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Abolition's Abbot

by professor phyills goldfarb

Just as it was vanishing from Western Europe and many other nations throughout the world, the death penalty in America seemed to have run its course by 1972. In that year, the Supreme Court ruled in the case of Furman v. Georgiathat the death penalty as administered in the states was arbitrary and discriminatory and therefore unconstitutional. From his Congressional office, Father Robert Drinan hailed this victory that his political and educational labors had helped to create, joining the chorus of those who celebrated the advance in human rights that the end of the death penalty marked.

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 Boston College Law School. But agitation in his mental state spawned agitation as a method of action for creating social change. Drinan simply began again, embarking on another round of anti-death penalty advocacy that, along with his work on other causes, lasted for the remaining three decades of his life.

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, Professor Drinan of Georgetown University Law Center understood that, even at its peak, popular support for the death penalty, though a mile wide, was but an inch deep. As a professor of human rights law and a member of the American Bar Association’s House of Delegates, he used his bully pulpit to influence perceptions of the death penalty and alter the climate surrounding it.

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 Europe, have forbidden capital punishment for several decades, and the international human rights norms that Drinan helped to develop have evolved to prohibit it. Over the long haul, the United States can ill afford to be perceived by its vital allies as a persistent human rights violator. As our allies step up political pressure to abandon the death penalty, United States’ resistance is tested, because our national interests require maintenance of these alliances, whether for purposes of prosecuting terrorism, conducting trade, or otherwise participating in a globalized world.

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 ABA’s Section on Individual Rights and Responsibilities, he led the ABA to acknowledge that thousands of people were under death sentence not solely because of their crime, but because of circumstances such as their race, their poverty, and their mental health. He urged the ABA, as the official voice of the American legal profession, to declare that the amount of demonstrated error in the death penalty system could be tolerated and ignored no longer. His advocacy within the ABA facilitated its 1997 resolution calling for a moratorium on the death penalty until such time as the problems in its administration could be remedied.

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 ABA colleagues to adopt his unqualified opposition to the death penalty and to render it obsolete as a legal sanction. But pragmatism was as constituent a part of Drinan’s character as was his idealism. If a moratorium resolution was all he could achieve, then unquestionably he would endorse it and redouble his efforts to demonstrate that the flaws in the application of the death penalty were irremediable.

Although Father Drinan did not live long enough to see America abolish the death penalty, he did live long enough to see that abolition is at hand. It is as clear today that the American death penalty is moving toward abolition as it was clear by the mid-1800s that chattel slavery was destined to be abolished.  Its critiques were too strong. Its brutality was too apparent. Its existence contradicted other visions that we had of ourselves as a nation. Drinan knew that the death penalty, like slavery, could not be sustained indefinitely against the forces challenging it, and he spent countless hours persuading others to be on the right side of history. In the process, he gave education an insurmountable lead in the race against catastrophe.

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.