP article, the "Supreme Court granted a reprieve Tuesday to a Texas inmate scheduled to die for fatally stabbing an 85-year-old woman more than two decades ago, continuing a more than four-month delay of executions in the nation’s busiest death penalty state during the coronavirus pandemic." Here are the details:

The justices blocked Ruben Gutierrez’s execution about an hour before he could have been executed. Gutierrez’s attorneys had argued his religious rights are being violated because the prison system won’t allow a chaplain to accompany him in the death chamber.

The Texas prison system last year banned clergy from the death chamber following a Supreme Court ruling that halted the execution of another inmate, Patrick Murphy, who had requested a Buddhist adviser be allowed in the chamber. In response to the ruling in Murphy’s case, the Texas prison system changed its policy, only allowing prison security staff into the execution chamber.

“As a devout Catholic, Mr. Gutierrez’s faith requires the assistance of clergy to help him pass from life into afterlife. The Texas Department of Criminal Justice changed its policy for its own convenience, but spiritual comfort at the time of death is not a convenience; it’s a protected legal right,” Shawn Nolan, one of Mr. Gutierrez’s attorneys, said after the stay was granted.

The Supreme Court said it granted the stay pending a ruling by the high court on Gutierrez’s petition on the issue of whether to allow a spiritual adviser to accompany him in the death chamber. A decision on the petition was expected at a later date....

If Gutierrez’s execution had been carried out, he would have been the first inmate in Texas to receive a lethal injection since Feb. 6 and the second U.S. inmate to be put to death since states began to reopen after the pandemic shut down much of the U.S. After the country began to reopen, Missouri resumed executions on May 19.

Six executions scheduled in Texas for earlier this year were postponed by an appeals court or judges because of the outbreak. A seventh was delayed over claims of intellectual disability. Gutierrez’s attorneys had also sought a coronavirus-related delay but were turned down Friday by the Texas Court of Criminal Appeals....

The Texas Catholic Conference of Bishops filed a brief with the high court in support of Gutierrez. “To deny a prisoner facing imminent execution access to spiritual and religious guidance and accompaniment is cruel and inhuman,” said Bishop Daniel Flores of Brownsville....

Gutierrez would have been the third inmate put to death this year in Texas and the seventh in the U.S.

The Supreme Court's stay order is available at this link, and here is its text in full:

The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically.  In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.  The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.

Terrific ABA review of SCOTUS criminal work during Oct 2018 Term

LawProf Rory Little regularly prepares for the American Bar Association an end-of-Term review of the Supreme Court's work in criminal cases.  A decade worth of this terrific work is available at this link, and just recently added there is this 48-page accounting of the October 2018 Term.  The whole document is terrific, and here is the start of the first section under the heading "Brief Overview of the 2018-19 Term, Criminal Cases" (emphasis in original):  

As far as criminal cases go, there are two “big stories” from the past Term, one descriptive and the other substantive impact of the Term’s “big” cases. Let’s do the descriptive first.

This was the first Term in which two new Justices appointed by President Trump served together. Justice Gorsuch was appointed at the end of the Term before last, so this was his second full Term. Justice Kavanaugh served almost all of this Term; his confirmation was slightly delayed (as you may recall), so he actually first took the bench on Monday, October 8, the second week of the Term.  Still, the big question was, how would these two new Justices affect the Court?

What we now know is that, contrary to the general picture of the prior Term, the Justices divided in a remarkably large number of different variations.  Overall, there were 67 argued cases, plus 5 summary reversals, for a total of 72. I count 26 of the 72 as “criminal law and related,” or 24 of the 67 argued.  Of the 72, there were 20 decisions decided by a 5-4 vote -- and of these, there were 10 different variations of which Justices made up the five. This is an unusually high number. It seems that the current Justices are still trying to find their way, and (happily) are not cemented to always-predictable results.  I count 10 of the 5-4 decisions as criminal; in five of those the “liberal” bloc prevailed. If we think of the four liberal Justices as Ginsburg, Breyer, Sotomayor and Kagan, the question becomes: who was the fifth Justice? Interestingly, it was Gorsuch in three, Roberts in one, and Alito in one. (Kavanaugh was not the fifth vote in any 5-4 liberal criminal win, but he did write the strong majority opinion in Flowers, see below, a pro-defendant Batson death penalty decision.)

Justice Gorsuch’s pro-defense votes in at least four cases (Davis and Haymond, plus dissents in Gamble and Mitchell) indicate that he continues the “libertarian” streak that his predecessor Justice Scalia sometimes exhibited.  At the same time, Justice Gorsuch’s majority opinion in Bucklew, a death penalty case in which he boldly wrote that “last-minute stays should be the extreme exception,” demonstrates a strong pro-government position on capital punishment. Interestingly, despite their common appointment source, Justices Gorsuch and Kavanaugh did not always agree (they had only a 56-70% overall agreement rate), and were on opposite sides in six or more criminal cases. Is there a lesson here? Wait and see, is my advice.

Substantively, because 23 of the 67 argued cases (or 25 of the 72 total) were criminal lawor-related decisions, we can see that over a third of the docket is “criminal.” This is about normal for the Supreme Court’s docket. With 25 criminal-and-related decisions, of which I’d say 17 were “pure criminal,” there is a lot to digest (as the following 38 pages demonstrate).  Only a few highlights can be summarized here.

What was the “biggest” criminal law decision of the Term?  Of course it depends on your interests, and perhaps your ideology.  Certainly the Gamble case, affirming the “separate sovereigns” exception to the Sixth Amendment’s Double Jeopardy Clause despite calls for overruling it, was big news.  Meanwhile, the Timbs decision makes it clear that the Eighth Amendment’s “no Excessive Fines” Clause applies fully to the States. (In a similar vein, next Term the Court will decide whether the Sixth Amendment’s unanimous jury requirement is similarly “incorporated,” in Ramos v. Louisiana). Meanwhile, the Fourth Amendment decision in Mitchell suggests that a majority is ready to broaden the concept of “exigent circumstances” as a categorical exception.  And finally, the Haymond decision extends Apprendi to the revocation of supervised release, which Justice Alito in dissent calls “revolutionary;” and the decision in Rehaif demonstrates a strong commitment to requiring mens rea for every factual element of an offense (in that case, knowledge that one belongs to a class of persons prohibited from possessing firearms).

Following SCOTUS ruling requiring equal access, Texas bans all religious officials from execution chamber

As reported in this local article, "Texas has banned all prison chaplains from its execution chamber, days after the U.S. Supreme Court ruled that the state was violating an inmate's rights by not allowing a Buddhist chaplain into the death chamber with him."  Here is more:

The high court last week halted the execution of Patrick Murphy, a member of the infamous "Texas Seven," because the department did not allow him to have a Buddhist chaplain in the room with him at the time of his scheduled death.  The state only allows prison employees in the death chamber, and only Christian and Muslim clerics are employed with the state. During executions, a chaplain will often stand at the feet of the prisoner and rest a hand on his leg mouthing silent prayers.

The court halted Murphy’s execution hours after it was scheduled to begin, and Justice Brett Kavanaugh issued an opinion declaring that the exclusion of a Buddhist adviser was religious discrimination.  The ruling came less than two months after the same court ruled against stopping the execution of a black prisoner in Alabama who requested a Muslim imam at his execution.  In his opinion, Kavanaugh proposed two alternatives for the Texas prison system: Don’t allow any chaplains into the execution chambers, or allow chaplains of all religions.

Texas has chosen the former option. New execution procedures signed Tuesday say that chaplains and ministers may "observe the execution only from the witness rooms." Currently, friends and family of the murder victims and prisoners, as well as media, are allowed to watch executions through a glass window in small rooms adjacent to the death chamber.

A spokesman for the Texas Department of Criminal Justice said the policy change is effective immediately. "TDCJ Chaplain(s) will continue to be available to an offender until they are transferred to the execution chamber.  The chaplain will also be present in the viewing room if requested," said the spokesman, Jeremy Desel.  Under the policy, prisoners will still be able to meet with a TDCJ chaplain or a spiritual adviser “who has the appropriate credentials” on the day of execution.

Prior related post:

• SCOTUS stays Texas execution because condemned was denied Buddhist spiritual advisor in execution chamber 

SCOTUS stays Texas execution because condemned was denied Buddhist spiritual advisor in execution chamber

As reported in this local article, "hours after he was to be executed for his role in a notorious 19-year-old crime, Texas death row prisoner Patrick Murphy won a rare stay from the U.S. Supreme Court based on his request to have a Buddhist spiritual adviser next to him in the death chamber."  Here is more:

The condemned man, one of the last surviving members of the so-called 'Texas 7' crew of prison escapees, lobbed a long-shot bid for reprieve earlier this week when his attorneys raised religious discrimination claims, arguing that the converted Buddhist couldn't make it to the Pure Land for rebirth without a spiritual adviser present as he prepared to die.

But the regular prison chaplain is a Christian and, in light of that, the Texas prison system's refusal to accommodate Murphy's request could be a constitutional violation. "As this Court has repeatedly held, governmental discrimination against religion — in particular, discrimination against religious persons, religious organizations, and religious speech— violates the Constitution," Justice Brett Kavanaugh wrote.

"The choice of remedy going forward is up to the State. What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room."

Two justices — Clarence Thomas and Neil Gorsuch — dissented, while Murphy's legal team celebrated the rare win.

"We are pleased the Supreme Court acknowledged both that Mr. Murphy, as a Buddhist, is entitled to be accompanied in the execution chamber during the execution by a minister of his own faith just as a Christian would be," Houston-based attorneys David Dow and Jeff Newberry said in a statement late Thursday.

But the late-breaking decision doesn't mean that Murphy can't be executed — it just means that he gets more time to argue his appeal, unless the Texas prison system instead chooses to resolve the issue by changing their protocols to allow Buddhists the same execution chamber religious rights as Christians.

Prison spokesman Jeremy Desel said the Texas Department of Criminal Justice legal team will "be reviewing the ruling" to figure out "what, if any, impact it will have."

The Supreme Court's ruling is available at this link, and here is the official statement from the Court:

The application for a stay of execution of sentence of death presented to JUSTICE ALITO and by him referred to the Court is granted.  The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.

Justice Kavanaugh decided to write a few paragraphs to explain his vote, and here is are a few sentences therefrom:

In this case, the relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room.  But inmates of other religious denominations — for example, Buddhist inmates such as Murphy — who want their religious adviser to be present can have the religious adviser present only in the viewing room and not in the execution room itself for their executions.  In my view, the Constitution prohibits such denominational discrimination.

UPDATE: A number of commentors below and elsewhere have been discussing the notable difference in outcome between this case, where a dividied SCOTUS imposed a stay after the Fifth Circuit refused a stay, and Dunn v. Ray last month, where a divided SCOTUS lifted a lower court stay to allow an execution to go forward. Ilya Somin at The Volokh Conspiracy speaks to the parallels in this post, which concludes with these observations:

In my view, ... the justices saw the extremely negative reaction against their decision in Ray, and belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the Court's reputations. Presented with a chance to "correct" their error and signal that they will not tolerate religious discrimination in death penalty administration, they were willing to bend over backwards to seize the opportunity, and not let it slip away.

And, whatever can be said about the procedural question, it's a good thing that the justices have taken a major step towards clearing up any confusion over their stance on the substantive one. Whether in death penalty cases or elsewhere, it is indeed impermissible for the government to discriminate on the basis of religion.

Eleventh Circuit panel grants stay of execution in Alabama for Muslim death row prisoner

I highlighted in recent posts here and here the notable religious claims being made by Domineque Ray, who is scheduled to be executed by Alabama on Thursday.  A helpful reader alerted me to this new unanimous 28-page panel ruling from the Eleventh Circuit which grants a stay.  Here is how the opinion starts and a few key paragraph within:

Petitioner Domineque Ray has moved this Court for an emergency stay of his execution, scheduled to take place at 6:00 p.m. (CST) on February 7, 2019 at the Holman Correctional Facility (“Holman”) in Atmore, Alabama, for the 1995 rape, robbery, and murder of fifteen-year-old Tiffany Harville. He also appeals from the determination of the district court denying his emergency motion for a stay and dismissing two of his claims under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., and under § 1983 and the Establishment Clause of the First Amendment....

During the January 23 meeting with the Warden, Ray made three requests for the accommodation of his religious beliefs: first, that his Imam be present in order to provide spiritual guidance for him at the time of his death; second, that the institutional Christian Chaplain be excluded from the chamber; and, finally, that he not be required to undergo an autopsy because it conflicted with his religious beliefs.  The Warden denied the first two requests and explained that she had no decisional authority over the autopsy....

After review of this exceedingly limited record, we reject the district court’s analysis, and its refusal to grant an emergency stay in the face of what we see as a powerful Establishment Clause claim.  Because Ray has demonstrated a substantial likelihood of success on the Establishment Clause and because the other equitable factors tip in his favor, Ray’s emergency motion for stay is granted.  We direct the Clerk of Court to expedite the appeal of Ray’s case so that we may promptly address and resolve these claims.

It will be interesting to see if and how Alabama pursues further appeal of this ruling either to the full Eleventh Circuit or to the US Supreme Court. Stay tuned.

Prior related posts:

• Condemned Alabama inmate seeks stay of execution based on notable religious claims
• Litigation update on Alabama death row prisoner denied Muslim spiritual adviser for upcoming execution 

UPDATE: As reported in this AP article, Alabama completed this execution following the vacating of the stay: "Dominique Ray, 42, was pronounced dead at 10:12 p.m. of a lethal injection at the state prison in Atmore."

Condemned Alabama inmate seeks stay of execution based on notable religious claims

As reported in this local story, "Alabama Death Row inmate set to die by lethal injection next week claims his execution should be stayed because the prison won’t let him have a Muslim spiritual adviser present in the execution chamber."  Here is more about a notable effort to put off an execution:

Domineque Ray, 42, is set to be executed at Holman Prison on Feb. 7 at 6 p.m. by lethal injection for the 1995 killing, rape, and robbery of 15-year-old Tiffany Harville. On Monday, Ray’s lawyers filed a lawsuit in federal court claiming Ray’s right to freedom of religion was being violated. They also asked for a stay of execution.

The lawsuit claims Ray, a Muslim, asked Holman’s Warden Cynthia Stewart last week that he be permitted to have a Muslim spiritual adviser — or imam — in the execution chamber instead of the prison’s longtime Christian chaplain. The warden denied his request and denied Ray’s second request to not have the chaplain present in the execution chamber at all, according to the lawsuit.

