U.S. Court Justice Gets Personal Over Death Penalty

Scalia Reiterates His Opposition to Church´s View

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WASHINGTON, D.C., FEB. 6, 2002 (Zenit.org).- Supreme Court Justice Antonin Scalia´s public declaration of independence from the Catholic Church on the death penalty reflects the vexing conflicts that justices confront as they grapple with the law and their personal beliefs.

Justices in the past have hinted at personal tension mainly in written court opinions, the Associated Press noted. Some have spoken more candidly about their families, religion and legal concerns — with mixed reactions.

“Every time we open our mouths, we come close to compromising what we do,” Justice Clarence Thomas told Virginia attorneys in 2000, after announcing he was limiting his speaking engagements.

Scalia talked extensively during public appearances this week in Washington, D.C., and last month in Chicago about his disagreement with the Church´s statements against the death penalty. He said judges who follow the philosophy that capital punishment is morally wrong should resign.

In recent years Pope John Paul II has spoken repeatedly against capital punishment, and the Church´s magisterium has insisted that recourse to the death penalty should be only as a last resort when there are no other ways for society to defend itself.

Scalia told Georgetown University students that the Church has a long history of endorsing capital punishment. “No authority that I know of denies the 2,000-year-old tradition of the Church approving capital punishment,” he said. “I don´t see why there´s been a change.”

In fact, Catechism of the Catholic Church doesn´t totally rule out recourse to the death penalty.

No. 2267 says: “Assuming that the guilty party´s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.”

It continues: “Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm — without definitely taking away from him the possibility of redeeming himself — the cases in which the execution of the offender is an absolute necessity ´are very rare, if not practically non-existent.´”

Scalia, a father of nine, including a priest, attended Georgetown as an undergraduate and later taught there as a visiting professor. He talked about the cultural move away from faith before answering questions from students.

In Chicago on Jan. 25, Scalia said, “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.”

Scalia said Monday that “any Catholic jurist (with such concerns) … would have to resign.” He added: “You couldn´t function as a judge.”

Other Supreme Court justices have also talked openly on that subject and others.

–“After 20 years on (the) high court, I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country,” Justice Sandra Day O´Connor said in Minnesota last summer.

–Justice Ruth Bader Ginsburg raised similar concerns in a speech last April. “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution applications in which the defendant was well represented at trial.”

–Justice David Souter told Congress in 1996 that “the day you see a camera come into our courtroom, it´s going to roll over my dead body.”

“They´re human,” said Jonathan Macey, a law professor at Cornell University. “To the extent that they own up to the fact that they have tugs on their viewpoints from nonlegal sources, I think it´s healthy.”

Abe Bonowitz, director of the Florida-based Citizens United for Alternatives to the Death Penalty, said, “it´s smarter for them to keep quiet, then people are kept wondering. People on both sides of the issue can have some hope.”

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