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Antonin Scalia has let the cat loose among the pigeons in the matter
of Catholic doctrine and capital punishment. What he said was simply
this: If a judge concludes that he can't ordain capital punishment,
or concur in its ordainment, then he should resign his position
as judge. Why? Because he cannot act according to his oath of office,
which is to execute the laws as written by American legislators.
In 37 states, the death penalty is authorized. Sentencing judges,
or judges on duty on appeal panels, can be a) Catholic; b) personally
opposed to capital punishment; yet c) bound by oath to apply the
law. If the strain on the conscience is unbearable, opines Justice
Scalia, let them resign.
Now in the way he proceeded to make his point, at the forum at Georgetown
where he spoke, Scalia engaged in provocative theological thoughts.
He didn't just talk about Catholic judges staying in or getting
out. He went on with an impish aside, which I guess the lawyers
would call obiter dictum, to say that (after all) the Church had
authorized capital punishment for two thousand years.... The meaning
of it was plain: that the Church could not easily capitalize the
death penalty as sinful after two millennia of tolerating it.
The immediate objection to the point being made is that other things
were tolerated for centuries, which no longer are, for instance,
the institution of slavery. Opponents of capital punishment can
argue that ethical refinements of judgment disallow today what might
have been routine yesterday, for instance, public flogging. In the
context of the sophistication of Justice Scalia's thinking in most
matters, one resists dismissing him that easily. It is not predictable
that the secular line of humane thought will continue to move in
the direction of outlawing capital punishment. It is not inconceivable
that 25 years hence, in a world crowded with progressively intimate
human relations and advanced technology, by which human beings can
handily murder other human beings, the view of condign punishment
will move in the direction of severity. Even a Scandinavian jury
might be inclined to vote death for Osama bin Laden.
But Justice Scalia is currently involved in another point touching
on capital punishment, which is procedural and in active judicial
contention these days. It is the question of the allocation of responsibility
as between juries and judges.
We all know that juries are supposed to rule on questions of fact,
judges on questions of law. But is it easy to compartmentalize these
responsibilities? For instance, a judge, having heard the jury rule
that the defendant was guilty, can weigh, under existing practice,
such questions as the bearing of past criminal behavior by the defendant.
Judges in several states not only have the responsibility of weighing
the applicability of capital punishment, they are required to do
so — by opining that the behavior of the defendant, or the
nature of his engagement in the crime, was especially heinous. Is
that a decision that should be reserved for juries to make? Should
juries be relied upon to weigh the relevance of a defendant's past
crimes?
In the year 2000, the Supreme Court held in a 5-4 ruling that juries,
not judges, must rule on all the facts that increase defendants'
statutory maximum sentences. And lo!, Justice Scalia voted here
with the majority.
If the arithmetic
of Professor Stephanos Bibas, writing in the Legal Times,
is correct, some 800 people now on death row could be retroactively
sprung upon a successful pleading based on Apprendi v. New
Jersey. The situation there was a man pleading guilty to a firearm
violation and possession of a bomb in his house, which under the
law called for a maximum sentence of ten years. But the judge ruled
that Charles Apprendi had been motivated by racial bias, and therefore
"enhanced," to use the language of the law, the sentence
by two years.
What Scalia is engaged in, it has been said, is increasing the burden
and the responsibility of jurors, at the expense of judges. This
is a conservative position based on jury sovereignty. Whether if
decisions on capital punishment were to depend entirely on juries
rather than only in part, there would be more or fewer executions,
we don't know.
We have not heard from Justice Scalia whether, in voir dire, jurors
who are Catholics should be asked if their faith would affect their
reasoning on whether a defendant should be executed. Or how exactly
that question, put to a Catholic juror, should be formulated.
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