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Before proceeding to discuss the morality of capital punishment, I want to
make clear that my views on the subject have nothing to do with how I vote
in capital cases that come before the Supreme Court. That statement would
not be true if I subscribed to the conventional fallacy that the
Constitution is a "living document"-that is, a text that means from age to
age whatever the society (or perhaps the Court) thinks it ought to mean.
In recent years, that philosophy has been particularly well enshrined in our
Eighth Amendment jurisprudence, our case law dealing with the prohibition of
"cruel and unusual punishments." Several of our opinions have said that what
falls within this prohibition is not static, but changes from generation to
generation, to comport with "the evolving standards of decency that mark the
progress of a maturing society." Applying that principle, the Court came
close, in 1972, to abolishing the death penalty entirely. It ultimately did
not do so, but it has imposed, under color of the Constitution, procedural
and substantive limitations that did not exist when the Eighth Amendment was
adopted - and some of which had not even been adopted by a majority of the
states at the time they were judicially decreed. For example, the Court has
prohibited the death penalty for all crimes except murder, and indeed even
for what might be called run-of-the-mill murders, as opposed to those that
are somehow characterized by a high degree of brutality or depravity. It has
prohibited the mandatory imposition of the death penalty for any crime,
insisting that in all cases the jury be permitted to consider all mitigating
factors and to impose, if it wishes, a lesser sentence. And it has imposed
an age limit at the time of the offense (it is currently seventeen) that is
well above what existed at common law.
If I subscribed to the proposition that I am authorized (indeed, I suppose
compelled) to intuit and impose our "maturing" society's "evolving standards
of decency," this essay would be a preview of my next vote in a death
penalty case. As it is, however, the Constitution that I interpret and apply
is not living but dead - or, as I prefer to put it, enduring. It means today
not what current society (much less the Court) thinks it ought to mean, but
what it meant when it was adopted. For me, therefore, the constitutionality
of the death penalty is not a difficult, soul-wrenching question. It was
clearly permitted when the Eighth Amendment was adopted (not merely for
murder, by the way, but for all felonies-including, for example, horse-
thieving, as anyone can verify by watching a western movie). And so it
is clearly permitted today. There is plenty of room within this system for
"evolving standards of decency," but the instrument of evolution (or, if you
are more tolerant of the Court's approach, the herald that evolution has
occurred) is not the nine lawyers who sit on the Supreme Court of the United
States, but the Congress of the United States and the legislatures of the
fifty states, who may, within their own jurisdictions, restrict or abolish
the death penalty as they wish.
But while my views on the morality of the death penalty have nothing to do
with how I vote as a judge, they have a lot to do with whether I can or
should be a judge at all. To put the point in the blunt terms employed by
Justice Harold Blackmun towards the end of his career on the bench, when he
announced that he would henceforth vote (as Justices William Brennan and
Thurgood Marshall had previously done) to overturn all death sentences, 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.
Capital cases are much different from the other life-and-death issues that
my Court sometimes faces: abortion, for example, or legalized suicide. There
it is not the state (of which I am in a sense the last instrument) that is
decreeing death, but rather private individuals whom the state has decided
not to restrain. One may argue (as many do) that the society has a moral
obligation to restrain. That moral obligation may weigh heavily upon the
voter, and upon the legislator who enacts the laws; but a judge, I think,
bears no moral guilt for the laws society has failed to enact. Thus, my
difficulty with Roe v. Wade is a legal rather than a moral one: I do not
believe (and, for two hundred years, no one believed) that the Constitution
contains a right to abortion. And if a state were to permit abortion on
demand, I would - and could in good conscience - vote against an attempt to
invalidate that law for the same reason that I vote against the invalidation
of laws that forbid abortion on demand: because the Constitution gives the
federal government (and hence me) no power over the matter.
With the death penalty, on the other hand, I am part of the criminal-law
machinery that imposes death - which extends from the indictment, to the
jury conviction, to rejection of the last appeal. I am aware of the ethical
principle that one can give "material cooperation" to the immoral act of
another when the evil that would attend failure to cooperate is even greater
(for example, helping a burglar tie up a householder where the alternative
is that the burglar would kill the householder). I doubt whether that
doctrine is even applicable to the trial judges and jurors who must
themselves determine that the death sentence will be imposed. It seems to me
these individuals are not merely engaged in "material cooperation" with
someone else's action, but are themselves decreeing death on behalf of the
state.