Ray made a third request to have no autopsy performed on his body because it conflicted with his religious beliefs, and Stewart said she “had no control” over that accommodation, the complaint says. The same day Ray met with the warden, Ray also met with the prison chaplain. The Christian chaplain told Ray his requests "could not be honored due to ADOC policy,” the lawsuit says....

The lawsuit claims Ray’s First Amendment rights have been violated, along with the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act.

Tuesday, Ray’s lawyers also filed in federal court an emergency motion for a stay of execution, claiming Ray’s constitutional violations should halt the scheduled execution. “Alabama has made a policy decision… the chaplain is there solely for a religious purpose,” the motion says. “In other words, Mr. Ray’s freedom of religion lasts until he enters the execution chamber.”...

Ray’s imam will be allowed to witness the execution from a room adjacent to the chamber through two-way glass. “There is no compelling governmental interest in preventing a condemned inmate from having his or her spiritual adviser- who has been approved to have a contact visit… moments before the execution begins—from taking the place of the prison chaplain in the execution chamber,” the suit states. “When that spiritual adviser is otherwise available, in the moments before death, imposes a substantial burden on the free exercise of Mr. Ray’s religious beliefs.”

The Christian chaplain’s “mandatory presence” in the execution chamber serves an unconstitutional interest in “safeguarding the soul or spiritual health of the condemned inmate in the Christian (non-Catholic) belief system… [it] has the principle of primary effect of advancing Christian (non-Catholic) religion and inhibiting all other religions,” the lawsuit claims. The suit also says the chaplain policy creates an “excessive entanglement of government with religion.”...

John Palombi and Spencer Hahn, assistant Federal Defenders, are representing Ray in the federal cases. Palombi said, “Mr. Ray’s suit goes to the heart of one of the most cherished of all rights, the right to freedom of religion. Neither Mr. Ray’s right to practice his religion nor his right to be free from having a different religion forced on him ends at the door to the execution chamber. We hope that the Commissioner will not force someone of a different religion on him and deny him the right to have his spiritual adviser with him at the moment of his death should that occur.”

Pope Francis official changes Catholic teachings on death penalty to work for abolition worldwide

As reported in this CNN piece, "Pope Francis has declared that the death penalty is never admissible and that the Catholic Church will work towards its abolition around the world, the Vatican formally announced Thursday." Here is more:

The change, which has been added to the Catechism of the Catholic Church, makes official a position that the Pope has articulated since he became pontiff.  The Church now teaches that "the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person" and states that it will "work with determination towards its abolition worldwide," the Vatican said.

The Catholic Church's teaching on the death penalty has been slowly evolving since the time of Pope John Paul II, who served from 1978 to 2005.  In his Christmas message in 1998, he wished "the world the consensus concerning the need for urgent and adequate measures ... to end the death penalty." His successor Benedict XVI, in a document published in November 2011, called on society's leaders "to make every effort to eliminate the death penalty."

Francis then wrote in a letter to the President of the International Commission Against the Death Penalty in March 2015 that "today capital punishment is unacceptable, however serious the condemned's crime may have been."  He added that the death penalty "entails cruel, inhumane and degrading treatment" and said it was to be rejected "due to the defective selectivity of the criminal justice system and in the face of the possibility of judicial error."

Two interesting takes on the Catholic faith and criminal justice by two persons newly prominently in political discourse

Long-time readers know I have long been interested in this various connections between various religious faiths and various criminal justice issues.  Thus, I found quite interesting this recent commentary by the newest "star" in Democratic political circles, Alexandria Ocasio-Cortez.  (As most readers likely know, Ocasio-Cortez defeated in a recent primary a senior congressional representative and is now the Democratic nominee in New York's 14th congressional district.) This commentary is in thee Jesuit publication America, and the piece is headlined "Alexandria Ocasio-Cortez on her Catholic faith and the urgency of a criminal justice reform," here is how it ends:

Discussions of reforming our criminal justice system demand us to ask philosophical and moral questions. What should be the ultimate goal of sentencing and incarceration?  Is it punishment?  Rehabilitation?  Forgiveness? 

For Catholics, these questions tie directly to the heart of our faith.

Solutions are already beginning to take shape, which include unraveling the War on Drugs, reconsidering mandatory minimum sentencing and embracing a growing private prison abolition movement that urges us to reconsider the levels at which the United States pursues mass incarceration.  No matter where these proposals take us, we should pursue such conversations with an openness to change and an aim to rehabilitate our brothers and sisters wherever possible and wherever necessary.

By nature, a society that forgives and rehabilitates its people is a society that forgives and transforms itself.  That takes a radical kind of love, a secret of which is given in the Lord’s Prayer: Forgive us our trespasses, as we forgive those who trespass against us.

And let us not forget the guiding principle of “the least among us” found in Matthew: that we are compelled to care for the hungry, thirsty, homeless, naked, sick and, yes — the imprisoned.

As I was thinking about posting this Ocasio-Cortez commentary on the intersection of Catholic faith and criminal justice, a helpful reader reminded me that another newly prominent person in political (and legal) circles has spoken interestingly about these intersections.  Specifically, SCOTUS short-lister Judge Amy Coney Barrett co-wrote an interesting article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.  That article runs 48 pages and has so much nuance that it merits a full read by all.  But its essentials can be reasonably captured with quotes from  part of the introduction and the full conclusion:

[W]e believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving. There are parts of capital cases in which we think orthodox Catholic judges may participate - these include trial on the issue of guilt and collateral review of capital convictions. The moral impossibility of enforcing capital punishment in the first two or three cases (sentencing, enforcing jury recommendations, affirming) is a sufficient reason for recusal under federal law. But mere identification of a judge as Catholic is not a sufficient reason. Indeed, it is constitutionally insufficient....

Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously. 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. Perhaps their good example will have some effect.

Will strong religious liberty advocates rally for Mennonite investigator jailed for refusing to testify in Colorado capital case?

The question in the title of this post is prompted by this remarkable story from the Denver Post headlined "Mennonite investigator sent to jail after refusing to testify in Robert Ray death penalty hearing: Lawyer for Greta Lindecrantz says she is being punished for long-standing religious beliefs." Here are the basics:

A 67-year-old Mennonite woman spent a second day in the Arapahoe County jail Tuesday after she refused to testify for the prosecution in a death penalty case. Greta Lindecrantz on Tuesday morning was found in contempt of court after she told District Judge Michelle Amico she would not answer questions in the witness stand because of her religious beliefs. Lindecrantz has been called to testify on behalf of the prosecution in an appeals hearing for Robert Ray, who was sentenced to death in 2009 for ordering the murder of Javad Marshall-Fields and Vivian Wolfe, who were witnesses in another murder case.

Lindecrantz worked as an investigator for Ray’s defense team, but those attorneys have not called her as a witness. However, the prosecution wants to question her about her work during the investigation and original trial, said her attorney, Mari Newman. All of her work already is a part of the official court record and there really is no reason for her to take the stand again, she said.

Lindecrantz sat in the courtroom wearing an orange jumpsuit with her hands shackled as Newman argued that she should be released because she is being punished by the courts for religious beliefs. Testifying would go against her moral and religious views, Newman said. “Imprisonment has not been effective,” Newman said. “It will not be effective tomorrow.”

But Amico said she had made her decision and was sticking to it. She told Newman she could appeal to a higher court. Until then, Lindecrantz would go back to jail. “It was a difficult decision for the court to make (Monday),” Amico said. Newman had asked for a lesser punishment, but Amico responded, “How would less punishment be effective? I’ve imposed jail and she’s still refusing to testify.”

After the hearing, Newman gathered on the courthouse lawn with Lindecrantz’s husband, Dave Sidwell, and supporters from the metro area’s two Mennonite congregations. “She has a fundamental religious belief against the killing of other human beings and specifically against state-sanctioned killing in the form of the death penalty,” Newman said. “She has refused to testify as a witness called by the prosecution — and the reason, the one and only reason she’s refused to testify, is because to do so would violate her firmly held religious beliefs against the death penalty.”

Because of her religious conviction, Lindecrantz has two choices — stay in jail or abandon her faith, Newman said. On Monday night, Lindecratz was in a cell with nine women, some of whom were sick all night because they were detoxing from drugs. Lindecrantz is old enough to be those women’s mothers, she said. “For the court to imprison her until she is broken, until her will is broken, and she abandons her faith and her view that she cannot participate in state-sanctioned killing is an abomination,” Newman said.

Sidwell, who also is a Mennonite, said he supported his wife’s stand, saying they both were adamantly opposed to the death penalty. “She’s not going to change her mind,” Sidwell said. “It’s, to me, a pointless pursuit.”

The Rev. Vern Rempel, pastor of Beloved Community Mennonite Church in Englewood, said he counseled Lindecrantz over the weekend about what she would do when called to the stand Monday morning. Those discussions included figuring out a way that Lindecrantz could comply with the courts without betraying her religious conviction. On Sunday, the congregation gathered around Lindecrantz to pray over the decision. “On Sunday, she said she had clarity and was ready to do this,” he said. “Really, we felt the strength of her commitment.”

Mennonite opposition to the death penalty dates to 1525, Rempel said. “This is not something that is not a mood of Greta’s,” he said. “Or a fancy. Or something she’s making up. It has been a lifetime commitment for her.”

While Lindecrantz is spending her second night in jail, the legal drama has been playing since Jan. 20, when Newman first filed a motion in an attempt to keep her client off the witness stand. But Amico repeatedly denied the motion, saying in an order written on Feb. 16 that allowing people to refuse to participate in death penalty cases on religious grounds would disrupt the justice system. Religious-based capital defense teams would be able to refuse to follow proceedings, rules and laws based on those grounds, Amico wrote. It would create an “absurd and unworkable result” for death penalty cases in Colorado.

Because of the politics involved, I am inclined to guess that the folks who eager to support, on religious liberty grounds, those resisting laws restricting displays of religious items on public lands or laws concerning certain medical procedures will not be quite as quick to get behind this particular form of legal resistance based on sincere religious beliefs. (And, by the same political token, I suspect those usually critical of legal resistance based on religious liberty claims may not be so critical of the claim in this setting.)

Pope Francis calling for evolution of formal Catholic teachings on the death penalty as always "inadmissible"

As reported here via Vatican Radio, Pope Francis spoke out against the death penalty in a notable new way while addressing participants attending a meeting celebrating the Twenty-fifth Anniversary of the Promulgation of the Catechism of the Catholic Church.  Here is a translated account of his notable comments (with my emphasis added):

I would like now to bring up a subject that ought to find in the Catechism of the Catholic Church a more adequate and coherent treatment in the light of these expressed aims.  I am speaking of the death penalty.  This issue cannot be reduced to a mere résumé of traditional teaching without taking into account not only the doctrine as it has developed in the teaching of recent Popes, but also the change in the awareness of the Christian people which rejects an attitude of complacency before a punishment deeply injurious of human dignity.  It must be clearly stated that the death penalty is an inhumane measure that, regardless of how it is carried out, abases human dignity.  It is per se contrary to the Gospel, because it entails the willful suppression of a human life that never ceases to be sacred in the eyes of its Creator and of which -- ultimately -- only God is the true judge and guarantor.  No man, “not even a murderer, loses his personal dignity” (Letter to the President of the International Commission against the Death Penalty, 20 March 2015), because God is a Father who always awaits the return of his children who, knowing that they have made mistakes, ask for forgiveness and begin a new life.  No one ought to be deprived not only of life, but also of the chance for a moral and existential redemption that in turn can benefit the community.

In past centuries, when means of defence were scarce and society had yet to develop and mature as it has, recourse to the death penalty appeared to be the logical consequence of the correct application of justice.  Sadly, even in the Papal States recourse was had to this extreme and inhumane remedy that ignored the primacy of mercy over justice.  Let us take responsibility for the past and recognize that the imposition of the death penalty was dictated by a mentality more legalistic than Christian.  Concern for preserving power and material wealth led to an over-estimation of the value of the law and prevented a deeper understanding of the Gospel.  Nowadays, however, were we to remain neutral before the new demands of upholding personal dignity, we would be even more guilty.

Here we are not in any way contradicting past teaching, for the defence of the dignity of human life from the first moment of conception to natural death has been taught by the Church consistently and authoritatively.  Yet the harmonious development of doctrine demands that we cease to defend arguments that now appear clearly contrary to the new understanding of Christian truth.  Indeed, as Saint Vincent of Lérins pointed out, “Some may say: Shall there be no progress of religion in Christ’s Church? Certainly; all possible progress. For who is there, so envious of men, so full of hatred to God, who would seek to forbid it?” (Commonitorium, 23.1; PL 50).  It is necessary, therefore, to reaffirm that no matter how serious the crime that has been committed, the death penalty is inadmissible because it is an attack on the inviolability and the dignity of the person.

“The Church, in her teaching, life and worship, perpetuates and hands on to all generations all that she herself is, all that she believes” (Dei Verbum, 8). The Council Fathers could not have found a finer and more synthetic way of expressing the nature and mission of the Church.  Not only in “teaching”, but also in “life” and “worship”, are the faithful able to be God’s People.  Through a series of verbs the Dogmatic Constitution on Divine Revelation expresses the dynamic nature of this process: “This Tradition develops […] grows […] and constantly moves forward toward the fullness of divine truth, until the words of God reach their complete fulfillment in her” (ibid.)

Tradition is a living reality and only a partial vision regards the “deposit of faith” as something static.  The word of God cannot be moth-balled like some old blanket in an attempt to keep insects at bay!  No.  The word of God is a dynamic and living reality that develops and grows because it is aimed at a fulfilment that none can halt. This law of progress, in the happy formulation of Saint Vincent of Lérins, “consolidated by years, enlarged by time, refined by age” (Commonitorium, 23.9: PL 50), is a distinguishing mark of revealed truth as it is handed down by the Church, and in no way represents a change in doctrine.

Doctrine cannot be preserved without allowing it to develop, nor can it be tied to an interpretation that is rigid and immutable without demeaning the working of the Holy Spirit. “God, who in many and various ways spoke of old to our fathers” (Heb 1:1), “uninterruptedly converses with the bride of his beloved Son” (Dei Verbum, 8). We are called to make this voice our own by “reverently hearing the word of God” (ibid., 1), so that our life as a Church may progress with the same enthusiasm as in the beginning, towards those new horizons to which the Lord wishes to guide us.

