By Tony Mauro, From Supreme Court Brief

For more than 50 years, the National Catholic Reporter has covered issues of interest to American Catholics from the sidelines. But the newspaper has stepped into the legal debate over capital punishment by filing a brief urging the U.S. Supreme Court to find Oklahoma’s lethal injection protocol unconstitutional.

That protocol, in particular the use of midazolam as the first of three drugs in Oklahoma executions, is at issue in Glossip v. Gross, set for argument April 29, the final day of oral arguments this term.

“Based on religious convictions, amicus curiae and its readership have an interest in ensuring that human beings are not subjected to the suffering that this method of execution entails,” the National Catholic Reporter brief states. “The use of midazolam as an anesthetic ahead of other drugs meant to paralyze and prematurely extinguish human life is inconsistent with Catholic teachings and this court’s precedent.”

The unusual brief comes to a court that has six Roman Catholic members, at a time when debate over the impact of justices’ religious beliefs on their decision-making has intensified.

The idea of filing a brief began in March, when the editorial boards of four Catholic publications joined in an editorial about the Glossip case and capital punishment in general, concluding that “it is time for our nation to embody its commitment to the right to life by abolishing the death penalty once and for all.”

The recent botched executions of Clayton Lockett in Oklahoma and other inmates in Ohio and Arizona spurred interest in making a forceful joint statement against capital punishment, National Catholic Reporter editor Dennis Coday said in an interview.

After the editorial appeared, according to Coday, the University of California Berkeley School of Law Death Penalty Clinic contacted the paper about participating in an amicus curiae brief. “The fact that four of us [Catholic publications] could get together on the death penalty was worth noting,” Coday said, adding that “we don’t agree on many things” with some of the other publications joining the editorial.

Catholic organizations such as the U.S. Conference of Catholic Bishops file briefs with the high court regularly—four Catholic groups filed briefs against same-sex marriage, for example—but this may be the first by a Catholic publication. Counsel of record for the brief was Robert LoBue, partner at Patterson Belknap Webb & Tyler.

The brief details the history of the Catholic Church’s stance on capital punishment and torture. Critics of Oklahoma’s protocol say midazolam does not reliably put a condemned person in deep unconsciousness, making it possible he or she will suffer intense pain when the next drugs are administered.

“The use of midazolam in executions creates a substantial risk that the condemned will suffer torturous pain or suffering prior to death,” the brief states. “The Catechism of the Church identifies torture as a grave sin that violates the Fifth Commandment.”

As for the death penalty generally, the brief notes that U.S. Catholic bishops have opposed the death penalty for more than 30 years, and Pope John Paul II in 1995 said the death penalty should be used only in cases of “absolute necessity,” when “it would not be possible otherwise to defend society.”

That exception has narrowed in recent years, with Pope Francis stating last year that it is “impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples’ lives from an unjust aggressor.”

Coday said the brief was not aimed solely at the court’s six Catholic members—Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito Jr. and Sonia Sotomayor.

He explained that in assessing the constitutionality of execution methods under the Eighth Amendment’s “cruel and unusual punishment” standard, “the views of religious organizations are relevant.”

And Coday said it was not his intention to instruct the Catholic justices that they must abide by religious teachings on the death penalty issue. “Especially for someone holding public office, you need to act in accord with your own conscience, informed by religious teachings—but also consistent with your public duties,” he said.

IMAGE: San Quentin California Department of Corrections

For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202724850356/Catholic-Newspaper-Weighs-In-On-Supreme-Court-Lethal-Injection-Case#ixzz3YiV3Cste