Death Penalty Symposium: Scalia and Dulles Comment on Editorial

March 24-31, 2002

WASHINGTON - The Church's teaching on the death penalty is tough for many Catholics to accept.

In this issue of the Register, U.S. Supreme Court Justice Antonin Scalia, Cardinal Avery Dulles, Father George Rutler and University of Notre Dame Law School's Charles Rice explain why.

 This death penalty symposium began when Scalia didn't take lightly what he read in a Register editorial about himself.

In his letter to the editor, he said that the editorial "Scalia's Dissenting Opinion," which criticized remarks he made at Georgetown Universtiy about the death penalty, "is full of mistakes."

 He concludes by writing, "I protest your portrayal of me as 'supporting the death penalty.' I do no such thing. I support the proposition that it is not sinful for a Catholic to support it, and indeed to participate in its imposition."

 The editorial had taken exception to Scalia's remarks at a Georgetown Jesuit Heritage Day function, at which a student asked him about capital punishment.

 Scalia answered by suggesting that Catholics need only assent to papal teachings when a pope speaks ex cathedra (from the chair) on a matter of faith or morals, a method of papal teaching last used by Pope Pius XII in 1950 when he declared that Mary was assumed bodily into heaven at the end of her life on earth.

 "If I agreed with that encyclical I'd have to resign," he continued, explaining that he did not agree with it.

 Commented the editorial: "One can hardly fault Scalia for voicing his dissent [at the University of Chicago Divinity School], in an academic forum that was set up specifically for scholars to debate such things. But Justice Scalia must realize that the kind of public dissent he voiced at Georgetown � wasn't an example of appropriate dissent."

 The editorial also accused Scalia of using the same modus operandi as other dissenters, like the cloning scientist who said he can reject anything that isn't taught ex cathedra.

"In various ways the Register editorial gave Justice Scalia a bum rap," says University of Notre Dame Law's Charles Rice, in this issue of the Register.

 Nonetheless Rice takes exception to Scalia's arguments overall, just as Cardinal Dulles does. On Scalia's side, Father Rutler sees nothing significantly wrong with the justice's arguments.

Letter to the Editor

 by Justice Antonin Scalia

United States Supreme Court

 A friend sent me a copy of your editorial of Feb. 17-23, entitled "Scalia's Dissenting Opinion." It is full of mistakes - beginning with the remark that I should "stick to being a jurist." I am being a jurist when I ask whether the performance of my job (I participate in imposition of the death penalty) is forbidden by authentic Catholic doctrine.

 Or do you think that authentic moral imperatives announced by the Church have no real-life consequences? Perhaps so, because I cannot imagine any other explanation for your acknowledging that disagreement with Evangelium Vitae is permissible, while simultaneously criticizing me for voicing such dissent in response to a student at Georgetown who asked (quite reasonably) "How, as a Catholic judge, can you participate in the process of imposing the death penalty, which the Church says is immoral?" You say that my response - to the effect that I do not believe immorality of the death penalty to be authentic Catholic doctrine - was "an example of a powerful man persuading a crowd of people that the Church is wrong."

What was I supposed to say? "I am a judge, not a theologian"? Or perhaps "Well, the Church says that, but it really doesn't expect anyone to act upon it"? (In any case, I was of course not asserting that the Church was wrong, but that the Church in fact teaches the opposite of what recent, non-ex cathedra, pronouncements have said.)

 Perhaps you do not appreciate the moral dilemma that the new teaching has forced upon Catholic judges, prosecutors and jurors because you do not understand the new teaching. You amazingly say that it provides no more support for completely abolishing the death penalty than it does for continuing the death penalty. All Evangelium Vitae teaches, you assert, is "that the cases where the death penalty must be used are extremely rare, practically nonexistent" - as though it tells the faithful that only rarely (if ever) is the death penalty morally required.

 That is quite wrong. The encyclical says that the death penalty is only justified - only moral - "in cases of absolute necessity: In other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent."

 In other words, the death penalty is rarely, if ever, morally permissible.

 This represents a fundamental change from the (infallible) universal teaching of the past 2,000 years, because it proceeds from the premise that the only justifiable purpose of the death penalty is to "defend society" in the manner that prisons defend it - that is, to disable the offender and deter future offenders. Prior teaching, from St. Paul forward, was that retribution is a valid objective. Whereas, St. Paul says, individual Christians must "give way to wrath," the government "carries the sword" as "the minister of God to execute vengeance upon him that doeth evil." (By the way, your editorial accuses me of "selectively" quoting St. Paul. Perhaps you would like to tell your readers which portions of St. Paul contradict the morality of the death penalty. Of course there is none.)

