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December 21, 2005

The nation’s foremost death penalty opponent bumps into a Supreme Court Justice she feels is partly responsible for the deaths of two innocent men she knew well. What happens next? The author’s well-documented search for reconciliation within American justice takes a hard look at Scripture.

Prejean is among the speakers at the 2006 Trinity Institute National Theological Conference, "The Anatomy of Reconciliation: from violence to healing."

By Sister Helen Prejean

When I see him in the New Orleans International Airport, I can’t believe it’s Supreme Court Justice Antonin Scalia fiddling with the headphones of his compact disc player. I figure he’s flying back to Washington, D.C., and I guess where he’s been: duck hunting with my brother Louie. They met nine years ago at the wedding of one of Justice Scalia’s sons, and they’ve been hunting buddies ever since. I’m amazed at the coincidence not only that my brother Louie and Scalia are friends, but that I should encounter the Justice — who calls himself part of the “machinery of death” — in my hometown airport. But here we are, Scalia and I, on a Sunday night in November 2002, Concourse A, Gate 7 — meeting.

As soon as I see Justice Scalia in the airport, I can’t help but think of Dobie and Joe as they lay dying: Dobie struggling to control his fear, and Joe, in disbelief that the courts were letting him die without granting him the hearing he had sought for twelve years. Watching these men die, I learned an unshakable truth: The courts, including the Supreme Court, killed them every bit as much as the executioners who injected poison into their veins. And now I’m about to meet one of the justices who authorized these killings. I walk up. “Are you Scalia?”

“Somebody has to be,” he quips, shoving headphone wires into a music case.

In the cases of Dobie and Joe, Justice Scalia had voted with the majority to reject their petitions. If he had voted differently, Dobie and Joe might have been granted federal hearings, which could have saved their lives. In my letter on behalf of Joseph O’Dell to Pope John Paul II, I said that Catholic Justice Antonin Scalia was part of the crucial 5-4 majority vote of the Supreme Court to reject O’Dell’s petition. Justice Scalia, I said, is “relentless in his pursuit of legalizing executions every way he can. He seems to have no trouble squaring executions with his Catholic faith….”

Justice Scalia has not yet raised his eyes to look at me. He is still fiddling with the headphones. “I’m Sister Helen Prejean. I’m Louie’s sister.”

“You’re Louie’s sister?” he says, looking up. I know he’s heard of my book, Dead Man Walking. Louie told me that on their first hunt a friend proudly told Scalia that “Louie’s sister’s” book had been made into a film with Susan Sarandon and Sean Penn. Scalia cut him off: “Just what we need, another anti-death penalty film by a bunch of liberals.” “Louie’s a fine guy,” Scalia says. “He even brings his rosary beads into the duck blind.”

I’m not surprised. You can’t find a more devout, prayerful Catholic than my brother. At a family dinner, when Louie first told us about duck hunting with Justice Scalia, I asked him if he knew about Scalia’s voting record on death penalty cases, and he said they didn’t talk about “court stuff,” they just hunted.

I well understand that Louie wouldn’t want to debate Justice Scalia about anything. I realized how powerful a debater Scalia is when I read his speech and his answers to questions at a death penalty conference at the University of Chicago on January 25, 2002. His arguments dominated the conference and the audience appreciated his humor. References to audience laughter permeate the transcript of the conference, and the nervousness of questioners who dared to challenge him was palpable. I tell Justice Scalia that my brother has a big heart, always has; he has a job helping people with disabilities get homes and jobs.

“Get any ducks?” I ask.

“Not a one in the sky. None flying,” he says.

I was returning home from a talk I had given at Georgetown University, Scalia’s alma mater. A year ago, he spoke there as part of “Jesuit Heritage Week.” He recalled his student days and praised Jesuit education for “not losing its soul” to “secularism.” Afterward, a student asked how he squares his position on the death penalty with his Catholic faith. Since Jesuits emphasize that church teachings on social justice are integral to Catholic faith, many students at Scalia’s talk would have known of the numerous papal pronouncements calling for an end to the death penalty and would have studied the pope’s encyclical on the subject and the most recent change in the Catholic Catechism. Scalia said he prefers the traditional view of Augustine and Aquinas, which upheld capital punishment. He said that since the recent teachings on capital punishment were not issued “ex cathedra” (strictly declared infallible teachings), he had given them his “thoughtful consideration” and decided to reject them. Justice Scalia believes in a “fixed” constitutional text — sometimes called “dead” or “enduring” — and he takes issue with those who see the Constitution as “living” or “evolving.” Such a view, he says, is treacherous because it leads people to “rewrite” the law inserting their own opinions to make the Constitution say what they think it ought to say.

