Judge Amy Coney Barrett’s Overly Broad Take on Judges and the Death Penalty”

Matthew P. Cavedon


Twenty-two years before she was nominated to the U.S. Supreme Court, Judge Amy Coney Barrett co-wrote a law review article on Catholic judges and the death penalty. It has gained attention from commentators trying to parse out her thoughts on hot-button legal issues. Setting those aside, the article is remarkable for another reason: its treatment of the moral responsibility of judges for capital sentences. It says that judges with conscientious objections to the death penalty can affirm such sentences on appeal, but not enter them at the trial level. Judge Barrett reaffirmed this distinction in her 2017 Seventh Circuit confirmation hearings and has apparently relied on it as a law clerk and appellate judge. But it is not actually tenable as applied to trial judges entering death sentences based on mandatory jury determinations.

Amy Coney Barrett in 2018 / Wikimedia CC-BY-3.0

Barrett’s article is premised upon a seemingly simple problem facing Catholic judges: the Catholic Church morally opposes the death penalty, the Church’s moral teachings are entitled to at least significant deference by faithful Catholics, and many American jurisdictions authorize the death penalty. The article draws a number of careful distinctions between what a judge can and cannot morally do. (The excellence of many of its points is no surprise. Its co-author, John H. Garvey, is also a prominent lawyer and now the president of the Catholic University of America.) These distinctions all turn on a fundamental ethical concept: the difference between formal and material varieties of cooperation with evil. Third parties can further evil that is intended by someone else in two ways. The first is formal cooperation. This is when the third party “shares in the immoral intention” of the main actor. Barrett and Garvey’s example is “a tenant who, coveting the apartment of his Jewish neighbor, gives his name to the Nazis.” This sort of cooperation “is always immoral.” But it is also possible for someone to aid another’s evil without sharing in any evil intent. Material cooperation would include, say, “a grocer who sells food to a glutton, or a letter carrier who delivers an extortionate threat.” Whether or not this is immoral is determined by weighing several factors, including “the importance of doing the act against the gravity of the evil, its proximity, the certainty that one’s act will contribute to it, and the danger of scandal to others.” There are times when this sort of cooperation can be entirely permissible.

Most of the ways that Barrett and Garvey apply this distinction are beyond the scope of this essay. But one is unconvincing: their discussion of judges who enter death sentences based on mandatory jury determinations, as opposed to those who review death sentences on appeal. One of the article’s key reference points is the federal Anti-Drug Abuse Act of 1988. That law provides that if “the jury recommends the death penalty, . . . ‘the court shall sentence the defendant to death.’” Despite this mandate, Barrett and Garvey consider the entry of a death sentence pursuant to it “a straightforward case of formal cooperation.” Why? Because “the judge sets the wheels of injustice in motion” and “intends that [death] should happen.” The judge’s role goes beyond that of the clerk who files the sentence – another necessary step before it can be imposed – because: “The content of the order does not matter to the clerk. He files death sentences and discovery orders indifferently, as the post office franks love letters, pornography, blackmail, and letter bombs without a thought to their contents.” But the judge’s order is qualitatively different. It is “an exercise of authority that in our system of government only a judge can have.” The judge is the one “who can assure us that there is no legal reason against the sentence being imposed.”

But most of this is irrelevant to whether the judge’s cooperation with the death penalty is formal or material. Recall what makes cooperation formal: the actor must share another’s evil intent. But as even Barrett and Garvey say, “If the jury recommends death, the trial judge has no choice about imposing that sentence” because “the statute obliges him to give the order.” His own intent does not matter. The only way he is legally authorized to override the jury’s decision is if he finds any fatal legal flaw underpinning it. 

Such legal analysis is different from sharing the jury’s intent to inflict death. And it is no different from the work appellate judges do in reviewing death sentences – work that Barrett and Garvey find morally permissible. They observe that the statute governing appeals under the Anti-Drug Abuse Act “directs [the appellate judge] to review the evidence and the behavior of the judge and jury, and gives him two options: affirm or remand.” But to affirm, they say, is not to share in the intent of the judge and jury below. Instead, it merely indicates “that the trial court did its job.” It is only to decide “that the responsibility for life and death lies somewhere else.” This is merely material cooperation with the death penalty. It can be morally permissible when it is done out of respect for what Barrett and Garvey elsewhere call “a lawful and otherwise useful and morally acceptable division of authority” between appellate and trial courts.

But everything Barrett and Garvey wrote about appellate judges is equally true of a trial judge who enters a death sentence pursuant to a mandatory jury decision. Just as on appeal, all that the trial judge does is indicate that someone else – in this case, the jurors – did their job permissibly. He does nothing more than indicate that the responsibility for life and death belongs to them, not himself. Surely this respects a legitimate division of authority in a country where trial by jury is a constitutional right and ancient part of the legal tradition. And just as certainly, it means that the trial judge engages only in material, not formal, cooperation with evil.

A few years ago, a state trial judge felt constrained to enter a death warrant in spite of her own conscientious objection to capital punishment. Atlanta judge Stephanie Manis “said the case was tried perfectly. There were no mistakes. She had to sign the death warrant. . . . It was a state law. She felt obligated as a judge to follow what the state law required.” Nevertheless, “she felt terrible about doing it,” “it did have an effect on her,” and shortly after the execution was carried out, she directed her family to put in her own obituary that she firmly opposed the death penalty.

Regardless of whether Judge Manis had entered the warrant at trial or in an appellate role, she certainly did not share any intention to kill the convict. She was not guilty of formal cooperation with evil. Barrett and Garvey’s analysis to the contrary stretches culpability too far.♦


Matthew P. Cavedon is a criminal defense attorney in Gainesville, GA. He graduated from Emory University in 2015 with a law degree and masters of theological studies.