I have quoted this extended passage because I am struck by how much of the Pope's advocacy and themes echoes (1) Justice William Brennan's concurrence in Furman v. Georgia in which he stressed human dignity as a reason to find the death penalty per se unconstitutional, as well as (2) much Eighth Amendment jurisprudence which stresses that the "Eighth Amendment has not been regarded as a static concept" but rather has prohibitions that can and do acquire new meaning "as public opinion becomes enlightened by a humane justice" based on the "evolving standards of decency that mark the progress of a maturing society."

Perhaps unsurprisingly, there is not a universal view that the Pope's view on these issues is wise and in keeping with Catholic principles and teaching.  Here are two pieces from LifeSite highlighting why these latest comments on the death penalty by Pope Francis are controversial:

• Pope Francis: Death penalty is ‘contrary to the Gospel’

• Pope ‘seems to be contradicting traditional teaching’ on death penalty: Catholic prof

"Does barring sex offenders from church violate RFRA?"

The title of this post is the title of this interesting new article in the Indiana Lawyer discussing interesting litigation working through the Indiana courts. Here is how the piece gets started:

Shortly after the controversial Religious Freedom Restoration Act went into effect in Indiana in 2015, the unlawful entry by a serious sex offender statute, which prohibits certain sex offenders from accessing school property, also became law. Now, those two statutes are at odds with each other as the Indiana Court of Appeals decides whether an interpretation of the statute that prohibits three men from going to church constitutes a RFRA violation.

Under the unlawful entry by a serious sex offender statute, Indiana Code 35-42-4-14, offenders convicted of certain sex offenses cannot knowingly or intentionally enter school property without committing a Level 6 felony. The Boone County sheriff determined that statute meant sex offenders in the county, including John Does 1, 2 and 3, could not attend church if their churches offered programs for children at least 3 years old who are not yet in kindergarten. The Boone Superior Court agreed, determining that anytime churches offer such programs, they are considered “school property,” and, thus, are unavailable to the John Does.

But because each of their churches offer children’s programming simultaneously or nearly simultaneously with adult services or Bible studies, the three men told the Indiana Court of Appeals during oral arguments in the case of John Doe, et al. v. The Boone County Prosecutor, et al., 06A01-1612-PL-02741, the sheriff’s letter effectively prohibits them from attending church at any time. The appellate case turns on two central issues that divided counsel for the state and the offenders: whether churches can be considered “school property” and whether the prohibition against the Does attending church violates their rights under RFRA.

"Evangelical leaders push for criminal justice reform"

The title of this post is the headline of this new article in the National Catholic Reporter.  Here are excerpts:

Evangelical Christian leaders are spearheading a campaign for criminal justice reform, calling for equitable punishment, alternatives to incarceration and a different take on the "tough on crime" language of the Trump administration.

"Our country's overreliance on incarceration fails to make us safer or to restore people and communities who have been harmed," said James Ackerman, CEO of Prison Fellowship Ministries, at a June 20 news conference at the National Press Club.

Joined by black, white and Hispanic officials of evangelical organizations, he introduced the "Justice Declaration" that has been signed by close to 100 religious leaders from a wide range of Christian denominations. "The Church has both the unique ability and unparalleled capacity to confront the staggering crisis of crime and incarceration in America," the declaration reads, "and to respond with restorative solutions for communities, victims, and individuals responsible for crime."

The leaders later presented their declaration to Republican leaders, such as House Speaker Paul Ryan and Senate Judiciary Committee Chairman Chuck Grassley, in hopes of gaining bipartisan support for changes in federal law....

Ackerman said Prison Fellowship supports sentencing guidelines but thinks mandatory sentences are "a big mistake." He was joined at the news conference by leaders with testimonies of how churches helped formerly incarcerated people rehabilitate themselves and become productive citizens.

Dimas Salaberrios, president of the Concerts of Prayer Greater New York, told of how church members once vouched to a judge about his transformation after he escaped from authorities when he was a drug dealer. The judge pardoned him. "I'm living proof that when you grab somebody out of the pits of hell and you turn their life around that they can be great contributors to society," he said.

National Association of Evangelicals President Leith Anderson challenged churches to do more than sign the declaration but also take action steps to address racial inequities and work for alternatives such as drug courts and mental health courts to keep people out of prison. Thirteen percent of Americans are African-American but close to 40 percent of U.S. prisoners are black. "What if all of our churches were to adopt one incarcerated person?" he asked. "What if all of our churches would service one family where a family member is incarcerated? What if all of our churches would care for one victim?"

The declaration, and a related 11-page paper on how the church can respond to crime and incarceration, were spearheaded by evangelical organizations: Prison Fellowship, the NAE, the Southern Baptist Convention's Ethics and Religious Liberty Commission and the Colson Center for Christian Worldview.

But signatories on the declaration include a wider range of Christian leaders, such as Episcopal Church Presiding Bishop Michael Curry, Bread for the World President David Beckmann and Bishop Frank Dewane, who chairs the U.S. Conference of Catholic Bishops' Committee on Domestic Justice and Human Development.

This Justice Declaration webpage hosted by Prison Fellowship provides more details on this latest notable advocacy effort, and that page also provides a link to this interesting 11-page white paper titled "Responding to Crime & Incarcertation: A Call to the Church."

"Is the death penalty un-Christian?"

The question in the title of this post is the headline of this recent commentary authored by Mathew Schmalz, ans Associate Professor of Religion at the College of the Holy Cross and published in The Conversation. Here are excerpts:

As a Catholic scholar who writes about religion, politics and policy, I understand how Christians struggle with the death penalty -- there are those who cannot endure the idea and there are others who support its use.  Some Christian theologians have also observed that capital punishment could lead to the conversion of criminals who might repent of their crimes when faced with the finality of death.

Is the death penalty anti-Christian?

In its early centuries, Christianity was seen with suspicion by authorities.  Writing in defense of Christians who were unfairly charged with crimes in second-century Rome, philosopher Anthenagoras of Athens condemned the death penalty when he wrote that Christians “cannot endure even to see a man put to death, though justly.”  But as Christianity became more connected with state power, European Christian monarchs and governments regularly carried out the death penalty until its abolition in the 1950s through the European Convention on Human Rights....

In the Hebrew Bible, Exodus 21:12 states that “whoever strikes a man so that he dies shall be put to death.” In Matthew’s Gospel, Jesus, however, rejects the notion of retribution when he says “if anyone slaps you on the right cheek, turn to him the other also.”  While it is true that the Hebrew Bible prescribes capital punishment for a variety of offenses, it is also true that later Jewish jurists set out rigorous standards for the death penalty so that it could be used only in rare circumstances.

At issue in Christian considerations of the death penalty is whether the government or the state has the obligation to punish criminals and defend its citizens.  Saint Paul, an early Christian evangelist, wrote in his letter to the Romans that a ruler acts as “an avenger who carries out God’s wrath on the wrongdoer.”  The Middle Ages in Europe saw thousands of murderers, witches and heretics put to death.  While church courts of this period generally did not apply capital punishment, the church did turn criminals over to secular authorities for execution.

Thirteenth-century Catholic philosopher Thomas Aquinas argued that the death penalty could be justified for the greater welfare of society.  Later Protestant reformers also supported the right of the state to impose capital punishment.  John Calvin, a Protestant theologian and reformer, for example, argued that Christian forgiveness did not mean overturning established laws....

Among Christian leaders, Pope Francis has been at the forefront of arguing against the death penalty. Saint John Paul II also maintained that capital punishment should be reserved only for “absolute necessity.”  Pope Francis observes that the death penalty is no longer relevant because modern prisons prevent criminals from doing further harm. Pope Francis speaks of a larger ethic of forgiveness.  He emphasizes social justice for all citizens as well as the opportunity for those who harm society to make amends through acts that affirm life, not death.

For many, the debate is about the relationship between Christ’s call for forgiveness and the legitimate powers of the state.  Those Christians who support capital punishment argue that Jesus was talking about heavenly realities, not the earthly matters that governments have to deal with.  Christians who oppose the death penalty say that being Christian means bringing heavenly realities to the here and now.  This debate is not just about capital punishment, but about what it means to be a Christian.

Intriguing discussion of how religion might have helped save the death penalty in Nebraska

This new local article, headlined "How religion impacted Nebraska’s death penalty vote," discusses the intersection of religious beliefs and support for capital punishment among Cornhuskers. Here are the details:

While the presidential election surprised most people, the results of one Nebraska vote shouldn’t have been a surprise. Nebraska voters resoundingly repealed a bill eliminating the state’s death penalty, with 61.2 percent voting to reinstate the punishment and 38.8 percent hoping to keep it off the books. As Nebraska is a solid Republican state, its death penalty vote matches national statistics. 72 percent of Republicans nationwide support the death penalty, according to a September Pew Research poll.

But for some Nebraskans, the death penalty vote wasn’t a political decision, but a decision based on religious beliefs. Christians are more likely to support capital punishment than other groups, according to the same Pew Research Poll. White evangelical Protestants are most in favor, with 69 percent supporting the death penalty, followed by white mainline Protestants at 60 percent. By a narrow margin, more Catholics oppose the death penalty than support it, at 46 percent to 43 percent.

But these views are contrary to official statements from some Christian leaders. Major religious groups, including the United States Conference of Catholic Bishops, the Evangelical Lutheran Church in America and the Episcopal Church, have published statements opposing the death penalty on religious grounds. This means people often disagree with their denomination’s official statements on the issue.

Allison Johnson, a minister at The Lutheran Center at the University of Nebraska-Lincoln, echoed the anti-death penalty sentiments of the ELCA church she serves on campus. If she’d been registered to vote in Nebraska instead of Wisconsin, Johnson would have voted to retain the bill, she said. “Jesus didn’t overcome systems of violence and injustice by more killing,” she said. “Jesus overcame them by absorbing them and dying himself.”

But the Rev. Jerry Thompson of St. Mark’s Episcopal Church at UNL said the issue is more complicated than that. Thompson has voiced opposition to the death penalty and voted to retain the bill. “I think of those passages where Jesus says, ‘Forgive your enemies, forgive those who have abused you, pray for them,’” Thompson said. “That doesn’t suggest to me putting them to death is part of the Christian way of life.”

But voting to reinstate capital punishment doesn’t make a Christian a hypocrite, he said. “You could hold religious beliefs and still vote in favor of keeping the death penalty,” Thompson said. “I don’t think that one thing necessarily leads to the other.” The complexity of the issue is one reason for the divide among Christians, Thompson said.

Plus, conversation about the death penalty doesn’t crop up much in day-to-day life, said the Rev. Steve Mills of St. Thomas Aquinas Catholic Church. While Mills is against capital punishment, it’s a low priority on his list of things to preach about, he said. “I know the church will speak about [the death penalty], but I don’t think the church has a huge push with it,” Mills said. “I think that’s kind of where it’s not clearly articulated frequently. It just comes up around election time.”

But not all pastors at UNL are against the death penalty on religious grounds. The Lutheran Church-Missouri Synod and the Southern Baptist Convention are two groups that favor it. Pastor Bill Steinbauer of the University Lutheran Chapel, a Missouri Synod church at UNL, said he rarely discussed capital punishment this fall, although politics was a hot topic. “I think when Christians tend to argue over things, this isn’t one of them,” Steinbauer said. “It’s one more of those things where we can agree to disagree. I don’t see that as being a big, divisive thing.”

He’s against the death penalty for reasons not found in the Bible. “I’m not morally against it; my reasons for being against it are more practical,” he said. “Based on the reading of Scripture, the Bible allows for the government to have capital punishment. But I would also say that it’s somewhat of a case-by-case thing too. If the government is undeniably corrupt and the government is enacting injustice upon people even through the use of the death penalty, no Lutheran pastor would stand up and say, ‘Hey, that’s perfectly OK.’”...

UNL student David Magnuson supports the government’s ability to pass punishment. “You know, it is wrong for someone to kill someone, even in retribution; that’s always wrong, but that doesn’t apply to governments,” Magnuson said. “The government is not a person; it is a higher entity, and its role is to be just through laws.” The senior criminal justice major is active both religiously and politically, serving in UNL’s Reformed University Fellowship youth group and interning for Nebraska Attorney General Doug Peterson....

Magnuson grew up in a non-denominational church in Texas, a state where he says “every Christian supports the death penalty.” “Here, it is different, and I’ve met people who don’t support it,” Magnuson said. “It’s a very complex issue, and it’s not a good topic. [But] I think the worst crime you can do is kill someone.” Magnuson said he rejects the argument that it’s cheaper to have a criminal spend life in prison. “Just paying for an inmate in prison is such a strain on society,” he said. “You’re paying to keep them alive. I think we should just kill them, and kill them fast. That’s what we do in Texas, and I think it’s great.”

The best argument he’s heard against the death penalty is that it gives inmates time to find God. But he said the death penalty can’t “stop God’s plan.” “It’s not the government’s role to play Jesus; It’s not,” Magnuson said. “That’s people’s role to play Jesus, and obviously, if we were in a perfect world, we wouldn’t deal with this problem.”

"Religious Objections to the Death Penalty after Hobby Lobby"

The title of this post is the title of this intriguing piece authored by Danieli Evans now available via SSRN. Here is the abstract:

In this short essay, I consider how the logic of the complicity-based claims in Hobby Lobby and subsequent nonprofit cases could be applied to challenge the common policy of “death qualifying” jurors in capital punishment cases — removing any juror who reports conscientious opposition to the death penalty.  I argue that just like religious nonprofits that object to reporting a religious objection to contraceptives on the grounds that it enables someone else to provide contraceptives, a juror might object to reporting a religious objection to the death penalty on the grounds that it will enable someone else to replace them who is more likely to impose the death penalty.

"To change the world, start with prisons"

The title of this post is the headline of this notable FoxNews commentary authored by Christian Colson. Here are excerpts:

One Easter weekend, I accompanied my father, Charles Colson, to a prison in South Carolina. We held a worship service on Death Row, and about 20 men came out of their cells to sing songs and listen to my dad give a message about the resurrection of Jesus.

My father, whose books on Christian life and thought have sold more than 5 million copies, could have spent Easter weekend in more influential pulpits.  He could have commanded an audience of thousands of Christians who were well-resourced and well-connected, rather than men in prison jumpsuits.  But instead, every Easter for decades following his release from prison in 1975 for a Watergate-related crime until his death in 2012, he chose to go back behind bars to celebrate with the incarcerated.  My father understood that if we want to change the world, we must start behind bars.