 Your equating of my refusal to accept the new teaching regarding the death penalty with the refusal of the Catholic Massachusetts lab scientist to accept the new teaching regarding human cloning is utterly absurd. The teaching that cloning is immoral is new, but does not contradict two millennia of authoritative teaching that cloning is OK.

 With regard to the death penalty, by contrast, your editorial acknowledges that Church doctrine, "voiced by popes, saints and doctors of the Church around the world," "has consistently held that the state has the right to execute criminals." Today is different, you say, because the modern state "Denies a transcendent moral order and denies that its authority over life is delegated from God." "[H]ow," you ask, can such a state "justly apply the penalty? Would St. Thomas Aquinas look at the Supreme Court Scalia sits on and blithely hand it more power over life?"

 Well, I cannot say about Aquinas, but I do know that the "minister of God to execute vengeance" that St. Paul was referring to (the ruler at the time he wrote his letter to the Romans) was Nero - who many think was even less devout than the Supreme Court. The notion that only good Christian rulers derive authority from God is as unorthodox as the notion that the only valid objective of the death penalty is "to protect society."

 Finally, I protest your portrayal of me as "supporting the death penalty." I do no such thing. I support the proposition that it is not sinful for a Catholic to support it, and indeed to participate in its imposition. Whether it should be imposed - whether such severe retribution is desirable - is a question I do not address. It is my job to help administer whatever response the American people give to that question, and I do not accept that performing my task (in either direction) is morally wrong.

 ANTONIN SCALIA

U.S. Supreme Court

Washington, D.C.

Seven Reasons America Shouldn't Execute

 by Avery Cardinal Dulles, S.J.

National Catholic Register

March 24-31, 2002

 It is with great reluctance that I take issue with Justice Scalia, who is rightly regarded as one of the outstanding legal experts of the nation and an exemplary Catholic. I agree with what he says about the constant Catholic tradition in favor of the death penalty and the harmony of that tradition with the system of criminal justice that undergirds the United States Constitution and the Bill of Rights. But I differ with Justice Scalia in his interpretation of Pope John Paul II in Evangelium Vitae.

 In Evangelium Vitae the Pope enunciates as an absolute principle that the direct and voluntary killing of an innocent human being is always gravely immoral (No. 57). He also says that capital punishment ought not to be imposed except "when it would not be possible otherwise to defend society" (Evangelium Vitae, No. 56).

Following the Catechism of the Catholic Church (No. 2109), I interpret the defense of society as including not only physical defense against the criminal but also the vindication of the moral order. This interpretation agrees with the principle that the primary purpose of the punishment that society inflicts is "to redress the disorder caused by the offense" (Evangelium Vitae, No. 56).

If the Pope were to deny that the death penalty could be an exercise of retributive justice, he would be overthrowing the tradition of two millennia of Catholic thought, denying the teaching of several previous popes, and contradicting the teaching of Scripture (notably in Genesis 9:5-6 and Romans 13:1-4).

 I doubt whether the tradition is reversible at all, but even if it were, the reversal could hardly be accomplished by an incidental section in a long encyclical focused primarily on the defense of innocent human life. If the Pope were contradicting the tradition, one could legitimately question whether his statement outweighed the established teaching of so many past centuries.

 I believe that the Pope, without contradicting the tradition, is exercising his prudential judgment that in our time adequate punishment, including the moral and physical defense of society, can generally be accomplished by bloodless means, which are always to be preferred.

 "Prudential" has a technical theological meaning, possibly unfamiliar to Justice Scalia. It refers to the application of Catholic moral doctrine to concrete cases in which it is necessary to make a human estimate of what is appropriate. Since Christian revelation tells us nothing about the particulars of contemporary society, the pastors of the Church have to use their personal judgment as spiritual leaders.

 As a reason for severely limiting the death penalty today, the Pope mentions steady improvements in the penal system. Here in the United States one could name additional reasons. Speaking at the same conference in Chicago where Justice Scalia delivered his remarks, I proposed the following seven reasons:

 The inequitable application of the death sentence by courts and juries that are prejudiced against certain groups;

The inability of poor and uneducated clients in many cases to obtain adequate legal counsel;

The likelihood that innocent persons might be put to death, even in the absence of the two factors already mentioned;

The difficulty of judging the subjective guilt of the defendant, especially in cases where the defendant is very young, mentally retarded, or psychologically impaired.

The tendency of executions to inflame an unhealthy appetite for revenge in society. Personal vindictiveness, according to Christian standards, is immoral;

The failure of modern democratic society to perceive the judgment of the State as embodying a transcendent order of justice;

The urgency of manifesting respect for the value and dignity of human life at a time when assaults on innocent human life through abortion, euthanasia and violent crime are widely prevalent.

