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  • Writer's pictureMario Nicolais

In pardoning, we are pardoned

I’m an oddity in the legal and political worlds; I have spent most of my life ambivalent about the death penalty.

When pressed, I tepidly supported the death penalty as an option, mostly in deference to the families of victims. Who was I to strip away an option that might bring them some peace from such a profound sorrow and loss?

To begin, I am Episcopalian, not Catholic. My faith does not bind me to the Pope’s lead. Nonetheless, I have an affinity for this Pope that makes me more attentive to his message. Years ago, as a birthday gift my wife paid to have the first line of the Prayer of Saint Francis tattooed across my back. When the Pope chose the same saint as his namesake, I naturally felt a connection. Pope Francis cemented that connection when he began bathing the feet of inmates, refugees, women, and children on Maundy Thursday. It didn’t hurt that his given middle name is also Mario.

When Pope Francis spoke in such steadfast opposition, it obviously caught my attention. I knew the Catholic Church had previously been “mostly” anti-death penalty, but it held reservations not too dissimilar to mine. An escape clause for practical purposes. Pope Francis sealed that passage and left no wiggle room for interpretation. He declared the death penalty an attack on the dignity of human beings. Only a Pope speaking from profound spiritual conviction could overturn centuries of church teachings.

His certitude made me revisit the prayer inked into my own flesh. It addresses peace, love, hope, consolation, understanding, and faith. Except love, only one subject appears twice, once toward the beginning and once toward the end. The third line prays, “Where there is offense, let me bring pardon” while the second from the last declares, “It is in pardoning that we are pardoned.” The more I reflected on those lines — sentences I have spoken thousands of times — the more difficult it became to reconcile with the death penalty.

As a lawyer who spent the majority of my professional career practicing First Amendment law, I am of course wary of mixing religion with the legal system. The free exercise and antiestablishment clauses all but forbid doing so. The laws of our state and country must stand on their own, apart from religion, buttressed only by the secular value derived by society. Murder is illegal not because it violates the Sixth Commandment, but because it violates the individual rights of another. In most instances, the system works well.

The death penalty is different. Moral and religious advocates have not crossed the line between church and state so much as the government encroached on their sphere of influence. The state-sanctioned taking of a human life as punishment presents the type of question only answerable through moral and religious perspectives. Time and again, studies have shown that the death penalty has no deterrent value and does not provide substantial cost savings over incarceration for life. Absent similar rationale, the only question left is whether the death penalty is right or wrong; whether it is better to kill or better to pardon from the ultimate punishment.

For me, I can no longer support the death penalty in any form for any reason. I believe that evil exists in the world, but trust the legal system can keep candidates for the death penalty otherwise locked away from society for life. Any other position would be contrary to the prayer I always carry with me.

Mario Nicolais is an attorney and Denver Post columnist who writes on law enforcement, the legal system and public policy. Follow him on Twitter: @MarioNicolaiEsq

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