A Supreme Court Justice And A Public Defender's Opinions

Finishing up my book, I read two chapters, "God's Justice and Ours: The Morality of Judicial Participation in the Death Penalty" by Antonin Scalia as well as "The Problem of Forgiveness: Reflections of a Public Defender and a Murder Victim's Family Member" by Jeanne Bishop. It was quite an interesting read with both of these essays being diametrically opposed in many ways.

I will begin with Justice Scalia's essay. He structures his essay into two parts: the legal and the moral justification for the preservation of the death penalty. Scalia believes without a doubt that the Constitution is "dead" or enduring. Many propose that the Constitution is living in that its interpretation changes with the time. However, Scalia believes that the Constitution should be interpreted as when it was written. Therefore, capital punishment was permitted when the Eight Amendment (concerning cruel and unusual punishment) was adopted so it is permissible today. Scalia points out that because the constitution is dead and that Supreme Court Justices are only supposed to interpret it, any change regarding the death penalty must be pushed through Congress as they are the instruments of evolution. Moving on, Scalia says that the book's arguments, in which this essay is compiled, has nothing to do with how he votes but if he should be a judge at all. He writes, "The choice for the judge who believes the death penalty to be immoral is resignation" (234). Thus, Scalia, as a practicing Catholic, discusses if his faith dictates that the death penalty is immoral. He quotes from St. Paul and sums the passage up as thus, "The core of his message is that government -- however you want to limit that concept -- derives its moral authority from God" (235). Therefore, Scalia believes that the government has an authority derived from God that individuals do not have and that authority includes capital punishment. This seemingly contradicts the Evangelium Vitae in which the Pope declares that capital punishment, because of advances in penal system and thus less need for defense, is irrelevant and essentially non-permissible. Scalia believes that steady improvements in the penal system does not make the death penalty any less deserved for heinous crimes -- in fact, nicer and more humane prisons that are more characteristic of this century make the death penalty more necessary.
In regards to Scalia's essay, I had many problems with his logic. He believes that government is divinely inspired with God given authority but I take fault with that. The passage from St. Paul he quoted said nothing of governments but rather "higher powers" and "rulers". I don't think that necessarily referred to secular and fallible governments. There are all types of higher powers and rulers in the world, such as those in the church. How can Scalia decide what is a legitimate authority in the world and distinguish between a democracy such as ours in America and a democracy in Zimbabwe? Both are technically democracies and Paul gives us no directions in which to distinguish them. If Scalia cannot use Paul's words against Zimbabwe's "democracy" then he cannot use it for America's democracy. I also think that Scalia's argument was so obviously biased from the start as he even admits in the conclusion that if he had found the death penalty immoral, he'd have to quit his job and he really would not like to do that. Having this bias at the beginning truly limits where his logic can take him as he thinks about whether the death penalty is truly permissible morally and within his own church.
Jeanne Bishop's essay serves as a counterweight to Scalia's article. Bishop's pregnant sister, as well as her sister's husband, were brutally murdered in Chicago and the perpetrator was not given the death penalty as he was only 16, under the minimum age of 17. What makes Bishop's experience unique is that she was investigated for six months as a prime suspect and that trial eventually lead to her becoming a public defender, "Those hellish months taught me  an unforgettably lesson about the power of government over the individual" (266). Bishop realized how many mistakes can be made and how helpless the defendant can be. She even mentions Justice Scalia's referral of mistakes in death penalty cases as "foot faults", a tennis term for an accidental error of stepping out of bounds. Bishop remarks, "In a proceeding where human life is at stake, this use of a sports metaphor is inaccurate at best, callous at worst" (267). Bishop goes on to explain the false promises that the death penalty makes regarding closure, justice, deterrence, and the cost. She even goes on to make critical arguments against Scalia's essay. One of the most profound is against his argument that the church tradition (with the exception of Evangelium Vitae) has always allowed the death penalty. She says that while that may be the church's tradition, it is not Christ's tradition. Bishop notes that hate has become a creed of comfort in our society and even within our church. She ends her essay describing the scene of her sister's death, where she had written "love you" in her blood on the floor next to her executed husband as she died herself. Bishop recounts, "That was the moment, finally, when my mother cried in from of me. 'It's true, isn't it?' she asked. 'Love is stronger than death'" (276).
While Scalia's argument seemed biased, superficial, and unfaithful, Bishop's argument was thoughtful, convicting and selfless. One of the arguments she made in regards to the false promise of justice was especially convicting. Bishop writes, "Imagine if all my sister's killer could give me in return for my loved ones were his life. His life is not worth theirs" (268). Many have argued that justice is an eye for an eye and use that as reason for capital punishment. However, after reading Bishop's account, I realized that a loss of loved one will never be replaced in worth. Their murderer will never mean as much as the loved one did so why even have capital punishment? There are so many faults with the 'eye for an eye' argument, most already mentioned in my synopsis of previous chapters and this is just another one of them. I also enjoyed thoroughly her arguments against Scalia's essay as something in my gut told me they were not faithful and she articulated it perfectly. While her experience with capital punishment as both a family member of a victim as well as a public defender of murderers gives her a lot of legitimacy, she goes beyond that and makes valid points about how the death penalty could never be faithful to Christ.