The criminal justice system may not seem like the place to initiate cultural renewal, but no place could be better. When our nation’s 2.2 million prisoners are held in conditions that do little to help address the roots of criminal behavior, they remain likely to continue in a criminal lifestyle after they are released.

Prisoners might seem like improbable standard bearers for cultural transformation, but my dad believed wholeheartedly that whenever prisoners are transformed, they will transform the culture of their prisons and society at large....

Prisons are full of untapped potential.  Under the right conditions, many people — like my father — can pay their debt to society, prepare for a new future and make the most of their second chance.  A variety of prison programs that address the roots of criminal behavior through education, mentoring, substance-abuse treatment and more have been shown to reduce recidivism.

Legislation based on restorative values can support this goal.  The Sentencing Reform and Corrections Act, now making its way through Congress, would require the Federal Bureau of Prisons to implement and incentivize programming to reduce rates of re-offense.  This is good news not just for prisoners but for everyone affected by crime and incarceration.  When recidivism rates go down, more children grow up seeing their parents outside of a prison waiting room.  There are fewer victims.  Communities have a chance to flourish as they benefit from the contributions of members who are successfully reintegrating.

At the first Easter, mourners gathered at the tomb of a man who had been executed with criminals.  There seemed to be no future for his followers, a small group of poorly educated misfits with no worldly power or influence.  And yet, the nascent Christian movement transformed the culture of the Roman Empire and the entire modern history of the world.

When my dad spent “Resurrection Sunday” behind bars with prisoners, including those condemned to die, he often invoked that first Easter, where the hope of the Gospel emerged from a sealed tomb that was supposed to be as secure as any prison....  As Easter reminds us, the change the world most needs sometimes comes from unexpected places.

Some interesting recent discussions of religion and the death penalty

Long-time readers know I have long been intrigued by (and uncertain about) the intersection of strong religious beliefs and strong opinions on the death penalty. For that reason, these recent pieces caught my eye:

From the New Yorker here, "The Catholic Movement Against Capital Punishment"

From Patheos here, "Why Authentic Christians Must Oppose the Death Penalty"

From RawStoy here, "Bible: 6 Ways Jewish Bernie Sanders Is More Like Christ, Christian Donald Trump More Like Anti-Christ"

The last of these pieces talks about a lot more than the death penalty, but I figured it might help generate some extra fun comments.

No new cert grants from short-handed SCOTUS and a notable dissent in one prisoner case

The Supreme Court this morning issued its first big orders list since the passing of Justice Scalia, which is available at this link, and perhaps unsurprisingly the Justices decided not to grant review in any new cases.  For any number of reasons, I think it wise and shrewd for the Supreme Court to keep its docket relatively light while it is so divided and short-staffed, especially given that there would seem to be a real possibility that Senate hearings for a possible Justice Scalia replacement may not take place for another year.  Especially given the many high-profile cases already before a Court now perhaps facing a good number of 4-4 tie votes, I would be surprised to see more than a handful of new grants in major cases anytime soon.

On the subject of being surprised, I was taken aback a bit to see the order list included this lengthy dissent from the denial of certiorari authored by Justice Alito in the prisoner case of Ben-Levi v. Brown, No. 14-10186.   The surprise comes from the fact that Justice Alito, who is usually the most consistent vote against criminal defendants, in this dissent complains about the Supreme Court's failure to take up the case of a pro se prisoner.  But the very start and very end of the lengthy dissent highlights the unique issue that in this case engendered Justice Alito's concerns:

Petitioner Israel Ben-Levi, a North Carolina inmate, filed a pro se petition challenging a prison policy that prevented him and other Jewish inmates from praying and studying the Torah together.  The North Carolina Department of Public Safety (NCDPS) imposed stringent restrictions on Jewish group meetings that it did not apply to other religious groups.  Because Ben-Levi has provided ample evidence that these restrictions substantially burdened his religious exercise, and because respondent has not identified a legitimate penological interest in treating Jewish inmates more strictly than inmates of other religions, I would grant Ben-Levi’s petition for certiorari and summarily reverse the judgment below....

Needless to say, the Court’s refusal to grant review in this case does not signify approval of the decision below. But the Court’s indifference to this discriminatory infringement of religious liberty is disappointing.

"Criminal Justice and (a) Catholic Conscience"

The title of this post is the title of this intriguing new article authored by Leo E. Strine Jr., the current Chief Justice of the Delaware Supreme Court, and now available via SSRN. Here is the abstract:

This article is one person's reflections on how an important influence on his own sense of moral values — Jesus Christ — affects his thinking about his own approach to his role as a public official in a secular society, using the vital topic of criminal justice as a focal point.  This article draws several important lessons from Christ's teachings about the concept of the other that are relevant to issues of criminal justice.

Using Catholicism as a framework, this article addresses, among other things, capital punishment and denying the opportunity for redemption; the problem of racial disparities in the criminal justice system; the problem of over-incarceration of poor defendants through the use of money bail; the problem of ever increasing mandatory minimums and a sprawling criminal code; and the need to improve the relationship between and the effectiveness of police in protecting communities of color.  Finally, the article reminds us that Christ requires compassion and respect for all, and that any reasoned discussion of criminal justice must accord respect, empathy, and compassion to those victimized by crime, and those who do the tough job of law enforcement and corrections.

Evangelical group adds interesting nuance to death penalty stance

As reported in this Christian Science Monitor article, a notable religious group has made a notable change in its death penalty position. The article's headline(s) provide the basics: "Why US evangelicals are changing their position on the death penalty: The National Association of Evangelicals has officially supported the death penalty for more than 40 years. They have now softened their stance." Here are the details:

As the death penalty continues to lose favor with Americans, the National Association of Evangelicals has adjusted its position on the practice.  Since the early 1970s, the NAE has supported capital punishment as a deterrent to criminals.  But on Monday, the organization  — which represents more than 45,000 churches from almost 40 different denominations, serving millions of Americans — passed a resolution that acknowledges growing opposition and differing views on death penalty.

"Evangelical Christians differ in their beliefs about capital punishment, often citing strong biblical and theological reasons either for the just character of the death penalty in extreme cases or for the sacredness of all life, including the lives of those who perpetrate serious crimes and yet have the potential for repentance and reformation," the resolution states. "We affirm the conscientious commitment of both streams of Christian ethical thought."...

White evangelical support for the death penalty has waned recent years, from 77 percent in 2011 down to 71 percent in 2014, according to a March survey from the Pew Research Center.  At the same time, 66 percent of white mainline Protestants and 63 percent of white Catholics favor the death penalty.  Overall, the survey shows American support for the death penalty has dropped from 78 percent in 1996 to 56 percent in 2014.

Papal prison priorities: "to care for wounds, to soothe pain, to offer new possibilities"

This local story reports on the messages Pope Francis delivered to prisoners and to all of us society as he visited a local jail during his last day of his trip to the United States.  Here are some details of the visit:

In one of Pope Francis' most anticipated visits on his first trip to the United States, the pastor pope who has made prison reform one of his top priorities did what few in power ever do: He likened himself to criminals. "All of us need to be cleansed, to be washed," Pope Francis said. "And me in first place."

After arriving at the prison on State Road near Rhawn Street via helicopter, Pope Francis walked into the prison's gymnasium to a standing ovation.  "I am here as a pastor, but above all as a brother, to share your situation and make it my own," he said.

Attending the pope's speech were male and female inmates from across the Philadelphia Prison System, their families, prison employees, and local officials. Also present were relatives of Patrick Curran and Robert Fromhold, the former Holmesburg Prison warden and deputy warden, for whom the prison is named — both murdered in the line of duty by Holmesburg inmates in 1973.

Sunday's prisoners were chosen not for their crimes or alleged offenses — which ranged from murder to assault — but rather for their behavior while in custody and their good attendance in prison programs and services.

Several prisoners in the carpentry division of PhilaCor, the prison's job-skills program, even built a 6-foot walnut chair that they gave to Pope Francis. "The chair is beautiful," the pope said. "Thank you very much for the hard work."

Pope Francis began his speech — which he delivered in Spanish — by criticizing countries that are complacent to people in anguish. While not directly naming the United States - which has 25 percent of the world's inmates but only 5 percent of its population - his message was clear.  "Any society, any family, which cannot share or take seriously the pain of its children and views that pain as something normal or to be expected, is a society condemned to remain a hostage to itself, prey to the very things which cause that pain," he said.

Pope Francis spent a good portion of his 15-minute speech talking about how Jesus washed the feet of his disciples because the dirty roads during that time made their feet "dusty, bruised, or cut."  Francis himself has washed the feet of prisoners on more than one occasion since his papacy began, but did not do so Sunday.  "Life means getting our feet dirty from the dust-filled roads of life and history," he said.

But above all, what Jesus wants is for our journeys to continue, the pope said. "He wants us to keep walking the paths of life, to realize that we have a mission, and that confinement is not the same thing as exclusion," he said, and a prisoner applauded.

Just as he did in his speech to Congress on Thursday, Francis underscored the need for hope and rehabilitation in every punishment.  "It is painful when we see prison systems which are not concerned to care for wounds, to soothe pain, to offer new possibilities," he said.

Francis ended his talk to the prisoners by asking that they look to Jesus. "He comes to save us from the lie that says no one can change," the pope said.  After his speech, the pope greeted each prisoner and family members individually.  Some wept; a few embraced him. Others requested a blessing, which he provided by gently laying his hand atop their heads and praying. As he walked among the prisoners, aides followed behind and gave each a photo of the pope and a white rosary that was neatly tucked into a burnt-sienna plastic envelope with the papal crest on the front.

At the request of the prisoners, before Pope Francis left, he blessed them and their rosaries. "May God bless and protect you and may his grace shine upon you," he said. "And may he grant you peace."

A few prior related posts about visit of Pope Francis and his criminal justice perspectives:

• Pope Francis, speaking to Congress, urges abolishing death penalty (and LWOP)
• Notable reactions and commentary after Pope Francis calls again for death penalty abolition
• "Pope Francis and the case for American criminal justice reform"
• Pope Francis categorically condemns death penalty as "inadmissible" in today's world 
• Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty 

Notable reactions and commentary after Pope Francis calls again for death penalty abolition

Pope Francis' comments to Congress about his support for the abolition of the death penalty (basics here) has, unsurprisingly, generated lots of buzz from various quarters.  Here are some headlines and links to some notable press pieces:

• "Pope Francis and the future of the death penalty"

• "Cruz takes exception to pope on death penalty"

• "Newt Gingrich 'More Open' To Ending Death Penalty After Pope's Address"

• "Pope’s death-penalty remarks draw renewed attention to Scalia’s Memphis speech"

"Pope Francis and the case for American criminal justice reform"

The title of this post is the headline of this notable new FoxNews commentary authored by Newt Gingrich and Pat Nolan.  Here are excerpts:

Pope Francis’s visit to the United States is attracting a flood of attention, and preparations have been underway for months in the cities and communities that will welcome him. While the pope will be greeted by thousands as he visits our nation’s famous landmarks and cathedrals, he has also planned a stop where the residents cannot come out to greet him: a local jail in Philadelphia. A jail isn’t a typical location for the fanfare that usually surrounds a papal visit, but Pope Francis’s decision to shine a spotlight on people in jail shouldn’t come as a surprise.

The pope has often implored us through his words and actions to treat the people we put in jail or prison with respect and mercy.  Some of those in jail have committed serious crimes, while others have committed relatively minor offenses. Many struggle with mental illness or drug addiction.  Many simply can’t afford to make bail.  Treating them justly and fairly is a strong Christian, and quintessentially Catholic, imperative.  After all, Jesus taught us to visit those in prison.  He also told us that what we do for the least of our brothers and sisters we do for Him.

When Pope Francis visits the inmates in Philadelphia we hope that all people, no matter what their traditions or beliefs, will heed his call to treat those who are incarcerated with respect.  Pope Francis continues the tradition of Catholic leaders urging us to offer hope and a second chance to prisoners....

The pope’s visit to the jail in Philadelphia will call attention to a part of our criminal justice system that receives too little notice: local jails.  Prisons are the focus of most of the discussion about criminal justice reform, even though 20 times more inmates (12 million) pass through our jails each year compared to our prisons.  The jail population is different from prisons because most jail inmates are nonviolent offenders awaiting trial, and innocent in the eyes of the law.

Indeed, many of those in jail don’t belong there.  One in six men and one in three women in local jails have serious mental illnesses — rates much higher than in the general public. These people are sick, not always bad.  They need treatment, not necessarily incarceration. Others are held in jail for months and even years because they don’t have the money to post a small bond.  For example, in New York City, almost a third of inmates in 2012 were held until trial because they could not pay a bond of $500 or less.

We see time and time again that overincarceration tears families apart by locking up fathers, mothers, brothers, and daughters mostly for minor crimes.  The vast majority of people in our jails are there for nonviolent offenses like traffic violations or drug use. When they are finally released, most have lost their jobs, which leaves them unable to support their families and puts stress on their loved ones and the community....

We have worked over the last decade to build conservative support for criminal justice reform, rooted in our political views as well as our faith.  Our Catholic beliefs hold that each person is a child of God and worthy of respect.  A cornerstone of the Catholic faith is that redemption is available to everyone, no matter what they have done. We are all sinners, and the ground is level at the foot of the Cross.

You don’t have to be a Catholic to see the importance of Pope Francis’s message.  When he visits the inmates in Philadelphia we hope that all people, no matter what their traditions or beliefs, will heed his call to treat those who are incarcerated with respect, and offer them a second chance to turn their lives around.

"Cuba to release 3,522 prisoners on the eve of Pope Francis’ visit; why can’t Obama do the same?"

The provocative question in the title of this post is the title of this notable San Francisco Bay View commentary. Here is how it starts:

Just prior to the visit of Pope Francis to Cuba on Sept. 19, the Cuban government has announced the release of 3,522 people being held in the country’s jails.  This humanitarian gesture will include prisoners who are over 60 years of age, younger than 20, those with chronic illnesses, women and those who are close to their release dates.