The same is true of appellate judges in those states where they are charged
with "reweighing" the mitigating and aggravating factors and determining de
novo whether the death penalty should be imposed: they are themselves
decreeing death. Where (as is the case in the federal system) the appellate
judge merely determines that the sentence pronounced by the trial court is
in accordance with law, perhaps the principle of material cooperation could
be applied. But as I have said, that principle demands that the good
deriving from the cooperation exceed the evil which is assisted. I find it
hard to see how any appellate judge could find this condition to be met,
unless he believes retaining his seat on the bench (rather than resigning)
is somehow essential to preservation of the society - which is of course
absurd. (As Charles de Gaulle is reputed to have remarked when his aides
told him he could not resign as President of France because he was the
indispensable man: "Mon ami, the cemeteries are full of indispensable men.")
I pause here to emphasize the point that 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 death
penalty cases. He has, after all, taken an oath to apply the laws and has
been given no power to supplant them with rules of his own. Of course if he
feels strongly enough he can go beyond mere resignation and lead a political
campaign to abolish the death penalty - and if that fails, lead a revolution.
But rewrite the laws he cannot do. This dilemma, of course, need not be
confronted by a proponent of the "living Constitution," who believes that it
means what it ought to mean. If the death penalty is (in his view) immoral,
then it is (hey, presto!) automatically unconstitutional, and he can
continue to sit while nullifying a sanction that has been imposed, with no
suggestion of its unconstitutionality, since the beginning of the Republic.
(You can see why the "living Constitution" has such attraction for us
judges.)
It is a matter of great consequence to me, therefore, whether the death
penalty is morally acceptable. As a Roman Catholic - and being unable to
jump out of my skin--I cannot discuss that issue without reference to
Christian tradition and the Church's Magisterium.
The death penalty is undoubtedly wrong unless one accords to the state a
scope of moral action that goes beyond what is permitted to the individual.
In my view, the major impetus behind modern aversion to the death penalty is
the equation of private morality with governmental morality. This is a
predictable (though I believe erroneous and regrettable) reaction to modern,
democratic self-government.
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 (I am quoting, as you might expect, the King James version):
Let every soul be subject unto the higher powers. For there is no power but
of God: the powers that be are ordained of God. Whosoever therefore
resisteth the power, resisteth the ordinance of God: and they that resist
shall receive to themselves damnation. For rulers are not a terror to good
works, but to the evil. Wilt thou then not be afraid of the power? Do that
which is good, and thou shalt have praise of the same: for he is the
minister of God to thee for good. 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 doeth evil. Wherefore ye must
needs be subject, not only for wrath, but also for conscience sake. (Romans
13:1-5)
This is not the Old Testament, I emphasize, but St. Paul. One can understand
his words as referring only to lawfully constituted authority, or even only
to lawfully constituted authority that rules justly. But 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). Paul of course did not
believe that the individual possessed any such powers. Only a few lines
before this passage, he wrote, "Dearly beloved, avenge not yourselves, but
rather give place unto wrath: for it is written, Vengeance is mine; I will
repay, saith the Lord." And in this world the Lord repaid - did justice
- through His minister, the state.
These passages from Romans represent the consensus of Western thought until
very recent times. Not just of Christian or religious thought, but of
secular thought regarding the powers of the state. That consensus has been
upset, I think, by the emergence of democracy. It is easy to see the hand of
the Almighty behind rulers whose forebears, in the dim mists of history,
were supposedly anointed by God, or who at least obtained their thrones in
awful and unpredictable battles whose outcome was determined by the Lord of
Hosts, that is, the Lord of Armies. It is much more difficult to see the
hand of God - or any higher moral authority - behind the fools and
rogues (as the losers would have it) whom we ourselves elect to do our
own will. How can their power to avenge - to vindicate the "public
order" - be any greater than our own?
So it is no accident, I think, that the modern view that the death penalty
is immoral is centered in the West. That has little to do with the fact that
the West has a Christian tradition, and everything to do with the fact that
the West is the home of democracy. Indeed, it seems to me that the more
Christian a country is the less likely it is to regard the death penalty as
immoral. Abolition has taken its firmest hold in post-Christian Europe, and
has least support in the church-going United States. I attribute that to the
fact that, for the believing Christian, death is no big deal. Intentionally
killing an innocent person is a big deal: it is a grave sin, which causes
one to lose his soul. But losing this life, in exchange for the next? The
Christian attitude is reflected in the words Robert Bolt's play has Thomas
More saying to the headsman: "Friend, be not afraid of your office. You send
me to God." And when Cranmer asks whether he is sure of that, More replies,
"He will not refuse one who is so blithe to go to Him." For the nonbeliever,
on the other hand, to deprive a man of his life is to end his existence.
