Justice Scalia on the Death Penalty

Pope Francis and the Vatican have recently amended the Catechism of the Catholic Church to declare the death penalty inadmissible. This has drawn much controversy as Saint Pope John Paul II had previously maintained that exceptions exist for the Church to recognize the death penalty.

This leads us to reflecting on the role of the death penalty from  domestic standpoint in the legal realm. This post will consider the jurisprudence of the late great prominent Catholic jurist, Supreme Court Justice Antonin Scalia. We highlight some of his major cases here and also his personal perspective on the issue.

When considering Justice Scalia’s view, we consider a couple of his major death penalty cases, Glossip v. Gross and Roper v. Simmons.

Glossip v. Gross (2015)

The Eighth Amendment provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

In Glossip v. Gross, Justice Scalia concurred in the judgement of the Court which upheld the decision of the lower court to proceed with an execution in Oklahoma. The court held that the prisoner failed to identify a known and available alternative method of execution to the 3-drug process that included midazolam that would entail a lesser risk of pain, a requirement of all Eighth Amendment method-of execution claims.

Justice Scalia’s concurrence focused on challenging Justice Breyer’s opinion that was calling for the abolition of the death penalty. He found unsatisfactory Justice Breyer’s claims that the death penalty was a cruel punishment because it is unreliable, arbitrary, causes unnecessary delay and has a limited deterrent effect. Justice Scalia drew a distinction between the death penalty itself and convictions with claiming that the unreliability of convictions is the center of the issue, not the given punishment of the death penalty. He casts doubt into the notion that it is arbitrary by highlighting the fact that each case presents its own different circumstances and the court considers the mitigating circumstances on an individual basis. In terms of the length of time, Justice Scalia argued that concerns with length have no bearing on the Constitutionality itself of the death penalty as a form of punishment. In fact, he argued that the Court itself was responsible for this delay based on its ruling in Trop v. Dulles, 356 U.S.86,101 (1958) that placed restrictions on capital punishment and provided further opportunities for moves to delay execution.

Finally, Justice Scalia’s greatest argument focuses on the decisions of the people and how it ultimately rests with democracy so as to avoid a lingering assessment of the morality of the death penalty by lawyers and judges. The sole task of the judges and lawyers is to apply the law and he believed the Constitution allows for the death penalty and it is not the role of the Supreme Court to abolish the practice, rather it is the people’s responsibility if that is the direction they so choose.

Furthermore, we note, however, that at the time of the Constitution’s enactment to date, the death penalty has been recognized in many states, thus it should not be categorized as cruel and unusual and therefore prohibited under the Eighth Amendment. There is room to evolve the burdens and crimes that must be met to properly rely on the death penalty for punishment, but to call for its complete abolishment from the Supreme Court is very radical and would continue to set dangerous precedent like Roe v. Wade that denied the voice of democracy.

Roper v. Simmons (2005)

In Roper, Justice Scalia dissented from the majority opinion that categorized the death penalty as “cruel and unusual” when applied to those under the age of 18 years old.

The majority opinion argued that the Eighth Amendment reflected the evolving needs of society, thus execution prior to the age of 18 warranted a revaluation. However, a central argument that Justice Scalia made was that it was not the role of the judiciary to prescribe “evolving standards of decency” for society, but rather to assess the laws passed by the people that sought to reflect the evolving needs. The Court did not have the duty to act as the nation’s conscience.

He stated:

“The reason for insistence on legislative primacy is obvious and fundamental: “`[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.'” Gregg v. Georgia, 428 U. S. 153, 175-176 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) (Burger, C. J., dissenting)). For a similar reason we have, in our determination of society’s moral standards, consulted the practices of sentencing juries: Juries “`maintain a link between contemporary community values and the penal system'” that this Court cannot claim for itself. Gregg, supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968)).”

Furthermore, he was also critical of the Court’s reliance on scientific and sociological studies to reach its conclusion:

“Today’s opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here. To support its opinion that States should be prohibited from imposing the death penalty on anyone who committed murder before age 18, the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding.

 This is just another example of the Supreme Court wading into waters that challenge its limits on authority. Justice Scalia agreed with then Chief Justice William Rehnquist in that these studies can often be found to be unreliable and vary based on target populations upon which the studies were conducted. There was much too uncertainty to use in making a ruling as a matter of Constitutional law.

Overall, Justice Scalia focuses much of his legal critique against restricting the death penalty on an understanding of the Supreme Court’s proper role in adjudicating the matters that come before it. It is driven by the judicial minimalist approach that is reluctant to interfere with valid democratically passed measures. This is very much in line with Hamilton’s view in Federalist 78 of the judiciary as one “that may truly be said to have neither FORCE nor WILL, but merely judgment.”

In terms of his moral critique against opponents of the death penalty, an article in First Things captures his perspective. It can be read here.

In brief, Justice Scalia does not find imposition of the death penalty as immoral and highlights parts of scripture such as St. Paul’s writings to make his argument that governments are free to impose just penalties. Just retribution for heinous crimes protects the interests of society and maintains civil order. Those that take lives, such as Timothy McVeigh and terrorists such as those who seek to carry out 9/11 type atrocities have inflicted incredible evil on society and present the capability of bringing more evil with their influence. Society has a legitimate purpose for punishing them for their actions.

In sum,  from a legal standpoint it is not the role of the Supreme Court to invalidate state decisions on the evolving views of the death penalty as a matter of Constitutional law. Some states recognize the practice while others do not. This is a similar argument and understanding of federalism that we have discussed with regards to the abortion debate.

From an ethical standpoint, educated minds may differ on their support for the death penalty as a means of punishment in the 21st century. In my personal opinion, as a devout Catholic and Constitutionalist it raises no concerns for me and I find it valid from both a moral and legal point of view. With that being said, I strongly believe that a high burden must be met before its imposition- that includes DNA testing and allowing the appeals process to take its course. It is our duty to not execute innocent people, however, those that seek to inflict heinous crimes and bring about an abundance of evil such as mass murderers, serial killers and terrorists should not have the sympathies of a just and moral society. They should be punished with just retribution equivalent to their crimes. Unlike abortion, where an unborn child is not given the chance to live- those that must suffer the consequences of the death penalty had an opportunity to live, but decided to use their time on earth to take innocent lives away in the most evil way possible. In the end, I argue although there are different processes to reach the outcome, St. Paul and Publius would reach the same conclusion.

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