Why couldn’t Obama follow the Cuban example before Pope Francis continues on his tour to the U.S. on Sept. 22?  The United States, which has the dubious distinction of having the largest per capita prison population in the world, is overflowing with people who are primarily incarcerated for nonviolent offenses, on drug charges, or being mentally ill and poor.  Of the 2.5 million people in jails and prisons in this country, a vastly disproportionate number are people of color.

As the Obama presidency winds down, with nothing to lose, he could do the right thing by releasing an equal percentage of the prison population as the Cubans did.  Now that would be a humanitarian gesture that a war torn world could appreciate and a gesture of peace with justice to the visiting Pope.  It would amount to the freedom of tens of thousands of people.

Though I am suspect of any accounting of Cuba's incarceration levels (or its propaganda about recent releases), the latest estimate of its imprisoned population is around 57,500.  Consequently, its release of more than 3,500 prisoners amounts to freeing more than 6% of its incarcerated population.  A comparable effort by President Obama, if we focus on the entire local, state and federal incarcerated US population, would require the release of more than 135,000 persons imprisoned in the United States. Even if Prez Obama only released 6% of the current federal prison population, he would still need to grant over 12,000 federal offenders their freedom to make a gesture for the Pope comparable to what Cuba is claiming it has done.

I am not expecting to Prez Obama (or any state's Governor) to make a mass clemency gesture like this for the Pope's visit to the US.  But, as this new NPR story highlights, there are a number of criminal justice reform advocates who are hopeful that, at the very least, the Pope's visit will help kick-start federal criminal justice reform efforts. The NPR piece is headlined "Pope's U.S. Visit Spurs Catholic Support For Criminal Justice Reform," and it highlights that the "Pope will visit a prison in Pennsylvania next week and ... and faith leaders are using the opportunity to press Congress for action."

Some prior related posts on Pope Francis and criminal justice reform:

• Might Pope Francis shame Prez Obama into doing more about mass incarceration?
• Pope Francis categorically condemns death penalty as "inadmissible" in today's world
• Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty
• Notable criticism of Pope's advocacy against LWOP and "nurturing mommy" approach to government
• Might Pope Francis seek to (and succeed in getting) more federal sentencing reforms moving along? 

Might Pope Francis seek to (and succeed in getting) more federal sentencing reforms moving along?

The question in the title of this post is prompted by this notable new Yahoo Politics piece headlined "Criminal justice reformers await holy ally: Pope Francis." Here are excerpts: 

There’s a long history of religious leaders writing and teaching from inside prisons — from Martin Luther King to Paul the Apostle. But 78-year-old Pope Francis may be the most prominent religious leader to ever advocate for prison reform from the outside.

Last year, Francis called for an end to solitary confinement, the death penalty and life imprisonment. He has knelt down to wash and then kiss the feet of Roman inmates on two of the first Holy Thursdays of his papacy. Visiting a group of Bolivian prisoners recently, the pope told them he sees no difference between them and himself — they are all sinners.

Now Francis is coming to the United States, much to the delight of criminal justice reformers who have waged a growing bipartisan battle to scale back and remake the mammoth U.S. penal system. Reformers hope Francis’ visit to the Curran-Fromhold Correctional Facility in Philadelphia next month as part of his six-day U.S. tour will grab lawmakers’ attention.  A few days before visiting the inner-city prison, the pope will address Congress and could raise the issue of criminal justice reform there as well....

Francis is not the first pontiff to urge mercy and redemption for convicts. Pope Innocent X visited inmates in the late 1600s. Pope John Paul II famously forgave and asked for a pardon for the man who almost killed him in a 1981 assassination attempt, and Pope Benedict visited at least two prisons.  But Francis is unique in how much emphasis he’s put on the issue and how specific he’s been about how societies should treat their prisoners. He’s visited at least four prisons in his short tenure as pope, including one of the most dangerous in Latin America, and responded to hundreds of letters from U.S. prisoners serving life sentences for crimes they committed as juveniles.

In a speech to penal-law representatives from around the world in October 2014, the pope laid out his vision for criminal justice reform.  He called for an end to solitary confinement, which he compared to torture, and spoke out against pre-trial detention. (The U.S. sends thousands of people to prison each year because they cannot afford bail.) He spoke out against both the death penalty and life sentences.  (“A life sentence is just a death penalty in disguise,” said Francis.)  And he urged law enforcement to take pity on pregnant, old and young offenders.

The pope also urged countries to more broadly reflect upon the point of imprisonment.  Is it about bringing justice to victims and reforming the offenders?  Or is it simply revenge and a way to “scapegoat” stereotyped people for all social ills?  Addressing prisoners in Italy last year, Francis spoke passionately about how locking people up for years and years without giving them hope for reintegrating into society is wrong.

“Some consider taking a path of punishment, of misdeeds, of sins and just to suffer, suffer, suffer,” he said in a penitentiary in the Italian town of Isernia.  “To cage people … for the mere fact that if he is inside we are safe, this serves nothing. It does not help us.”

It’s unclear if Francis will use his visit with roughly 100 inmates in the Philadelphia prison’s gymnasium to advocate for specific reforms.  And his congressional speech could well focus instead on poverty, the need to care for the environment or welcoming immigrants — all major themes of his ministry.  “What we’re really hoping for are some specific United States statements,” said Karen Clifton, the executive director of the Catholic Mobilizing Network, an anti-death-penalty group. “We do incarcerate per capita more than anyone else in the world. He’s got to bring those facts to life.”

This could lead legislators to think twice about their priorities. “If this good and holy man says this is a concern, I think it affects the conscience of all legislators and especially Catholics,” said Pat Nolan of the American Conservative Union, a leader in the reform movement.

Some prior related posts on Pope Francis and criminal justice reform:

• Might Pope Francis shame Prez Obama into doing more about mass incarceration?
• Pope Francis categorically condemns death penalty as "inadmissible" in today's world
• Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty
• Notable criticism of Pope's advocacy against LWOP and "nurturing mommy" approach to government

Is it now ungodly to oppose significant sentencing and prison reform?

The question in the title of this post is prompted by this notable recent Crux commentary authored by Jacob Lupfer headlined "There’s a truly religious consensus on prison reform." Here are excerpts:

In an era when most faith groups’ political priorities align predictably with the two major parties, it is refreshing to behold a truly diverse religious consensus on an issue....

The budget-busting prison-industrial complex was politically popular for a time, but in the past decade the pendulum has begun swinging the other way.  Harsh sentences, particularly for nonviolent drug offenders, created unsustainable fiscal pressures.  States simply cannot afford to house more prisoners and pay the salaries and benefits of employees to supervise and care for them.

Already, states are taking steps to spend less on “corrections.”  Fiscal conservatives now view prisons as overly expensive, hugely inefficient, bloated bureaucracies.  Yet Christians and other people of faith see problems, too.

America’s denominations and faith organizations are calling for reform.  Our vast criminal justice system emphasizes punishment over rehabilitation, while our faith traditions preach redemption.  Citing Isaiah 61, Jesus announced that his gospel would include “release for the captives” (Luke 4:18).  It seems wrong for a Christian conscience to support needless incarceration.

Catholics were early leaders in promoting restorative justice, the idea that communities must help ex-offenders re-enter society in healthy and productive ways.  The US Conference of Catholic Bishops issued a major pastoral statement in 2000 that placed criminal justice issues in the context of social ills, including family breakdown, violence, racial disparities and the perverse incentives of for-profit prisons.

Once a powerhouse in ecumenical Christian political influence, the National Council of Churches has reinvented itself as a smaller, more focused agency. Yet it has made mass incarceration its top advocacy priority.  NCC President Jim Winkler has a provocative idea. “If churches want to see revival,” he told me last year, “they should pick up released prisoners and help reintegrate them into their communities.” Criminal justice reform is not just an issue. It is essential to the gospel: Redeemed sinners proclaiming mercy in the name of Jesus Christ....

Leaders from Catholic, mainline, and black Protestant traditions have been sounding this refrain for years. But the growing consensus among white evangelicals and Republican officeholders may finally make sentencing reform an urgent and truly bipartisan imperative.  The National Association of Evangelicals, known to be more active on non-sex-related issues than other religious conservatives, has spoken strongly of the need for criminal justice reform....

Until recently, disparate groups have worked on the issue largely independently.  That is changing.  In 2014, Congress appointed a committee to study the feasibility of reform among federal prison populations, whose growth threatens other federal law enforcement and funding priorities. The committee is called the Charles Colson Task Force on Federal Corrections.  Earlier this year, the task force sought input from faith leaders and saw unprecedented agreement across traditions and enthusiastic support for reform....

Sentencing and prison policy is more easily seen as a boring bureaucratic issue. Even though millions are incarcerated, most Americans know zero or one person in prison. Yet faith communities are adding urgency to the imperative for prison and sentencing reform, even as they remain divided on the death penalty (for now).

In the end, fiscal constraints will force changes in prisons and sentencing if moral concerns do not.  It seems better to make these changes out of a warm-hearted, merciful impulse than through cold fiscal realities.  The faith community can credibly speak with one voice on criminal justice reform, and that voice must be heard.

"Some major U.S. religious groups differ from their members on the death penalty"

The title of this post is the headline of this intriguing new piece via the Fact Tank blog from the Pew Research Center.  Here are excerpts:

When the Nebraska Legislature voted in May to ban the death penalty in the state – overriding the governor’s veto – supporters of the ban shared some of the credit with religious leaders who had spoken out on the issue, including several Catholic bishops. In fact, many large religious groups have taken positions in opposition to the death penalty even though that stance is sometimes at odds with the opinions of their adherents.

The Catechism of the Catholic Church says the death penalty is acceptable if it is “the only possible way of effectively defending human lives.” In recent years, however, both the U.S. Conference of Catholic Bishops and Pope Francis have spoken firmly against capital punishment.

They are not the only religious leaders to take this position; when it comes to the official teachings of large U.S. religious groups, opposition to the death penalty is more common than support for capital punishment. This is in contrast with public opinion: A majority of U.S. adults (56%) still favor the death penalty, although support has been dropping in recent years.

There also is a disparity between religious groups’ positions and the views of their adherents, particularly among mainline Protestants. Two-thirds of white mainline Protestants (66%) favor the death penalty, but several of the biggest mainline churches are against it. This includes the United Methodist Church, the Evangelical Lutheran Church in America, the American Baptist Churches USA, the Presbyterian Church (U.S.A.) and many others. Roughly half of U.S. Catholics (53%) – including a majority of white Catholics (63%) – also favor the death penalty, in contrast with church leaders’ stance.

Seven-in-ten white evangelical Protestants in the U.S. (71%) support the death penalty, a position held by many of their churches. Two of the largest U.S. evangelical denominations – the Southern Baptist Convention and the Lutheran Church-Missouri Synod – teach that the death penalty is acceptable. The Assemblies of God, a major Pentecostal denomination, does not have an official stance on the issue, although the church’s website cites a “common interpretation that the Old Testament sanctions capital punishment.”

The Church of Jesus Christ of Latter-day Saints (Mormon church) also does not take an official position on the death penalty. Neither does the National Baptist Convention, the largest historically black Protestant denomination, although most black Protestants (58%) oppose the death penalty (in contrast with the U.S. public overall)....

Among non-Christian faiths, teachings on the death penalty vary. The Reform and Conservative Jewish movements have advocated against the death penalty, while the Orthodox Union has called for a moratorium. Similarly, Buddhism is generally against capital punishment, although there is no official policy.

Hinduism also does not have a clear stance on the issue. In Islam, the death penalty is widely seen as acceptable (based on the Quran), and Islamic courts in countries such as Saudi Arabia and Iran routinely hand down death sentences. Some U.S. Muslim groups, however, have spoken out against the death penalty; for example, the Council on American-Islamic Relations has called for a moratorium.

Religiously unaffiliated Americans – atheists, agnostics and those who say their religion is “nothing in particular” – are split on the death penalty, with 48% in favor and 45% opposed.

ACLU argues Indiana's new religious freedom law protects sex offenders seeking church access

As reported in this interesting local article, headlined "ACLU: RFRA must let sex offenders worship at churches with schools," a new lawsuit in Indiana is creating a new stir surrounding the state's controversial new state religious liberty law. Here are the details:

The American Civil Liberties Union of Indiana filed Wednesday what appears to be the first lawsuit that invokes the state's new new Religious Freedom Restoration Act. Their clients? Registered sex offenders who believe their religious freedom is being denied by another new law that bans them from attending any church located on the same property as a school.

"This is a prime example as a place where people's religious rights are being burdened, and therefore under RFRA the state has to justify that," said ACLU of Indiana legal director Ken Falk. "It makes no sense to ban people on a Sunday if there are kids there on a Thursday." For example, that would be the case with church preschools or parochial schools with adjacent churches....

The lawsuit was filed in Elkhart Superior Court, on behalf of two unnamed sex offenders, against the prosecutors and sheriffs of Allen and Elkhart counties. When reached by The Indianapolis Star, the sheriff's departments declined to comment.

Indiana's new religious freedom law, which went into effect Wednesday, says if the government imposes an undue burden on the religious rights of individuals, businesses or religious organizations, it must prove a compelling interest and that it is using the least restrictive means possible.

"I think this is exactly the kind of case RFRA was about," said Indiana University law professor David Orentlicher. "You've got this sex offender law that's designed to protect children. It wasn't passed with the intent to interfere with religious practice, but it turns out there are a fair number of schools on church grounds. These people now can't go to pray without running afoul of the law."

Some in Indiana — including the ACLU — opposed the state RFRA, arguing that the law would allow discrimination against lesbians, gays, bisexuals and transgender individuals. That led to a "fix" to the law to clarify that an RFRA defense could not be used to trump local and state civil rights laws.

But with the heated debate over how RFRA would apply in wedding services for same-sex couples, "what got lost was there are a lot of good reasons for these statutes," Orentlicher said. "That's what this case should remind us — that RFRAs can be misused, but we don't want to throw the baby out with the bathwater," he added.

Falk of the ACLU said the lawsuit uses RFRA "as it was originally contemplated" to protect religious freedoms. "We're not going to pretend it doesn't exist now," Falk said. "It does exist. The legislature said it wants to protect religious liberties, and that's exactly what we're trying to do."

Still, state Senate President Pro Tempore David Long, a Fort Wayne Republican, criticized the ACLU for the lawsuit. "The ACLU used to be a staunch supporter of religious liberty," he said in a statement. "Now they've reduced themselves to making a mockery of it. On top of this, they also support endangering our children while championing the rights of sex offenders. It's a sad day for the ACLU."