What a horrible act!
Besides being less likely to regard death as an utterly cataclysmic
punishment, the Christian is also more likely to regard punishment in
general as deserved. The doctrine of free will- the ability of man to
resist temptations to evil, which God will not permit beyond man's
capacity to resist - is central to the Christian doctrine of salvation
and damnation, heaven and hell. The post-Freudian secularist, on the
other hand, is more inclined to think that people are what their history
and circumstances have made them, and there is little sense in assigning
blame.
Of course those who deny the authority of a government to exact vengeance
are not entirely logical. Many crimes - for example, domestic murder in the
heat of passion - are neither deterred by punishment meted out to others nor
likely to be committed a second time by the same offender. Yet opponents of
capital punishment do not object to sending such an offender to prison,
perhaps for life. Because he deserves punishment. Because it is just.
The mistaken tendency to believe that a democratic government, being nothing
more than the composite will of its individual citizens, has no more moral
power or authority than they do as individuals has adverse effects in other
areas as well. It fosters civil disobedience, for example, which proceeds on
the assumption that what the individual citizen considers an unjust law -
even if it does not compel him to act unjustly - need not be obeyed. St.
Paul would not agree. "Ye must needs be subject," he said, "not only for
wrath, but also for conscience sake." For conscience sake. The reaction
of people of faith to this tendency of democracy to obscure the divine
authority behind government should not be resignation to it, but the
resolution to combat it as effectively as possible. We have done that in
this country (and continental Europe has not) by preserving in our public
life many visible reminders that- in the words of a Supreme Court opinion
from the 1940s "we are a religious people, whose institutions
presuppose a Supreme Being."
These reminders include: "In God we trust" on our coins, "one nation,
under God" in our Pledge of Allegiance, the opening of sessions of our
legislatures with a prayer, the opening of sessions of my Court with "God
save the United States and this Honorable Court," annual Thanksgiving
proclamations issued by our President at the direction of Congress, and
constant invocations of divine support in the speeches of our political
leaders, which often conclude, "God bless America." All this, as I say, is
most un-European, and helps explain why our people are more inclined to
understand, as St. Paul did, that government carries the sword as "the
minister of God," to "execute wrath" upon the evildoer.
A brief story about the aftermath of September 11 nicely illustrates how
different things are in secularized Europe. I was at a conference of
European and American lawyers and jurists in Rome when the planes struck the
twin towers. All in attendance were transfixed by the horror of the event,
and listened with rapt attention to the President's ensuing address to the
nation. When the speech had concluded, one of the European conferees - a
religious man - confided in me how jealous he was that the leader of my
nation could conclude his address with the words "God bless the United
States."
Such invocation of the deity, he assured me, was absolutely unthinkable in
his country, with its Napoleonic tradition of extirpating religion from
public life.
It will come as no surprise from what I have said that I do not agree with
the encyclical Evangelium Vitae and the new Catholic catechism (or the very
latest version of the new Catholic catechism), according to which 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. That, by the way, is how I read those documents-and not, as Avery
Cardinal Dulles would read them, simply as an affirmation of two millennia
of Christian teaching that retribution is a proper purpose (indeed, the
principal purpose) of criminal punishment, but merely adding the "prudential
judgment" that in modern circumstances condign retribution "rarely if ever"
justifies death. (See "Catholicism & Capital Punishment," FT, April 2001.) I
cannot square that interpretation with the following passage from the
encyclical:
It is clear that, for these [permissible purposes of penal justice] to be
achieved, the nature and extent of the punishment must be carefully
evaluated and decided upon, and ought not go to the extreme of executing the
offender except 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 nonexistent. (Emphases deleted and
added.)
It is true enough that the paragraph of the encyclical that precedes this
passage acknowledges (in accord with traditional Catholic teaching) that
"the primary purpose of the punishment which society inflicts is 'to redress
the disorder caused by the offense'" by "imposing on the offender an
adequate punishment for the crime." But it seems to me quite impossible to
interpret the later passage's phrase "when it would not be possible
otherwise to defend society" as including "defense" through the redress of
disorder achieved by adequate punishment. Not only does the word "defense"
not readily lend itself to that strange interpretation, but the immediately
following explanation of why, in modern times, "defense" rarely if ever
requires capital punishment has no bearing whatever upon the adequacy of
retribution. In fact, one might say that it has an inverse bearing.
