If confirmed, she may soon have to reconcile her Catholic morality and the law over a death penalty case.
After 2 decades on death row, Ruben Gutierrez’s time nearly came this summer. A little over an hour before he was due to be killed in the execution chamber housed in Texas’ Huntsville Unit, a reprieve arrived from an unlikely source: Justice Samuel Alito.
For years, Mr. Gutierrez has maintained that he did not murder Escolastica Harrison, an 85-year-old widow and trailer park owner he and an accomplice robbed in 1998, though he confessed to being present at the woman’s residence during the botched burglary in which Ms. Harrison was stabbed and beaten to death.
But the question of his guilt was not what led to the temporary stay of execution. Instead, Mr. Gutierrez was granted a little more time on earth so that the courts could decide whether his religious liberty had been unduly infringed on by a 2019 state regulation banning clergy in the execution chamber. Mr. Gutierrez, a Catholic, had wanted a Christian chaplain with him at the moment of death; the Texas Department of Criminal Justice had denied his request, and his lawyers had appealed all the way to the Supreme Court. There, Justice Alito saw enough merit in the complaint to halt the impending execution so the courts could decide whether to settle the question.
As it stands, the Supreme Court is considering Mr. Gutierrez’s case, and could accept or reject it in the immediate future. If the matter does go before the court — which Mr. Gutierrez’s lawyers consider a decent possibility — it is likewise probable that Amy Coney Barrett will have a hand in deciding his fate.
If so, Judge Barrett will find herself in an onerous tangle of principles and expectations. Judge Barrett is — like Mr. Gutierrez and myself — a devoted Catholic, and she has evinced a serious, thoughtful concern about how the morality of her faith ought to interact with the application of the law — specifically with regard to capital punishment. And, if any doubt had remained about the attitude Catholics ought to adopt toward capital punishment, it was removed this month in a propitiously timed encyclical published by Pope Francis, who thoroughly opposes the practice. Considering the strange particulars of Mr. Gutierrez’s case and the radical demands of the Christian faith, what then must we do?
Shawn Nolan was brought up Catholic; that’s part of what motivated him to go into public defense. “I’ve always thought of my job as — I represent the poor, and that’s, I think, consistent with my Catholic upbringing,” he told me during an October phone interview. Mr. Nolan took up Mr. Gutierrez’s case two years ago and has worked tirelessly to save his client’s life.
Several of Mr. Nolan’s clients have been put to death despite his best efforts, but it wasn’t until this summer that he witnessed an execution in person.
“It was very surreal,” he recalled. “Pentobarbital causes flash pulmonary edema, which is incredibly painful,” he said, but his client, Dustin Lee Honken, appeared to be unconscious — though Mr. Nolan wasn’t certain if he was unaware or merely paralyzed. “I couldn’t tell if he was suffering terribly,” he told me, “It’s a sensation of drowning, is what they described it as, the experts that have talked about this. And so, I couldn’t tell. I’m just sitting there watching, nothing I can do about it at that point. Our litigation was all lost.”
There’s something nightmarish, too, about the state of Mr. Gutierrez’s case, and the threads that hold his life in the balance.
Before April 2019, Texas had allowed state-employed chaplains in the execution chamber. But the state had only Christian and Muslim chaplains on staff, which meant that a Buddhist death row inmate, Patrick Murphy, would have been denied the presence of a spiritual adviser at the time of death. Mr. Murphy’s lawyers objected, and they pressed their case to the Supreme Court, which halted the execution pending one of two options: Either all inmates could have a spiritual adviser of their religious persuasion with them in the execution chamber, or none could. Texas chose the latter.
In a brief submitted this September in Mr. Gutierrez’s case, Texas authorities argued that there are too many faiths among Texas’ death row inmates for the state to employ a chaplain representing each one, and bringing nonemployees into the chamber would be too great a security risk to tolerate.
The state refused to budge, even after the Texas Catholic bishops presented an amicus curiae brief in support of Mr. Gutierrez’s desire for a pastor’s presence at his death.
“The perspective of the bishops is — it’s bad enough that you’re using the death penalty, which we are opposed to, but it’s unconscionable that, if you are going to execute somebody, you would not allow them to have the religious, moral freedom to be accompanied by somebody who will be able to assist them in those ultimate questions and ultimate realities,” Bishop Daniel E. Flores of Brownsville, Texas, explained during a telephone interview.
