Jan-29-2002

Catholic Supreme Court justice rejects church view on death penalty

By Michelle Martin

CHICAGO - A U.S. Supreme Court justice who is Catholic expressed disagreement Jan. 25 with the church's view that the death penalty should be imposed less often.

Supreme Court Justice Antonin Scalia was part of a panel of government officials who spoke at the end of a daylong conference on "A Call for Reckoning: Religion and the Death Penalty." It was organized by the Pew Forum on Religion and Public Life at the University of Chicago Divinity School.

 Scalia spoke with the caveat that his personal and religious views do not affect his job on the court. His job, he said, is to apply the Constitution as it was written more than 200 years ago -- at a time when capital punishment was a given.

 "This doctrine is not one the Christian church has consistently maintained," he said, noting that Thomas More, the patron saint of lawyers and politicians, was considered to have imposed the death penalty too quickly, even by 16th-century standards.

 Since the pope's teaching on capital punishment in "Evangelium Vitae" did not come "ex cathedra," Scalia said, he is not obligated as a Catholic to believe it, only to give it serious consideration.

 "I have given it careful and thoughtful consideration and rejected it," Scalia said. "I do not find the death penalty immoral. I am happy to reach that conclusion, because I like my job, and I would rather not resign."

 Oklahoma Gov. Frank Keating, also a Catholic, agreed that the death penalty as used in the United States is not immoral. What's more, he said, given that the ratio of executions to murders in the United States is less than half of 1 percent, this country meets the pope's standard for the death penalty to be "extremely rare."

 Keating, a former FBI agent and federal prosecutor, said he knew of no cases where an innocent person had been executed. To try to avoid that, he said, Oklahoma now does DNA testing in all capital cases where DNA evidence is available.

 In Illinois, 12 people have been executed since the death penalty was reinstated in 1977 and 13 death-row prisoners have been cleared and released. If he had been confronted with such evidence of problems in death penalty cases, Keating said, he would have done what Illinois Gov. George Ryan did: call a moratorium and try to get to the bottom of it.

 In support of the death penalty, Keating raised the example of Roger Dale Stafford, the first man executed in Oklahoma after Keating took office. Stafford killed a family of three, including an 8-year-old boy, during a highway robbery and then killed five teen-agers during a restaurant robbery.

 Timothy McVeigh, the Oklahoma City bomber, killed 168 people, 19 of them children. For them, what other penalty would be just, Keating asked. "I don't lose any sleep at night," he said.

 Former U.S. Sen. Paul Simon of Illinois, co-chairman of Ryan's committee investigating the death penalty, argued that human fallibility should make all Americans lose sleep over capital punishment.

 "The basic question is not is it moral or unconstitutional," Simon said. "The basic question is, is it wise?"

 Cases like that of McVeigh, a white man for whom an excellent defense was provided and whose guilt cannot be doubted, are so rare that they cannot be used as examples, Simon said.

 Beth Wilkinson, the lead prosecutor in the McVeigh case, argued that, on the contrary, McVeigh is the example to use when discussing the legitimacy of the death penalty because in his case, the system worked and there were no extraneous issues.

 Wilkinson described herself as a "struggling supporter" of capital punishment because of her Methodist upbringing and questions about the fairness of the death penalty's application. After prosecuting McVeigh, Wilkinson worked on the Constitution Project's committee that recommended capital punishment reforms.

Wilkinson said she did not know how she would feel arguing for McVeigh's death, but when the time came, she had no hesitation.

 "I looked him in the eye, and I told the jury to call him a coward and (say) that he deserved to die," she said.

Scalia Questions Church's Position

February 4, 2002

WASHINGTON  -- Supreme Court Justice Antonin Scalia on Monday criticized his church's position against the death penalty, saying that Catholic judges who believe capital punishment is wrong should resign.

The devout Roman Catholic said after giving it ``serious thought'' he could not agree with the church's stand on the issue.

Scalia questioned the church's opposition to the death penalty late last month at a conference on the subject in Chicago. He was asked about it again Monday at Georgetown University, a Catholic school.

The Vatican under Pope John Paul II has been strongly anti-death penalty, and the pope has personally appealed to leaders to commute death sentences. In 1999, he said capital punishment, abortion, euthanasia and assisted suicide are part of a ``culture of death.''

Scalia told Georgetown students that the church has a much longer history of endorsing capital punishment.

``No authority that I know of denies the 2,000-year-old tradition of the church approving capital punishment,'' he said. ``I don't see why there's been a change.''

Scalia, a father of nine, including one priest, attended Georgetown as an undergraduate and later taught there as a visiting professor. He talked about the cultural move away from faith before answering questions from students.

In Chicago on Jan. 25, Scalia said, ``In my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.'' His remarks were transcribed by the event sponsor, the Pew Forum.

Scalia said Monday that ``any Catholic jurist (with such concerns) ... would have to resign.''

``You couldn't function as a judge,'' he said.

Some in the crowd applauded when a female student asked Scalia to reconcile his religious beliefs with his capital punishment votes on the court. Scalia, 65, is one of the court's most conservative members and has consistently upheld capital cases.

Freshman Sean Kiernan said later that he was disappointed that Scalia talked about the importance of his religion, then took a stand contradicting the church. ``I don't think it's correct,'' he said.

``He's got a lot of courage and conviction,'' said Stephen Feiler, the student who organized the event to celebrate Jesuit heritage.