My sixth reason requires a word of explanation.

 As Justice Scalia in his Chicago speech recognizes, the traditional rationale for the death penalty has been undermined by modern democratic theory, which tends to depict the State as a pliant instrument of the will of the people. I still hold that the court may and should embody a transcendent moral order, but I note that the symbolic or pedagogical value of its decisions, which has been so important in the past, has been largely eroded.

 Justice Scalia seems to concede too much to the new mentality when he writes to the Register, regarding the imposition of the death penalty: "It is my job to administer whatever response the American people give to that question" (emphasis added). Does this mean that if the American people want the court to follow public opinion polls rather than a transcendent moral order, the court can no longer serve as a minister of divine justice (cf. Romans 13: 4)? I do not believe we have sunk so far.

 Justice Scalia raises the question whether a judge who accepts current papal teaching could in good conscience hear cases involving the death penalty. If the Pope (as I believe) allows for capital punishment in some rare cases, to be determined by prudential considerations, his position is not contrary to the American Constitution and the Bill of Rights, and raises no problems.

 Even a judge who believed that capital punishment should never be used in our country today, and that such was the expressed belief of the Pope, might still affirm the death penalty in certain cases on the ground that, although the law was bad, the decision was nevertheless constitutional, legally correct, and not manifestly opposed to the moral law. One can legitimately implement a law that one regards as prudentially wrong. Capital punishment, after all, is legal in the United States, and is not murder.

 Cardinal Avery Dulles is a professor at Fordham University in New York

Papal Teaching Deserves 'Submission'

by Dr. Charles Rice

 National Catholic Register

March 24-31, 2002

 In various ways the Register editorial gave Justice Scalia a bum rap. Also, contrary to the editorial, Evangelium Vitae poses no obstacle to abolition of the death penalty.

 According to Scalia, if a judge thinks the death penalty is immoral he should resign. There are other options but that issue is beyond the space available here.

Scalia said that because Evangelium Vitae "does not represent ex cathedra teaching � it need not be accepted by practicing Catholics." Many liberal Catholics advanced this tired argument to support their sit-in schism over Humanae Vitae. Canon Law and the Catechism adopt the teaching of the Second Vatican Council's document Lumen Gentium that "loyal submission of will and intellect must be given � to the authentic teaching authority of the Roman Pontiff, even when he does not speak ex cathedra."

 Cafeteria Catholicism is wrong, whether the pick-and-choose customers are liberal or conservative, judges or peasants.

 We have two questions: First, does the state have authority to impose the death penalty? John Paul affirms the traditional answer: Yes.

 Second, when may that penalty be used? John Paul has given us a development of the teaching on that point. The "primary aim" of punishment is still retribution, "redressing the disorder introduced by the offense" (Catechism of the Catholic Church, No. 2266).

 Because of the importance of the conversion of the criminal, however, retribution will not justify execution unless the new test for the use of that penalty is satisfied. It must be "the only possible way of effectively defending human lives against the unjust aggressor" (Catechism, No. 2267). If this were merely John Paul's personal opinion and not a binding teaching, he would not have put it in the Catechism.

 I agree fully with that teaching, which caused me to change my former support for a limited use of the death penalty. But even if we disagree with it, we are obliged to give it "loyal submission of will and intellect."

 A Catholic can no longer argue for the use of the death penalty on grounds of retribution, deterrence of others from committing crimes or for any other reason unless the execution is "the only possible way" of protecting others from this criminal. The decision as to whether it is "the only possible way" depends, of course, on a prudential judgment. John Paul was correct in saying that, "Today� the cases in which the execution of the offender is an absolute necessity are very rare, if not practically non-existent" (Evangelium Vitae No. 56).

 Although that factual judgment must be made as to each penal system and each case, the new test according to which that judgment must be made is a universal criterion, binding in all places and in all cases. If the death penalty in that system in not an "absolute necessity," that is, "the only possible way" to protect others from this criminal, it is immoral to impose it.

 The death penalty might still be justified in cases such as a maximum- security life inmate who murders another inmate, or in a condition of unrest where the security of imprisonment cannot be guaranteed or perhaps in cases involving violations of the laws of war by leaders of international terrorist networks. These cases are debatable.

 John Paul asserts the primacy of the person over the claim of the state to be the arbiter of the ending as well as of the beginning of life. Each person and each society has to have a pope, a visible, authoritative interpreter of the moral law. I hope Justice Scalia, whom I admire, will come to accept this teaching of the Church. And I hope he will not conclude that his agreement with that teaching will oblige him to resign from the Supreme Court.

 We need him on the court. We already have a Pope.

 Charles Rice is a professor emeritus at University of Notre Dame Law School