Bishop Flores acknowledged, as did Mr. Nolan, that those who support Mr. Gutierrez’s cause are somewhat at a loss: Mr. Gutierrez’s execution will proceed whether the Supreme Court declines to hear his case, or should the court hear it and either require Texas to permit clergy in the death chamber or allow the state to bar clergy altogether.
“We are opposed to the death penalty, but that doesn’t mean that once we’re dealing with a system that seems to be dead set on it, that we cease being an advocate for that person,” Bishop Flores said. Where clemency isn’t available, the church will still seek a little comfort for the damned.
The presence of a priest, Bishop Flores told me, can serve to assure “this person that the judgment of God does not necessarily coincide with the judgment of the court.”
Bishop Flores paused in our conversation, collecting his thoughts. He spoke quickly, alert and energetic, clearly disturbed by the fact of execution, and what it entails.
Judge Barrett is well aware of the justice beyond our earthly simulacrum.
In “Catholic Judges in Capital Cases,” a 1998 Marquette Law Review article, Judge Barrett and her co-author, John Garvey, now the president of the Catholic University of America, argued that Catholic judges had no choice but to recuse themselves when facing certain death penalty cases.
“We believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty,” they wrote. “This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death.”
In her career, Judge Barrett has wrestled with this question of what to do. She reaffirmed in her 2017 confirmation hearings for her appointment to the U.S. Court of Appeals for the Seventh Circuit that as a trial judge she would recuse herself from sentencing in capital cases. But she had assisted with capital cases when she was a clerk, and she voted recently to allow an execution to proceed.
Perhaps her assent to capital punishment in certain cases arises from the fact that the church has historically wavered on the death penalty’s legitimacy. In the article she wrote with Mr. Garvey, the 2 said that the church’s “prohibitions against abortion and euthanasia (properly defined) are absolute; those against war and capital punishment are not.”
Yet it’s hard to maintain that room for permissible capital punishment remains in Catholic thought. Earlier this month, Pope Francis published “Fratelli Tutti,” an encyclical calling on Catholics to better realize the love of Christ in our relationships with one another and the world. He addressed capital punishment in that context: “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. If I do not deny that dignity to the worst of criminals, I will not deny it to anyone. I will give everyone the possibility of sharing this planet with me, despite all our differences.”
Put differently, the Catholic rejection of capital punishment is a key thread in a tapestry of teachings that uphold the inviolable dignity of human life — including the church’s opposition to abortion, a cause Judge Barrett has enthusiastically championed on and off the bench. In fact, this teaching, and the understanding that no termination of life other than natural death is acceptable, is something Judge Barrett is already aware of. In 2006 she signed a statement to “oppose abortion on demand and defend the right to life from fertilization to natural death.”
Catholic judges (including the five already on the Supreme Court, and Judge Barrett herself) have never seen it necessary to recuse themselves from cases involving abortion. So neither should they vacate the bench in cases involving capital punishment. Judge Barrett’s 1998 article suggests she would recuse herself only in the event of a conflict between her sincerely held moral convictions and the plain requirements of the law. But on the Supreme Court, her role would be in part to decide precisely what the requirements of the law are, and whether they are legitimate.
Judge Barrett should approach capital case litigation with the same morally informed legal reasoning she seems to have applied throughout her career, and she should use her authority, to oppose the death penalty.
Mr. Gutierrez’s case presents the opportunity to take a step in that direction. Should Judge Barrett indeed receive the opportunity to rule on Mr. Gutierrez’s case, the least she could do would be to grant Mr. Gutierrez the mercy of a priest at his side as the state ends his life.
But perhaps there is something more. If the State of Texas holds that it’s impossible to properly vet and train spiritual representatives of the myriad faiths represented among its condemned, and it violates a person’s religious liberty to be refused a spiritual adviser at the moment of death, then the simplest resolution is that no person ought ever to be executed in Texas again.
Would that this be the court’s decision, and that the justice we know in this realm and the justice beyond it align.
Source: The New York Times, Opinion; Elizabeth Bruenig, October 19, 2020
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde