Willliam F. Buckley, Opinion, National Review

USA: Can Catholics Decree Death?
 Justice Antonin Scalia has let the cat loose.

Justice Antonin Scalia has let the cat loose among the pigeons in the matter of Catholic doctrine and capital punishment. What he said was simply this: If a judge concludes that he can't ordain capital punishment, or concur in its ordainment, then he should resign his position as judge. Why? Because he cannot act according to his oath of office, which is to execute the laws as written by American legislators. In 37 states, the death penalty is authorized. Sentencing judges, or judges on duty on appeal panels, can be a) Catholic; b) personally opposed to capital punishment; yet c) bound by oath to apply the law. If the strain on the conscience is unbearable, opines Justice Scalia, let them resign.

 Now in the way he proceeded to make his point, at the forum at Georgetown where he spoke, Scalia engaged in provocative theological thoughts. He didn't just talk about Catholic judges staying in or getting out. He went on with an impish aside, which I guess the lawyers would call obiter dictum, to say that (after all) the Church had authorized capital punishment for two thousand years.... The meaning of it was plain: that the Church could not easily capitalize the death penalty as sinful after two millennia of tolerating it.

 The immediate objection to the point being made is that other things were tolerated for centuries, which no longer are, for instance, the institution of slavery. Opponents of capital punishment can argue that ethical refinements of judgment disallow today what might have been routine yesterday, for instance, public flogging. In the context of the sophistication of Justice Scalia's thinking in most matters, one resists dismissing him that easily. It is not predictable that the secular line of humane thought will continue to move in the direction of outlawing capital punishment. It is not inconceivable that 25 years hence, in a world crowded with progressively intimate human relations and advanced technology, by which human beings can handily murder other human beings, the view of condign punishment will move in the direction of severity. Even a Scandinavian jury might be inclined to vote death for Osama bin Laden.

 But Justice Scalia is currently involved in another point touching on capital punishment, which is procedural and in active judicial contention these days. It is the question of the allocation of responsibility as between juries and judges.

 We all know that juries are supposed to rule on questions of fact, judges on questions of law. But is it easy to compartmentalize these responsibilities? For instance, a judge, having heard the jury rule that the defendant was guilty, can weigh, under existing practice, such questions as the bearing of past criminal behavior by the defendant. Judges in several states not only have the responsibility of weighing the applicability of capital punishment, they are required to do so � by opining that the behavior of the defendant, or the nature of his engagement in the crime, was especially heinous. Is that a decision that should be reserved for juries to make? Should juries be relied upon to weigh the relevance of a defendant's past crimes?

 In the year 2000, the Supreme Court held in a 5-4 ruling that juries, not judges, must rule on all the facts that increase defendants' statutory maximum sentences. And lo!, Justice Scalia voted here with the majority.

 If the arithmetic of Professor Stephanos Bibas, writing in the Legal Times, is correct, some 800 people now on death row could be retroactively sprung upon a successful pleading based on Apprendi v. New Jersey. The situation there was a man pleading guilty to a firearm violation and possession of a bomb in his house, which under the law called for a maximum sentence of 10 years. But the judge ruled that Charles Apprendi had been motivated by racial bias, and therefore "enhanced," to use the language of the law, the sentence by 2 years.

 What Scalia is engaged in, it has been said, is increasing the burden and the responsibility of jurors, at the expense of judges. This is a conservative position based on jury sovereignty. Whether if decisions on capital punishment were to depend entirely on juries rather than only in part, there would be more or fewer executions, we don't know.

 We have not heard from Justice Scalia whether, in voir dire, jurors who are Catholics should be asked if their faith would affect their reasoning on whether a defendant should be executed. Or how exactly that question, put to a Catholic juror, should be formulated.