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Deutscher, “Punishment and Penance: Two Phases in the History of the Bishop’s Tribunal of Novara”

This December, University of Toronto Press, Scholarly Publishing Division will publish Punishment and Penance: Two Phases in the History of the Bishop’s Tribunal of Novara by Thomas B. Deutscher (St Thomas More College, University of Saskatchewan). The publisher’s description follows.

Punishment and Penance provides the first comprehensive study of an Italian bishop’s tribunal in criminal matters, such as violence, forbidden sexual activity, and offenses against the faith. Through numerous case studies, Thomas B. Deutscher investigates the scope and effectiveness of the early modern ecclesiastical legal system.

Deutscher examines the records of the bishop’s tribunal of the northern Italian diocese of Novara during two distinct periods: the ambitious decades following the Council of Trent (1563–1615), and the half-century leading up to the French invasions of 1790s. As the state’s power continued to rise during this second time span, the Church was often humbled and the tribunal’s activity was much reduced.

Enriched by stories drawn from the files, which often allowed the accused to speak in their own voices, Punishment and Penance provides a window into the workings of a tribunal in this period.

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Jury Nullifies Charges Against Rastafarian Accused of Growing Marijuana

Last week, a New Hampshire jury nullified criminal charges brought against a 59 year-old Rastafarian accused of growing 15 marijuana plants near his home.  The defendant, Doug Darrell, claimed that the marijuana was used as part of his religious practices. The defense attorney sought a jury nullification instruction and it was granted by Belknap County Superior Court Judge James O’Neill. According to one report, the judge gave the following instruction: “Even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.” The marijuana plants were spotted by a National Guard helicopter as part of a coordinated operation with NH State Police.

This case raises questions as to whether jury nullification is a viable way to protect the rights of religious minorities from criminal prosecution. Read one way, this case may suggest that jury nullification is a tool for local communities to protect the rights of such minorities from the unintended consequences of a generally applicable law. Rastafarianism is by no means a popular religion in the US (I daresay this is especially true in the Granite State), and I doubt that NH legislators had the religion in mind when they passed the law prohibiting marijuana possession. Yet a group of twelve citizens decided not to apply the neutral, generally applicable law (see Employment Division v. Smith) because it substantially burdened one adherent’s beliefs.

Read another way, jury nullification only worked here because of a number of other factors, unrelated to Mr. Darrell’s religion. In fact, one juror stated that Mr. Darrell’s religion had nothing to do with the jury’s decision. One cannot ignore, for example, the fact that this case involved a criminal act many people are familiar with and do not consider wrongful (i.e. growing marijuana for personal use). I wonder if the jury would have nullified had Mr. Darrell been a member of the Santeria religion charged with animal cruelty (see Church of Lukumi Babalu Aye v. City of Hialeah). Another aspect is the personal story involved. Mr. Darrell is a 59 year-old, mild-mannered man who has been married for 38 years and has 4 grown children, who are “successful in their fields.” Again, I wonder if the jury would have nullified had Mr. Darrell been a loud, unrepenting agitator, arrested while picketing military funerals (See Snyder v. Phelps).

Jury nullification, therefore, seems like one way to protect religious minorities from prosecution. However, whether a jury will actually do so depends much less on the lofty ideals of respect for religious freedom or diversity and more on the mundane issues of familiarity and likeability.

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Ax Murderers, Values, and International Law

At a NATO conference in Hungary in 2004, an Azeri officer, Ramil Safarov, murdered one of the other participants, an Armenian officer named Gurgen Margaryan. Actually, that doesn’t quite capture it. Safarov broke into Margaryan’s room, stabbed him while he was sleeping, then severed his neck with an ax. Safarov confessed to the crime; Hungary convicted him of murder and sentenced him to life imprisonment. Two weeks ago, Hungary extradited Safarov to Azerbaijan, which promptly pardoned him, promoted him, restored his back pay for his years in the Hungarian prison, and generally gave him a hero’s welcome.