State Rep. Christina Hale, D-Indianapolis, co-sponsored the law prohibiting sex offenders from school grounds and reacted to the ACLU lawsuit by slamming the religious freedom law: "Clearly nobody had thought through what all the negative ramifications might be for people."

"I think that we have to keep in mind that Indiana is one of the very worst states in the nation when it comes to protecting our children from sexual violence," she added, citing national health statistics and recidivism rates. "We're second only to Wyoming. And we have to do whatever it takes to protect our kids. ... Any time we can keep a sexual predator away from a child, that's a small victory."

But Orentlicher made the point that the case may not be so simple. For sex offenders who have served their time, religion may be instrumental to their rehabilitation, he said: "If your goal is to protect kids, with these people, you want to maximize their chances for rehabilitation."...

In addition, the ACLU argues for sex offenders to have access to the worship services when schools aren't in session. And the lawsuit says it's "not rational" that serious sex offenders can still go to church services where children are present if there's no school attached. Orentlicher said other states, such as Missouri, have carved out religious exemptions to allow sex offenders to attend church when school is not in session. "They're just saying, 'Let us pray when the kids aren't there,' " Orentlicher said.

Iowa faith leaders urge Senator Grassley to move forward with drug sentencing reforms

Last week, US Senator Charles Grassley spoke at the Iowa Faith & Freedom Coalition Forum, and the Faith & Freedom Coalition asserts here that its beliefs are rooted in the view "that the greatness of America lies not in the federal government but in the character of our people — the simple virtues of faith, hard work, marriage, family, personal responsibility, and helping the least among us." If Senator Grassley really shares this view, I would expect him to be significantly moved by this new Des Moines Register op-ed authored by clergy members headlined "Bishops call on Grassley to reform sentencing." Here are excerpts:

As bishops and as Christians, we are called to love and serve all people, share compassion and aid God's most vulnerable children. That is why we were among 130 of Iowa's faith leaders who last week signed a letter [available here] delivered to Iowa Sen. Chuck Grassley, the leader of the U.S. Senate Judiciary Committee. The letter advocates for sentencing reforms that affect men and women in federal prison for non-violent drug offenses.

We abhor the damage and death caused by addictive drugs. Too many Iowa families are in pain because of drug addiction, particularly from heroin. We seek to aid these families and the addicted, by supporting broader access to drug treatment, counseling and medical care. Incarceration is not an appropriate treatment for curing drug addiction.

We believe in accountability for the men and women responsible for selling illegal drugs. Those who are addicted themselves and sell drugs to support their habit should also have access to rehabilitative services. Punishment for distributing drugs is necessary; however, where we seek to influence our elected leaders is in how much punishment is justified.

Under federal law, people convicted of drug offenses are subject to strict mandatory minimum sentences based largely on the quantity of drugs possessed by the defendant. Judges have limited discretion to sentence below a mandatory sentence, even when evidence supports doing so.

For example, Mason City native Mandy Martinson received a mandatory 10-year drug sentence in 2004 for her affiliation with a boyfriend who sold marijuana and methamphetamine. She received an additional five years because two firearms were found in their home. At her sentencing hearing, the judge stated that "the evidence demonstrated that [Martinson] was involved due to her drug dependency and her relationship with [her boyfriend] and that she was largely subject to his direction and control. ... Upon obtaining reasonable drug treatment and counseling and in the wake of what she is facing now, the Court does not have any particular concern that Ms. Martinson will commit crimes in the future." Despite the judge's assessment, he had no choice but to sentence her to 15 years in federal prison.

Martinson remains in prison today, but we believe she has been in prison long enough. She is joined by nearly 100,000 people — most of whom are non-violent — serving excessive sentences in federal prisons for drug offenses. We recognize no simple solutions exist when it comes to protecting liberty and public safety, and crime demands accountability. However, a "lock em' up and throw away the key" philosophy actually undermines both of these values. Mandatory minimum sentences do not allow for consideration of an individual's experiences that led them to crime, nor to consider their age, mental capacity, or ability to learn their lesson and redeem themselves....

As many of chaplains and prison ministry volunteers know, prison overcrowding makes it difficult to operate effective faith-based and other rehabilitation programs that are proven to reduce recidivism and make our communities safer. Finally, there is an intangible expense paid by family members, particularly children, who must cope with the pain and burden of having a loved one incarcerated for far too long. Among the saddest of statistics is that some 10 million young people have had a mother or father — or both — spend time behind bars at some point in their lives.

As Iowans, we are privileged to have Senator Grassley hold unique influence in the trajectory of America's sentencing policy. We hope he will use this authority to enact drug sentencing reforms that are more appropriate, will reduce the prison population and take into account the complicated factors that lead people to sell drugs.

In the meantime, we pray for the thousands of Iowans still behind bars, their families and the many thousands more who will be subject to extreme sentencing policies in years to come if lawmakers choose not to act. Those prayers and our advocacy efforts are the best things we can do for them. Now it is time for our elected leaders to do their part.

I strongly share the view that "the greatness of America lies not in the federal government but in the ... people" and that the "virtues of faith, hard work, marriage, family, personal responsibility, and helping the least among us" should inspire the work of all government officials. To that end, if Senator Grassley is truly committed to these virtues, I hope he takes to heart the advice given by these faith leaders to move forward ASAP on "drug sentencing reforms that are more appropriate, will reduce the prison population and take into account the complicated factors that lead people to sell drugs."

Notably, as highlighted in this recent post about recent criminal justice reform essays from GOP leaders, a large number of leading GOP candidates seeking to become president seem to share the view that federal drug sentencing needs to be reformed ASAP.  Senator Ted Cruz, for example, has said this is simply a matter of common sense.  If that is true, I am not sure what Senator Cruz would call Senator Grassley's seemingly steadfast opposition to various drug sentencing reforms proposals that have garner lots of support from lots of different quarters.

Some recent related posts:

• Highlighting GOP leaders' notable new essays on criminal justice reform
• In praise of Senator Charles Grassley's advocacy for criminal justice transparency and accountability (and his one blind spot)
• Senator Grassley again expresses interest in talking about federal criminal justice reform
• Senator Grassley yet again says he is open to some federal sentencing reforms
• Sparring over sentencing reform lingo involving the media and Senator Grassley
• NY Times editorial laments "The Roadblock to Sentencing Reform" ... while creating another
• Senators respond to NY Times criticisms of their sentencing work
• Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?
• A positive perspective on possible prison reform emerging from Congress
• Is major federal sentencing reform possible now that Republicans have full control of Congress?
• Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform

Pope Francis categorically condemns death penalty as "inadmissible" in today's world

As reported in this piece from Vatican Radio, which describes itself the "voice of the Pope and the Church in dialogue with the World," Pope Francis spoke about capital punishment during a meeting with members of an international anti-death penalty group. Here are details:

Capital punishment is cruel, inhuman and an offense to the dignity of human life. In today's world, the death penalty is "inadmissible, however serious the crime" that has been committed. That was Pope Francis’ unequivocal message to members of the International Commission against the death penalty who met with him on Friday morning in the Vatican.

In a lengthy letter written in Spanish and addressed to the president of the International Commission against the death penalty, Pope Francis thanks those who work tirelessly for a universal moratorium, with the goal of abolishing the use of capital punishment in countries right across the globe.

Pope Francis makes clear that justice can never be done by killing another human being and he stresses there can be no humane way of carrying out a death sentence. For Christians, he says, all life is sacred because every one of us is created by God, who does not want to punish one murder with another, but rather wishes to see the murderer repent. Even murderers, he went on, do not lose their human dignity and God himself is the guarantor.

Capital punishment, Pope Francis says, is the opposite of divine mercy, which should be the model for our man-made legal systems. Death sentences, he insists, imply cruel and degrading treatment, as well as the torturous anguish of a lengthy waiting period before the execution, which often leads to sickness or insanity.

The Pope ... makes quite clear that the use of capital punishment signifies “a failure” on the part of any State. However serious the crime, he says, an execution “does not bring justice to the victims, but rather encourages revenge” and denies any hope of repentence or reparation for the crime that has been committed.

Can a sheriff prohibit sex offenders from a church that is sometimes a school?

The question in the title of this post is prompted by this story coming from North Carolina, headlined "Graham sheriff bans sex offenders from church." Here are the details:

A sheriff in one of North Carolina's smallest counties told sex offenders they can't attend church services, citing a state law meant to keep them from day care centers and schools. Sheriff Danny Millsaps, in Graham County, told the registered offenders about his decision on Feb. 17, according to a letter obtained by the Asheville Citizen-Times on Friday....

"This is an effort to protect the citizens and children of the community of Graham (County)," he wrote. "I cannot let one sex offender go to church and not let all registered sex offenders go to church." He invited them to attend church service at the county jail.

Millsaps, in an interview on Friday, said he may have made a mistake when he wrote that offenders "are not permitted to attend church services." He said he understands the Constitution gives everyone the right to religious freedom. But, he said, he's standing by his take on the law blocking offenders from places where children are present.

"I understand I can't keep them from going to church," he said. "That may have been misunderstood. I'll be the first one to say I might have made mistakes in the wording of that letter." He said he has no immediate plans to arrest a sex offender should one of the 20 in his county attend church on Sunday.

Graham County Manager Greg Cable said the county attorney is looking into the matter and any legal mistakes would be corrected. The American Civil Liberties Union in Raleigh, at the newspaper's request, is reviewing the letter the sheriff sent. The newspaper also sent a copy to the state Department of Justice for an opinion on the law....

Other North Carolina counties have dealt with the same issue. Deputies in Chatham County in 2009 arrested a sex offender for attending church, citing the same law. A state Superior Court judge eventually ruled the law, as applied to churches, was unconstitutional.

In Buncombe County, sex offenders are permitted in church as long as pastors know and are in agreement, Sheriff Van Duncan says. That's similar to the county's policy for allowing sex offenders at school events such as ball games. They are allowed as long as school administrators have warning and the offenders are monitored to some extent, the sheriff said. The law allows schools to do this, a factor the judge noted back in 2009 in the Chatham County case.

Duncan said if a sex offender threatens a child at a church or school event, the law can be enforced and used to ban the offender. He said church leaders in Buncombe County, generally, want to minister to sex offenders.

The law applies to churches that run schools Monday-Friday the same as it would apply to county or city schools during the week. Sex offenders are generally banned from school property.

Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty

As reported in this story from the Catholic News Service, the leader of the Catholic Church can now be added to the list of persons vocally advocating against life without parole sentences.  Here are the details:

Pope Francis called for abolition of the death penalty as well as life imprisonment, and denounced what he called a "penal populism" that promises to solve society's problems by punishing crime instead of pursuing social justice.

"It is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor," the pope said Oct. 23 in a meeting with representatives of the International Association of Penal Law.

"All Christians and people of good will are thus called today to struggle not only for abolition of the death penalty, whether it be legal or illegal and in all its forms, but also to improve prison conditions, out of respect for the human dignity of persons deprived of their liberty. And this, I connect with life imprisonment," he said. "Life imprisonment is a hidden death penalty." The pope noted that the Vatican recently eliminated life imprisonment from its own penal code.

According to the Catechism of the Catholic Church, cited by Pope Francis in his talk, "the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor," but modern advances in protecting society from dangerous criminals mean that "cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent."...

The pope denounced the detention of prisoners without trial, who he said account for more than 50 percent of all incarcerated people in some countries. He said maximum security prisons can be a form of torture, since their "principal characteristic is none other than external isolation," which can lead to "psychic and physical sufferings such as paranoia, anxiety, depression and weight loss and significantly increase the chance of suicide." He also rebuked unspecified governments involved in kidnapping people for "illegal transportation to detention centers in which torture is practiced."

The pope said criminal penalties should not apply to children, and should be waived or limited for the elderly, who "on the basis of their very errors can offer lessons to the rest of society. We don't learn only from the virtues of saints but also from the failings and errors of sinners."

Pope Francis said contemporary societies overuse criminal punishment, partially out of a primitive tendency to offer up "sacrificial victims, accused of the disgraces that strike the community." The pope said some politicians and members of the media promote "violence and revenge, public and private, not only against those responsible for crimes, but also against those under suspicion, justified or not."

He denounced a growing tendency to think that the "most varied social problems can be resolved through public punishment ... that by means of that punishment we can obtain benefits that would require the implementation of another type of social policy, economic policy and policy of social inclusion." Using techniques similar to those of racist regimes of the past, the pope said, unspecified forces today create "stereotypical figures that sum up the characteristics that society perceives as threatening."

Noting how politicians can be pro-life and pro-death (penalty) in Texas

This local story on modern Texas politics, headlined "Being pro-life in gov's race doesn't extend to death row," highlights what concerns about the sanctity of life real mean in the Lone Star State.  Here are excerpts:

When Attorney General Greg Abbott talks about his opposition to abortion, he often mentions his Catholic faith. Not so when he talks about his support for the death penalty, whose abolition is advocated by Pope Francis.

“Catholic doctrine is not against the death penalty, and so there is no conflict there,” Abbott, the Republican nominee for governor, said when asked about that point in a meeting with the San Antonio Express-News Editorial Board.  The Catholic catechism doesn't exclude the death penalty as an option if that's the only way to defend human lives from an offender, but it says that given current options, such cases “are very rare, if practically non-existent.”

Pope Francis, in reaffirming the church's call to abolish the death penalty last year, asked that such sentences be commuted to a lesser punishment allowing for the offender's reform, the National Catholic Register reported.  “The difference, of course, is one between innocent life and those who have taken innocent lives,” Abbott said of his position on abortion versus the death penalty.

A different view on capital punishment would itself be seen as tantamount to a political death sentence in Texas.  Abbott's Democratic opponent, Sen. Wendy Davis, also backs the death penalty — even though as a Fort Worth City Council member in 2000 she voted to impose a moratorium on it, and even though the Texas Democratic Party platform calls for substituting life in prison for capital punishment, saying the death penalty is applied disproportionately to the poor and persons of color.

The moratorium didn't pass, and Davis said that the questions prompting her to support it then have largely been answered through such means as advancement in the use of DNA evidence. “Obviously, before we mete out the most serious of punishments, we need to know we've done everything to assure that the person on the receiving end of that punishment is guilty,” Davis told the Express-News Editorial Board in a separate appearance Friday. “We have made some advances in that regard. ... Is there still work to do? Absolutely.”

