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Dear Justice Scalia: An Open Letter on Catholic Social Teaching About the Death Penalty from a Catholic Law Professor to a Catholic Supreme Court Justice
IN THIS ISSUE
Loyola University New Orleans Poverty Law Professor Bill Quigley addresses an open letter responding to U.S. Supreme Court Justice Antonin Scalia's criticism of current Catholic Social Teaching on the death penalty.
Dear Justice Scalia:
I am writing you to respond to your criticisms of Catholic social teaching on the death penalty. You are a Catholic Supreme Court Justice who has been involved in hundreds of death penalty cases. I am a Catholic law professor at Loyola University in New Orleans. I have been counsel in several death penalty cases - including one that ended when I witnessed my client being electrocuted. I think your comments provide an opportunity to discuss and clarify Catholic social teaching on the morality of executing people, thus this open letter to you.
Your Criticisms of the Anti-Death Penalty Position of Catholic Social Teaching
Twice last year you rejected the anti-death penalty stance of Catholic social teaching. I would like to discuss your comments at the January, 2002, Pew Forum on religion and the death penalty at the University of Chicago.While on a panel there, you made the following statements (which others can read at much more length at the Pew Forum website, www.pewforum.org).
"When I sit on a court that reviews and affirms capital convictions, I am part of "the machinery of death." My vote, when joined with at least four others, is in most cases the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral..."
"It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable, and I want to say a few words about why I believe it is."
"Few doubted the morality of the death penalty in the age that believed in the divine right of kings, or even in earlier times, St. Paul had this to say. "But if thou do that which is evil, be afraid, for he beareth not the sword in vain, for he is the minister of God, a revenger to execute wrath upon him that doth evil. Wherefore, ye must needs be subject not only for wrath, but also for conscience sake." [Romans 8:4-6] This is not the Old Testament, I emphasize, but St. Paul. ...The core of his message is that government, however you want to limit that concept, derives its moral authority from God. It is the minister of God with powers to revenge, to execute wrath, including even wrath by the sword, which is unmistakably a reference to the death penalty."
"...I do not agree with Evangelium Vitae and the new Catholic catechism _ or the very latest version of the new Catholic catechism _ that the death penalty can only be imposed to protect rather than avenge, and that since it is, in most modern societies, not necessary for the former purpose, it is wrong.
"It seems to me that the encyclical either ignores or rejects the longstanding church teaching that retribution is a valid purpose; indeed, the principal purpose of government punishment.
"Unlike such other hard Catholic doctrines as the prohibition of birth control and of abortion, this doctrine...is not a moral position that Christianity has always maintained. There have been Christian opponents of the death penalty just as there have been Christian pacifists, but neither of those positions has even been predominant in the church.
"So I am happy to learn from [Jesuit Fr. Avery] Dulles _ and I have had the same advice from other canonical experts _ that the statement contained in Evangelium Vitae _ does not represent ex cathedra teaching; that is, it need not be accepted by practicing Catholics, although they must give it thoughtful and respectful consideration. Indeed, it would be remarkable to think that it was an ex cathedra pronouncement, that a couple of paragraphs contained in an encyclical principally devoted not to capital punishment, but to abortion and euthanasia, were intended authoritatively to sweep aside two millennia of Christian teaching. And as for the very latest edition of the new Catholic catechism, I assume that is just the phenomenon of the clerical bureaucracy saying, "Yes, boss."
"In any case, I have given this new position _ if it is indeed that _ thoughtful and respectful consideration, and have rejected it.
"That is not to say that I favor the death penalty. I am judicially and judiciously neutral on that point. It is only to say that I do not find the death penalty immoral."
Justice Scalia, I admire your frankness, if not your conclusions. I will try to be just as direct. First I will then sketch out a few facts about the death penalty in the USA. Then I will highlight Catholic social teaching on the death penalty. I conclude with some comments about your observations and share some suggestions for further study.
Some Facts About the Death Penalty in the United States
As you know better than most, Justice Scalia, the death penalty is alive and well in the US. Yet, your remarks never really addressed the facts about the way the death penalty is administered in the US.
According to the Death Penalty Information Center (a great source of information which you can find at www.dipc.org):
The USA has executed over 750 people since 1976.
There are over 3700 people now on death rows in the USA. In 1968 there were 517.
Over 100 people wrongfully convicted of murder and sentenced to death have been released from prison. Together they served nearly 1000 years of prison time before being released.
Though African Americans make up 50% of murder victims, 80% of those on death row had white victims.
The latest worldwide annual figures placed the USA 3rd in the world in executions, after China and the Congo, and ahead of Iran and Egypt.
110 countries have abolished the death penalty, 85 retain it. The 43-member Council of Europe has obtained a total ban or moratorium on executions in its member states. Abolishing the death penalty is also a requirement for membership in the 15-member European Union. Countries which have recently done away with the death penalty include: Chile, Poland, Ireland, Yugoslavia, and Serbia.