How in the world can modernity's "steady improvements in the organization of
the penal system" render the death penalty less condign for a particularly
heinous crime? One might think that commitment to a really horrible penal
system (Devil's Island, for example) might be almost as bad as death. But
nice clean cells with television sets, exercise rooms, meals designed by
nutritionists, and conjugal visits? That would seem to render the death
penalty more, rather than less, necessary. So also would the greatly
increased capacity for evil - the greatly increased power to produce moral
"disorder" placed in individual hands by modern technology. Could St. Paul
or St. Thomas even have envisioned a crime by an individual (as opposed to
one by a ruler, such as Herod's slaughter of the innocents) as enormous as
that of Timothy McVeigh or of the men who destroyed three thousand innocents
in the World Trade Center? If just retribution is a legitimate purpose
(indeed, the principal legitimate purpose) of capital punishment, can one
possibly say with a straight face that nowadays death would "rarely if ever"
be appropriate?
So I take the encyclical and the latest, hot-off-the-presses version of
the catechism (a supposed encapsulation of the "deposit" of faith and the
Church's teaching regarding a moral order that does not change) to mean that
retribution is not a valid purpose of capital punishment. Unlike such other
hard Catholic doctrines as the prohibition of birth control and of abortion,
this is not a moral position that the Church has always - or indeed ever
before - maintained. There have been Christian opponents of the death
penalty, just as there have been Christian pacifists, but neither of
those positions has ever been that of the Church. The current
predominance of opposition to the death penalty is the legacy of
Napoleon, Hegel, and Freud rather than St. Paul and St. Augustine. I
mentioned earlier Thomas More, who has long been regarded in this country
as the patron saint of lawyers, and who has recently been declared by the
Vatican the patron saint of politicians (I am not sure that is a
promotion). One of the charges leveled by that canonized saint's
detractors was that, as Lord Chancellor, he was too quick to impose
the death penalty.
I am therefore happy to learn from the canonical experts I have consulted
that the position set forth in Evangelium Vitae and in the latest version of
the Catholic catechism does not purport to be binding teaching-that is, it
need not be accepted by practicing Catholics, though they must give it
thoughtful and respectful consideration. It would be remarkable to think
otherwise-that a couple of paragraphs in an encyclical almost entirely
devoted not to crime and punishment but to abortion and euthanasia was
intended authoritatively to sweep aside (if one could) two thousand years of
Christian teaching.
So I have given this new position thoughtful and careful consideration -
and I disagree. That is not to say 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. I am happy to have reached that
conclusion, because I like my job, and would rather not resign. And I am
happy because I do not think it would be a good thing if American
Catholics running for legislative office had to oppose the death penalty
(most of them would not be elected); if American Catholics running for
Governor had to promise commutation of all death sentences (most of them
would never reach the Governor's mansion); if American Catholics were
ineligible to go on the bench in all jurisdictions imposing the death
penalty; or if American Catholics were subject to recusal when called for
jury duty in capital cases.
I find it ironic that the Church's new (albeit nonbinding) position on the
death penalty - which, if accepted, would have these disastrous
consequences - is said to rest upon "prudential considerations." Is it
prudent, when one is not certain enough about the point to proclaim it in a
binding manner (and with good reason, given the long and consistent
Christian tradition to the contrary), to effectively urge the retirement of
Catholics from public life in a country where the federal government and
38 of the states (comprising about 85 percent of the population) believe
the death penalty is sometimes just and appropriate? Is it prudent
to imperil acceptance of the Church's hard but traditional teachings on
birth control and abortion and euthanasia (teachings that have been
proclaimed in a binding manner, a distinction that the average Catholic
layman is unlikely to grasp) by packaging them - under the wrapper "respect
for life" - with another uncongenial doctrine that everyone knows does not
represent the traditional Christian view? Perhaps, one is invited to
conclude, all four of them are recently made-up. We need some new staffers
at the Congregation of Prudence in the Vatican. At least the new doctrine
should have been urged only upon secular Europe, where it is at home.
Antonin Scalia is a Justice of the Supreme Court of the United States.
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U.S.C. section 107, this material is
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