E.J. Dionne, Jr.
Justice Antonin Scalia
JOHN CARLSON, University of Chicago and the Pew Forum on Religion and Public Life: For those of you who are just joining us, let me recap briefly a bit of the terrain we covered today. This morning we were introduced to several religious accounts of, and reckonings with, capital punishment, asking whether the death penalty is permitted or required; what circumstances warrant or mitigate such decisions; what resources, such as scripture, theology and tradition, shape our views on this subject; and finally, whether this wisdom lends currency as our society grapples with this issue.
In the afternoon panel, after Governor Keating’s defense of capital punishment as a tool of punishment, retribution and necessity, we then moved to a focused discussion of these aspects and others as they relate to broader understandings of justice, including what justice is and what justice is not.
We turn now to the question of how personal beliefs or convictions square with public offices and responsibilities. We are fortunate to have with us today a dream-team lineup, members – either past or present – of the three branches of federal government. We are privileged, as well, to have as our session chair a distinguished member of the Fourth Estate – the media – the Pew Forum’s own E.J. Dionne.
I am pleased to render to him his due by properly introducing him, which we were unable to do earlier today. In addition to serving as co-chair of the Pew Forum, Dionne, you may know, is a columnist for the Washington Post and senior fellow at the Brookings Institution. He is without a doubt one of the leading commentators on our society today, one who routinely proffers keen and critical insight onto matters of religion, politics and public life.
It is into his very capable hands that I now turn over the reins. Please welcome E.J. Dionne.
E.J. DIONNE: Thank you. Before I begin, I think we owe a round of applause to my great partner on this project, Jean Bethke Elshtain, who organized this whole thing, and who has more energy and intellectual integrity than five rooms full of people put together. Jean, bless you.
I also want to note that Justice Scalia spent five happy years at this university, and he said that his five years here involved the worst weather in Chicago history – (laughter) – and so I am required to announce that today’s weather was brought to you by a grant from The Pew Charitable Trusts – (laughter) – to the National Weather Service, although maybe, I think, sometimes Luis has even higher connections than that.
I am going to give just slightly longer introductions than Jean gave earlier, partly because it will help our C-SPAN folks, I’m told. Justice Scalia is unusual. He likes to be heard but not seen, and doesn’t think judges belong on television, so there will be a transition, and that’s my excuse for giving longer introductions.
There have been a lot of plagiarism controversies lately, so I want to say that I am drawing very heavily from an event that Justice Scalia appeared at at the Manhattan Institute some years ago. There was an excellent introduction given of Justice Scalia, and in apology for not giving him a longer one, I will quote Justice Scalia. After this wonderful introduction, he said, “It’s always bad to get as good an introduction as that. Number one, it’s hard for the speech to be as good as the introduction” – so you don’t have to worry about that — “and number two, the secret of success in life is that other people have low expectations of you.” (Laughter.) You can’t count on that, either, today.
Justice Scalia has been described as principled, clear, consistent, forceful, wry, irreverent, sometimes scathing. His legal prose has been described as uniquely musical and energetically argumentative. As you all know, he grew up in New York City in Queens, was a star at Xavier High School, and this I didn’t know – he was a whiz kid on New York radio contests. (Laughter.)
He graduated from Georgetown first in his class and editor of the Harvard Law Review. He is married to Maureen McCarthy. He got married in 1960, he has nine children. My wife and I have three kids and I always like to joke that we have a 1960s Catholic family discounted for inflation. Justice Scalia has the real thing. (Laughter.) I honor him for that.
This also you may not know about him. It has been said that he is the one person on the court who can actually carry a tune, and he actually appeared in the opera in a costume worn by Placido Domingo, and so I think one would want to know what kind of judgments Placido Domingo would draw on the Court if they changed robes one day.
I am one of the people who has on occasion disagreed with Justice Scalia’s rulings, particularly on a certain case that came up about a year ago in December – (laughter) – and therefore we will have equal protection when people get in that line. As somebody who has disagreed with him, I have to say that it is a shame that he is very intelligent, it’s a shame that he writes so well, it’s a shame that he is warm and charming – (laughter) – but as the person who appointed him to the Court, Ronald Reagan, once said, “Facts are stubborn things” and these are facts, and it is because of all these qualities that we are so pleased to have him here today.
Now at the risk of acceding to judicial fiat, I would just like to follow a rule Justice Scalia once offered. He offered three rules for lawyers who dared to argue before him: one, pronounce his name correctly – I hope I’ve done that; two, refer to opposing counsel as “dear friend;” and sit down quickly.
Dear friends, I give you Justice Antonin Scalia.
JUSTICE SCALIA: Thank you. Well, I reiterate the remarks I made at the Manhattan Institute. (Laughter.)
It’s been a great pleasure to sit in on this conference. I’ve been here for all of the sessions. You know, I’m usually dealing with ERISA or the bankruptcy code. Contrary to popular belief, we do not spend most of our time speculating whether there ought to be a right to die. And this is just a wonderful opportunity to think about large and important subjects.
On the other hand, there’s a risk in the other direction that you theologians and philosophers run that was exemplified by a joke that some Internet organization determined was the joke of the year. It appeared in a Washington newspaper – I think it was the “other paper” – (laughter). It seems that Sherlock Holmes and Watson were out camping, and in the middle of the night Holmes wakes up and he nudges Watson, and he says, “Watson! Look up. What do you see?” And Watson says, “My God, Holmes, look at those stars. I’ve never seen so many stars. It’s – it’s magnificent!” And Holmes says, “Watson, what do you deduce from that?” And he says, “Oh, Holmes, there must be some intelligence behind all of this, some prime mover that organized these stars and scattered them across the sky.” And Holmes says, “No, Watson, you idiot, they’ve stolen our tent!” (Laughter.) It’s a risk for philosophers and theologians. (Laughter.)
I want to make clear at the outset of my remarks that what I will have to say or, for that matter, what I have heard at this very interesting conference has 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; that is, our case law dealing with the prohibition dealing with cruel and unusual punishments. Several of our opinions have stated 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 cover 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 the Supreme Court pronounced them. 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 17. That is well above what existed in common law.
If I subscribe to the proposition that I am authorized – indeed, I suppose, compelled – to intuit and impose our maturing society’s evolving standards of decency, this conference would be for me a sort of continuing judicial education. As it is, however, the Constitution that I interpret and apply is not living, but dead; or as I prefer to call it, enduring. (Laughter.) 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 as far as the Constitution is concerned.
Now there is plenty of room within my system – I don’t want to call it mine, it was John Marshall’s system, it is the traditional system. 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 today’s discussions have nothing to do with how I vote as a judge, they – or at least that portion of them that pertains to the morality, as opposed to the policy desirability of the death penalty – 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 Blackmun towards the end of his career on the bench when he announced that he would henceforth vote 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.
Dr. Meilaender said this morning that preservation of the death penalty is not at the top of his list of moral concerns. It’s not at the top of mine, either, but what is at the top – or close to it – is the question whether the death penalty that I take part in administering is moral.
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 them. 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 no one believed for 200 years – 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 invalidation of laws that contradict Roe v. Wade; namely, simply 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 to tie up a householder where the alternative is that the burglar will 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 those individuals are not merely engaged in material cooperation with someone else’s action, but are themselves decreeing, on behalf of the state, death.
The same is true of appellate judges. In those states where they are charged with re-weighing the mitigating and aggravating factors and determining de novo whether the death penalty should be imposed, they are themselves decreeing death, whereas in the case of 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 reported 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 at this point to call attention to the fact 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 the death penalty. He has, after all, taken an oath to apply those 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 faced by proponents of the living Constitution who believe that it means what it ought to mean. If the death penalty is immoral, then it is surely unconstitutional, and one can continue to sit while nullifying the death penalty. 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, and I want to say a few words about why I believe it is. Being 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 discussed earlier in this conference by Cardinal Dulles. Those of you to whom this makes no difference must bear with those portions of my remarks.
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. That 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’m quoting from the same passage from Romans, but you should hear the whole thing. I’m using, as you would expect, the King James version. (Laughter.) “Let every soul,” he says, “be subject unto the higher powers, for there is no power but of God. The powers that be are ordained of God . . .” – You know, I never knew where that phrase came from. I’m sure it’s from that passage in the King James – “the powers that be” – “. . . 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 doth evil. Wherefore, ye must needs be subject not only for wrath, but also for conscience sake.”
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. Indeed, only a few lines before the passage I just read, he said, “Dearly beloved, avenge not yourselves, but rather give place unto wrath, for it is written vengeance is mine, saith the Lord.” And in this world, in Paul’s world, the Lord repaid, did justice through his minister, the state.
These passages from Romans represent, I think, the consensus of Western thought until quite recent times – not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, as I suggested, by the emergence of democracy. It is easy to see the hand of almighty God behind rulers whose forebears, deep in the mists of history, were mythically anointed by God or who at least obtained their thrones in awful and unpredictable battle 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 of 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 has 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 domain 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, a grave sin which causes one to lose his soul, but losing this physical 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 Cramner asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to him.”
For the non-believer, on the other hand, to deprive a man of his life is to end his existence – what a horrible act. And 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 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 capital punishment opponents 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 has adverse effects in other areas as well: civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law 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.