My encounter with Justice Scalia in the airport is brief. After the preliminaries about duck hunting and what a good guy my brother is, I say to him, “Justice Scalia, I want to tell you something. I’m writing a book about two innocent men I’ve accompanied to execution, and I know what you said at Georgetown and in Chicago, and I want you to know that I’m taking you on in this book.” I say this calmly, a simple declaration of intent.

He responds in a friendly way, jabbing his hand in the air: “And I’ll be coming right back at you.”

Justice Scalia and I couldn’t be further apart. He provides the “legal groundwork” to send people to their deaths, and I resist his orders every way I can. He sits on a bench in marble chambers, and I sit in visiting stalls on death row.… Scalia quotes the Bible to justify government’s “divine authority” to kill “evildoers,” and I summon the words and example of Jesus, who transformed the mandate of “an eye for an eye” by urging forgiveness, even of enemies. For twenty years, I have lived in conflict by becoming involved on both sides of the death penalty — with death row inmates and their families and with the families of murder victims.

Justice Scalia has said that if his moral beliefs opposed the death penalty, he would resign from the Court, but judging from his remarks about his religious beliefs at the Chicago conference, it doesn’t seem likely that he’ll face such a dilemma. He also said bluntly that for him the constitutionality of the death penalty is not a “difficult and soul-wrenching question.” I find this morally troubling because I can’t help wondering how any human being could be called upon to decide life or death for his or her fellows and not break a moral sweat. But after reflecting upon Justice Scalia’s interpretation of chapter 13 of St. Paul’s Epistle to the Romans, which he explicated in Chicago, I understand why Justice Scalia never breaks a moral sweat as he upholds one death sentence after another. In fact, the way he interprets Romans 13 unveils one of his foundational religious beliefs, which has everything to do with the way he approaches death sentences.

Justice Scalia either has no knowledge of…biblical exegesis or he disagrees with it. His interpretation of Romans 13 is indistinguishable from that of fundamentalist preachers, who use this passage to argue that “God’s wrath on evildoers” not only justifies the death penalty, it demands it.

Scalia prefaced his remarks on the Epistle to the Romans by first drawing a crucial distinction between what is expected morally of Christian individuals and what is expected of governments:

“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….Few doubted the morality of the death penalty in the age that believed in the divine rights of kings, or even in earlier times. St. Paul had this to say… ‘Let every soul be subject unto the higher powers, for there is no power but of God. The powers that be are ordained of God. Whosoever, therefore, resisteth the power resisteth the ordinance of God…For he is the minister of God to thee for good. But if thou do that which is evil, be afraid, for he beareth not the sword in vain, for he is the minister of God, a revenger to execute wrath upon him that doeth evil.’”

Here’s how Justice Scalia interprets Romans 13:

“The core of [Paul’s] message is that government… 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…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, the Lord repaid — did justice — through his minister, the state.”

In selecting Romans 13 to drive home his theological position, Justice Scalia has exercised a high degree of selectivity. Anyone can flip through the Bible and find words to make a point; it’s called “proof texting,” and it salts and peppers death penalty discourse in the United States, especially on radio talk shows.

However, serious scriptural analysis of Paul’s Epistle to the Romans, which must take into account the political and social situation of Rome around 57 C.E. when Paul wrote the letter, yields an entirely different interpretation from Scalia’s. Did Paul really intend to give God’s unqualified endorsement to an empire that demanded worship of its emperor as a god (which for Christians was idolatry) and that in a few years under Nero would feed Christians to lions and set their pitch-covered bodies on fire to light night games in the Colosseum? If Scalia had turned to chapter 13 in the book of Revelation instead of to Paul’s Epistle to the Romans, he would have found words that scathingly denounce the Roman government as the “beast,” certainly not God’s appointed “minister.” Do the words “execute wrath…of the sword” refer — “unmistakably,” as Scalia claims — to government’s divine right to execute individuals?

