Joe Biden has finally joined Amy Coney Barrett in accepting Catholic teachings on the sanctity of human life. This isn’t about abortion or euthanasia, but the death penalty. Biden’s position is that Congress should “eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.”
It’s been a long journey for Biden, who in the 1990s was perhaps the death penalty’s greatest champion. He and fellow Democratic Sen. Dianne Feinstein back then fought tirelessly to expand the death penalty and succeeded.
In 1991, while pushing a bill to expand the federal death penalty, Biden worried about a GOP roadblock, and he pleaded with Republicans, “Don’t give it a death warrant. Allow the death penalty to survive.”
Biden, at the time, bragged, “the Biden crime bill … calls for the death penalty for 51 offenses.” Biden went on to brag that a columnist wrote, “Biden has made it a death penalty offense for everything but jaywalking.” Somehow, the Roman Catholic senator took that as a compliment.
Three years later, Biden finally passed his legislation, which during debates he touted as “a crime bill that has 51 death penalties.”
Just as Biden’s anti-death-penalty position today fits with the zeitgeist, he was a man of his time back then. Law and order was the order of the day. Rudy Giuliani was elected mayor in a New York City desperately afraid that criminals were taking over. A governor of Virginia was elected on the promise of abolishing parole. A few years before, Frank Miller grabbed the attention of millions with his Dark Knight cartoons about a Gotham overrun by crime. In 1993, the movie Falling Down was a compelling hit about an angry white man taking back his city.
But the Catholic Church doesn’t adopt the mores and sentiments of the day. “Be not conformed to this age,” St. Paul wrote to the Romans. Sure enough, as the West was adopting a harsher understanding of justice, Pope John Paul II stepped into the debate with a counter-cultural idea: More mercy, and a culture of life.
Worried by “the extraordinary increase and gravity of threats to the life of individuals and peoples, especially where life is weak and defenceless,” the Holy Father, six months after Biden expanded the death penalty, published an encyclical titled Evangelium Vitae — the Gospel of Life.
John Paul was writing about abortion and euthanasia, but also about the death penalty. On that topic, Evangelium Vitae quotes St. Ambrose: “God, who preferred the correction rather than the death of a sinner, did not desire that a homicide be punished by the exaction of another act of homicide.”
The pope decried the death penalty as part of a “culture of death” and cited the catechism: “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.”
Biden was a man of his age. He is and was a Catholic, but Biden is famously untethered by the teachings of his church. The dogma, you could say, sometimes gets drowned out within him.
In those same days, though, his fellow Catholic Amy Coney Barrett refused to conform to the age of vengeance. She joined her Notre Dame professor, Dr. John Garvey, to write a paper about a Catholic’s duty to conscience and life.
“We believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty,” Barrett and Garvey wrote in a law review article for which Democratic senators have attacked her.
Barrett and Garvey argued that a Catholic judge who issued an order of execution was, in the terminology of Catholic teaching, formally cooperating in evil. It is equivalent to pulling a trigger, Barrett argued, and prohibited by Catholic teaching. The only moral thing for a Catholic judge would be to recuse herself from at least the sentencing in such a case.
In her 2017 confirmation to the circuit court, this article earned Barrett the scorn of Feinstein and Sen. Mazie Hirono, who asserted that it was defending an illegitimate imposition of her religious values. Whether Hirono or Feinstein understood it or not, the implication of their argument was that a Catholic judge should be legally compelled to sentence to death the people whom Biden’s law would put to death. Biden’s law prescribed the death penalty for drive-by shootings and car-jackings.
Barrett, in her confirmation, hearing argued that she would never flatly disobey the law: “If there is ever a conflict between a judge’s personal conviction and that judge’s duty under the rule of law, that it is never, ever permissible for that judge to follow their personal convictions in the decision of the case rather than what the law requires. That article emphasized that point repeatedly. And I adhere to that today.”
Yet still, she wouldn’t disobey her conscience. “If I were being considered for a trial court, I would recuse myself and not actually enter the order of execution.”
Barrett is right to say that. She was right to write that in 1998. It’s good that Biden has come closer to Barrett’s position. I don’t expect Hirono or Feinstein will.