It seems to me that the reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should be not resignation to it but resolution to combat it as effectively as possible, and a principal way of combating it, in my view, is constant public reminder that – in the words of one of the Supreme Court’s religion cases in the days when we understood the religion clauses better than I think we now do – “we are a religious people whose institutions presuppose a supreme being.”
We continue to do this, to make these public reminders in the United States in a number of ways: the annual Thanksgiving proclamation that has been issued ever since George Washington, for example; the ministers in the Congress and in the state legislative bodies; and for that matter, the opening of my court, “God save the United States and this Honorable Court.” That is one way, by the way, in which we differ significantly from the thoroughly secularized European countries.
I happened to be in Rome on September 11 and watched the Trade Towers go down from my hotel room. In the speeches that the president gave afterwards, of course he said at the conclusion, “God bless the United States of America.” One of my European colleagues at the conference I was attending came up to me and said, “How I wish that the prime minister of my country or the president of my country could make such an utterance,” but it would be utterly unheard of. You will only hear an American – and perhaps the English, but not the continental Europeans – invoke the deity for the protection of the state.
You will gather from what I have said that I do not agree with Evangelium Vitae and the new Catholic catechism – or the very latest version of the new Catholic catechism – that 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.
By the way, that is how I read those documents, and not as Cardinal Dulles would read them. It seems to me that the encyclical either ignores or rejects the longstanding church teaching that retribution is a valid purpose; indeed, the principal purpose of government punishment. It’s hard to draw any other conclusion from this passage, which says it is clear that for the purposes of capital punishment to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon and ought not to 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. Well, Cardinal Dulles says that what “defends society” means and includes is vindicating social order; in other words, the function of retribution, although he can’t think of any instance where it would be usable. The problem with that is if that’s what it means, if it includes retribution, how can it possibly be that steady improvements in the organization of the penal system somehow no longer render the death penalty a uniquely appropriate means of retribution? One would think that the better the penal system gets, the less adequate a substitute for the death penalty it is. I mean, Devil’s Island might be as bad as getting your head chopped off, but certainly not residence in a modern penal institution with a television set. It seems to me to cut in precisely the opposite direction if you interpret that passage as referring to retribution.
On the other hand, it must be admitted that the encyclical, earlier, does say that the primary purpose of the punishment which society inflicts is to redress the disorder caused by the offense. So there is ambiguity there, and I would of course like to interpret it the best way, but for purposes of my remarks, let me interpret it the worst and see what I can make of it. (Laughter.)
Unlike such other hard Catholic doctrines as the prohibition of birth control and of abortion, this doctrine – if my worst interpretation is correct – is not a moral position that Christianity has always maintained. There have been Christian opponents of the death penalty just as there have been Christian pacifists, but neither of those positions has even been predominant in the church. Its current predominance is the handiwork of Napoleon, Hegel and Freud rather than of St. Thomas and St. Augustine.
I mentioned earlier Thomas More, who has long been regarded in this country as the patron saint of us lawyers – (laughter) – and has recently been declared by the Vatican the patron saint of politicians. I’m not sure that’s a promotion. (Laughter.) 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.
So I am happy to learn from Dulles – and I have had the same advice from other canonical experts – that the statement contained in Evangelium Vitae – assuming it means the worst – does not represent ex cathedra teaching; that is, it need not be accepted by practicing Catholics, although they must give it thoughtful and respectful consideration. Indeed, it would be remarkable to think that it was an ex cathedra pronouncement, that a couple of paragraphs contained in an encyclical principally devoted not to capital punishment, but to abortion and euthanasia, were intended authoritatively to sweep aside two millennia of Christian teaching. And as for the very latest edition of the new Catholic catechism, I assume that is just the phenomenon of the clerical bureaucracy saying, “Yes, boss.” (Laughter.)
In any case, I have given this new position – if it is indeed that – thoughtful and respectful consideration, and have rejected it. (Laughter.) That is not to say that 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. (Laughter.) 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. I do not think it would be a good thing if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty, 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 non-binding, position on the death penalty, which if accepted would have these disastrous consequences, is said to rest upon, of all things, prudential consideration. Is it prudent when one is not certain enough about the point to proclaim it as an article of faith – and with good reason given the long and consistent Christian tradition to the contrary? Is it prudent 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 teaching on birth control and abortion, teachings that are ex cathedra – a distinction that the average Catholic layman is unlikely to grasp – by packaging them under the wrapper, “respect for life,” with another doctrine that everyone knows does not represent the traditional Christian view? Perhaps, one is invited to conclude, they are all three made up.
In short, this does not seem to me the course of prudence.
MR. DIONNE: I don’t think anyone has even spoken the sentence, “But Justice Scalia, tell us what you really think.” (Laughter.) And as he was speaking, it occurred to me the clerical bureaucracy saying, “Yes, boss,” is what tends to happen in the hierarchical church. (Chuckles.)
We’ve opened up so many areas of discussion, and I hope that we can now have not only a judicial dialogue with Justice Scalia, but since ��� as they say in the courtroom – he has opened the door, a theological dialogue with Justice Scalia. Thank you very, very much for those comments.
I also just want to share with you his notion of the dead Constitution. He once said that “that didn’t work, so I invented ‘enduring Constitution’,” and he went on, “Packaging is everything.” (Laughter.)
It is such a pleasure to introduce former Senator Paul Simon. He is professor and director of the Public Policy Institute at Southern Illinois University in Carbondale. He was in the Army, he was in the Illinois House and Senate, he was lieutenant governor. He was in the House of Representatives and, from 1984 to 1996, he was in the U.S. Senate.
This makes journalists envious: He is the author of 19 books, and Senator Simon could never understand why journalists couldn’t write more books. He was serving in all these public offices, and he would regularly turn out these books, including a very popular book on Abraham Lincoln’s early career.
I got to know Senator Simon best when he ran for the Democratic nomination for president in 1988. Justice Scalia made reference to the obliteration of the line between the public and private. That really goes back to that 1987-’88 campaign, and one of my favorite commentaries on Senator Simon was a cartoon about him. You’ll remember that that campaign was the first campaign in which a presidential candidate was asked directly, “Have you committed adultery?” Now Senator Simon, as everyone knows, is an embodiment of small-town virtue. The word “straight-arrow” applies to him. If a journalist tries to write “trendy” next to “Simon” on his computer, it crashes. (Laughter.) And so I think the best embodiment of this notion of Senator Simon embodying this sense of virtue was a cartoon of a young journalist with a microphone saying, “Senator Simon, have you ever committed … oh, never mind.” (Laughter.)
It says a lot about him. He is a very, very thoughtful and honest man. It’s a great pleasure to introduce Senator Paul Simon.
SENATOR PAUL SIMON: I thank you, E.J. I knew I was an academic setting when I walked in and it said, Dr. E.J. Dionne, here. (Laughter.) I’d never known him as Dr. E.J. Dionne.
Justice Scalia, good to welcome you back to your old haunts here at the University of Chicago. I would like to hear you sing sometime – (laughter) – after that introduction. Beth Wilkinson, we thank you for being here.
Just a couple of comments: one on the moral issue.
The field of theology and the field of faith grow. There is no condemnation in the Bible of capital punishment. There is no condemnation in the Bible of slavery. As a matter of fact, Saint Paul was quoted regularly from the book of Philemon in the defense of slavery, but gradually we have come to appreciate that slavery really is a moral issue. On the constitutional question, we also grow in that field. Now, there are dangers in that, obviously. You don’t want to move from the fundamentals, but Plessy v. Ferguson, 1896, which said, “separate but equal” doesn’t violate the Constitution. We gradually came to realize that equal protection really had to say that we can’t discriminate in school attendance, and then beyond school attendance into many other fields. But I think the basic question that we face is not: is it moral or is it unconstitutional; the question is, is it wise?
Let’s take a look at who has the death penalty. Western Europe does not have the death penalty. When Turkey recently applied for admission to the European Union, the committee of the European Union that made a recommendation against Turkey’s admission and gave as one of the two principle reasons that, “Turkey retains the barbaric practice of capital punishment.” Canada and Mexico have abandoned the death penalty. The European Parliament passed a resolution urging the United States to abandon the death penalty. An internationally circulated magazine says, “Throughout Europe in particular, the death penalty is thought of as simply uncivilized.” The practice is thought to be particularly problematic for a leading nation. After all, German Justice Minister Herta Daeubler-Gmelin has argued, “The Americans do not hesitate, proud as they are of their democratic tradition, to reproach other countries over human rights violations.”
Which nations are the great users of capital punishment? Well, in the year 2000 – and the assumption is that China, where we don’t have statistics, but that they had been the principle user of capital punishment. The second nation is Saudi Arabia. The third nation is the United States. The fourth nation is Iran. Since 1975, 35 retarded people have been executed; people whose IQ is below 70. Of the nations that have executed people for crimes committed below the age of 18 since 1990, they are these nations: Iran, Nigeria, Pakistan, Saudi Arabia, Yemen and the nation that has executed more than any others, the United States.
It costs much more – I’m not suggesting that economics ought to dictate our decision on this, but as Beth Wilkinson knows better than the rest of us, the Timothy McVeigh defense cost $13.8 million. For 10 percent of that amount, we could have held him in prison for the rest of his life. And you make heroes out of people. Shortly after the execution – and I remember being in Central Illinois and all of a sudden seeing someone with a T-shirt with Timothy McVeigh’s picture on the T-shirt. Maybe that would have happened if he had been sentenced to life in prison, I don’t know; I doubt it.
