Opinion: A modest proposal for reforming the Church’s criminal justice system

What would real reform of the Church’s criminal justice system look like?

In one sense, it is easy to answer: The end result of it would give us a “judicial power [that] stands side by side with the legislative and executive powers,” to borrow Pope St. John Paul II’s description of the judiciary in a modern democratic state (thanks to John Allen for reminding me of it), which he gave in an address to Italy’s National Association of Magistrates in the Jubilee Year 2000, “with its own autonomous and constitutionally protected function,” which is to say it would be really independent, properly trained and funded, capable of carrying out its mission of justice.

How do you get that in a system governed by one man with absolute power?

Doubtless, it would require the pope—and other bishops, eventually—to adopt some sort of “reserve powers” doctrine, and stick to their commitments even and especially when sticking to them appears inconvenient. Even then, it’s still a tricky question because the Church—whatever else she is or may be—is a power structure.

At least, she has a power structure that is hierarchical and divinely given (if one is to believe, as I do, her claims about herself). Any discussion of reform in the Church must reckon with this ineluctable fact, must understand what her claims about herself mean, and what they do not mean.

As a practical matter, therefore, effective reform of the organs by which the Church directs and exercises her powers must not go foul of that constitution. It’s tricky, in other words, because the essence of the business is to get an independent judiciary under an absolute monarch.

That may not be impossible—not quite the political equivalent of squaring a circle—especially if one considers that the pope is not precisely an absolute monarch but a viceroy who is answerable only to the King. That formulation, by the way, hints at a way through the problem, which will in any case require careful thinking, planning, and execution.

It will also require real and really broad consultation among persons in every state of life in the Church and many areas of expertise that would perhaps appear unlikely at first blush, from lawyers and judges and—gasp—politicians, to plumbers and doctors and engineers and IT types and personnel managers, in a word: real-world practical problem-solvers, all bending their skills and experience to the task of resolving a nuts-and-bolts practical problem of governance.

Here are two major structural reforms that could soften the ground.

One is the creation of an investigative arm somewhat after the manner of a Department of Justice, in which clerics and laity specially trained in the proper conduct of criminal investigations would work as full-time professionals.

They could train local diocesan investigators and assist on an as-needed basis with material resources and human expertise, and be given primary jurisdiction over certain kinds of cases by universal law, e.g. cases involving more than one diocese or religious orders beyond the reach of local Ordinaries.

The investigative arm would be financially independent. It would have a say in its budget, which would come from funds put beyond the ordinary reach of other power and under the oversight of a competent watchdog office or commission, the membership of which would consist of professional legal and accounting experts as well as persons with broad experience in business and civil service.

The arm could work under the direction of a judge-investigator as often happens in European jurisdictions. Alternatively, it could have the direct oversight of a dedicated senior official not unlike an Attorney General or Minister of Justice, call him “Prefect” or “Special Vicar” or what you will. It would publish the results of its investigations as a matter of course.

A daring metropolitan archbishop could probably begin to build such an arm for his province without waiting for Rome to do anything of the sort. National and regional bishops’ conferences could put aside resources—real resources—for the building of such and similar outfits. The lay faithful could—and should—insist on an active and responsible role in the work of these offices, as well as provide auxiliary services in areas ranging from forensic science to financial and professional oversight.

The second structural reform is the creation of a real canonical criminal court system. Trials and other proceedings would be meaningfully public. Acts would be published. All this to end the prevailing Star Chamber culture and assure keeping with the maxim: “Justice must be seen to be done.”

Most importantly, judges would hold their commissions during good behavior. They could accept appointments to other courts within the system, but could not be removed without consent, unless by impeachment and public trial.

Like the investigative arm, the judges and their staffs would be compensated and have a budget drawn from funds beyond the ordinary reach of the pope (or local bishop or metropolitan or conference). They would act in the name of the pope—or the bishop or archbishop—but would not answer to the executive except for official misbehavior.

All this necessarily entails great expense of money, as well as time and human resources. There will be false starts and missteps, some of them costly. Mistakes will be made. Nevertheless, the status quo is untenable. Half-measures have been making things worse for some time. Perhaps it must get worse before it gets better.

Along with the law of unintended consequences, however, there are two other exceptionless rules to governance. One says that personnel is policy. The other is that money talks.