Both candidates credited work by Sen. Rodney Ellis, D-Houston, on the issue. Abbott cited his efforts with Ellis on legislation to expand DNA testing in death penalty cases. “I know that the only way the death penalty will work is to ensure its absolute accuracy — that everyone who is given the death penalty is guilty of the crime for which they were accused and convicted of committing,” Abbott said.

Being sure can be difficult.  In 2010, Anthony Graves became the 12th death-row inmate to be exonerated in Texas, absolved of the 1992 Burleson County murder for which he was convicted.  Michael Morton, who served 25 years in his wife's Williamson County murder before being exonerated, told CNN, “I thank God this wasn't a capital case.”...

Abbott and Davis both said if elected, they'll also take care in presiding over executions. “I will ensure that before I ever allow an execution to occur, I will be 100 percent convinced that the person who is being sentenced to the death penalty is guilty of that crime,” Abbott said. Davis said, “As governor, I'll take that very seriously and make sure that before that punishment is meted out that we have done everything we can to answer the questions that need to be answered.”

Distinctive religious perspective on the drug war for the season

In the wake of the recent Jewish high holy days, I found especially notable and timely this recent commentary appearing in The Forward authored by Hanna Liebman Dershowitz.  The piece is headlined "A Drug Policy That Denies Repentance: We Are Ruining The Lives of Small Time Users," and here are excerpts:

We are emerging from the Day of Repentance — a time for contrition for misdeeds, focusing on self-improvement and making a fresh start.  But what about people who don’t have the luxury of wiping their slates clean, even for minor transgressions? Are our laws and policies robbing millions of citizens of their own opportunities to turn toward good, to achieve the possibility of teshuvah, atonement, that we claim for ourselves each year?

For decades this country has pursued a policy of mass arrest and imprisonment of people for possessing drugs. The consequences of being prosecuted for simple drug possession — conduct that does not harm other people’s bodies or property — can affect people for the rest of their lives, and wreak untold cost on our country and our society.

A criminal record can cripple job prospects and much more. Individuals with a record are often denied child custody, voting rights, business financing, professional licenses, student loans and public housing....

The United States has a higher level of incarceration than any other country. Today, more than 2.3 million people are behind bars in America. Almost one in four of them are there for drug offenses, many serving extensive mandatory minimum sentences. It is costing us dearly in lives and dollars.

And what has been gained? No appreciable reduction in use or in rates of addiction. By contrast, we have degraded the conditions that promote recovery for those who are addicted — such as access to treatment, access to support networks, gainful employment and education. It feels like we are tearing apart communities when we don’t need to. In 2012, upward of 1.5 million Americans were arrested for drugs. More than 80% of those arrests were for possession of small amounts.

Meanwhile, focusing too much attention on drug possessors often leads to perverse results. For example, in 2008, in California alone, 61,000 people were arrested for possession of small amounts of marijuana; that same year, 60,000 violent crimes in California went unsolved. When drug arrests are made, testing the drugs in crime labs often jumps ahead of testing rape kits and other evidence from violent crimes, because there is a suspect in custody and the courts need evidence to sustain the prosecution. In various ways, the focus on arresting drug users has atrophied our ability to address violent crime and other public safety threats.

Equally troubling, penalties for drug use fall disproportionately on people of color. Arrest rates of African-Americans for marijuana possession (the bulk of drug arrests) are many times higher — in some areas, as much as 10 times higher — than for whites in most United States cities, despite the fact that black and white people use drugs at similar rates. Although they make up 13% of America’s population, blacks make up fully 31% of arrests for drug offenses and more than 40% of incarcerations. A recent study found that prosecutors are twice as likely to pursue a mandatory minimum sentence for blacks as they are for whites. This is about dehumanizing and demoralizing large numbers of citizens and stripping them of their dignity. We as Jews should recognize and strenuously oppose these unfair and discriminatory practices.

Is this how we want our system to respond to this kind of nonviolent conduct? What does it mean to be a law-abiding citizen if a person cannot make the conscious choice to walk a positive path even after a transgression? Continuing consequences, especially for minor nonviolent acts, seem to render hollow the concepts of forgiveness, redemption and community healing.

The implications of policies should be particularly resonant to us during this season of renewal. We have fasted, made our amends and hoped we were inscribed in the book of life. We should abhor a system that erases other people’s chances to atone simply because those people chose an action we have singled out for disdain.

Is God a supporter of marijuana reform?

The question in the title of this post is my (only slightly) tounge-in-cheek response to this Christian Post article headlined "Oklahoma Senator Quotes Genesis 1:29 to Seek Marijuana Legalization." Here are excerpts:

Oklahoma state Sen. Constance Johnson announced the filing of a statewide initiative petition to legalize marijuana, telling supporters that the campaign is based on Genesis 1:29, which suggests that God created "this wonderful, miraculous plant."

"We're putting forth Genesis 1:29 as the basis of this campaign," KFOR.com quoted Sen. Johnson, a Democrat, as telling supporters at the State Capitol on Friday after filing the petition with the office of the Oklahoma secretary of state.

"God created this wonderful, miraculous plant and we know that it has been vilified for the last 100 years, and it's time to change that in Oklahoma," added the senator, who has led efforts, along with attorney David Slane, to legalize pot.  The advocates of marijuana will require 160,000 signatures from registered voters within three months to get the proposal on a statewide ballot....

The petition states that up to one ounce of marijuana should be allowed for recreational use, and three ounces for medical reasons.  The senator is of the opinion that resultant tax benefits would benefit the state.... Johnson also says that decriminalizing possession would ease the burden on prisons. "We're locking up non-violent, marijuana possessing people, giving them felonies and filling up our prisons."

"It's just the right thing to do. It's a plant. It's a God given plant and it could change the world," Fox 25 quoted a petition supporter, Pamela Street, as saying Friday....

Marijuana is different in nature from caffeine, Christian theologian John Piper wrote on the blog of his Desiring God ministry recently. While marijuana "temporarily impairs the reliable processing of surrounding reality," caffeine "ordinarily sharpens that processing," he said.

Cross-posted at Marijuana Law, Policy and Reform

Series of thoughtful posts on faith-based prisons

Sasha Volokh this week has done an effective series of informative posts on what we know and do not know about faith-based prisons.  The final one is available at this link, and it starts and ends this way:

This is the final post in a series on the effectiveness of faith-based prison programs, based on my recent Alabama Law Review article, Do Faith-Based Prisons Work? (Short answer: no.)  Monday’s post introduced the issue,  Tuesday’s post surveyed some of the least valid studies, Wednesday’s post critiqued the studies that used propensity score matching and discussed other possible empirical strategies, and Thursday’s post talked about the most valid studies–those that used rejected volunteers as a control group.

Throughout, I’ve been putting the faith-based prison research side-by-side with the private schools research, because evaluations of each raise similar methodological problems.  The fact that both are voluntary means that they can attract fundamentally different sorts of people, so their good results might be attributable to the higher-quality participants they attract.  Today’s post ties the ends together and asks whether there’s any way forward for faith-based prisons....

Let’s take the broad view and come back to the education studies that I’ve been using as a point of comparison throughout this Article.  Finally, after decades of research, we have some credible studies estimating the effect of private schools. The best evidence, taken from studies comparing accepted and rejected applicants, indicates that private schools do have a positive effect on the students who attend them, at least for black students and at least for math scores.

On the one hand, one can observe that, next to these results (modest as they are), it’s all the more disappointing that faith-based prisons haven’t shown much in the way of significant positive effects. But on the other hand, it took decades of research and debate by different groups, each using a slightly different empirical approach — and many finding little to no effect — before we got even the mild results we have on private education. This suggests that we should encourage more research on the matter, in different contexts, using a variety of different empirical techniques.

The result is that, if there’s no strong reason to believe that faith-based prisons work at all, and even less reason to believe that they work better than comparably funded secular programs, there’s also little reason to believe that they don’t work, and in many cases they may be the only available alternative. It’s probably sensible to allow such programs to operate and to allow the process of experimentation to work its course, provided that all this can be done constitutionally.

Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?

The provocative question in the title of this post is prompted by this recent post by Bill Otis over at Crime & Consequences under the provocative heading "DOJ Goes Stark Raving Mad." Here are excerpts of Bill's perspective on a high-profile federal sentencing case:

Regular readers know that I'm no fan of wimpy sentencing, and that I've had it with the every-excuse-in-the-book style of defense lawyering.  But there are limits.  DOJ went well beyond them when it sought a life sentence for an Amish bishop convicted of conspiracy to forcibly cut beards....

Bishop Samuel Mullett is not Mr. Nicey, according to the government's sentencing memo. The story reports that, in addition to leading the beard-cutting conspiracy for which he was convicted, prosecutors "characterized Mullet as an iron-fisted bishop who exerted total control over his flock: He censored his followers' mail, had sex with married women under the guise of marital counseling, endorsed bizarre punishments such as confinement in chicken coops and spankings, and laughed at the attacks, which were driven by a crusade to punish those who spurned his teachings."

Those are bad things, and if they are true, they are properly taken into account in federal sentencing....  But life? Is this guy Ted Kaczynski?  Zacarias Moussaoui?  Not exactly.  How does DOJ wind up recommending life for the ring leader in a beard-cutting conspiracy? They might just be smoking weed, but I suspect something else, less groovy and more ominous, is at work.

This seems to be a part of the present administration's snarling hostility to religion. And one must admit the defendant makes a politically apt target.  This "bishop" sounds like a first-class thug, and he heads a splinter group in what is itself a very small, conservative, insular religion that must seem to Eric Holder to be ripe for the pickin'.  But this is taking liberal detestation of religion to an absurd extreme.  What happened to government neutrality?  Could a sentencing recommendation this far off the wall possibly have come about without at least an element of anti-religious bigotry?

What we have here is a 67 year-old man with no prior record (so far as I know or is reported in the story) who organized, and then (apparently) laughed at, beard cuttings.  It's only when viewed in the funhouse mirror of Holder's Very Politically Correct DOJ that this could be seen as an LWOP offense.

Does the "bishop" deserve jailtime?  You bet, and I hope he gets it.  But life in the slammer? DOJ's action would be a joke if, on account of its menacing, if only shadowy, political and cultural motivations, it weren't so dangerous.

I find Bill's perspective here quite stunning (and telling) given Bill's oft-stated affinity for making the federal guidelines mandatory again and his advocacy for long-terms of incarceration to incapacitate dangerous offenders.  Let me explain (using some of Bill's own words):

1. Bill asks "How does DOJ wind up recommending life for the ring leader in a beard-cutting conspiracy?"; he asserts that only "in the funhouse mirror of Holder's Very Politically Correct DOJ that this could be seen as an LWOP offense." Actually, DOJ is only recommending a within-guideline sentence for Samuel Mullet Sr. (and it is recommending well-below guideline sentences for all the other Amish defendants).  In other words, it is only the crazy "funhouse mirror" of unduly severe federal sentencing guidelines (and the continued affinity for these guidelines stressed by folks like Bill) which makes this crime appear to be an LWOP offense.

2. As referenced in the government's sentencing memo, many other members of the Amish community have written to prosecutors to stress that Samuel Mullet Sr. is a religious terrorist comparable to other violent zealots quick and eager to do great harm to anyone who does not follow his edicts or share his views.   My own disaffinity for severe sentences was tempered as I read these letters from members of the Amish community; I came to think that showing real respect for the Amish religion may require a severe sentencing term for Mullet and his most radical followers.

3. The government's sentencing memo and related materials certainly indicate (a) that the Amish community has been much safer since Mullet's arrest, and (b) that Mullet has shown no remorse and may well return to his terrorizing ways if and whenever released from custody.  Though I am not a big fan of using vague concerns about recidivism to justify longer terms of imprisonment, in this case the risk of recidivism seems quite significant and the future crimes would surely be directed toward the very Amish community whom Bill thinks DOJ is here disrespecting.

I could go on and on, but I want to give Bill and chance to respond in the comments and also allow others to share their perspectives on this fascinating case.  (I should note that I share the view that an LWOP sentence here is overkill, though I see this as an overkill prompted by dysfunctional federal sentencing guidelines, not a religion-hating DOJ.  And though Bill never indicates what kind of prison term would be fitting in his eyes, I think something in the neighborhood to 10 years may be about right to achieve all the diverse and challenging federal sentencing purposes implicated in this case.)

Whatever else one thinks about these issues, this Amish beard-cutting case surely provides yet another example of the many ways in which difficult sentencing cases can starkly reveal (a) how problematic any rigid system of sentencing guidelines can often be, and (b) what values are at the core of various persons' diverse sentencing perspectives.

Related related posts:

• Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
• Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
• Interesting defense arguments for sentencing leniency in Amish beard-cutting case
• Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang

"A Biblical Value in the Constitution: Mercy, Clemency, Faith, and History"

The title of this post is the title of this interesting new paper by Professor Mark Osler now available via SSRN.  Here is the abstract:

The United States Constitution is a strikingly secular document, and claims that the United States was founded as a “Christian Nation” find little support there.  However, the majority of Americans are Christian, and it should not be surprising that many of them look for a reflection of their faith’s values in the government that is structured by that secular Constitution.

This article urges that those who seek Christian values in the government processes allowed by the secular Constitution pay greater attention to the neglected pardon clause. The exercise of mercy is a fundamental Christian imperative, and the idea of pardon is an important and compelling theme in the gospels themselves: Jesus was nearly granted clemency by Pilate, and Jesus himself grants a pardon to the woman who is about to be executed in John 8.  To the serious scholar who believes in both the imperatives of Christ and the secular limitations of the Constitution, the pardon power provides a rare instance of those roads running together.

Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter

As reported in this New York Times article, "Jury Convicts Amish Group of Hate Crimes," a notable religious dispute is now a fascinating federal sentencing matter. Here are the basics:

Samuel Mullet Sr., the domineering leader of a renegade Amish sect, and 15 followers were convicted of federal conspiracy and hate crimes Thursday for orchestrating a series of bizarre beard- and hair-cutting attacks last fall that spread fear through the Amish of eastern Ohio.

The convictions of Mr. Mullet and his followers and family members who carried out the assaults could bring lengthy prison terms. The jury’s verdict vindicated federal prosecutors, who made a risky decision to apply a 2009 federal hate-crimes law to the sect’s violent efforts to humiliate Amish rivals.