One study for the state of Illinois and the commission that Governor Ryan appointed to look at capital punishment – I’m co-chairing that commission – we will get more up-to-date and perhaps more accurate information, but that it has cost the state of Illinois, over the last two-and-a half decades, $800 million more for executing people than for putting people in prison for life. But I think the great cost is desensitizing us to death and to using violence as an instrument for civilized society.
I think it’s bad for the courts. The Constitution doesn’t require, as Justice Scalia knows, doesn’t require members of the Supreme Court to be lawyers. In fact, Justice Hugo Black suggests we ought to have one or two non-lawyers on the United States Supreme Court. So as a layman I’m going to comment here, Justice Scalia, with great authority. (Laughter.) Justice Felix Frankfuter said this: “I am strongly against capital punishment for reasons that are not related to concern for the murderer or the risk of convicting the innocent. When life is at hazard in a trial, it sensationalizes the whole thing almost unwittingly. The effect on juries, the bar, the public, the judiciary, I regard as very bad.”
Who gets capital punishment? Well, with rare exceptions, it’s the poor who get capital punishment. If you have enough money, you don’t get capital punishment. And Timothy McVeigh’s situation is the rare exception where he certainly had adequate counsel, but that is a rarity. It is also discriminatory. If the victim is white, in the state of Florida you’re 4.8 times more likely to get capital punishment; in Illinois, 4 times more likely; Oklahoma, 4.3 times more likely; Mississippi, 5.5 times more likely, and many other examples. In Kentucky, more than 1,000 African-Americans have been killed since 1975. All 39 death row inmates there, and those who have been executed, are there for killing a white person.
The whole question is, then, is it a deterrent? I asked a class a couple of years ago how many in the class favored capital punishment. An overwhelming percentage raised their hands. I asked them, how many think it is a deterrent? Not a single hand was raised. It’s interesting that in England you had capital punishment, among other things, for pick-pocketing. They had public executions. And what was happening during these public executions? People were going around pick-pocketing – (laughter) – in that audience.
Is there anyone here who feels safer in Texas than in Iowa? (Laughter.) Of the 12 states that do not have capital punishment, 10 are below the national average in the rate of murder. Of the seven states with the lowest murder rate, five don’t have capital punishment. Twenty-seven states with the highest murder rate, all but two have it. Now, I’m not suggesting the way to reduce the murder rate is get rid of capital punishment. I suggest it is simply not a factor. Is there anyone here who feels less safe in North Dakota than in South Dakota? South Dakota has it; North Dakota doesn’t have it. Or do you feel less safe in Massachusetts than in Connecticut? To ask the question is to answer it.
Innocent people are being put to death. We had the case in Illinois of Anthony Porter, two days away from execution, and the information came out he was not the person, and then he was freed by the courts. Since 1976, in Illinois, we have executed 12 people, and 13 people who have been on death row have been released because of DNA evidence that they were not guilty. I don’t think there’s any question that a great many people have been executed who were innocent. And I don’t think we should be part of that. It’s not necessary to protect our society.
And then, finally, I think we have to learn the lesson, not just in our country but anywhere – in the Middle East, anywhere, you name the area – violence breeds violence. Now, the state has to – from time to time – use force, but that force should not be excessive. And when it is excessive, then I think we do harm to society. The question is, is it wise to have capital punishment? And I think the evidence is overwhelming that it is not wise to have capital punishment.
MR. DIONNE: Thank you very, very much, Senator Simon.
Even before Beth speaks, we have already put, in a sense, three piles of issues on the table. What should the courts do about this and do they have the power to do something about it? Justice Scalia has raised the theological issue very pointedly. And Senator Simon has joined that and added a series of practical questions.
It is with great gratitude that we welcome Beth Wilkinson. As many of you know, she was the lead prosecutor in both the McVeigh and Nichols case, as she was special attorney to the U.S. attorney general assigned to the prosecution team in the Oklahoma City bombing trials. She gave a very powerful closing argument on behalf of the death penalty for Timothy McVeigh, which is in this excellent reader that Jean and her colleagues have prepared. I just want to read the final paragraph.
She said, “As the moral conscience of the community, you must speak on behalf of all Americans who rightly refuse to accept any justification for this horrible crime. It is time for justice. It is time to impose the ultimate sanction on the man responsible for this terror. Serve justice, speak as the moral conscience of the community, and sentence Timothy McVeigh to death.”
Yet at the same time, Beth Wilkinson is the co-chair of the Constitution Project’s Death Penalty Initiative. There is a book back there that I commend to you called “Mandatory Justice.” It is about 18 reforms that Beth and her colleagues believe need to be made in the death penalty. In other words, Beth is both a supporter and a critic of the death penalty. She sits, in a sense, right at the frontier of this argument.
Dr. Anderson earlier quoted Richard Niebuhr, which entitles me to paraphrase Reinhold Niebuhr, who once said “We must be able to see the truth in our opponent’s error, and the error in our own truth.” I think Beth is uniquely well-suited to help us all do that.
Beth, it’s great of you to come.
BETH WILKINSON: Thank you. It’s a great pleasure to be with you all.
When I was first asked to speak at this function, I went home and told my husband and a few of my colleagues and they looked at me quizzically and said, well, are you sure you want to do that? Think of the people who will be attending. There will be theologians, philosophers, scholars, and in all likelihood most of those folks will be opposed to the death penalty. Do you really want to get up there as the person who stood in front of the jury and asked for Timothy McVeigh’s execution and address them?
I pointed out, well, first of all, I had heard that Justice Scalia would be on my panel, so I thought I might have a pretty good ally. (Laughter.) But I recalled an event that had occurred to me that has given me a lot of faith in looking at adversity. And that is, just a few months after the McVeigh and Nichols cases had ended and I was contemplating the next step in my career, I was asked by one of the judicial circuits to come and be on a panel entitled, “Handling a High Profile Case.” So I was quite pleased with myself, you know, going to meet all these other attorneys who had handled these big cases. And they said, why don’t you come to the luncheon beforehand? You’ll meet the other folks and the judges, and then you’ll be on your panel.
So of course I agreed to attend. And I went to the luncheon, and who was the speaker but Sister Helen Prejean? (Laughter.) Now, if any of you have heard her, she is unbelievable. She is a magnificent speaker. She uses all the great rhetoric of a Southern Baptist preacher, she has the Louisiana accent, and, most importantly, she tells a story from her heart. She presents a very compelling discussion about sitting and waiting for death with a death row inmate.
So, she started her speech, and as you might imagine, the entire audience was brought in immediately, and I started slinking back in my chair. (Laughter.) And she started talking about the people who participate in the death machine and how it was beyond her comprehension to understand how one could participate. And I slinked back a little further. And the luncheon ended and she got a standing ovation and I went with my colleagues to the panel, and I said, I doubt that Sister Helen will attend.
We sat up at the panel and we started being asked questions, and at one point someone turned to me and asked me about delivering the death argument in the McVeigh case, and I looked down into the audience and I saw Sister Helen. And she looked up at me and smiled, and I started to talk and I saw her go . . . [crosses herself]. So I saw grace that afternoon. And I come before you again, hoping for that same grace.
I thought I would share my stories about being a public servant and confronting my religious views with my public duties in a personal way, because I think that’s really where I started and where I’ve ended. As a lawyer, usually when I’m in front of a judge I’m asked a question and always told, of course, to get immediately to the answer. So I’ll start with my answer and then tell you how I got there.
I describe myself as a struggling supporter of the death penalty. And that’s probably something that started very early in my life, and it’s something that I continue with today, as E.J. was saying about my duel roles as both a supporter and critic of the death penalty.
Back in June of 1997, I sat down to write the death penalty argument in the McVeigh case, and I thought a lot about what I should say. I realized probably that what I said wasn’t going to matter one bit because once the jury had decided that Mr. McVeigh was guilty of his crimes, most of those jurors would believe that death was appropriate. But nevertheless, I wanted to say something that was appropriate; not just on my part of course, but on behalf of the government. And I realized that I was confronting moral and religious questions in the most personal way that I ever had on the issue of the death penalty.
So I sat down and did what some people do: I called my dad. And I talked to him about some of my views, some of the historical references that I wanted to use in my closing argument, and just talked about my surprise at my comfort and ability to write something down and to deliver the closing argument. I sat down and in probably about three hours wrote the entire closing argument, which was just 35 minutes, with almost no problem. I wrote it two days before the argument. I went to a baseball game with my team the day before the argument, and then I got up and delivered it in front of the 12 jurors and four alternates.
I was rather surprised that it was that easy for me to make those statements. And I thought, how can it be this easy for me when I still am struggling with my views on the death penalty, not, as Justice Scalia said, whether it’s moral or not. I have, I think, very little difficulty believing that it’s moral, but more about what Senator Simon says, which, is it wise?
I thought, I need to go back to where I started. And you might understand why I am where I am today if you know where I began. I began growing up in a household with two pubic servants: a submarine captain and a total pacifist. (Laughter.) I think that probably says it all about why I am a struggling supporter. I came from a very religious household, a New England Methodist family, where we practiced religion every day by watching my mother who lived, and does still live her values, in everything that she does. But, as we sat down at the dinner table to discuss issues like the death penalty and other issues of the day, I had the submarine captain on the right, who believed in his religious views just as strongly as the mother who was the public servant and pacifist on the left.
