by professor phyills goldfarb
Just as it was vanishing from Western Europe and many other nations throughout the world, the death penalty in
But reports of the death penalty’s demise were greatly exaggerated. A newly constituted Supreme Court quickly reinstated the death penalty in the 1976 case of Gregg v. Georgia, holding that improvements in state statutes had solved the problem of arbitrariness and discrimination in the death penalty’s application. No doubt this rapid turn of events distressed Drinan, who saw law as inseparable from moral and religious imperatives to alleviate suffering and protect the vulnerable—the vision on which he had built
The 1980s and 1990s were hard years for death penalty opponents. Death penalty support was at its zenith and opposition to the death penalty was considered the third rail of American politics. No longer a Congressman,
When Father Drinan left us, the vineyard in which he had toiled was heavy with fruit. He and others had labored so mightily for so long to expose the death penalty’s underbelly and to reveal the brutal reality that underlies the state’s assumption of the power to take human life that as the century turned, so too did public opinion. Due to that work and to a confluence of recent events, the direction of the death penalty wind is changing.
Four major energy sources have intensified the winds of death penalty change. First is the widespread availability of life without-parole sentences that provide a non-lethal alternative punishment for the most horrendous crimes. In other words, contemporary penological practices render the death penalty utterly unnecessary to protect society. Although Father Drinan might have quarreled with those who believed that the death penalty ever had such a protective impact, he certainly supported the view that life-without-parole sentences in modern correctional systems remove the purported protection-of-society justification from the store of arguments on the death penalty’s behalf. Indeed, this is the perspective that led Pope John Paul II to withdraw his support for capital punishment, a development that must have caused Father Drinan much rejoicing, as vocal opposition to the death penalty began to issue from the Church that he loved so dearly.
A second major element driving change is abolitionist pressure from the rest of the world. Democratic regimes, including all of
A third factor of profound significance is the advent of DNA evidence. The advancing sophistication and availability of DNA technology has altered the death penalty landscape in a dramatic way. For the first time, the arguments long voiced against the death penalty by Drinan and others have been bolstered by scientific corroboration of our stunningly faulty system for deciding who lives and who dies. In light of this science, the Supreme Court’s prior assertions that modern death penalty statutes have ameliorated the problems of arbitrariness and discrimination ring hollow.
A fourth important feature in the recent erosion of support for the death penalty comes from the courts. The courts’ pivotal role is paradoxical, as it derives not so much from judges’ willingness to recognize the flaws that DNA evidence is so rapidly exposing as from their regular refusal to do so. What the conservative takeover of the federal judiciary has meant in the death penalty context is that judges have increasingly rejected plausible claims of constitutional error in an effort to embrace state efforts to implement their death penalty laws.
While a highly politicized conservative judiciary has constructed law in a way that greases the track to execution, a long parade of death row exonerees presents irrefutable evidence of a large number of factual and legal errors in decisions about who is condemned to death, with reasons to believe that we have not yet uncovered all the errors, even in the cases of some who have already been executed. In this context, judicial inaction and widespread exonerations represent a volatile combination, ironically undermining perceptions of the integrity of the legal system through the courts’ efforts to show support for it. This perfect storm poses a major threat to the death penalty’s future. Father Drinan was one of the devoted band of abolitionists who organized effectively around the recent convergence of these powerful forces.
H.G. Wells once defined civilization as a race between education and catastrophe. As a professor of human rights, Drinan helped education gain considerable ground in the competition. As a founder and long-time chair person of the
Of course, Father Drinan would have preferred their solution to call for the abolition of the death penalty. Independent of the problems in its administration, he opposed the death penalty on moral and religious grounds and as a matter of the bedrock human rights obligations of nation-states. He implored his
Although Father Drinan did not live long enough to see
If, as I fully expect, the death penalty is abolished in my lifetime, I will be thinking of Father Drinan on that day, trusting that in the death penalty’s absence we will feel his presence. We knew that once our beloved priest-professor-prophet-politician left us—unique figure that he was—he could not be replaced. Yet any act we take to lighten the burden of the disempowered and promote substantive justice in the world honors his memory and draws us closer to his legacy.