The historical context of verse 2 in Romans refers not to crimes of individuals, but to “rebellion” or “riots” that had occurred in Rome among various Jewish sects, and had led Emperor Claudius to expel Jews from Rome a few years before Paul wrote his letter. Roman authorities regarded Christian Jews as one more extremist sect, and at least some Roman authorities remembered that their founder had been crucified by sentence of a Roman judge. Also in Rome’s volatile mix at the time Paul wrote the letter were widespread civil agitations due to the empire’s oppressive tax collection practices. No wonder then that Paul would admonish the Christian community to keep a low profile and subordinate themselves to the governing authorities. In his proof-texting mode, Scalia saw the words wrath of the sword and leaped to the conclusion that they refer “unmistakably” to government’s right to impose the death penalty on individuals. But careful literary analysis yields a far different interpretation. Why, if Paul was referring to capital punishment, did he not use the word rhomphaia (“broadsword”), which his readers would readily identify as the weapon used by the Romans to inflict capital punishment? Instead, Paul used the word machaira (“dagger” or “short-bladed knife”) widely interpreted as a symbol of Rome’s military authority to keep the peace, in much the same way that a police officer’s gun or badge represents “law and order” today. Nor, upon examination of the text, does the word “execute” in verse 4 (“execute wrath”) mean the infliction of capital punishment the way we use the term execute today.

In this text, execute means “to perform,” as in “execute the plan.” In fact, the verb execute is completely absent in the original Greek text and had to be added for the English translation to make sense. In light of serious biblical analysis, Justice Scalia’s interpretation of Romans 13, driven by his polemical bent, provides a hint of what we can expect when he interprets constitutional text.

In quoting this passage, Justice Scalia divides the spiritual legacy of Jesus into distinct jurisdictions: Government officials can kill with God’s blessing, but individuals can’t — which means that only individuals and not the state must take seriously Jesus’ teaching never to meet hatred with violent retaliation. But the early Christian community so internalized Jesus’ abhorrence of violence that they refused to join the military and understood that Jesus’ exhortation to love the “least” among us was to be practiced by social institutions as well as by individuals. They took to heart Jesus’ images, such as leaven in dough, by which he taught them to transorm the society in which they lived. Jesus’ challenge to his followers continues today. When governments oppress and deny people justice, Christians are expected to transform those governments, not blindly obey them as “God’s minister.” My friends in the Murder Victims’ Families for Human Rights say, “When the state kills, it kills in my name.” A passive population under a regime with the power to kill is fascism.

Justice Scalia’s facile identification of divine authority with government goes against the prophetic biblical tradition, which began with Moses’ resistance to the Egyptian pharaoh and his leading the Hebrews out of slavery. The first liberating insight of the Hebrew prophets was that social systems and their rulers had Yahweh’s blessing only if they practiced justice and cared for outcasts like the “orphan and the widow.” Scalia, however, identifies governments as God’s “minister,” no requirements asked, free to kill “enemies” at will — however they choose to define them.

Justice Scalia’s strict belief in the “doctrine of free will” underlies his absolutist view of individual responsibility. With God’s grace, he explained, every person may “resist temptations to evil,” a belief that is “central to the Christian doctrine of salvation and damnation.” He rejects the “post-Freudian secularist [who] is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.” He believes that this “secularist” mentality plays a key role in Europeans’ rejection of the death penalty.

Justice Scalia’s doctrine of absolute free will takes too little account of damaging experiences that befall human beings, such as sexual and physical abuse, alcoholic parents, drug addictions, abandonment, poverty, or mental retardation. For Scalia, few “mitigating circumstances” reduce individual culpability for crimes. His cold legal calculus scrutinizes only the individual’s act in isolation from personal history.

He sees as empty “excuses” any attempt to show that a human being who has been subjected to violence since childhood might one day explode into violence against others. Such a rigid approach makes compassion impossible.

Not only does Justice Scalia judge behavior out of all context, he reads the Constitution without acknowledging the influence of his own moral values, and he quotes Scripture without taking into account the historical situations its authors were addressing. Such compartmentalized thinking is the way machines work, not human beings.

“These passages from Romans,” Scalia writes, “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. 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 who at least obtained their thrones in awful and unpredictable battle….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…the domain of democracy. Indeed, it seems to me that the more Christian a country is, the less it is likely 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.”

Forgive me, but I’m flabbergasted at the arrogance of a man who says “death is no big deal” when it’s not his child who’s being put to death or his father, or his wife, or himself — personal catastrophes that he can’t imagine. I cannot recognize Scalia’s God, much less worship such a God. Who can kneel in awe before the “Lord of Armies,” a military God whose divine authority is recognizable not in democratic leaders, but in kings, of all people, so many of whom were venal, arrogant men who sacrificed thousands of lives in their petty wars?

Excerpted from the book: The Death of Innocents: An Eyewitness Account of Wrongful Executions by Sister Helen Prejean. © 2005 by Helen Prejean. Published by arrangement with Random House, an imprint of The Random House Publishing Group, a division of Random House, Inc.