Mr. Mullet, 66, founder of a community near Bergholz, Ohio, and 15 followers, including six women, were tried for their roles in five assaults on people that Mr. Mullet had described as enemies. The jury heard three weeks of testimony and deliberated more than four days before reaching a verdict midday Thursday.

Although Mr. Mullet did not directly participate in the attacks, prosecutors labeled him the mastermind of the assaults, in which groups of his followers held down victims and sheared their beards and hair. Among the traditional Amish, men’s long beards and women’s uncut hair are central to religious identity. Prosecutors argued that the attacks were intended to humiliate those who questioned Mr. Mullet’s cultlike methods, like forcing errant followers to live in chicken coops and pressing married women — including his own daughter-in-law — to accept his intimate sexual “counseling.” ...

The high-profile nature of the case, and the stakes for the defendants, were raised when Steven M. Dettelbach, the United States attorney for the Northern District of Ohio, stepped in to charge Mr. Mullet and 15 others, including several of his children and other relatives, with federal conspiracy and hate-crime charges that carry potential sentences of 10 years per count.

The defendants did not deny their roles in the attacks, which were carried out with battery-powered clippers, scissors and razor-sharp shears that are designed to trim horse manes. Rather, the case turned on the motives for the attacks and whether it was appropriate to make them into a major federal case under a 2009 hate-crimes law.

To prove the most serious charges, the jurors had to be convinced that the defendants had caused “bodily injury,” which could mean “disfigurement,” and that the attacks on nine of the victims were based mainly on religious differences.

Lawyers for the defense argued that cutting hair was not disfigurement and that the attacks resulted from family and personal differences, including a bitter custody battle involving a daughter of Mr. Mullet’s, as well as disputes over the “true” Amish way. They argued that prosecutors had overreached by labeling the assaults as religiously inspired hate crimes.

I have not yet looked into how the US Sentencing Guidelines might be calculated in this unique case, but I have a feeling that the debates over sentencing could end up as dynamic and as controversial as the debates over making this matter a federal criminal case in the first instance.

Distinct headlines with distinct stories on modern intersections between Bible and jail

The picture reprinted here is an overhead view of the historic Eastern State Penitentiary, and here below are a few passages from a lengthy discussion of the famed prison's early history:

Eastern State Penitentiary broke sharply with the prisons of its day, abandoning corporal punishment and ill treatment. This massive new structure, opened in 1829, became one of the most expensive American buildings of its day and soon the most famous prison in the world.  The Penitentiary would not simply punish, but move the criminal toward spiritual reflection and change....

Eastern's seven earliest cellblocks may represent the first modern building in the United States.  The concept plan, by the British-born architect John Haviland, reveals the purity of the vision.  Seven cellblocks radiate from a central surveillance rotunda.  Haviland’s ambitious mechanical innovations placed each prisoner in his or her own private cell, centrally heated, with running water, a flush toilet, and a skylight.  Adjacent to the cell was a private outdoor exercise yard contained by a ten-foot wall.  This was in an age when the White House, with its new occupant Andrew Jackson, had no running water and was heated with coal-burning stoves.

In the vaulted, skylit cell, the prisoner had only the light from heaven, the word of God (the Bible) and honest work (shoemaking, weaving, and the like) to lead to penitence.  In striking contrast to the Gothic exterior, Haviland used the grand architectural vocabulary of churches on the interior.  He employed 30-foot, barrel vaulted hallways, tall arched windows, and skylights throughout.  He wrote of the Penitentiary as a forced monastery, a machine for reform.

The historic and intricate links between incarceration, religious commitments and the Bible are on my mind today because of these two very different recent stories reporting on two very different modern intersections of Bible study and imprisonment:

• From The Christian Post, "Pastor Goes to Jail For Hosting Home Bible Study; Starts 60-Day Sentence Today"

• From NPR, "Woman Sentenced To Read The Bible? Yes, But There's More To The Story"

Noting the notable role of Catholicism in recent state death penalty abolition efforts

Today's Washington Post ran this interesting story headlined "Catholic activists pushing politicians to turn tide against the death penalty." Here are excerpts:

Soon, probably next week, Connecticut Gov. Dan Malloy will sign into a law a bill that abolishes the death penalty in his state. When he does, Connecticut will be the fifth state to enact such legislation in as many years — and the third with a governor who was raised a Roman Catholic....

Powerful, vocal Roman Catholics have been much in the news of late, mostly for their hard-line positions on abortion and birth control, and their self-serving rhetoric on the subject of religious rights in the health-care debate.  But Catholic activists are playing another political role, too — under the radar — on an issue that hasn’t made the same sorts of headlines.

They are helping to turn the tide of public opinion in the United States against the death penalty.  (According to a Pew poll earlier this year, about a third of Americans now oppose capital punishment, up from 18 percent in the mid-1990s.)  And they are appealing to the consciences of Roman Catholic politicians to do it.

The sanctity of human life is central to Catholic theology, and for death penalty opponents, this sanctity extends as much to living men and women convicted of capital crimes as it does to embryos and fetuses....

Last November, a delegation of international death-penalty opponents was invited to a private audience with Pope Benedict XVI.  There, the pope praised and encouraged “the political and legislative initiatives being promoted in a growing number of countries to eliminate the death penalty.”...

In 2011, on Ash Wednesday, Gov. Pat Quinn signed legislation that abolished the death penalty in Illinois.  Quinn had attended Catholic schools as a child and went to Georgetown University but had long supported capital punishment.

After the bill passed in the Illinois legislature, he pondered his decision for months — for, as he puts it, “there are people of great conscience on both sides of this debate.” During that time, he received a visit from Sister Helen Prejean, the author of “Dead Man Walking,” and a call from the Catholic death-penalty opponent Martin Sheen. For guidance, he read Scripture, and on the morning he signed the bill, he read from the writings of the late Chicago Cardinal Joseph Bernardin....

Since then, he has become part of the country’s informal network of prominent Catholic death penalty opponents. He phoned Malloy to offer his congratulations on the passage of Connecticut’s bill and has told California Gov. Jerry Brown — who had at one time considered becoming a priest — that he supports anti-death-penalty efforts in his state.

Before the vote in Connecticut, the Society of St. Egidio, an international group of lay Catholics based in Rome, sent letters to key Catholic members of the state Senate, appealing to their consciences.  “I am sure that it will be possible,” the letter said, enticingly, “to create a special event at the Coliseum in Rome to tell the world that Connecticut has taken the lead to abolition. ... The world will be able to love your state even more than now.” Mario Marazziti, St. Egidio’s spokesman, said the letter helped to swing undecided votes in support of abolition.

Some older posts on religion and the death penalty:

• "Pope seeks end to death penalty" 
• "Religion and the Death Penalty: Can't have one without the other?"
• Candidates asked "what would Jesus do" about the death penalty
• Fascinating NY Times piece on victims, religion and the death penalty
• Senator Brownback questions death penalty and culture of life
• Debating religion and the death penalty
• New DPIC page on religion and the death penalty
• New resource examining religion and the death penalty
• Remarkable circuit judge speech on capital punishment at mass
• Sister Prejean's powerful perspective
• "Shepherds lead, but flocks diverge on morality of death penalty"

Swift answer to my blog prayers seeking information on faith-based prisons

Yesterday I asked this post "What is the current status and latest research on faith-based prisons?". Today, thanks to Professor Sasha Volokh my blog prayers have been answer via this article available now on SSRN titled "Everything We Know About Faith-Based Prisons."  Here is the headline of today's must read:

This Article examines everything we know about the effectiveness of faith-based prisons, which is not very much.

Most studies can’t be taken seriously, because they’re tainted by the “self-selection problem.”  It’s hard to determine the effect of faith-based prison programs, because they’re voluntary, and volunteers are more likely to be motivated to change and are therefore already less likely to commit infractions or be re-arrested.  This problem is the same one that education researchers have struggled with in determining whether private schools are better than public schools.

The only credible studies done so far compare participants with non-participants who volunteered for the program but were rejected.  Some studies in this category find no effect, but some do find a modest effect.  But even those that find an effect are subject to additional critiques: for instance, participants may have benefited from being exposed to treatment resources that non-participants were denied.

Thus, based on current research, there’s no strong reason to believe that faith-based prisons work.  However, there’s also no strong reason to believe that they don’t work.  I conclude with thoughts on how faith-based prison programs might be improved, and offer a strategy that would allow such experimentation to proceed consistent with the Constitution.

"People who commit crimes do so because of disorderly souls"

The title of this post is one line from this lengthy commentary by Eric Simpson, an associate editor of In Communion: The Journal of the Orthodox Peace Fellowship, that appears at The Huffington Post.  The piece's is titled "I Changed My Mind on the Death Penalty," and the author explains why, when he became an "Orthodox Christian, [his] views began to change rather swiftly over a period of years [as he] began to meditate on the meaning of divine Love, ... [and] as a response to [his] understanding of who God is, what Christ accomplished, and what the Traditions of the Church teach." Here is how the piece concludes:

It may seem radical to say, therefore, that the murderer is to be pitied rather than hated because he has made his soul a hellish place, whether it is felt by him on an immediate level or not.  The cocksure smirks of the denizens of hell would be plastered across the psychopath's face whether we put him to death or not.  It is a demonic sign, and where there are demons -- even if the demons are merely psychological afflictions -- there is torment. I see criminal smirks and empty bravado, even totally lack of affectation or regret, as signs of torment, and they do not bother me.  For me to react in a similar fashion -- with violence and hatred -- by putting him to death does nothing more than carry me closer to his level of hell, whether it is sanctioned by the state or not.  It does not satisfy my own sense of grief and loss.

Where the murderer lacks decency and compassion, we should show him what true decency and compassion is, otherwise we become just like him.  Where the murderer has no value for life, responsible state policy should rather affirm life, rather than confirm the murderer's impulse to end it. Otherwise, we are doing nothing more than making a mockery of the principle of justice as exemplified by Christ himself.

In addition to making for an interesting read, this piece reinforces my own sense that many persons' with strong perspectives on the death penalty often have their views grounded in faith rather than in reason or science.

Some older posts on religion and the death penalty:

• "Religion and the Death Penalty: Can't have one without the other?"
• Candidates asked "what would Jesus do" about the death penalty
• Fascinating NY Times piece on victims, religion and the death penalty
• Senator Brownback questions death penalty and culture of life
• Debating religion and the death penalty
• New DPIC page on religion and the death penalty
• New resource examining religion and the death penalty
• Remarkable circuit judge speech on capital punishment at mass
• Sister Prejean's powerful perspective

Can and should religious considerations influence bail decisions?

The question in the title of this post is prompted by this interesting recent story over at a Wall Street Journal blog that is headlined "Rabbis Request Bail For Rubashkin." Here are the basics: 

Seven rabbis traveled to Washington, D.C., Tuesday seeking a remedy for what they say is overly harsh and unjust treatment of Sholom Rubashkin, the former Agriprocessors executive convicted of fraud at the kosher meat packing plant, which filed for bankruptcy protection in 2008.

The rabbis, who lead such Orthodox Jewish membership organizations as the National Committee for the Furtherance of Jewish Education and the Rabbinical Alliance of America, are demanding the release on bail of Rubashkin as he awaits sentencing on the 86 counts of financial fraud that a federal jury found him guilty of last fall.  The 8th U.S. Circuit Court of Appeals denied Rubashkin’s request for bail earlier this month, according to The Gazette of Cedar Rapids, Iowa, but Rubashkin recently appealed their decision.

Speaking at a press conference at the National Press Club Tuesday, Rabbi Chaim Dovid Zwiebel of Agudath Israel of America said the rabbis weren’t there to discuss Rubashkin’s actual and supposed wrongdoings. (In addition to the financial fraud, Rubashkin also faced charges that he violated federal immigration laws at the Iowa plant where 389 illegal immigrant workers were notoriously arrested in a federal raid in May 2008.  Prosecutors dropped the 72 charges after Rubashkin’s first trial.)

Rather, Zwiebel said they sought to address “a humanitarian issue” — that Rubashkin, himself an Orthodox Jew, has been unable to fully practice his faith in prison, and that prosecutors have unjustly pushed to keep him behind bars until he gets his prison sentence. “We believe local federal prosecutors have been extraordinarily inflexible and harsh” in their urging the courts to reject bail, Zwiebel said.

The rabbis denied allegations that Rubashkin would be a flight risk, arguing that his and his family’s travel documents have been surrendered and that Rubashkin fully complied with the terms of his bail before his trial began.  Zwiebel pointed out the “heart-rendering aspect” of the case, that a father of 10 may not be able to spend time with his wife and kids before beginning a long prison term.  (Federal prosecutors are recommending between 21 and 27 years behind bars.)

While these rabbis are basically suggesting that religious considerations should provide a basis for prosecutors (and presumably judges) to be willing to allow Rubashkin to be out on pre-sentencing bail, I cannot help but wonder if religious considerations might have been a factor in the initial decisions to be unwilling to allow Rubashkin to be out on pre-sentencing bail.  There are, I believe, a number of notable cases in which Jewish offenders have fled to Israel and resisted extradition in the past.

Is it uniquely wrong to deny bail partially on religious grounds, but justified to grant bail partially on these grounds?  Or should the issues work as one-way rachet in the other direction against bail?  And are any of these questions of constitutional dimension in light of the First Amendment's religion clauses?

UPDATE:  Eugene Volokh has this characteristically thoughtful discussion of these matters in this new post:

It seems to me that it’s improper, and unconstitutional, to give people a break when it comes to bail because of their religious practices.  I’m sure that being in jail does interfere with people’s religious practices.  There are minimum requirements of religious accommodation for inmates (for instance, some sort of kosher or halal food would generally have to be available to Jewish or Muslim inmates), but I’m sure that the inmates can’t have the same sort of religious life that they can have outside; and jail regulations aimed at legitimate security purposes may even end up forcing the inmates to violate some of their felt religious obligations.  The story isn’t clear on exactly what the burden on Rubashkin’s religious practice is, but I can easily believe that there is such a burden.

But it seems to me that the question of which defrauders — or robbers or drunk drivers or whoever else — stay in jail and which go free, even temporarily, can’t be decided in a way that gives the religiously observant a special break (or for that matter that gives atheists or agnostics a special break).  Whatever the permissible scope of special accommodations for religious observers (for a bit more on this, see here), I don’t think such accommodations can extend to granting bail based on a person’s felt religious obligations and the difficulty of continuing to comply with them in jail.