Those struggles, those discussions that we had as I grew up, gave me, I think, a rather nuanced view of this issue and many others, trying to figure out how my father was able to put his finger on that nuclear button and press it if it was necessary to defend our country, while believing in the religious teachings of the Methodist Church; and while my mother could be married to such a man when she believed that there was no justification for war or any other type of violence.
I think after growing up in that environment I have faith that I could reconcile my views and my responsibilities as a public servant because of two things: one, because I was brought up in a strong religious household where we discussed our views and were allowed to have differing views; and second, that I actually watched my parents live and get along together for 40 years when they shared such diametrically opposed views on moral issues yet shared the fundamental religious values that they taught in our household. If they could stay married for 40 years, I could certainly reconcile my views on the death penalty.
As I started in college, as probably many people did, I was typically opposed to the death penalty and other issues. And then I read Reinhold Niebuhr, “Moral Man and Immoral Society,” which gave me a totally different perspective that I had not grown up with on issues of reconciling individual morality with governmental and national morality and behavior. It was there I think, if I look back, where I first started kind of transforming my views about whether I personally could participate in a system that sanctioned the death penalty.
I don’t believe, as a public servant, there’s any problem, if you believe in it, in participating; and if you don’t, either choosing to participate, because as a lawyer or any other type of public servant, that’s our obligation; or choosing not to, as Justice Scalia was saying, and finding some other avocation.
I had a luxury as a federal prosecutor to be able to participate in the system but not participate in death cases. I learned how to be a prosecutor in the Eastern District of New York where the U.S. Attorney there allowed people to choose whether they would participate in death cases. So I could maintain my job — unlike Justice Scalia and other jurists who have to participate in death cases as they come across their desk, I could choose to prosecute other types of cases, and for many years I did. I did not participate in any death cases as a prosecutor in New York.
But as I developed as a prosecutor and ascended in my career, I started to see true evil. I started prosecuting other people who had been involved with things that were really beyond my personal experience or knowledge, growing up in my little protected world in Connecticut. I saw people that I thought justified the death penalty from a moral perspective, from a retributive perspective. And I struggled with it because I thought the system was so flawed, as Senator Simon was describing, that there could be no way to justify the death penalty in any instance.
Without addressing those issues directly in New York, I left to come down to Washington to the Justice Department and, without boring you with the details, was asked one day whether I would participate in the prosecution of Timothy McVeigh. As a prosecutor and a government servant, you can imagine what a privilege it was to be asked to participate in something that was so important to our country. From a personal and religious perspective, it was my first time confronting the question of whether my ambition and public service would be able to accommodate participation in the death penalty and possible execution of Timothy McVeigh and Terry Nichols.
I can’t identify one moment in time when I transformed and said I personally could participate, but I believe it was my transformation as a federal prosecutor, seeing the retribution and the evil of certain individuals who have a different moral system than I do or than anyone that I know. And so, I took on my responsibilities in the McVeigh case with other members of the team. We had between seven and nine lawyers on the team at any one time. You might be interested to know not a one of them had ever participated in a death case before we prosecuted Timothy McVeigh. So we had absolutely no experience, and we had no one who was a strong supporter of the death penalty who had any direct role in the prosecution.
As a public servant involved with a death case, every day one confronts how you can reconcile participating in that process where your goal is to execute the defendant with providing a fair trial to the defendant. That means participating in discovery by deciding which documentation should be turned over, what type of motion should be made, what kinds of arguments should be directed at the court, and what kinds of arguments should be directed at the public and the jury.
We struggled with those issues every single day as we prepared during the pre-trial phase and the trial phase of Timothy McVeigh and Terry Nichols. But not until January 10th, when I sat down to draft that argument that I made, did I really confront my own moral compass questions about standing in front of 12 people who had the decision to make to ask them to execute another individual.
As I reviewed the script that I had prepared to argue in front of the jury, I tried to comfort myself at first thinking, well, I’m not the one making the decision. I am just an advocate and it is up to those 12 jurors to make the decision. That worked for about five minutes. And I realized that I was part of the machine; that I was using my skills, whatever they were, to advocate on behalf of a position of the government and what I believed was a lawful position and a justified position to give the jury the arguments to go back into that jury room and persuade each other that execution or a death sentence was the appropriate punishment.
As I stood up in front of the jury, I looked them in the eye and I thought, if I am asking these 12 people to do something that I believe is morally just, and not just just but necessary in this case, I have to be able to do what I’m asking them to do. I have to be able to look Timothy McVeigh in the eye and say that he deserves to die. And so, as I was going through my closing argument, I turned to him and told the jury to take a moment and to look at him and call him a coward and tell him that he had committed treason, and that was something, obviously, that in our country we rejected – the use of violence to perpetrate political views – and to sentence him to death. That was perhaps for me the most difficult moment in the case, not because I did not believe it, but because I was looking into the eye of the person that I thought should receive the punishment.
Making all of that more important for me, was that one of my responsibilities at trial and during the pre-trial phase was to put on Jennifer McVeigh, Timothy McVeigh’s sister, as a witness for the government. She, as you might imagine, loved her brother, and she was politically aligned with him; she shared an anti-government perspective. She did not want to be a witness, but for a variety of reasons had made statements early in the investigation about some of his activities, and so she could be commanded to testify and impeached with her statements if she was not forthcoming.
I recall having a discussion with her as we were preparing for trial, and it was never a friendly one, as you might guess – respectful, but never friendly – and she was struggling with the fact that she was going to be testifying in a few months. I told her that she was going to have to testify one way or the other and she was going to have to tell the truth one way or the other, but that I thought if she wanted to find some comfort, that to be in front of the jury and be candid and truthful during the guilt phase – which is what we call the first phase of a death penalty trial – would give her some credibility if she wanted to get up during the death phase and argue to save her brother’s life.
I’m not sure whether that has any real moral justification, but it’s how I felt at the time and it seemed to give her some comfort as she was called to the witness stand to make some very incriminating statements about her brother. But as I was turning, during the closing argument, from pointing at Mr. McVeigh and looking at him with the jury, I turned back towards the podium and my eyes went right past Jennifer McVeigh, who was sitting in the front row, and I could see tears in her eyes, listening to the arguments that I was making about why her brother should be executed.
It didn’t take the jury very long to return the death sentence for Mr. McVeigh, and I felt no regret about participating in that process. In fact, on the day of the execution this past summer, I wondered how I would feel that morning as I watched the media announce the execution. Even as a Christian, I felt nothing for Mr. McVeigh. I felt a lot for the victims and I felt, obviously, a deep sadness for the country having suffered through this and for having to participate in this death machine to vindicate our moral principles and our rules of law, but I felt nothing for Mr. McVeigh.
Fast forward to when I received a call from the Constitution Project asking me if I would participate in this death penalty initiative. That was not going to be what we’re having today – it was specifically not going to be a moral or religious debate about the appropriateness of the death penalty. I think many anti-death penalty advocates realize that that debate has stalled and has not been very successful in changing the public’s viewpoints about the death penalty.
So the Constitution Project decided what they would do would be to bring together two sides – those that support and those that oppose the death penalty – with a focus only being on how to reform the current system and address the issues that all persons, whether they support or oppose the death penalty, thought were problematic. I was very comfortable in that role, having participated in a unique death penalty prosecution, as Senator Simon says. We had excellent lawyers on the government side, we had a fabulous judge, the defendant was very well represented by some very, very capable lawyers, and I don’t think there was any question that both Timothy McVeigh or Terry Nichols received a fair trial.
Many people have asked me not to use the McVeigh case as an example of whether we should have the death penalty because they say it’s easy to see why you would have it for Timothy McVeigh. I couldn’t disagree more. If you want to have a moral and religious debate about the death penalty, you need to start with the case where the system works properly. Of course we’re all opposed to it when the system doesn’t work; when we convict innocent people. From a practical standpoint, I don’t know anyone who supports the death penalty when an innocent person is put to death. The question from a theoretical perspective is, how do you feel about it when all the rights of the defendant are protected? He’s committed the most heinous crime you can think of, and then you are left with the moral debate: Is it right, is it just? So, I have always fought that idea that we must talk about it in terms of the flaws of the system, not because that isn’t the right debate for whether it’s wise, but it is not the right debate for whether it is just and moral.
As strongly as I feel about my participation, I still continue to struggle, and by working on this “Mandatory Justice” 18 reforms, I feel like I was able to either pay my penance or carry through on what I think is my consistent philosophy about trying to balance my viewpoints on the death penalty.
I’m going to end today where I began, which is that I really think my viewpoints are a product of my religious training, my genetic material, and my personal experience in participating in the system as a public servant. As imperfect as my reasoning may be for my justification of the death penalty, I have found a comfortable place as a struggling supporter.
: Thank you for not only those thoughtful comments but really that powerful testimony. We’re very grateful.
There are many things I could say but I think there are a lot of people in the audience who want to join in this discussion. Does Senator Simon or Justice Scalia have any response to anything they’ve heard so far?
JUSTICE SCALIA: Well, I’m not going to respond to most of Senator Simon’s remarks, which went to the desirability of the death penalty. I don’t think it’s proper for Felix Frankfurter or anybody else who’s a judge to take a position on that policy issue. That’s for the people to decide. I don’t take any position on it. That’s what judges traditionally do. You enact it; I’ll apply it. You don’t enact it, I won’t complain.
