America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Sister Helen Prejean: My argument with Scalia

Sister Helen Prejean
Sister Helen Prejean (Photo: Franck Dennis)
Sister Helen Prejean, a Sister of St. Joseph, ministers to prisoners on death row. She is the author of "Dead Man Walking." The views expressed are her own.

I'm praying for Justice Antonin Scalia, that his passage into eternity was peaceful. I respect his sincerity, even though on the subject of the death penalty, he was my nemesis.

As I was writing "The Death of Innocents," I happened to run into him in an airport, and I said teasingly that I was "taking him on" in my book. And he, personable as he was, jabbed his finger in the air and said, "And I'll be right back at ya!"

In "Innocents," I wrote about 2 men I believe were innocent: Joseph O'Dell and Dobie Gillis Williams, whose executions Scalia summarily authorized without an apparent qualm, acknowledging that his role on the Supreme Court made him part of the "machinery of death."

Scalia's experience of the "meaning" of capital punishment, as he described it in one of his dissenting opinions, couldn't have been more different from my own. In the marble confines of the court, he argued interpretation of Constitutional texts, while I, in state killing chambers, accompanied real human beings -- 6 of them -- to their deaths as a direct result of Scalia's interpretations.

In grasping the "meaning" of state killings, I had one advantage over Scalia. I was there, close up to the anguish and terror of the condemned and their grieving mothers. Scalia, in the cerebral confines of the Court, never touched a tear-stained cheek, never stood present at the grave as families buried their loved ones killed by the state.

One thing the justice and I did have in common, however, was this: he stumped around the country to persuade citizens of the rightness of his "originalist" approach to the Constitution; I stumped around the country (still do) to persuade citizens to abolish the death penalty, laying out my arguments through stories of personal experience, beliefs of my Catholic faith and logical, fact-infused arguments, including Constitutional analysis.

After all, as citizens, are we not the ultimate proprietors of the Constitution and its meaning for our lives? Are not its protections of life and liberty far too precious to blindly be turned over to legal "experts," every bit as prone to prejudice and blind spots as the rest of us?

I have profoundly disagreed with Scalia on two fronts: jurisprudence and religious faith.

As for his jurisprudence, I do not think that the only correct way to interpret the Constitution is to interpret its words (text) as, supposedly, our 18th century framers understood them.

Given what we now know about the fluid nature of text and context in linguistics, that's an impossible task. Even more impossible is to confine ourselves to the practice of punishment as they practiced it, which, to most modern eyes, was harsh in the extreme.

In 1999, I accompanied Dobie Gillis Williams into the killing chamber of Louisiana three times before my native state finally killed him. An African American with a very low IQ, Dobie was sentenced by an all-white jury to die for supposedly killing a white woman.

I say supposedly because even though the appeals courts upheld Dobie's guilt, I am convinced of his innocence. I tell Dobie's story in"The Death of Innocents," taking readers through our broken system of justice that masks truth and gets poor men like Dobie executed.

3 years after Dobie's death came a Supreme Court decision that, had it come earlier, might well have saved his life, a decision in which Scalia fiercely dissented. In Atkins v Virginia (2002), the court ruled 6-3 that executing people with mental disabilities -- that is with an IQ of 70 and below -- violates the Eighth Amendment's ban on "cruel and unusual punishments."

In his dissent, Scalia used as his moral criterion an 18th century dictionary's definition of "idiot" as "such a person who cannot account or number twenty pence, nor can tell who was his father or mother, nor how old he is." According to Scalia's perception of the Constitution as not living but dead, that archaic definition should have guided the court's decision and not any modern understanding of diminished mental capacity. Dobie, who had an IQ of 65 but knew exactly who his mama was, would have failed Scalia's "idiot" test.

My 2nd argument with Scalia was the way he interpreted Catholic teaching about the death penalty. Church opposition to government executions has developed considerably in recent years, which to Scalia was anathema. He interpreted his Catholic faith as he interpreted the Constitution, staking his position in unchangeable tradition, upheld by Saints Augustine in the 5th century and Thomas Aquinas in the 12th.

These stalwart teachers, he maintained -- unlike Catholic American bishops so easily swayed by "modern trends," as he saw it -- upheld the righteousness of government-imposed executions as God's will, justified in the same way as the killing of a rabid dog or the amputation of a gangrenous limb.

Thus, Scalia could not brook American bishops' increasing opposition to the death penalty, nor the opposition of Popes John Paul II and Francis -- especially Pope Francis, who must have disturbed the justice considerably in his bold appeal before Congress for global abolition of the death penalty.

At a conference in Chicago in 2002, Scalia's statements about Christian faith vis a vis the death penalty stunned me. Statements such as these:

-- "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."

-- He interpreted St. Paul's words, "The powers that be are ordained of God," to mean: "Government derives its moral authority from God. It is the minister of God with powers to revenge, to execute wrath, including wrath by the sword, which is unmistakably a reference to the death penalty. ...These passages from Romans represent the consensus of Western thought until quite recent times ... regarding the powers of the state. That consensus has been upset by the emergence of democracy."

Democracy, indeed. Do our elected leaders derive the authority to govern from the people or by direct divine infusion? That's theocracy, not democracy.

Where was Jesus in the Justice's stance of faith? Where is his moral challenge to rise above seeking "an eye for an eye," to pray for and forgive our enemies?

In Chicago, Scalia justified his interpretation of scripture by making a distinction: individual Christians must follow Jesus' call to forgive, but not the state.

In this distorted reading, state governments as God's ministers have God's blessing to inflict wrath on evildoers and those they deem "enemy."

It seems Scalia was as adept at drawing bright lines in the practice of his faith as he was in his jurisprudence. Now the bright line of death has been drawn across his life. I pray that he finds eternal rest.

I also hope and pray that the 9th new justice will be a person, who not only has an excellent legal mind, but also a compassionate and fair-minded spirit, in close touch with the struggles and aspirations of ordinary people -- especially the most vulnerable among us for whom "equal justice under law" is a cruel chimera if not an outright lie.

Source: Helen Prejean, CNN, Feb. 22, 2016

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