Some Mortal Questions on Justice Scalia and the Death Penalty

Editor's note: In his encyclical letter, Evangelium Vitae, Pope John Paul II sets a high standard for the administration of the death penalty. According to the Holy Father, the state "ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are rare, if not practically nonexistent."

The May 2002 issue of the journal First Things included an article by Supreme Court Justice Antonin Scalia titled "God's Justice and Ours." In the article, Scalia expressed his disagreement with the position of Pope John Paul II on the issue of the death penalty. First, according to Scalia, the Pope's position contradicts two thousand years of Church teaching because it repudiates retribution as a justification for the death penalty. Scalia contends that the death penalty is not, in principle, immoral, precisely because retribution is a sufficient moral reason for the punishment. However, although Scalia defends the permissibility of the death penalty in modern society, he does not go so far as to advocate the death penalty. Scalia argues that it would not be morally wrong or unjust for a state to administer the death penalty, but remains silent on whether it would be prudent or wise for a state to administer the death penalty. In Scalia's silence, Jorge Garcia speaks on the debate.

Justice Scalia is careful in his recent statements to say he does not advocate the death penalty. He does not argue or claim that our state (or any state?) should execute criminals. He limits his attention to the question of whether the death penalty is immoral and maintains that it is not. His distinction is well drawn. Scalia's argument that a society is not obligated to eschew execution does not entail that it should engage in executions. Still, Scalia is not as careful as he should be. After all, Scalia must think execution to be sometimes immoral, when it is disproportionate to the crime, for example. Insofar as Scalia "disagrees" with the position taken in the recent Vatican documents Evangelium Vitae and the modified version of the Catechism of Catholic Church, the issue cannot be whether execution is always (perhaps because inherently) immoral. Scalia thinks that execution is not always immoral, and the papal documents concur: "the Church does not exclude recourse to the death penalty." ¹ If Justice Scalia is correct to characterize himself as "disagree[ing with]" or, more strongly, as "reject[ing]" the newly formulated position, then the point of dispute must be over the circumstances in which execution is permissible and what makes it permissible in those circumstances.

On these related temporal and justificatory questions, both the encyclical and the Catechism are rather explicit. "The nature and extent of the punishment . . . ought not to go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent." ² "Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime . . . the cases in which the execution of the offender is an absolute necessity 'are very rare, if not practically nonexistent.'" ³ It is in the contemporary situations of modern society in that capital punishment can no longer be justified. What are the factors that have made execution, which is not in principle immoral, now unjustifiable? The encyclical, we saw, talks of "improvements in the organization of the penal system." Justice Scalia takes this to refer to recent reforms that have...