I do want to remark about two things that Senator Simon said that didn’t relate to the desirability of the death penalty: one, relating to the theological issue of whether it’s moral or not. There’s no comparison, it seems to me, between slavery and the death penalty. There’s nothing in Christian theology that praises slavery, and there’s much in it that rather disapproves it. It’s either in the Acts or some of the epistles where a friend of Paul releases a slave; the early Christians did that. They did not keep in slavery their fellow Christians. So I just think it’s wrong to say that there was no Christian tradition against it. There certainly was.
As far as the Catholic tradition is concerned, papal bulls denounced slavery from the 1500’s on, and in the 1700’s they pronounced automatic excommunication upon anybody who engaged in the slave trade. So compare that with Saint Paul who says, the government is in the place of the Lord for carrying the sword — no comparison, it seems to me.
As for Plessy v. Ferguson, which doesn’t go to the theology of the death penalty but rather to, I guess, the desirability of a living Constitution, the change from Plessy to Brown v. Board of Education proves one of two things: either — what I believe — that Plessy was wrongly decided — the first Justice Harlan dissented, I think I would have been with him — or what it proves is that if one uses an evolving theory of the Constitution you can sometimes achieve wonderful results. I don’t deny that. You can sometimes achieve wonderful results with tyranny. I mean, Hitler produced a wonderful automobile. A stopped clock is right twice a day.
So, you know, what does that prove? It proves nothing at all as to the desirability of having an evolving Constitution, which means you don’t have a Constitution at all. It means, ultimately, you’re going to have a Constitution that means what the current society wants it to mean, which means it’s useless.
MR. DIONNE: Senator.
SEN. SIMON: If I may comment just briefly. First of all, Justice Scalia says from the 1500’s on the church was very clear on the issue of slavery, but up until that point St. Augustine defended slavery. So there was an evolving sensitivity on this issue. And I agree you have to be very, very careful, in terms of the Constitution, in saying it’s a living document. But we do acquire more knowledge, and there’s no question that by the time of the Brown decision, 1954, we had learned more about what segregation was doing in our society, much more than people knew in 1787 or when the amendments were adopted later.
MR. DIONNE: Thank you. I now want to invite members of the audience to ask questions. Please.
QUESTION: Hi, this question is for Justice Scalia. In the previous session, Professor Garnett discussed a reshaping of the capital punishment debate. Do you believe the argument could, or should, be reshaped to include directly religious viewpoints? If so, how would you propose this accommodationist solution, which affects not only the death penalty, but the whole of the First Amendment interpretation by the Supreme Court?
MR. DIONNE: Professor Garnett gave a talk earlier in which he discussed the importance of allowing the – and correct me if I’m wrong – the importance of including religious arguments among the arguments brought to courts and into the public square as part of the argument against the death penalty. He was suggesting that you could only get a full understanding of the issues at stake if you included a religious sense in this sense of moral anthropology.
JUSTICE SCALIA: You’re talking about whether the religious viewpoint should have a role in the legislative and political process. Of course it should. It always has in this country. I mean, you know, coming back to slavery, my goodness, the anti-slavery movement was led and sustained by clergymen — all except Catholic clergymen, by the way, who simply ignored all the edicts from Rome, in case you ever think the American Catholic church is always right.
(Laughter.) No, I think we would, as a nation, have a very different history if we excised from our political debate those views that were distinctively religious views. On the most important issues facing our country they have always been heard and expressed.
QUESTION: My question is for Justice Scalia and Ms. Wilkinson. I appreciated both your remarks on how religion helps you in your duties as an appellate judge and as a prosecutor, but I was wondering if someone is a trial judge or a juror and you’re actually making that ultimate decision of life or death, isn’t it more complicated than simply being a judge simply applying the law or a prosecutor advocating the position of the organization that you work for? I was just wondering your thoughts on how religion should inform our decision in the role as a juror or as a trial judge.
MS. WILKINSON: I’m not sure, in a practical sense, there is much difference. As you probably know, when we pick a jury in a death case you have to be “death eligible.” If you are opposed to the death penalty, you cannot sit on a death case. So jurors come into a trial at least saying that they are willing to consider imposing a death penalty. Of course, they also have to promise that they will consider all mitigating evidence and that they won’t make up their mind just because they’ve convicted someone of the crime. They have to listen to the death-penalty phase.
A trial judge job is really no different from what Justice Scalia does or, in some ways, from what I do. The trial judge is imposing the law from a different perspective but just the way Justice Scalia does at the Supreme Court. A juror may have a bit of a different perspective because they are making that ultimate decision, raising their hand and voting yes or no. But it’s the same moral decision that someone makes when they participate in the process like I do. I could not stand up and advocate to a jury to impose a death sentence if I had not made up my mind myself that I could vote the same way.
Perhaps you are alluding to the fact that actually being part of that process and voting is somehow materially different, and I think what I’m saying is that having participated as an advocate, I don’t think it is that different, because you have to address the same issues. The law that has come down from the Supreme Court, the precedent that outlines for us what the decision is, that language I use, that you have to speak as the moral voice of the community, comes from the jury instructions. The jurors get to make this decision. So they also have a framework for making that decision that talks about their role as the community moralist in that particular case.
MR. DIONNE: Justice Scalia?
JUSTICE SCALIA: You mistook my remarks if you took away from them the notion that my religion helps me in my job as a judge. It doesn’t. I cannot do anything in my job as a judge that I consider immoral. That’s all I was saying. In fact, I try mightily to prevent my religious views or my political views or my philosophical views from affecting my interpretation of the laws, which is what my job is about.
I read texts. I’m always reading a text and trying to give it the fairest interpretation possible. That’s all I do. How can my religious views have anything to do with that? They can make me leave the bench if I find that I’m enmeshed in an immoral operation, but the only one of my religious views that has anything to do with my job as a judge is the seventh commandment – thou shalt not lie. I try to observe that faithfully, but other than that I don’t think any of my religious views have anything to do with how I do my job as a judge.
As I made clear in my remarks, I will strike down Roe v. Wade, but I will also strike down a law that is the opposite of Roe v. Wade. You know, both sides in that debate want the Supreme Court to decide the matter for them. One wants no state to be able to prohibit abortion and the other one wants every state to have to prohibit abortion, and they’re both wrong, not because of my religious views but because that’s how I read the Constitution. It says nothing on the subject, whatever my religious views on the subject are, and I have religious views on the subject. But they have nothing whatever to do with my job.
QUESTION: I interpreted your remarks to say that once you make that threshold decision that the death penalty isn’t immoral, then you can proceed and apply the law as it stands.
JUSTICE SCALIA: Right.
QUESTION: I thought a juror’s job was slightly different because they have to make that ultimate decision in the individual case whether or not to extend mercy, and that’s not a solely legal question. That’s a question in which religion might ultimately play a role.
JUSTICE SCALIA: Oh, yes, that point is quite true. That point is quite true. I suppose a governor might face the same question. But you know, if I were in that position as either a juror or a governor I wouldn’t feel free to act upon my own religious beliefs. I’m there representing the community. If I were a governor, as to whether I should commute a sentence, I would want standards. I would say it seems to me the sentence ought to be commuted if these factors exist, but not because I’m a bleeding-heart Christian. That ought to have nothing to do with it.
: Could I ask a follow-up to that? I hope that I’m not misinterpreting what I’ve read, but you’ve argued that death penalty jurisprudence would be more consistent if courts were barred from considering the character of each crime and each criminal. But as I understand it – and again, I’m like Senator Simon, I’m not a lawyer – in Hitchcock v. Dugger you wrote that a judge had a right to broad discretion and that a defendant had a right to get into court whatever evidence he needed in pursuit of mercy from the jury. I don’t want to accuse you of having a living view on this subject as opposed to an enduring view, but I’m curious. Has your view of the death penalty because of its practical operation changed at all over time? Now I’m not talking about the death penalty as a moral proposition but as a legal proposition.
JUSTICE SCALIA: No, the legal issue for me as a judge is whether the death penalty, as it is administered, violates the Eighth Amendment. Does it constitute cruel and unusual punishment? The answer is no. It does not even if you don’t allow mitigating evidence in. I mean, my court made up that requirement. That was never a requirement when the Eighth Amendment was adopted. Now maybe it’s a good idea. So pass a statute, or if you want to make every state do that, adopt a Constitutional amendment. But I don’t think my Court is authorized to say, oh, it would be a good idea to have every jury be able to consider mitigating evidence and grant mercy. And, oh, it would be a good idea not to have mandatory death penalties.
The senator was talking about the problem of the unfairness of the death penalty. You want to have a fair death penalty? You kill; you die. That’s fair. You wouldn’t have any of these problems about, you know, you kill a white person, you kill a black person. You want to make it fair? You kill; you die. And some states used to have laws that had mandatory death for certain crimes. My Court said that’s unconstitutional, although it was certainly not unconstitutional when the Eighth Amendment was adopted.
Now that may be a good idea or it may be a bad idea. My point is it’s not for me to decide. It’s for me to decide what the Constitution says.
QUESTION: Justice Scalia, I recall you said that you felt neutral and I understand you’re a judge, and that you said that you don’t consider it immoral. So I’d like to ask you, precisely because you are a judge – in the face of the likelihood, in your estimation, that an individual who didn’t commit the crime is about to be executed, do you, Justice Scalia, feel still neutral?
