OSV STORY FOR MARCH 9

Choosing life (without parole)?

In the execution capital of the world, the quality of mercy remains strained and morally vexing

By William Bole

Two years ago, Pope John Paul II declared that capital punishment is rarely if ever justified in the modern world. The reason: society has other ways of making sure the offender does no further harm.

No killer should be put to death "except in cases of absolute necessity; in other words, when it would be impossible otherwise to defend society," he wrote in his 1995 encyclical Evangelium Vitae ("The Gospel of Life").

"Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically nonexistent."

Now, the Pope's teaching appears to be gaining a bit of credence in the death-penalty Mecca of the Western world: the United States.

Signs of a possible shift are coming from the very people who often give the thumbs-down in capital cases. Jurors are turning their thumbs upward in some states that offer a definite "life-in-prison" alternative to capital punishment. Given the choice between life and death, more of these jurors are choosing life -- without parole.

The most dramatic turn is taking place in Virginia, which ranks behind only Texas and Florida in the number of convicted murderers it has executed since the U.S. Supreme Court restored the death penalty in 1976.

Last year Virginia led all states, with eight executions. These, however, were for convictions before 1995, when Virginia began holding out the alternative: "life" without the possibility of parole. Since then, the number of death sentences handed down by juries has fallen from 10 in 1994 to one last year.

A recent report in The Washington Post pointed to similar trends in Indiana, Georgia and Maryland, which have adopted laws providing the no-parole option. The sentiment is bearing out a little-noticed 1993 poll that found that, by a slight margin, Americans prefer life without parole -- plus restitution to the families of murder victims -- to the death penalty.

This news has drawn cheers from secular quarters of the struggling anti-death penalty movement, which has seen 365 executions go forward in this country over the past two decades. No other Western democracy continues to mete out the ultimate punishment.

Some view the move toward life sentences as proof that Americans basically want to protect society from the killer, not kill the killer. If true, the desire would seem in harmony with the Pope's Evangelium Vitae.

Quoting from the Catechism of the Catholic Church, the encyclical says: "If bloodless means are sufficient to defend human lives against an aggressor . . . [then] public authority must limit itself to such means."

Whether these means should include life without parole, however, is another question.

Catholics who oppose the death penalty are of two minds on the morality as well as the strategy of throwing away the prison keys.

In the view of Msgr. Dennis Duprey, a prison chaplain in the Ogdensburg diocese in upstate New York, mandatory imprisonment until death is hardly what the Church means when it says "choose life."

He sees life with no chance of parole as contradicting the Christian idea that anyone can be redeemed.

"It doesn't allow for the possibility of change. It doesn't allow for redemption to take place. That's the fundamental moral problem," said Msgr. Duprey, who served on a panel that studied the issue for the state's bishops.

The bishops, in a statement issued in June 1995, concluded: "Life in prison without parole, like the death penalty, surrenders to the desire for revenge. While not as morally objectionable as the death penalty, [it] . . . is a sentence which should only be used in the rarest of circumstances."

The statement was in part a reaction to a new death-penalty statute in New York that presents judges and jurors with three sentencing options: death by lethal injection, life without parole, and "25 years to life," which convicted murderers often received in the past.

The bishops said the last option is the only appropriate alternative to execution. To date, no one has been executed under the new law.

But other Catholics, including other bishops, have gone the other way. Michael McCarron, executive director of the Florida Catholic Conference, which represents the state's bishops on public-policy issues, said the failure of the legal system to keep convicted killers off the streets is one reason the public has clamored for capital punishment.

"That sends a terrible fear into the citizenry, and life without parole addresses that," he said.

In a recent pastoral letter, Archbishop Elden F. Curtiss of Omaha, Neb., endorsed the no-parole alternative while calling on Catholics who support the death penalty to rethink their positions.

"The time has come for all of us to recognize the growing awareness of the Church that capital punishment is no longer justified in our society as a proper form of punishment because of the alternatives which are available to the state," he wrote. "We should be willing to support life imprisonment without the possibility of parole as the maximum penalty . . . for serious capital crimes."

In less categorical terms, the Florida bishops have endorsed "life or long-term imprisonment in maximum security with no early release."

And the bishops of Maryland, Delaware and Washington, D.C., have issued a statement calling life without parole as one alternative that would "prevent criminals from continuing to commit serious crimes [and] protect the public order."

Dan Misleh, who works in the social-action office of the U.S. Catholic Conference in Washington, surmises that most Catholic leaders and activists would support life without parole as an alternative to capital punishment.