The extradition and pardon have caused a storm of protest — from Armenia, of course, but also from the UN, NATO, the US, Russia, and several church bodies within and outside Hungary. Hungary’s  Lutheran and Reformed Churches wrote to condemn “the unacceptable amnesty” given Safarov. The Hungarian Catholic Bishops Conference was more circumspect, writing only to express solidarity with Armenians and condemn ethnic violence, but the point was clear. The World Council of Churches, and the National Council of Churches in the US, also condemned the actions of Hungary and Azerbaijan. On Friday, the UN’s High Commissioner for Human Rights, through a spokesman, strongly criticized the pardon, stating that “ethnically motivated hate crimes of this gravity should be deplored and properly punished.”

How can one begin to make sense of this incredible episode? It’s important to focus on three things. First, Armenia and Azerbaijan have been locked for twenty years in one of the Caucasus’s “frozen conflicts,” a dispute over the region of Nagorno-Karabagh. Indeed, Azerbaijan alleges that Safarov was incited by Margaryan’s insults to the Azeri flag — at his trial, Safarov did not mention any such insults, and of course they could not have justified this brutal murder even if they had occurred — and by injuries Safarov’s family suffered in Read more

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Girl in Pakistani Quran Case Ruled a Minor

The lawyer representing a Pakistani girl charged with blasphemy for allegedly desecrating  a Quran announced today that a medical review board has determined the girl is a minor. According to the Guardian, this determination may defuse the case. The accusations against the girl, discussed here, have ignited her neighborhood and caused 900 Christians to flee for fear of reprisals. The Guardian explains:

The case has once again put the spotlight on Pakistan’s blasphemy laws, which critics say can be used to settle vendettas or seek retribution. Many of Pakistan’s minorities, including Christians, live in fear of being accused of blasphemy.

Once someone is labelled a blasphemer, even if they are never convicted, they can face vigilante justice. In July, thousands of people dragged a Pakistani man accused of desecrating the Qur’an from a police station, beating him to death and setting his body alight.

The potential public backlash also means few people have spoken out to change or repeal the law. Last year two prominent politicians who criticised the blasphemy law were murdered, one by his own bodyguard, who then attracted adoring mobs.

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Update: Pussy Riot Gets Two Years

An update on a story we’ve been following. A Russian court today convicted  three members of Pussy Riot, a punk band that stormed the altar of Moscow’s Christ the Saviour Cathedral last winter to perform a “punk prayer” to protest Prime Minister Vladimir Putin, of criminal hooliganism and sentenced them to two years in prison. By Western standards, it’s a harsh and disproportionate sentence. By way of comparison, when members of a group called ACT-UP disrupted a Mass at New York’s St. Patrick’s Cathedral in 1989, they received only misdemeanor convictions and no jail time. Similarly, in June, a New York court convicted Occupy Wall Street protesters of trespassing on property owned by Trinity Church; again, only misdemeanor convictions and no jail time.

But Russia is different. Before we get all sanctimonious about how much better we are in the West, though, it’s worth reflecting on a couple of things. First, as I’ve written before, the Cathedral of Christ the Saviour has a sad history. The Communists dynamited the first version of the cathedral as part of an anti-Christian campaign in the 1930s, and Christians remain very sensitive about it. Notwithstanding the politicization and corruption in the Russian Orthodox Read more

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Vallerani, “Medieval Public Justice”

Harold Berman famously argued that Western legal culture originated in the papal reforms of the High Middle Ages, which unleashed a torrent of law making throughout society. Catholic University Press has just released an English-language translation of University of Turin historian Massimo Vallerani’s work on the evolution of criminal trials in medieval Italy, Medieval Public Justice (2012), which includes statistical analyses of surviving court records. The publisher’s description follows.

In a series of essays based on surviving documents of actual court practices from Perugia and Bologna, as well as laws, statutes, and theoretical works from the 12th and 13th centuries, Massimo Vallerani offers important historical insights into the establishment of a trial-based public justice system. Challenging the long-standing evolutionary paradigm of medieval Read more

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Catholic Priest Receives 3-6 Years For Child Endangerment

A Pennsylvania judge today sentenced Monsignor William Lynn, a former official of the Catholic Archdiocese of Philadelphia, to a term of three to six years for the crime of felony child endangerment. A jury convicted Lynn last month in connection with his oversight of now-defrocked priest Edward Avery, who is serving a prison term for the sexual assault of an altar boy in 1999. Rather than reveal what he knew about allegations against the priest, the sentencing judge said, Lynn had chosen to obey his bishop and remain silent. Lynn is the first American priest to be convicted in connection with the covering up of sex abuse in the Catholic Church. His lawyers plan an appeal. The AP has the story here.