I came from Philadelphia. I work with people who every day stand in the street and say just because it’s legal, don’t make it right. Just because it’s legal, don’t make it right. And they mean don’t make it moral. They mean just because it’s legal, it doesn’t make it moral.
JUSTICE SCALIA: Well, that’s certainly true.
QUESTION: Personally I’m opposed to the death penalty. I lost three family members to murder, but it’s inconsequential. I long before decided I was opposed. I want to ask just this question, and I want to thank all the panelists, Senator Simon’s humility and warmth and everyone present and all the questioners and participants.
MR. DIONNE: Thank you.
Do you have a response to that?
JUSTICE SCALIA: I think the question, if I got it correctly, was do I think the death penalty is immoral because it will – I have to say it – it will inevitably lead at some point to the condemnation of someone who is innocent. Well, of course it will. I mean, you cannot have any system of human justice that is going to be perfect. And if the death penalty is immoral for that reason, so is life in prison. You think you’re not going to have innocent people put in prison for life? It’s one of the risks of living in an organized human society. And it’s one that we all say, it’s better than the alternative, which is to be subjected to constant crime. I don’t think that the system becomes immoral because it cannot be perfect.
Now, we make enormous efforts, in this country more than any others, to make sure that the death penalty is not inflicted arbitrarily or wrongfully. You heard earlier that it’s something like 10 years between the time of the conviction and the ultimate execution of the sentence, during which lawyers and death abolition advocates are scouring the country to find out why this person should not be killed. That’s the best we can do in any human system, so I don’t think you can judge the validity of any criminal law system on the basis of whether now and then it might make a mistake.
MR. DIONNE: Could I ask you what is your obligation? You spoke very candidly about the role of different parts of the system, including yours at the end of the line. What is the obligation of a justice on the Supreme Court in cases where there may be serious doubt, or some doubt? In other words, how do you approach this very important decision as a justice, or how should a justice approach that decision?
JUSTICE SCALIA: Number one, in my 15 years on the bench, I can only think of one case when I thought there was a little doubt as to the substantive guilt. The vast majority of issues that are appealed involve foot faults during the course of the prosecution — evidence was admitted that shouldn’t have been admitted and so forth. But the case where there is serious doubt about whether this is really the person that did it is enormously rare.
For one thing, in all states, and in the federal government as well, you have the commutation power lodged in the executive. And if it is that kind of a close case, the executive will take another look at it.
So it is not a problem I have to wrestle with.
MR. DIONNE: What happened in that one case?
JUSTICE SCALIA: I think the Court ultimately concluded that there was nothing to the objection. But that was the only one where I think it even worth inquiring into.
SEN. SIMON: I agree with Justice Scalia that in fact under the death penalty, occasionally innocent people are going to be put to death. It is also immoral to send innocent people to life in prison. But there is one huge difference. If that person is innocently sent to prison for life, and we get evidence later that that person is not guilty, society can free him and even provide some compensation. Now that doesn’t make it moral. But there is a pretty marked difference between the two penalties.
JUSTICE SCALIA: I would argue that it may work in just the opposite direction, that the person who is sent to prison for life is bye-bye, nobody’s going to be scratching around for any evidence that would release this poor devil from a life in prison. But if you get the death penalty, within the ten years that ensues between the time you’re convicted and the time the penalty is executed you will have Sister Prejean, you will have a whole lot of other people looking into your case. You will definitely get your case looked into infinitely more carefully if you’ve been given the death penalty, rather than if you have only been sent to a cage for the rest of your life.
QUESTION: Justice Scalia, you and I got a chance to talk a little bit when you were at Notre Dame a couple of months ago, but unfortunately time always runs out, and there’s 100 of us and only one of you. And I’m glad that you’re back –
JUSTICE SCALIA: I lost the thread of our conversation.
QUESTION: I’m happy that you’re here, because this question is more related to the topic, and I wanted to ask you then. But of course now it’s more appropriate.
In your opinions and what you’re saying today and when I’ve heard you before, something that one can gather is that you’re both an ardent supporter of the Federalist interpretation of the Constitution, and that you’re an ardent supporter of the death penalty. In light of –
JUSTICE SCALIA: Gee, I hope you did not get the latter. I began my speech and I’ve tried to say throughout, I take no position on whether you should have the death penalty or not. My only point is – and this is a position I have to take or I should resign – my only position is it is not immoral. Whether you should have it or not is a different question. I’m not responding to that issue.
QUESTION: Okay, well, in light of what Senator Simon has said today – and I thank him because I don’t think any of the guests heretofore have really exposed that kind of evidence — the racial inequality, the economic inefficiency, the list goes on and on and on, detriments of the death penalty. In light of that, is there any circumstance where you would find the evidence so compelling that the death penalty is so repugnant of an anachronism in the Western civilized world that you would say, okay, perhaps Woodson v. North Carolina was a step in the right direction but needs some addition. Perhaps Gregg v. Georgia needs a reprise.
JUSTICE SCALIA: It’s above my pay grade. (Laughter.) I don’t do that. I do law. I am a creature of the law, and I look at the conviction to see whether the law has been complied with. That includes, of course, whether the evidence that produced the conviction was enough to enable a jury to find guilt beyond a reasonable doubt. It includes compliance with all the multitude of procedural requirements that are attached to criminal cases in general, and even more, to capital cases in particular.
But once the law has been complied with, I don’t have any charter to say, oh, yes, the law has been complied with, but it seems to me not fair. Not my job.
MR. DIONNE: Beth, could you come in on this question of what the law says and put that in the context of the reforms you’re proposing. In other words, there are a number of cases where it may be the right person, but there were serious problems with representation.
MS. WILKINSON: I think the last few questions have been premised upon the fact that the Supreme Court can do too much. Justice Scalia is saying that his job is actually very limited — has the Constitution been violated? The questions you’re asking are more really at the vortex of where Senator Simon and I have been, which are where public policy and morality intersect; that is, even if the law has been complied with, is it wise, is it being exercised judiciously and appropriately, and that’s where questions of race, true innocence, representation come into play, and that’s where our reforms are aimed at: where are the problems in the system that don’t rise to the level of constitutionality in many cases but are still problematic and lead many to believe that the death penalty should not as a policy matter be implemented in our country at all?
I agree with Justice Scalia on the issue of true innocence. There are very, very few cases like that. There have been some very well-known examples in this state and elsewhere that have compelled people who otherwise would support the death penalty to enter into the debate, to talk from a policy perspective about whether we should continue to have it in our country. But those of us who really want to reform the death penalty know that actual innocence is not going to get us very far. If you talk to the people who really know about the death penalty debate – especially those who have been opposing it for many years – they fear the support of the innocent, because in 99 percent of the cases, there is no question about the guilt of the defendant.
The question is did he or she – and mostly he – get a fair trial and a fair sentencing hearing? Was the jury informed about the alternative of life without parole? And did the jury really consider that, understanding that that person would be secure in prison, so they don’t have to choose death just to eliminate any kind of security risk, or whatever the issue is that’s there? We have tried in this to move the debate on where can the reforms take place. We’re not asking, for example, in our proposals to go to the Supreme Court for reform. That’s not where you’re going to get it. It’s at the legislative level.
What protections can we put into place to improve the system? One of the most important ones that I see is representation of the defendant. Most of the problems that we see in the system come from inappropriate representation of the defendant — the limitations in states like Alabama and Texas on the amounts of money that counsel can receive. No one with my education and training and working at a private law firm would be able to take on such a case, unless it were pro bono, because the fees are so extraordinarily small. It also prohibits people from hiring private investigators to go out and interview those other eyewitnesses or find documents that might be able to dispute the government’s case.
If we address that issue, the training, the resources for those individuals, I think many of the other problems that we see in death penalty litigation would at least be minimized. But those reforms, those issues that many of you are concerned with don’t get addressed and shouldn’t by the Supreme Court. They are issues for the public forum, for the public square as the professor called it, and in our state and federal legislatures.
SEN. SIMON: If I could just add, in terms of public policy, there are huge inconsistencies in the law. In federal law, for example, we passed – not with my vote – a bill in Congress a few years ago to have the death penalty for chicken inspectors.
JUSTICE SCALIA: For those who killed them, not for the act of inspecting, right?
: No, this was a PETA law.
SEN. SIMON: With the exception of two members of this panel, anyone else in this room could be murdered and there would probably be no violation of federal law, in terms of the death penalty. So one of the things that we ought to be looking at in the law is some consistency, and I think as long as you have the death penalty there is going to be very inconsistent application of that.
MR. DIONNE: They were going to make it a federal crime to kill journalists, but it was overwhelmingly voted down in both houses.
QUESTION: Hi, this is a comment for Justice Scalia. My name is David Bates. I’m a formerly incarcerated individual, served ten years in prison, was falsely accused of a crime, tortured, beaten. I’m worried because this seems more like a joke. You have innocent people on death row right now who have been forced to sign confessions, who have been tortured, suffocated and beaten, and it’s like this is a tea party here. I’m scared that you’re a justice. I’m honest. I’m scared. I’m worried.
JUSTICE SCALIA: And your question, sir?
QUESTION: This is going to be a comment. I’m saying I know personally there are several people on death row who are there because of forced confessions, who have been tortured and suffocated, and that needs to be addressed.