He said many would eagerly do so as part of a grand political compromise between supporters and opponents of capital punishment, although the bishops, as a national group, have no plans to take a position on this matter.

In their 1980 statement against capital punishment, the bishops rested their case in part on the observation that death "extinguishes the possibilities for reform and rehabilitation . . . as well as the opportunity for the criminal to make some creative compensation for the evil he or she has done."

The death penalty, the bishops added, also makes it impossible for the killer "to develop a new way of life that conforms to the norms of society and that contributes to the common good."

Some ardent foes of capital punishment, while doubting that life without parole could allow the same change, nonetheless support the option as the lesser of two evils.

"I would like to see the door left open for conversion" and an ultimate return to society, even if at a very old age, said Brother Patrick Byrd, a Carmelite who ministers to death-row inmates in San Antonio, Texas.

"But at this point I personally believe our only chance of abolishing the death penalty is by offering the public the alternative of life without parole," he said. "I believe Catholics can and should support this."

Like Brother Byrd, McCarron voiced some misgivings about life punishment, particularly in light of studies indicating that older convicts are extremely unlikely, if not physically unable, to repeat their crimes.

Still, he thinks Catholics can support life without the possibility of parole not only as a lesser evil, but perhaps as a moral punishment, compatible with Catholic social doctrine.

"It certainly guarantees the safety of society, which is an important part of the Church's teaching on this point," McCarron said, citing Evangelium Vitae as well as the Catechism. "It doesn't discount the possibility of remediation. Even if someone is incarcerated, they can be rehabilitated."

Msgr. Duprey disagrees. He argues that from a Catholic perspective, full rehabilitation necessarily involves a return to society: "Redemption, for us, is a communal activity. It's going back to participation in community."

He acknowledged that some prisoners may never rehabilitate, and must remain behind bars for as long as they live. But he said a firm sentence of "25 years to life" would be enough to protect the public as well as keep open the possibility of reform.

Both of these values are important, Msgr. Duprey said. He pointed to Pope John Paul's appeal in Evangelium Vitae for "adequate punishment" that makes it possible for an offender to repay a debt to society and also "regain the exercise of his or her freedom."

It is too early to say if the "life" alternative will spread and temper the tide of executions in the United States, observers and activists note. So far, at least 31 states (including nine states without a death-penalty law) have adopted life without parole, according to the Death Penalty Information Center in Washington. But the statutes vary, and not all require that judges present the option to jurors.

Meanwhile, in Virginia, state officials expect to maintain, if not accelerate, the pace of executions, with at least 53 death-row inmates waiting their turn.

Bole is a senior correspondent for Our Sunday Visitor

The lawyers bargain with the system

Catholic leaders in the fight against the death penalty say a new proposal unveiled by the American Bar Association would, if adopted, prevent some of the more dreadful executions in the United States. At the same time, they found the plan lacking from a Catholic perspective.

Meeting in San Antonio Feb. 3, the ABA's House of Delegates called for a moratorium on capital punishment, calling the death penalty a "haphazard maze of unfair practices."

The group called for changes in the system to "minimize the risk that innocent persons may be executed."

Among the measures proposed: providing more

competent legal counsel; efforts to halt racial bias in

sentencing; and no more executions of the mentally retarded, as well as those who committed their crimes as minors.

"It's a step in the right direction," said Carmelite Brother Patrick Byrd, who runs a one-man Catholic ministry to death-row inmates in San Antonio. But, he added, the ABA proposal is "not the Catholic view, because it says capital punishment is acceptable, as long as it's done the right way."

In contrast, he cited Pope John Paul II's teaching that the death penalty is hardly ever morally justified today.

Nevertheless, Brother Byrd said a ban on executions of those with mental retardation would correct a particularly bloodthirsty feature of capital punishment in the United States.

Michael McCarron, head of the Florida Catholic Conference, which has lobbied unsuccessfully for a state-wide ban on such executions, agrees: "What possible purpose does it serve to execute a mentally retarded person, other than pure vengeance?"

Twenty-nine mentally retarded offenders have been executed since the Supreme Court reinstated the practice in 1976; eleven states forbid executions of the mentally retarded, according to the Death Penalty Information Center in Washington. -- William Bole

Copyright Our Sunday Visitor, 1997; from the 3-9-97 edition

HEADLINES FOR MARCH 9

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The 'gaying' of America: Can the Church resist?

Women and the holy order of love

Another angel of Harlem

Self-inflicted wounds

Ebonics and the underclass

Accommodating the state at the Church's expense?