Since 1990, juvenile offenders are known to have been executed in only six countries: Iran, Pakistan, Yemen, Nigeria, Saudi Arabia, and the United States.
Until this year, the US was the only democracy which permitted the execution of the mentally retarded.
Catholic Social Teaching on the Death Penalty
Justice Scalia, you and I are in absolute agreement on one point: Catholic social teaching clearly and strongly opposes executions in the US.
As you noted, Pope Paul II, in his 1995 statement, Evangelium Vitae, or Gospel of Life, pointed out that as a result of steady improvements in the organization of the penal system, "cases in which the execution of the offender would be absolutely necessary "are very rare, if not practically non-existent." (Paragraph 56).
The 1997 Catechism of the Catholic Church states that although the death penalty would be theoretically permissible in instances when it is "the only possible way of effectively defending human lives against the unjust aggressor," such instances are "practically nonexistent" in today's world, given the resources available to governments for restraining criminals.
Most recently, at his Sept. 13, 2000 general audience in St. Peter's Square, the Holy Father expressed his hope:
"that there no longer be recourse to capital punishment, given that states today have the means to efficaciously control crime, without definitively taking away an offender's possibility to redeem himself."
The US Catholic Bishops have also been very clear about their opposition to executions. In their 1980 "Statement on Capital Punishment," the bishops stated that,
"in the conditions of contemporary American society, the legitimate purposes of punishment do not justify the imposition of the death penalty."
Abolition of capital punishment, the bishops said, would do the following:
It would reaffirm the unique worth and dignity of each person from the moment of conception, as a creature made in the image and likeness of God.
It would underscore the conviction that God is the Lord of life, and would remove any ambiguity as to the Church's affirmation of the sanctity of human life in all its stages, including the unborn, the aged and the infirm.
It would be in accordance with the example of Jesus, who both taught and practiced forgiveness.
It would emphasize that the best means for promoting a just society are intelligence and compassion, not power and vengeance.
In their Nov. 2000 statement entitled "Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice," the U.S. bishops wrote:"It is time to abandon the death penalty -- not just because of what it does to those who are executed, but because of how it diminishes all of us"
Direct Response to Your Comments
Justice Scalia, you have convinced yourself that the Pope, the US Bishops, and Catholic social teaching are all mistaken that executing people is immoral. As you said, you have given Catholic social teaching... "thoughtful and respectful consideration, and have rejected it." You have decided that execution is morally acceptable.
I congratulate you on at least considering Catholic social teaching. While I think you came to the wrong conclusion, I also congratulate you on speaking out so forthrightly about it. Your comments have sparked much healthy discussion about Catholic social teaching and the death penalty.
I think all of us can easily see how difficult it must be for you to consider that executions are immoral. For years, you have been a reliable vote against death row inmates' request for stays of execution in order to challenge the fairness of their trial. You have been a consistent supporter of the rights of states to execute people. You support executions of people who committed their crimes when they were juveniles. Indeed, your record indicates you find nothing wrong with states executing the mentally retarded. You have said openly that it is possible that an innocent person has been or will be executed. I could go on, but I think our readers will understand the depth of your support for executions. (I would love to have you show me that I am mistaken on any of these observations by decisions you render after I send this letter!)
Apart from your personal interpretation of the bible quote from Paul to the Romans, which I will touch on briefly at the end of this letter, it seems that your continued support for executing people rests primarily on the historical approval of the church and its leaders for capital punishment.
Of course, you are correct that the Catholic church used to find it was OK to execute people. In fact, during some times, our Church was exuberantly in favor of executions, even carrying some out ourselves in the name of God. For that, most of us are now rightfully ashamed.
And why should the position of the Church not be allowed to improve with time? Your philosophy as a Justice is that the constitution should never be interpreted in ways other than it was originally intended. You advocate that evolving understandings of politics and law and justice are not appropriate subjects for the courts, but only for the legislatures. What prevents the Pope and Bishops and the people of the Church from changing and clarifying their positions? You agree that the Church, supported by the bible, was wrong in the past and right now about slavery. For what reasons, moral or legal, should Catholic social teaching stop its evolution towards a better understanding of justice with slavery?
You also argue that it is perfectly morally acceptable for the government to execute people for purposes of "retribution." I looked up the definition of retribution in Black's Law Dictionary, the same one you use, and found, in its entirety, the following:
"RETRIBUTION. This word is sometimes used in law, though not commonly in modern times, as the equivalent of 'recompense,' or a payment or compensation for services, property, use of an estate, or other value received."
I know you are untroubled that retribution is not commonly used in law in modern times, but how exactly is executing a murderer acceptable retribution? Might you have actually meant revenge, as you said earlier, or, in reality, vengeance? Why is not the position of the bishops more accurate? "The best means for promoting a just society are intelligence and compassion, not power and vengeance."