JUSTICE SCALIA: You should call somebody about that and have it investigated, sir. Do not keep it to yourself. Take it to the police.
QUESTION: But this is not a joke. I think we need to really look into this issue and really change the system. As a matter of fact we need to just abolish it, because it’s not fair. The only people on there are African-Americans, and it’s not a joke.
MR. DIONNE: Sir, thank you very much. Let me ask Senator Simon on that point. It has been asserted here with great certainty that in fact the number of people executed wrongly is very small. But from the Illinois experience, it does appear that there may be a considerable number of people who don’t belong there. Could you address that from the work you’ve done?
SEN. SIMON: Yes, I don’t think there is any question there are some people on death row in the state of Illinois – and I don’t know about other states, I have taken a more careful look at the state of Illinois – who shouldn’t be on death row. Now some of them in the process will not receive capital punishment. But I think the whole question is, is the death penalty really a deterrent, and can we protect society just as well by locking people up in prison? And I think the evidence, as you look at the various states, is it is not a deterrent, and we can protect society just as well by putting people into prison.
MS. WILKINSON: I want to point out that everyone takes this debate, and people who participate in the process directly take it, very seriously. But if you look at the federal system as an example, not one of the defendants on death row in the federal system is claiming actual innocence. So despite the press attention and the debate about this issue, which I think is crucial as a matter of public policy, there are very few people on death row who are claiming actual innocence. That doesn’t mean that they aren’t entitled to a rigorous appeal and good counsel and a habeas review of their cases. It just means that by and large those cases are not being discussed as a matter of whether this person actually committed the crime but whether they got a fair trial, and whether, as Justice Scalia said, there was some error that amounts to, under certain jurisprudence, an error of either constitutional or statutory magnitude that the case has to be reversed, at least for the sentencing phase.
JUSTICE SCALIA: This is not my territory, as I’ve told you, but there are, you know, statistics on the other side. One of the earlier speakers mentioned that there has been no case demonstrated in which someone was wrongfully executed. And if you think people haven’t been looking for it, if you think those in favor of abolishing the death penalty haven’t been looking for it, you’re mistaken. I haven’t investigated that myself, but I have heard the same statement made in other contexts, that it is has not been demonstrated that a single person has been wrongfully executed. I’m willing to acknowledge that can happen. I expect it will happen. But it is infrequent enough that those in favor of abolition have not come forward with a single case that demonstrates it.
SEN. SIMON: But let’s point out, you now have DNA evidence, which is a new thing in our society, so people have been able to prove their innocence today, when that would not have been possible very many years ago. So we’re in a very different situation.
MR. DIONNE: But is there not a risk that as we run more people through this system the risk of that error actually increases?
MS. WILKINSON: Well, I think the DNA evidence cuts both ways. Thirty percent of DNA evidence exculpates an individual who is accused of a crime. So it’s helped us, in many ways, avoid a wrongful conviction of an innocent person.
But I would point out, here in Illinois and elsewhere, most of the reversals of death row inmates convictions are not based on DNA evidence. They’re based on eyewitness evidence, which is perhaps the most unreliable form of testimony a prosecutor can use. That doesn’t mean you can’t find ways to make it credible and corroborate it. But most of these cases where people have been let off death row have not been because of DNA. And as we saw last summer with the case in Texas, that DNA test only confirmed the absolute worst that the abolitionists had been hoping for when one of the fellows that was on death row in Texas said that he had not raped and murdered his stepdaughter, and the DNA testing was done and it confirmed that he was in fact the perpetrator.
I think it can be used both ways, but I don’t think DNA evidence ever will transform our criminal process, because as everybody knows in many of these cases DNA is not an issue either way.
QUESTION: Justice Scalia, during your speech you made a comment that you believe the current Court to be misinterpreting the role of religion in states. That’s something all three panelists can actually speak to. What should be the role of religion in the state?
JUSTICE SCALIA: Oh. My goodness – (laughter) – it would take a whole afternoon to tell you where I think our religion clause jurisprudence has gone wrong. I believe the single most important thing is the so-called principle of neutrality, which the Court has pronounced, which says that the government, state and federal, must be neutral, not only among various denominations of religion, but must be neutral between religiousness and non-religiousness. That is new, because as recently as the 1940’s, in an opinion by, of all people, William O. Douglas, that notorious religious conservative – (laughter) — the Court commented on a released-time program for New York City school students. I was actually in the program, where you’d get Wednesday off if you had a note from your parents and you could go to religious instruction, skip out of school while your classmates who didn’t have the notes had to put in another hour-and-a-half or so. It was a good deal – (laughter) – and it was challenged in the Court as unconstitutional. The Court upheld it, and writing for the Court, Douglas said we are a religious people whose institutions presuppose a Supreme Being. When the state accommodates its schedule to the religious needs of its people, it acts in the best of our traditions.
Now that was what I think the proper principle of establishment clause jurisprudence is. But within 10 years the Court did a flip and said you cannot favor religion over non-religion. The problem with that is that it simply does not comport with our whole constitutional tradition, with so many elements of it: the Thanksgiving proclamations from the beginning, with chaplains in Congress, with chaplains in the armed forces. You don’t let people take their philosopher with them, but chaplains. We’re favoring religion over non-religion. Tax exemptions for places of worship, there is no way to square that principle with the reality of American constitutional law, yet the Court continues to mouth that principle of neutrality.
So if I had to pick one single thing that’s wrong and has to be fixed before we have a coherent religion clause jurisprudence, I’d say that’s it. And, you know, presumably William O. Douglas would agree with me.
MR. DIONNE: How often do you quote Justice Douglas?
SEN. SIMON: Well, I would just add to the phrase “excessive entanglement.” It’s been used by the Court as a standard, and I think that’s a good standard. The phrase “wall of separation” is taken out of a Thomas Jefferson letter to a Baptist minister and it’s not part of the Constitution. You know, if the local Methodist church is on fire you call out the fire department. People don’t say, “Separation of church and state – you can’t call out the fire department.” I haven’t heard anyone say we ought to change the name of St. Louis or St. Paul or San Francisco.
But I think we have to be very, very cautious. As Justice Scalia said earlier, more people attend services on a Friday, Saturday or Sunday in the United States than almost any country in the world, in terms of percentages. It has been good for government. It has been good for the religious community. I think avoiding “excessive entanglement” should continue to be a goal of the government of the United States.
MR. DIONNE: It’s funny you said that, because we’re one of the only countries in the world that has literally made a federal case out of prayer at football games, and I wonder whether this says something about the priority of prayer or the priority of football in our culture. Ma’am, please.
QUESTION: I have observed in previous panels today that the issue of justice has been defined, basically, as a matter of retribution and punishment alone, and my question has to do with the nature of justice as, perhaps, the greater good, as, perhaps, the restoration of right relationship. What do you believe the death penalty does to contribute to or to degrade that relationship?
MR. DIONNE: I think this goes to the argument we heard in the course of the day about restoration as well as retribution, and that defenders of the death penalty would argue that it restores a sort of rightness of relationship. Its opponents would say it does the opposite.
JUSTICE SCALIA: No, as I told you, I am publicly neither an opponent nor a proponent. You’re asking me to defend the death penalty. I don’t. I have no position on the death penalty, only on whether it is immoral to impose it — because if I found it was immoral, I would leave my job. That’s the only position I’m taking here.
MS. WILKINSON: I stated in my closing argument on the death penalty with McVeigh that I think our country is premised upon the fact that we allow almost anything in our debate and our democracy, other than taking human life, and especially to perpetrate or fulfill someone’s supposed political ideals. At a certain point it is appropriate for society to speak out and say we will not tolerate the murder of 168 innocent people by one individual who has agreed to be a member of our organized society because he feels in his personal analysis that there has been some wrong done by the United States government or by anyone else. And so I think it is speaking out on the morality and the judgments we make about people, and bringing back that debate.
Now many people disagree with that, and you can debate it on whether that does any good ultimately for the greater society, but society has already spoken that those are really the cornerstones, the principles of our country that we’re founded upon, in terms of protecting our liberties and the liberties of those that we co-exist with.
MR. DIONNE: Could I challenge something you said earlier, which is that people who oppose the death penalty don’t want to start with the McVeigh case. But let’s assume for the sake of argument that in a very special number of cases the case can be made that the death penalty is moral. The problem with the application of the death penalty lies in all the other cases. I mean, thank god we do not have a lot of cases like McVeigh or whatever will come out of the World Trade Center. We do have a lot of single murders, and the fact is those murders are dealt with very, very differently throughout the system in a manner that doesn’t make any particular logical sense. Now one solution that Justice Scalia suggested is mandatory death penalty in every murder case. If you don’t have that, then how just can a system be when the distribution of the punishment seems so random?
MS. WILKINSON: Well, it’s a concept called proportionality that is discussed in the death penalty debate all the time. As usual, it’s complicated by the fact that we live in a democracy where we allow individual communities and states to impose their own punishments and make their own prosecutorial discussions. So whenever we get to this point of why are there so many more death cases in Houston, Texas than there are in Hartford, Connecticut, we get to some community standards which our democracy allows and demands. People who live in Houston, Texas can make decisions about the implementation of their laws and their public policy that may be different from the people of Hartford, Connecticut. It’s not a perfect system, but we’ve decided in the greater context of our democracy that we are going to allow those differences in the state with this obviously overriding principle of federalism and the federal government –
MR. DIONNE: But in this recent study in Virginia, you found radical differences by county. In other words, it’s within the same state, theoretically the same laws apply, and yet certain counties had a much higher rate than others. That suggests a randomness beyond even the difference between Texas and Massachusetts.