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Resnicoff on Extraordinary Sources of Jewish Law

Steven H. Resnicoff (DePaul U. College of Law) has posted Extraordinary Sources of Jewish Law: the Example of Capital Punishment. The abstract follows.

Most Jewish law scholarship, especially that which is published in English, focuses on only one of Jewish law’s criminal law enforcement systems, namely, the operation of the rabbinic court system pursuant to the rules set forth in the Pentateuch, as interpreted in the Babylonian Talmud. In fact, this literature usually fails even to acknowledge the existence of the two other law enforcement systems: (1) enforcement by rabbinic courts functioning under their “extraordinary powers”; and (2) and enforcement by a Jewish king. These two systems vary enormously as to the procedural protections they provide and as to their practical consequences. Failing to examine them causes one to very seriously misunderstand how Jewish law functioned throughout history and paints a rather “Pollyanna-like” portrait of Jewish law.

This submission constitutes Chapter 8 of my book, “Understanding Jewish Law,” published by LexisNexis in June 2012. It explains the dramatic differences among these three criminal law enforcement systems and documents the pragmatic steps taken by rabbinic authorities responsible for providing a safe and stable social environment.

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Van Kempen on Freedom of Religion and Criminal Law

Piet Hein Van Kempen (Radboud University Nijmegen) has posted a new piece on SSRN, Freedom of Religion and Criminal Law: A Legal Appraisal–From the Principle of Separation of Church and State to the Principle of Pluralist Democracy?. The abstract follows.

This paper discusses how criminal law and religion should or should not be involved with each other from the point of view of the right to freedom of religion. With that in mind the paper addresses several interrelated questions. What does the principle of separation of church and state require, what interests does it serve, and does it allow for criminal law measures that are explicitly concerned with matters of religion or belief? What does the human right to freedom of religion in general imply about the relation between state and religion? To what extend does the right to freedom of religion oppose, allow or require criminal law measures that deal explicitly with religion or belief? Issues discussed here are e.g. blasphemy, apostasy, an proselytism. And finally: is the principle of pluralist democracy better suited to regulating the relation between the state and religion when it comes to criminal law than the separation principle? As regards the analyses of international human rights law, the emphasis of this contribution is the International Covenant on Civil and Political Rights (ICCPR, 1966) and the European Convention on Human Rights (ECHR, 1950). The 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (the 1981 UN Declaration), the American Convention on Human Rights (ACHR, 1969), and the African Charter on Human and People’s Rights (AfChHPR, 1981) will be considered insofar as these instruments or the jurisprudence based thereon provide relevant direction on the issues under discussion.

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Müller, “The Criminalization of Abortion in the West”

Fordham historian Wolfgang P. Müller has written a new book on the origins of criminal punishment for abortion in western law, The Criminalization of Abortion in the West (Cornell 2012). The publisher’s description follows.

Anyone who wants to understand how abortion has been treated historically in the western legal tradition must first come to terms with two quite different but interrelated historical trajectories. On one hand, there is the ancient Judeo-Christian condemnation of prenatal homicide as a wrong warranting retribution; on the other, there is the juristic definition of “crime” in the modern sense of the word, which distinguished the term sharply from “sin” and “tort” and was tied to the rise of Western jurisprudence. To find the act of abortion first identified as a crime in the West, one has to go back to the twelfth century, to the schools of ecclesiastical and Roman law in medieval Europe.

In this book, Wolfgang P. Müller tells the story of how abortion came to be criminalized in the West. As he shows, criminalization as a distinct phenomenon and abortion as a self-standing criminal category developed in tandem with each other, first being formulated coherently in the twelfth century at schools of law and theology in Bologna and Paris. Over the ensuing centuries, medieval prosecutors struggled to widen the range of criminal cases involving women accused of ending their unwanted pregnancies. In the process, punishment for abortion went from the realm of carefully crafted rhetoric by ecclesiastical authorities to eventual implementation in practice by clerical and lay judges across Latin Christendom. Informed by legal history, moral theology, literature, and the history of medicine, Müller’s book is written with the concerns of modern readers in mind, thus bridging the gap that might otherwise divide modern and medieval sensibilities.