Responsibility, Vengeance, and the Death Penalty

In the fallen world, the center is at the same time the boundary. Man stands between law and fulfillment. He has the law, but he cannot fulfill it. Now Christ stands where man fails towards the law. Christ as the center means that he is the fulfillment of the law. So he is in turn the boundary and the judgment of man, but at the same time the beginning of his new existence, its center. Christ as the center of human existence means that he is man's judgment and his justification.
Dietrich Bonhoeffer
Christ the Center


This quote by Bonhoeffer opened up Victor Anderson's essay entitled, "Responsibility, Vengeance and the Death Penalty" and sufficiently summarized much of Anderson's position on the death penalty. This becomes apparent towards the end of the essay. Anderson divides his position into the Divine command (a theology based on Karl Barth), Vengeance as a dark symbol (a theology based on Edward Farley), and the Responsibilist Approach (a theology based on H. Richard Niebuhr. With all of these theologies, he critically analyzes their positions and concludes what he sees as viable in answering  the question of the death penalty. Divine command ethics asserts that theology and ethics are intertwined as any ethics with philosophy as its basis brings about general human ethics which is "philosophically universalizable" (197). Barth does not want to ask "What is the good?" but rather "Who am I?" as this question will dictate what one should do or what the good is. Divine command ethics essentially has God alone at the center of moral life. However, the part of divine command ethics that interests Anderson is the idea of the divine yes versus the divine no. The divine yes is that God commands us to live and to be. The opposite of this is death and vengeance as the divine no. Anderson and Barth both believe that God has used the divine yes more than the divine no. Anderson writes, "For Christian ethics, this priority of the divine yes over no suggests that God acts for humanity as the gracious God who commands the creature to live and be" (198). This theology of the divine no demands that we act in mercy in grace as God has. However, much to Anderson's dismay, Barth finds room for the death penalty in this theology: in the case of treason or tyranny. Anderson wonders why grace, mercy, and God's judgement in Jesus Christ is not extended to the tyrant and traitor. Anderson moves on to discuss Vengeance as a Dark Symbol. He reiterates Farley's ideas that vengeance is co-present with the idea of justice. Justice regulates vengeance so it does not overtake the entire social order. Vengeance works as a dark symbol in our lives in that they, "sustain, enchant, and empower forms of community that often rival the best intentions of Christian community" (204). The divine yes brings forth the triumph of grace over vengeance, a dark symbol that can poison our mission to build Christian community on this earth. Niebuhr proposed the responsibilist approach to the death penalty. This theology is not about command or obedience, but rather responsibility. Humans are in constant dialogue with each other, answering action committed onto them. This is where the Bonhoeffer quote is brought into the discussion by Anderson, "I take this to mean that Christ has already stood in both the judgment of every person and in justification of all. As I understand the gospel, this judgement is unrepeatable, for it was once and for all a judgement of death" (209). Therefore, we should respond to any action done upon us with mercy instead of judgement. The theme of our dialogue with the world should be mercy and grace.
I appreciated the divine command ethics in its reframing the question from "what is the good?" to "who am I?". It addresses the same question that many previous authors have touched on in this book in discussing the theoretical foundations of arguments we make or "moral anthropology". I think we can easily get lost in superficial arguments in regards to fallibility of convictions or defense of society without really understanding the moral presuppositions that we are putting forth. By asking "who am I?" instead of "what is the good?" we don't waste time arguing about what the good is which will never be similar to someone who didn't believe in the same answer as you as to "who am I?".  Moving on to the divine yes and divine no, while it sounds great it seems less defendable and substantiated by actual evidence. Even if you could count how many times God used the divine yes and the divine no, it is easy for someone to point out that some divine yes's or divine no's may be worth more than others. This argument seems to subjective to hold up in an argument for a long time. It is nice to say that God uses the divine yes more than the divine no, but I don't think the argument will hold if you dig much deeper than that. I would not use this argument when seriously discussing why I  am against the death penalty as I think other reasons are far more defensible.