While your views about executing people still represent a majority on the US Supreme Court, there is evidence that the country as a whole is losing some of its enthusiasm for the death penalty. Harris polls show that 75% of those polled supported the death penalty in 1997, a rate that fell to 67% in 2001.
As the reactions to your comments show, we Catholics are split on this issue. An October 2001 survey of 1,508 Catholics showed they were nearly evenly divided as to whether "capital punishment is wrong under virtually all circumstances." Forty-nine percent of the respondents said they agreed with that statement, while 48% disagreed.
Others on the Supreme Court have not been so enthusiastic about the death penalty. Justice O'Connor, who frequently votes with you to allow executions to proceed, has expressed reservations, saying last year that "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." Justice Ruth Bader Ginsburg, a frequent opponent of yours, said that in all the eleventh-hour requests for Supreme Court reprieves, she had not seen one in which the inmate had been well-represented at trial. Justice Stephen G. Breyer also commented recently on the death penalty, telling Radio France International that "there is much more discussion [about capital punishment] now in the U.S. than there was five years ago. I also think that DNA will perhaps make a difference, because if we find that someone is really innocent, if we could prove this with DNA, maybe that would make a difference."
Other Catholics involved in the execution of people have arrived at different conclusions than you. For example, former Mississippi Death Row Warden Don Cabana was unable to reconcile his Catholic faith with his role as executioner, resigned his post, and began working to abolish the death penalty. (You can find out how to get a copy of a one hour video with Mr. Cabana from Catholics Against Capital Punishment, www.cacp.org.)
You might also check out your own Archdiocese of Washington, D.C., which includes the District and several counties in Maryland, because they have successfully urged church members to petition Maryland Gov. Parris Glendening to enact a moratorium on the death penalty.
Or you might try the toughest challenge of all. One of my students recently told me that he was a supporter of the death penalty until he tried to explain it to his 7 year old. He couldn't do it. His child just didn't understand the fairness of it. Then the father changed his mind. I would love to be there when you try explaining to your grandchildren why we kill people to show that killing is wrong. And some of us think the Supreme Court is a tough audience!
I almost forgot something. As part of your argument, you very briefly discussed a section of Paul (Romans 13: 4-5) that you contend confers biblical moral authority on a government for capital punishment. But you touched on Paul only lightly. Was it because one of your research clerks pointed out that earlier in the same letter to the Romans, Paul made an eerie comment about judges who approve of killing in order to show killing is wrong? Paul said:
"For by the standard which you judge another you condemn yourself, since you, the judge, do the very same things." (Romans 2:1).
Your whole judicial philosophy is based on being a careful text reader. Why are you silent about the other quote in Paul's letter? Certainly you would not allow such an inherently contradictory argument to be made to the Supreme Court.
There is obviously a lot more we could discuss. There are many, many good sources for information about these issues for you and others interested in continuing to study and discuss them.
I suggest starting with Catholics Against Capital Punishment, which you can access at www.cacp.org. Many of the statements that comprise Catholic social teaching can be found on the website of the U.S. Conference of Catholic Bishops, www.nccbuscc.org. The best single source for comprehensive information about the death penalty is the Death Penalty Information Center, which you can find at www.deathpenaltyinfo.org.
Information about the growing support for a moratorium on the death penalty can be found at the site of the Moratorium Action Campaign, www.moratorium.org. You could even sign the petition in favor of a moratorium and join the growing movement and change your mind about the death penalty. Well, we can always hope!
Thanks for the opportunity to discuss this. Best of luck to you in your job.
Bill Quigley, Loyola University New Orleans School of Law.
ABOUT THE AUTHOR
Bill Quigley is Janet MaryRiley Distinguished Professor of Law and Director of the Loyola Law Clinic & the Gillis Long Poverty Law Center.AB., 1971, Purdue University; J.D., 1977, Loyola University New Orleans. Director of the Law Clinic and the Gillis Long Poverty Law Center at Loyola University New Orleans. Bill has been an active public interest lawyer for over 25 years. Bill has served as counsel with a wide range of public interest organizations on issues including public housing, voting rights, death penalty, living wage, civil liberties, educational reform, constitutional rights and civil disobedience. Bill has litigated numerous cases with the NAACP Legal Defense and Educational Fund, Inc and with the ACLU of Louisiana, for which he served as the General Counsel for over 15 years. Bill teaches in the clinic and teaches courses in poverty law and Catholic social teaching and law. His research and writing has focused on minimum wage, the right to a job, legal services, community organizing as part of effective lawyering, civil disobedience, high stakes testing, and a continuing history of how the laws have regulated the poor since colonial times. He has served as an advisor on human and civil rights to Human Rights Watch, the Open Society Institute, the Rockefeller Foundation, and served as the Chair of the Louisiana Advisory Committee to the US Commission on Civil Rights. Bill is the author of Ending Poverty As We Know It: Guaranteeing A Right to A Job At A Living Wage (Temple University Press, 2003). Bill was named the Pope Paul VI national teacher of Peace by Pax Christi in 2003.