MS. WILKINSON: Although if you look at even federal criminal law around the country in non-death cases, you see the same thing. You get a certain rate of conviction for carjackings and narcotics cases in New York, versus North Carolina where it happens less frequently and there’s more outrage. So I don’t think that’s anything different in the death penalty debate, and it’s more about the communal standards that we have in different areas.
JUSTICE SCALIA: As far as the punishment goes, the same thing happens with judges. In the days when you didn’t have the federal system sentencing guidelines, it was up the judge. The statute said 10-40 years. There were some judges known as hanging judges. If it said 10-40, you were going to get 40! And there were other judges who would give you the minimum. Was that disparate? Of course it was, but the way you look at it, is it unjust to the person who gets 40, or is it a boon to the person who gets 10? When you do the act, you know you’re liable to 40, or you know you’re liable for the death penalty. Now it may well be that somebody else is lucky enough not to get it, and gets a tenderhearted jury. But there is no way to avoid that. I don’t know why you have to view that as an imposition upon the person that gets the death penalty rather than an act of grace upon the person who doesn’t. And the only way to avoid it in any case is to have a mandatory sentence. Everybody gets the death penalty, or everybody gets 40 years.
MR. DIONNE: But you wouldn’t disagree the difference between 10 and 20 is smaller than the difference between life and death.
JUSTICE SCALIA: Of course. No. But the principle is the same.
QUESTION: I’d like to try to reframe the argument, not just in terms of morally good and bad, not just in terms of private versus governmental authority and morality, the confusion or distinction thereof, but in terms of the community and the good of the community.
MS. WILKINSON: You’re suggesting that it may not be good for the community, and I think it depends on what community you’re talking about. If you meet the hundreds of people who were affected in Oklahoma City, directly and indirectly, most of those people would tell you that there was some good – not that they got closure, a word that every victim hates – but that there was some sense of justice for them, and that was a community good. Other people will disagree. I’m not sure where we can go with that.
QUESTION: My question is directed to Ms. Wilkinson. I understand Justice Scalia’s position that his faith is something he needs to cabin when he is making decisions on these cases, but it seems like in the case of a prosecutor you have the law on one side and you have prosecutorial discretion on the other. And it seems like your personal beliefs would inevitably come into play. Do they, and in what way?
MS. WILKINSON: Well, prosecutorial discretion is not an invitation for my personal beliefs, and I agree with you. That is sometimes hard for people, but it doesn’t mean because I have the discretion of the state to decide whether to charge someone I get to do it because I personally feel something about a particular case. Even within a prosecutor’s office, there are standards for bringing a case. There is review by your supervisor, obviously there is a presentation to the grand jury so that citizens get to make a determination about bringing those charges, and ultimately, there’s the jury making the decisions so that they limit your prosecutorial discretion ultimately, even if you think the defendant is guilty of the crimes for which you are charging him.
Do I think it’s a perfect system, or anyone can perfectly separate their individual views from their prosecutorial responsibilities? Of course not. But did I see people trying to do that every day by having standards, by having discussions, by requiring proof, all the kind of pre-trial requirements you have for proving cases, you know, limit your prosecutorial discretion in some ways. But ultimately in a death case, I do think prosecutorial discretion impacts on a community basis as we were just discussing, whether certain prosecutors bring certain cases. And would I bring a case in a 7-11 murder? No, I would not. Personally I don’t support the idea of felony murder ever being a death eligible offense, but if I worked in a prosecutor’s office, I would not get to make that personal decision. That would be some kind of policy discussion that goes on within the office, and I think that’s appropriate. Until someone canonizes me as the person who gets to make those decisions based on my own personal beliefs, I still have a duty as a public servant to my community.
MR. DIONNE: Last question, sir. Thanks for being patient.
QUESTION: My question is another question for Justice Scalia. It concerns this tension between religion and whether we can separate our views when we make legal judgments.
You stated, if I heard you correctly, that the religious views of a Supreme Court judge have no bearing on their legal judgment. So I have a couple of questions just asking about that. Do you think a person’s upbringing, station in life, the epoch in history that we live in will affect a possible neutral viewpoint? Additionally, is the statement that one brings no –
JUSTICE SCALIA: No. What’s the next one?
QUESTION: Okay. Okay. Do you believe the statement that one brings no moral or religious viewpoints to the legal question isn’t in fact a moral or religious viewpoint? Before you answer that, so an example would be –
JUSTICE SCALIA: Got you nervous, don’t I?
QUESTION: No, no, an example would be for someone with a different viewpoint on a particular question, the lack of a viewpoint may, in fact, be a moral or an immoral viewpoint, exposed to the fact that a judge from one particular view may in fact expose in the fact that that view may not actually be a neutral view.
JUSTICE SCALIA: If your point is that it’s hard to do, of course it’s hard to do, to keep your personal predilections and biases out. It’s the hardest thing but also the most important thing that a judge has to do. But there is no reason in the nature of things, at least if you’re doing judging the way I do it.
Bear in mind that I don’t make up new constitutional rules. I don’t sit back and say should there be a right to die. You know, it’s not really there in the Constitution, but you know, we have an evolving Constitution and maybe it ought to be there. Now, if that’s the kind of judge I was, I would certainly think that my ethical and moral and religious views would have a lot to do with my decisions.
But I am not that kind of a judge. I look at a text. I take my best shot at getting the fairest meaning of that text, and where it is a constitutional text, understanding what it meant at the time it was adopted. So, you know, I’m handcuffed. I can’t hurt you even if I wanted to. (Chuckles.)
QUESTION: This is for a follow-up. Is that a moral judgment, if in fact another person with a different religious view would view those laws as immoral? It seems to me that that you make that judgment from a moral or religious view –
JUSTICE SCALIA: No, I can’t strike down a law because it’s immoral. I don’t know any judge who says, disallowed as immoral. You have to find that it’s unconstitutional or contravenes some other provision of positive law. You know, we really don’t just go around flinging out laws that have been enacted by the people on the ground that they’re immoral.
MS. WILKINSON: As you continue to participate in this debate, I would emphasize that it is a complicated, nuanced debate from the moral perspective, from the legal perspective and from the public policy perspective, and when we meld some of these discussions we often lose that. And as I tell my now criminal defense, alleged criminal clients, when you seek speedy justice you often receive it. And when we try, in this case, to ask for an elimination of all the disparities and for total fairness in the application of the death penalty, what may result are some very hard-line rules that none of us want to live with. For example, if you look at Philadelphia, the district attorney there has decided that the easiest way for her to make decisions about the death penalty are if anyone commits first-degree murder, she goes to a jury every single time and asks for death, instead of using that prosecutorial discretion to look at the individual case, which sometimes causes many people problems. So as you are seeking solutions and making suggestions in your own community, I just point out that some of these issues where we have disparities and conflicts and inequities may not be easily solvable by some of the solutions that we’ve talked about today.
MR. DIONNE: Senator Simon?
SEN. SIMON: Let me just first comment on the last question very briefly. We cannot totally separate our backgrounds from decisions we make in legislating. I grew up in the state of Oregon. My father was a Lutheran minister. In February of 1942, when the president of the United States ordered 115,000 Japanese-Americans to sell everything they owned in one to three days and then be taken off to camp — not a one of those 115,000 committed a crime — and my father stood up and said this is wrong. I remember the hate phone calls and all that. Then I had to make a decision on reparations, later, and the Supreme Court unfortunately in the Korematsu decision made a terrible decision and said what the president did was correct.
Now, my background is part of the decision I made on reparations. But I have to be careful that I don’t take my Lutheran background and impose that on others. And so there is an area where it’s kind of blurred and gray, where we have to be careful as we apply our faith to life. We do not want a situation like Iran has, just to use an extreme example, or the Taliban had in Afghanistan.
But on the death penalty, there are moral questions here clearly, but the fundamental question is is it wise? Do we protect society by having the death penalty? Or are our friends in Western Europe and Canada and Mexico correct in saying we’ve moved beyond just executing people, of the government committing violence, when that’s not necessary to protect society?
MR. DIONNE: Thank you very much. I just want to make one very small point about this whole question of the influence of religion on public life, because I think there’s an assumption that religious convictions automatically lead in some sort of Republican or conservative direction. As Justice Scalia pointed out, that’s not true historically, given abolitionism, for example.
On this issue it’s very clear it leads in what is conventionally called the liberal direction. The Pew Forum and the Pew Research Center did a poll last year where we asked people what affected, what most influenced their views on a whole series of questions, and we gave them a broad array of choices as to what they could describe as having influenced them. Among opponents of the death penalty, 42 percent cited a religious reason for opposing it. Only 15 percent of supporters cited a religious reason for support. I think it gives an indication of how complicated this terrain is, and it’s why we are in this business.
I want to thank Justice Scalia, Senator Simon and Beth Wilkinson. I particularly want to thank Justice Scalia for giving all of us, including the audience, a sense of what it must be like to argue cases before your Court.
Thank you very, very much.
(END OF SESSION)