Newsday

USA: Controversy On Death Penalty--Can judges decide to never impose it?

Judges and Capital Punishment

U.S. Supreme Court Justice Antonin Scalia says that Catholic judges who follow their church's teaching that capital punishment is wrong should resign. Do you agree or disagree?

 I agree. If their religious beliefs are affecting their professional decisions, they can't function as a judge.

 I disagree. A judge need not leave his or her personal convictions at the courthouse door.

 Reacting to recent comments made by U.S. Supreme Court Justice Antonin Scalia, local judges said yesterday that moral opposition to the death penalty does not take precedence over a judge's first obligation to uphold the law.

 Scalia kicked off a national controversy when he commented on Jan. 25 at a Chicago seminar: "In my view, the choice for a judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.

 "He has, after all, taken an oath to apply those laws, and has been given no power to supplant them with his own rules." Scalia repeated similar views Monday at Georgetown University.

 But area judges, Catholic and otherwise, said their job on any case is to follow the law.

 "It's assumed that when a judge swears to uphold the law, that he is not going to then go running back and say, 'except in the case of the death penalty,'" said Steven W. Fischer, administrative judge of Supreme Court in Queens County.

 And Catholic judges said that while the latest Church teaching says the death penalty should only be used in very rare cases and when necessary to protect society, devout Catholics can disagree without compromising themselves morally.

 "They are not going to be ex-communicated," said Suffolk County Court Judge Michael Mullen, who has presided over a capital case and is Catholic.

 Nevertheless, he added: "My personal opinion about moral issues doesn't affect my ability to sit on a case." He called Scalia's comments "a little strong" and said recusal was a better choice than resignation.

 Under New York State law, it is the jury who chooses to impose the death penalty on the defendant, but the judge signs the death warrant.

 Former Court of Appeals Judge Joseph Bellacosa, a Catholic who is dean at St. John's Law School, said Scalia's comment "is designed to be thought provoking and stimulate hard discussion on the issue."

 But he disagreed that recusal was the better option, saying, "Recusal for personal or moral or religious beliefs is really not doing your job ... Basically you're saying you can't fulfill your oath. It seems to me one has to come to terms with those personal and moral beliefs in relationship with the constitutional oath you take."

 Nassau Administrative Judge Edward McCabe, who is Catholic, said there are times when judges have to preside over cases that conflict with their religious views. For example, he said, Catholic judges have presided over matrimonial cases despite the Catholic Church's opposition to divorce. "There are many Catholic judges who agree or disagree with the death penalty, but that is the penalty provided for in the law and the judge should follow the law," McCabe said.

 Most area criminal judges have had training from the state Office of Court Administration on how to preside over a capital punishment case, meaning they are certified to preside if assigned. None have refused training on moral grounds.

 Other U.S. Supreme Court justices have been openly discussing capital punishment in speeches. U.S. Supreme Court Justice Sandra Day O'Connor, traditionally viewed as a death penalty supporter, said in a speech last summer that "After 20 years on [the] high court, I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country."

Justice Ruth Bader Ginsburg said in a speech last year "I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution applications in which the defendant was well represented at trial."